Raghunath S/O Aman Singh vs The State Of Nct Of Delhi [Along ...
2004 Latest Caselaw 1280 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Appellants Amit and Raghunath were charged of having, in furtherance of a common intention, kidnapped the prosecutirx, 'JK' from the bus stop of Willingdon Crescent on 15.7.1999 with the intention that she may be forced to have sexual intercourse with appellant Amit thereby committing an offence under Section 366 IPC read with Section 34 IPC. They were also charged of having, in furtherance of their common intention, given some stupefying substance to 'JK' with intent to facilitate the offence of kidnapping thereby committing an offence under Section 328 IPC read with Section 34 IPC.

2. Appellant Amit was charged of having committed rape upon 'JK' and thus having committed an offence under Section 376 IPC. He was further charged of criminally intimidating and giving threat to 'JK' that in case rape was narrated by her to anyone, he would kill her and her family thereby committing an offence under Section 506 IPC.

3. At the end of the trial in Sessions Case No. 18/2000, both appellants were acquitted of the charge of having committed an offence under Section 328 IPC read with Section 34 IPC. The two were, however, convicted of the other offences charged of. The conviction is vide judgment dated 14.8.2001. Sentence imposed is vide order dated 16.8.2001. Both have been sentenced to undergo 7 years' RI with fine of Rs. 2,000/-, in default, RI of one year for having committed the offence punishable under Section 366 IPC. Appellant Amit has been awarded 10 years' RI with fine of Rs. 4,000/-, in default, RI for 2 years for having committed the offence under Section 376 IPC. RI of 2 years being convicted under Section 506 IPC has also been awarded. Needless to state, sentence imposed upon appellant Amit have been ordered to run concurrently.

4. Appellants, by and under the two appeals challenge their conviction.

5. In brief, case of the prosecution was, that in furtherance of a common intention, appellants kidnapped prosecutrix, 'JK' in the afternoon of 15.7.1999 from the bus stop of Willingdon Crescent. She was made to drink tea laced with a stupefying substance. She was taken to Amit's jhuggi near Venketshwara College. She was coxed to marry appellant Amit. She refused. She was re-administered a stupefying substance and was taken outside Delhi where she was again compelled to marry Amit. She was repeatedly given a stupefying substance. She was extended a threat that if she did not marry Amit, her family members would be killed. She was subjected to forcible sexual intercourse by Amit. She was brought back to Delhi till she was recovered from the jhugi of the accused persons on 5.8.1999.

6. As noted above, charge of having committed an offence under Section 328 IPC read with Section 34 IPC has been held not to be proved. State has not challenged the acquittal of the appellants of having committed said offence. Said acquittal has attained finality and accordingly I would be considering the issues raised in the 2 appeals in the context of the conviction sustained, of course, taking note of the fact that charge under Section 328 IPC read with Section 34 IPC has failed.

7. Machinery of the law commenced with PW-4, Gulzar Singh, father of the prosecutrix 'JK' reporting to the police of PS Mandir Marg at about 7.50 P.M. on 15.7.1999 that his daughter 'JK' aged 21 years who was working in Banwari Hospital as a Laboratory Assistant, as usual left for work at 8 A.M. in the morning. Due to her not feeling well, she left the hospital at 3 P.M. but had not reached home. Said report recorded vide DD-13A (Exhibit PW-2/A) formed the basis on which FIR No. 340/99 dated 15.7.1999 under Section 365 IPC was registered at PS Mandir Marg. For record it be noted that DD No. 13-A and the FIR were proved by PW-2 HC Tarseem Singh as Exhibit PW-2/A and Exhibit PW-2/B respectively.

8. Recovery of the prosecutrix, 'JK' from the jhuggi of the appellants on 5.8.1999 has been proved by the testimony of PW-4, prosecutrix 'JK', who appeared as PW-3, PW-13, Lady Constable Ashu and SI Bhup Singh, PW-14. Their testimony establishes that on 5.8.1999, prosecutrix 'JK' was recovered from the jhuggi near Venkateshwara College, Dhaula Kuan.

9. On the date she was recovered from the jhuggi i.e. 5.8.1999, prosecutrix was sent for medical examination at about 4.50 P.M. to Lady Harding Medical College where she was medically examined by PW-1, Dr. S. Bajaj.

10. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. on 7.8.1999 by Sh.V.K. Sharma, MM who was examined as PW-11.

11. There are no eye-witnesses who deposed to the factum of kidnapping, rape and threat and the only testimony on this count is the testimony of the prosecutrix.

12. Before I analyze the evidence, let me instruct myself on the law. A prosecutrix is not an accomplice. Conviction can be sustained on the uncorroborated testimony of a prosecutrix provided the same has no loose ends and is otherwise worthy of credence. In a rape case, evidence of the prosecutrix has to be given due weight. However, there must be fairness to the accused as well. As held by their Lordships of the Supreme Court in the decision reported as 2003 AIR SCW 154 Sudhansu Sekhar Sahoo Vs. State of Orissa (Para 9):

"In a criminal case, the court has to consider the trangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public life."

13. In para 9, their Lordships observed that to render conviction in a sexual offence case on the sole testimony of the victim, it must be ensured that the testimony is reliable and worthy of acceptance.

14. Another caveat may be noted by me. Absence of injury on the person of the prosecutrix, by itself is no ground to rule out forcible sexual intercourse. Every person reacts differently when confronted with a situation. A lady may submit herself under fear.

15. Let me proceed to now consider the evidence on record and see whether the evidence of the prosecutrix inspires confidence and is natural and truthful. Let me see, if there is lack of confidence in the evidence of the prosecutrix; whether there is some other evidence which lends some assurance (not corroboration) that the prosecutrix has made a truthful statement.

16. Examined as PW-3 'JK' stated that she was born on 30.6.1978, was 12th pass and had a diploma. She knew Amit who was her brother's friend. Amit used to live in the servants quarter of the building where she lived with her parents. She was employed as a Lab. Technician in Banwari Charitable Hospital in Panchkuia Road. Not feeling well she left the hospital on 15.7.99 at 2.30 P.M. She used to change the bus at crossing of Willingdon Crescent. While she was standing at the bus stop, Amit and his parents came and enquired about her health. They stopped a TSR and asked her to accompany them as they were going in the same direction. She went with them as she knew them. Since she was not feeling well they offered her tea midway. After taking tea shfelt sleepy and closed her eyes. When she opened her eyes she found herself in the jhuggi of Amit near Venketeshwara College, Dhaula Kuan. His parents were not there at that time. Amit intimidated her that if she did not marry him he would cause harm to her as he knew Tantrik Vidya. She declined. He took out an idol and burnt something. In the meantime his parents came and pressurised her to marry Amit. She got frightened. Amit gave her some while substance to drink. She refused. At that his prents threatened that they would cause harm to her and her family members. Under fear she took the substance. After sometime she felt giddy. Amit told her that he would drop her home if she went with him without raising any alarm. She followed him some distance he stopped a TSR and he Along with his parents took her to a place which looked like a railway station. Thereafter she slept due to influence of the white substance. When she awoke, she found herself in a jhuggi. Amit and his parents were there. They told her that the place was their village. Mother of Amit pleaded that she should be left back with her parents but the accused did not listen. She was detained in the jhuggi by the accused who locked the same from outside. He came back alone at night and committed rape on her. Amit raped her several time in the jhuggi. One day she heard some people talk that her parents had come to know about her whereabouts, after that Amit told her to forget everything and promised to take her back to Delhi. He gave her something to drink. She felt giddy. Amit and his parents brought her to Delhi and took her to their jhuggi at Delhi. After sometime police came and recovered her. At that time Amit's father was not there.

17. Statement of 'JK' was recorded under Section 164 Cr.P.C. before Sh.V.K. Sharma, M.M., Delhi on 7.8.1999. In said statement (Ex.PW-11/B), 'JK' stated:-

