Avadh Bihari vs The State (Nct Of Delhi)
2010 Latest Caselaw 1999 Del

                           High Court of Delhi At New Delhi

                           Crl. Appeal No. 8/2009



                                        Date of Decision: April 19th , 2010

       Avadh Bihari                                         ... Appellant

                                        Through: Mr. Ajay Verma, Adv.



                           Versus

       The State (NCT of Delhi)                             ... Respondent

                                        Through: Mr. Navin Sharma, Adv.

       Coram:

       HON'BLE MR. JUSTICE S.L. BHAYANA

       1. Whether reporters of local paper may be allowed to see the
       judgment?                                   Yes

       2. To be Referred to the reporter or not?     Yes

       3. Whether the judgment should be referred in the Digest?          Yes



       S.L. BHAYANA, J. (Oral)

This appeal has been filed by the appellant against the judgment passed by

learned Additional Sessions Judge (ASJ) dated 7.11.2007 wherein the learned trial

Court has convicted and sentenced the appellant u/s 376 IPC to undergo R.I. for 7

years and to pay a fine of Rs. 1000/- and in default of payment of fine to further

undergo R.I. for 1 month. The appellant has also been convicted and sentenced u/s

506 IPC to undergo R.I. for 3 years and to pay a fine of Rs. 1000/- and in default of

payment of fine to further undergo R.I. for 1 month. The trial Court further ordered

that both the sentences shall run concurrently.

2. Brief facts of the prosecution case are that prosecutrix came to Delhi along

with her husband on 15.9.2006 and they started staying at the house of her husband's

brother-in-law. It is further alleged that the appellant Avadh Bihari and the husband

of the prosecutrix namely Dinesh were working together in the canteen of Haryana

Roadways Depot at village Dhaka. This canteen was being run by the brother-in-law

of Dinesh. On 3.10.2006 Avadh Bihari and Dinesh left the job of the said canteen and

were looking for some other house for the stay. Dinesh received information from

his village that his mother is unwell, therefore, he had to leave for his village. Avadh

Bihari, appellant, took Dinesh and his wife to the house of his relative near Chetan

Behari Mandir, Kamal Pur, Burari, Delhi. The prosecutrix started living at the said

house along with her husband. Avadh Bihari was also staying in the same house.

Her husband Dinesh left for his native village to see his ailing mother leaving behind

the prosecutrix. It is further alleged that on 4.10.2006 at about 11.30 p.m. when

prosecutrix was sleeping in her room, the appellant who was also staying in the

room on the 2nd floor in the same house entered the room of the prosecutrix and

committed rape with her. When she raised alarm he gagged her mouth and

committed rape against her will. On 6.10.2006 Dinesh husband of the prosecutrix

came back and she narrated the whole story to her husband who then reported the

matter to the police and lodged the complaint against the appellant. The appellant

was arrested by the police in this case. Statement of the prosecutrix was also

recorded u/s 164 Cr.P.C. by learned Metropolitan Magistrate.

3. Charge for the offence punishable u/s 376/506 (ii) IPC was framed against the

accused to which accused pleaded not guilty and claimed for trial.

4. During the course of trial, prosecution in support of its case has examined 10

prosecution witnesses. PW-7, the prosecutrix is the Star Witness. She has deposed

before the Court that she came to Delhi from her native village with her husband

Dinesh on 15.9.2006. She stayed at the house of her sister-in-law (Nanand) namely

Smt. Mithlesh, w/o Om Vir, at village Dhaka Gaon, Delhi and stayed there till

2.10.2006. Her Nandoi was running a canteen in Haryana Roadways Depot. Accused

Avadh Bihari and her husband were working in the said canteen. A telephonic call

from her native village was received by Omvir about the illness of her mother-in-law

on 2.10.2006. Accused Avadh Bihari arranged a room for them in a colony at Chetan

Bihari Mandir, Kamalpur, Delhi. Her husband took her in the room which was on the

first floor as arranged by accused Avadh Bihari. The owner of the house was

Mahavir who was brother-in-law of Avadh Bihari. Her husband left her in the said

room and went to his native village on 3.10.2006. She remained in the aforesaid

room from 3.10.2006 to 7.10.2007. House owner Mahavir and his family was residing

at the ground floor. On 3.10.2006, when she was sleeping in her room at first floor,

accused Avadh Bihari came inside her room and he laid upon her and when she

raised alarm he gagged her mouth and took off his pant and underwear and

committed rape upon her without her will and consent and thereafter accused Avadh

Bihari ran away from there. Accused Avadh Bihari threatened her not to disclose

anyone about the said incident. Her husband came on 7.10.2006 and she narrated

the entire incident to him. She along with her husband went to P.S. Burari where her

statement was recorded by the police at about 8.a.m. which is Ex. PW.7/A. Her

statement was recorded by learned Metropolitan Magistrate u/s 164 Cr.P.C., which

is Ex. PW.7/B. She was medically examined by the Doctor at the hospital. Her red

colour patticoat was taken into possession by the Doctor which is marked as Ex.P-1.

PW-1, Dr. S. Lal, has examined the accused Avadh Bihari. PW-2, Dr. Anubha has

examined accused Avadh Bihari and she prepared MLC of the accused Avadh Bihari.

On the same day, she also examined the prosecutrix, aged about 20 years with the

alleged history of rape as told by the patient on 6.10.2006 and 7.10.2006 at Kamal

Vihar, Delhi. Her MLC was prepared. The statement of PW-3, HC Khem Singh was

also recorded. PW-5, Mahavir has deposed before the Court that Dinesh and his

wife requested him to give one room on rent. On 4.10.2006 Dinesh went to his native

village on account of the illness of his mother and the prosecutrix remained alone in

the house for two days. She remained in the house for 5/6 days. Accused Avadh

Bihari also remained in his house and used to sleep in one room on the roof of the

house. He was declared hostile by learned APP as he did not support the case of the

prosecution. PW-8, Pale Ram, Medical Record Clerk, brought the record of MLC of

the prosecutrix. PW-9 W/ASI Mithlesh is the I.O of this case. PW-10, Ms. Nirja Bhatia,

is the learned MM, Delhi who has recorded the statement of the prosecutrix u/s 164

Cr.P.C. After recording the statement of ten witnesses the prosecution evidence was

closed. Thereafter, statement u/s 313 Cr.P.C. of the accused Avadh Bihari was

recorded. The allegations of the prosecution were put to the accused which were

denied by the accused Avadh Bihari and he claimed to be innocent.

5. I have heard learned counsel for the parties and perused the record.

6. Learned counsel for the appellant submitted that in the statement recorded

u/s 164 Cr.P.C. before learned Metropolitan Magistrate the prosecutrix has deposed

that her husband left Delhi and went to his village on 4.10.2006 leaving her alone in

the rented accommodation whereas in her statement made before the Court she has

deposed that her husband left for village on 3.10.2006 and he remained in the village

up to 7.10.2006. She has deposed before learned trial Court that on 3.10.2006

accused Avadh Bihari committed rape with her at about 11.30 p.m. when she was

alone in the house. Whereas in the statement made before learned Metropolitan

Magistrate u/s 164 Cr.P.C she has stated that the accused Avadh Bihari came to her

room on 4.10.2006 and committed rape with her. Whereas in the MLC Ex. PW/2B

and Ex. PW-8/A she has told to the Doctor that accused Avadh Bihari committed rape

with her on 6.10.2006 and 7.10.2006. This fact has been confirmed by PW-2, Dr.