"Accused Along with his family members used to reside in the Servant Quarters of our S.P. Marg Flats since 1996. Accused Amit developed friendship with my younger brother, Jiwan Singh. As the family members of the accused used to do BHAJAN KIRTAN, hence I also attended some of the BHAJAN KIRTAN at their residence. On 15.7.99 when I reached to my office Banwari Lal Cheritable Hospital, Punchkuian Road, I was not feeling well and at about 2.30 p.m. after taking leave from my senior officers, I left for mresidence. When I was standing, as usual, at the bus stop of Willingdon Crescent for catching a bus, accused Amit Along with his father came and asked me that why she is standing there. When I told him that I am not feeling well, he offered a lift in A to Rikshaw Along with his father. On the way after stopping the auto rikshaw, he offered me tea. After taking tea, I become semi-unconscious on which accused took me to his jhuggi to Dhaula Quan at Venkteshwar College. After some time when I regains consciousness, I found alone in the jhuggi of accused and accused was standing there. He told me that he knows Tanter Vidhya. When I found myself helpless with him in his jhuggi, he offered me a milk type liquid on which I became unconscious. After that he took me somewhere in a village and compelled me to marry with him. When I objected he threatened me to be killed and he also threatened my other family members to be killed by extending a threat that as he knows tanter Vidhya, he can kill any one. Healso threatened me to keep silence and not to make any attempt to fled. I under the threat and duress remained there for about 10/15 days in his jhuggi in some village. He also obtained my signatures on some affidavits and also forcibly married with me. He also had forcible intercourse with me in the night or about 8/10 days against my will. He kept me rapping under the threat and pressure.

Q. Do you want to say anything else?

Ans. As accused has forcibly raped me against my will under the threat, hence, he should be punished severely."

18. 'JK' was examined by PW-1, Dr. S. Bajaj on 5.8.1999 at 5.10 P.M. As per MLC, PW-1/A, 'JK' was normal. She had no external injury on her body. She had an old hymenal tear. Vaginal examination admitted of two fingers examination. Accused Amit was examined by Dr. Raj Rajan of RML Hospital. MLC report being Ex.PW-9/A shows that he had no injury on his body and was capable for performing sexual intercourse.

19. PW-4, Gulzar Singh, father of 'JK' stated that prosecutrix was his daughter and was aged 22 years (On date of his statement recorded in court on 2.11.2000). His daughter used to come back from her work place at about 5 P.M. On 15.7.1999 when she did not return home by 5.15 P.M. his wife rang him in his office upon which he rushed home and went to Banwari Charitable Lab at Panchkuia Road and learnt that his daughter had left at about 3.30 P.M. He lodged a report with PS Mandir Marg that his daughter was missing. On 17.7.1999 an anonymous caller informed him that accused persons had taken his daughter. He enquired from the workplace of accused Raghunath and learnt that he was absent from 15.7.1999. He got the hometown address of Raghunath from his previous employer. On 18.7.1999 he accompanied the police party to Raghunath's village in U.P. They learnt that Raghunath had not come there. On 25.7.1999 somebody informed him about presence of Raghunath in Sonepat. When he and the police party reached Sonepat, Raghunath had escaped. He Along with the police went to the native village of wife of Raghunath in Bihar and learnt that accused persons had visited there but had left. On 5.8.1999 accused were apprehended by the police near Venketeshwara College where they lived and his daughter was recovered from there.

20. PW-14 SI Bhoop Singh stated that he was the investigating officer. He made efforts to trace the prosecutrix at different places. On 5.8.1999, on basis of secret information they reached the jhuggi of the accused near Venketeshwara College and recovered the prosecutor and apprehended the accused Amit. On 17.8.1999 he received a message from the police at Sonepat that they had detained Raghunath. He went to Sonepat and arrested him.

21. Age of accused Amit as per MLC Ex.PW-9/A is recorded as 24 years. That of prosecutrix as per MLC Ex.PW-1/A is recorded at 21 years. As per her statement she was aged 21 years when incident took place. As per her statement, Amit was known to her as not only he used to reside in the servants quarter of same building where she resided but was also a good friend of her brother. Possibility of the two developing intimacy cannot be ruled out.