Anubha, Medical Officer, who has deposed before the Court that the prosecutrix had

given alleged history of rape on 6.10.2006 and 7.10.2006 at Kamal Vihar, Delhi which

is mentioned in the MLC by her. Learned counsel for the appellant submitted that

there are three versions of rape given by the prosecutrix. One version is that rape

was committed on 3.10.2006. Second version is that rape was committed on

4.10.2006 and the third version is that rape was committed by the accused Avadh

Bihari on 6.10.2006 and 7.10.2006. Learned counsel for the appellant states that on

7.10.2006 the husband of the prosecutrix Dinesh returned to Delhi and the question

of committing rape by the accused Avadh Bihari on 7.10.2006 does not arise.

Whereas the prosecutrix has told to the Doctor that accused Avadh Bihari committed

rape with her on 6.10.2006 and 7.10.2006. These contradictions appearing in the

statement of the prosecutrix go to the root of the case and the accused is liable to

acquitted. She has implicated the accused at the instance of her husband in this case

falsely. Learned counsel for the appellant further submitted that PW-2, Dr. Anubha,

who had examined the prosecutrix has stated before the Court and has also

mentioned in the MLC that there was no external injury found on the breast, thigh,

perineum and vulva which further confirms that no rape was committed by the

appellant with the prosecutrix. The prosecutrix in her statement submitted that

when accused Avadh Bihari was trying to commit rape upon her she raised an alarm

and also resisted. Thereafter accused gagged her mouth. Had the prosecutrix

resisted at the time of rape there must have been external injuries found on her

breast, thigh, perineum and vulva and other parts of the body but in this case, PW-2,

Dr. Anubha, has confirmed that no fresh injury was found on the body of the victim.

So it is a false case and the appellant has been falsely implicated in this case.

Learned counsel for the appellant has further drawn my attention to the joint

photograph of the accused Avadh Bihari and the prosecutrix which are marked as

DX and DY and in these photographs the prosecutrix has been shown in the arms of

the accused Avadh Bihari in Mark-DX whereas in Mark- DY the appellant is sitting

and the prosecutrix is keeping her hand affectionately on the shoulder and the back

of the accused Avadh Bihari which further shows that the prosecutrix was having a

love affair with the appellant and when her husband came to know about this love

affair she has falsely implicated the accused in this case. Learned counsel for the

appellant has further submitted that PW-7, prosecutrix has further deposed before

the Court that there was no door in the room whereas PW-5, Mahavir, who is the

owner of the house, has deposed before the Court that the room in which Dinesh's

wife was staying as tenant was well furnished and having door and windows. So the

statement of the prosecutrix that there was no door in the room stands falsified by

the statement of owner of the house PW-5, Mahavir. Learned counsel for the

appellant further submitted that in the statement made before learned Metropolitan

Magistrate u/s 164 Cr.P.C., Ex- PW-7B, the prosecutrix has stated that her husband

came to Delhi on 6.10.2006 and she narrated the whole incident to her husband. He

telephoned at 100 number immediately and police came and recorded her

statement. Whereas PW-7, prosecutrix in her examination-in-chief has stated before

the trial Court that her husband came to Delhi on 7.10.2006 and she narrated entire

incident to him. Thereafter she along with her husband went to P.P. Burari and

narrated the incident before the police where her statement was recorded by one

lady police official, which is Ex-7/A. Whereas PW-9, W/ASI Mithlesh, has stated

before the Court that on 8.10.2006 at about 8 a.m., prosecutrix along with her

husband Dinesh came to the police station. She recorded the statement of the

prosecutrix, which is Ex. PW-7/A. So there is contradiction in all the three

statements regarding the dates of arrival of the husband of the prosecutrix. In her

statement u/s 164 Cr.P.C. she stated that on 6.10.2006 they telephoned the police,

police came and recorded her statement; whereas in her examination-in-chief she

stated that her husband reached Delhi on 7.10.2006 but she does not mention about

calling police at 100 number and she only stated she went along with her husband to

the police station on 7.10.2006 and made statement whereas the I.O says the

prosecutrix and her husband came to the P.P. Burari only on 8.10.2006. So these

contradictions in the statement of the prosecutrix are very serious in nature and the

accused is liable to be acquitted. She has further deposed before Metropolitan

Magistrate that on 6.10.2006 when her husband came they telephoned police. Police

came and arrested accused Avadh Bihari. Whereas PW-9, W/ASI Mithlesh has

stated before the Court that after recording statement of the prosecutrix on 8.10.2006

only she arrested accused Avadh Bihari. This contradiction is of serious nature and

goes to the root of the case.

7. I have heard learned counsel for the appellant as well as learned APP for the

State and also perused the record. I have also gone through the statement of the

prosecutrix who has deposed before the Court that the accused Avadh Bihari has

committed rape with her on 3.10.2006. I have also gone through the statement of the

prosecutrix recorded u/s 164 Cr.P.C in which she has deposed that the accused has

committed rape with her on 4.10.2006 whereas PW-2, Dr. Anubha, Medical Officer,

has deposed before the Court that the prosecutrix had herself told her that the

accused had committed rape with her on 6.10.2006 and 7.10.2006. The prosecutrix

has given three versions with regard to the committal of rape with her by the

accused. This contradiction which has appeared in the statement of the prosecutrix

is very serious in nature and cannot be ignored. In her statement made before the

Police she has stated that her husband came back from the village on 6.10.2006

whereas she has stated before the Doctor that accused has committed rape upon her

on 6.10.2006 and 7.10.2006. This is not only improbable but it is impossible because

the prosecutrix was staying with her husband in the same room whereas in the

statement made before the Court she has stated that her husband came back on

7.10.2006 and she narrated the aforesaid incident to her husband. She went to P.P,

Burari where her statement was recorded by a lady police official whereas in the

statement made before learned Metropolitan Magistrate under section 164 Cr.P.C.

she has stated that the accused has committed rape upon her on 4.10.2006 and she

then told the entire incident to her husband who came from the village on 6.10.2006

and immediately her husband gave a telephone call at 100 number and the police

came and recorded her statement. The statement of the prosecutrix is contradicted

by I.O Mithlesh, PW-9, who has deposed before the Court that on 8.10.2006 she

recorded the statement of the prosecutrix at about 8 p.m., which is Ex. PW-7/A.

According to the prosecutrix her husband has come to Delhi on 6.10.2006 whereas

the report was made to the police on 8.10.2006. There is delay of two days in

making the report to the police. Although the prosecutrix has narrated the entire

incident to her husband and her husband called police at 100 number and her

statement was recorded by the police then and there but the stand is contradicted

by the I.O who has deposed that prosecutrix Sonu and her husband Dinesh came to

the police station, Burari on 8.10.2006 at about 8 p.m. when her statement was

recorded by her. Since the statements of the prosecutrix are full of contradictions

and discrepancies I have come to the conclusion that the statement of the

prosecutrix is neither trustworthy nor reliable. Moreover, there is delay of two days

in informing the police about this incident by the prosecutrix. I have seen the joint

photograph of the accused Avadh Bihari and the prosecutrix which are marked as

DX and DY and in these photographs the prosecutrix has been shown in the arms of

the accused Avadh Bihari in Mark-DX whereas in Mark- DY the appellant is sitting

and the prosecutrix is keeping her hand affectionately on the shoulder and the back

of the accused Avadh Bihari which further shows that the prosecutrix was having a

love affair with the appellant and when her husband came to know about this love

affair she has falsely implicated the accused in this case.

8. Keeping in view the discussion made above, I have no hesitation in holding

that the prosecutrix was having love affair with the appellant and she had sex with

the accused with her own consent and free will. The prosecution has failed to prove

its case beyond reasonable doubt that accused has committed rape with the

prosecutrix. The accused is therefore given benefit of doubt and therefore ordered

to be acquitted.

Let a copy of this judgment be sent to the Jail Superintendent immediately.

April 19, 2010                                                  S.L. BHAYANA, J.
Kb