22. Appellants have been acquitted of having committed an offence under Section 328 IPC. Acquittal has attained finality. I must therefore proceed ignoring the statement of the prosecutrix having been administered a stupefying substance while evaluating the testimony of the prosecutrix. Even otherwise the version of what happened on 15.7.99 till 5.8.1999 is full of improbabilities. She states that she left her place of work after taking leave at around 2.30 P.M. since she was not feeling well. Obviously, this was not the routine time when she left her work place. If the accused, indeed met her at the bus stop, it had to be a chance meeting. If that was so, it is highly unbelievable that accused had with them a stupefying substance. She says that in the way they gave her tea. Were they carrying tea with them in a container and that too laced with a stupefying substance? They had obviously met her, per chance. Why should the accused be moving around with tea laced with a stupefying substance? I her deposition in court she stated that they gave her tea midway. In her statement recorded under Section 164 Cr.P.C. she stated that they stopped the TSR and gave her tea. I would take her version to be that the tea was purchased midway. She does no say where. It is highly improbable that having accepted the offer to be dropped home, prosecutrix and the accused would stop enroute to have tea more so when the prosecutrix being unwell would naturally like to be home at the earliest. She says that after taking tea she felt sleepy and was taken to the jhuggi of the accused. Would her walk not have roused the suspicion of the TSR driver when she walked off with the accused at the destination. She remembers that at night she was taken by the accused of a railway station and from there to the village of the accused. But she says that she was drugged. Nobody at the railway station would have noted a drugged lady, sounds a little incredible. If she remembers being taken in a TSR and also remembers being taken to a railway station, it is evident that prosecutrix had adequate level of consciousness in spite of the stupour (if any). She was 21 years of age. She was 12th pass. She had a diploma. She was a working lady. She knew that she was kidnapped. She was being taken in and around public places. She raised no hue and cry. None from the public at a railway station noticed a stupefied lady. She remained at the village of the accused before being brought to Delhi. In her statement in court she does not give the number of days she stayed in the village but in her statement recorded under Section 164 Cr.P.C. she says that it was 10-15 days stay. She says that she was forcibly kept in a jhuggi. Where did she answer the call of nature all these says. Inside the jhuggi? Highly improbable. If outside, none in the village noticed her? She says in her deposition the reason why the accused brought her back to Delhi. In her words:

"One day I heard the talks of some people outside that my parents have come to know about my whereabouts. After that accused Amit entered the jhuggi and told me that whatever had happened I should forget and promised me to take me back to Delhi. He gaveme something to drink. Thereafter, I again felt giddiness and drowzy. The accused Amit and his parents brought me back to Delhi."

23. If the villagers had learnt that prosecutrix was kidnapped and her parents had learnt about her being confined in the village and were talking about it, which talk was heard by the prosecutrix, why would somebody not inform the police? Why did the prosecutrix not raise a hue and cry when she heard the talk? She is categorical that she was alone when she heard people outside talk about her parents coming to know that she was there. In her deposition she categorically deposed that when she was taken to the village:

"I was kept detained in the said jhuggi by the accused after locking the same from outside. He came back alone at night and committed rape upon me."

24. Highly unnatural for the accused to leave the prosecutrix unguarded in the jhuggi, all alone by herself.

25. I have noted above, statement of the prosecutrix recorded under Section 164 Cr.P.C. In said statement she did not utter a word about the railway station or that in the village she heard people talk that her parents had learnt about her presence in the village. In said statement, the prosecutrix did not name the mother of the accused Amit as being present on any day, but in her deposition in court, her statement is repleat with her alleged conversation with the mother of Amit. Further, in her statement recorded under Section 164 Cr.P.C. She named accused Raghunath as being present only once, when she was taken in the TSR from the bus stop, but in court she deposed to his presence at other places.

26. MLC of the prosecutrix shows that hymen was having an old tear. Vagina admitted 2 fingers. No external injury was noted. Prosecutrix and Amit were known to each other. Sex by consent cannot be ruled.

27. The story of intoxification, kidnapping, threat and coercion, on the facts on record is highly improbable. Unfortunately, the broad probabilities of the case have not been considered by the Sessions Court. The broad contours of the case of the prosecution themselves cast a serious doubt on the prosecution case. Though there is no motive for the prosecutrix to falsely implicate the accused, it may be that she changed her mind when she was finally found by her father and she knew that her conduct was known to the family.

28. On a consideration of the broad probabilities of the case, I am of the view that various factors cast a serious doubt about the genuineness of the story of 'JK' that she was kidnapped and forcibly ravished. The appellants are entitled to the benefit of doubt.

29. Appeals are allowed. Impugned judgment dated 14.8.2001 is set aside. Order of sentence dated 16.8.2001 is quashed.

30. Copy of this judgment be sent to the Superintendent, Central Jail, Tihar.