Delhi High Court

Mohd Bilal Qureshi vs State on 3 June, 2016

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                  Date of Decision: 3rd June, 2016
+        CRL.A. 327/2015
         MOHD BILAL QURESHI                                  ..... Appellant
                         Through:            Mr.Rajesh Kumar Kadyan,
                                             Advocate

                                 versus

         STATE                                                ..... Respondent
                                 Through:    Mr.Akshai Malik, APP
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
                                 JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to a judgment dated 12.09.2014 of

learned Addl. Sessions Judge, Delhi in Sessions Case No. 27/14 arising

out of FIR No. 113/14 PS Sadar Bazar by which the appellant Mohd.

Bilal Qureshi was convicted for committing offences under

Sections 366/376(2)(n)/506 IPC. By an order dated 12.09.2014 he was

sentenced to undergo various prison terms.

2. Briefly stated, the prosecution case as set up in the charge- sheet

was that the appellant repeatedly committed rape upon 'X' (assumed

name) against her consent. Written complaint (Ex.PW-2/A) lodged by 'X'

on 28.02.2014 formed the basis of First Information Report registered on

same day. 'X' was medically examined; she recorded her statement under

Section 164 Cr.P.C. Statements of the witnesses conversant with the

facts were recorded. After completion of investigation, a charge-sheet

was filed against the appellant for commission of offences under

Sections 366/376(2)(n)/506IPC. The prosecution examined eight

witnesses to substantiate its case. In 313Cr.P.C statement, the appellant

denied his involvement in the crime and pleaded false implication. He

admitted about his friendship with the prosecutrix. He stated that he had

no physical relations with the prosecutrix. On 26/27/02/2014 he was

noticed by husband of the prosecutrix when he was roaming with the

prosecutrix. He did not examine any witness in defence. The trial

resulted in conviction as aforesaid. Being aggrieved and dissatisfied, the

appellant has filed the instant appeal.

3. I have heard the learned counsel for the parties and have examined

the file. Appellant's conviction is primarily based upon the solitary

testimony of 'X'. Needless to say, conviction 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.

4. In her complaint (Ex. PW2/A), the prosecutrix stated that she

became friendly with the accused when she was learning stitching from

stitching center at Quresh Nagar. She stated that accused used to sit near

the stitching centre. Accused gave his mobile number to her and said that

he wanted to become her friend. Accused used to meet her outside the

stitching centre. She also gave her mobile number to him. They started

meeting each other in the gali near PS Sadar Bazar. In November, 2013

accused asked her for a loan of Rs. 50,000/- on the ground of

constructing his house. She withdrew Rs.50,000/- from her bank account

on 14/11/2013 and handed over the same to accused. When prosecutrix

demanded her money back she was asked by the accused to meet in the

public toilet near Rehmat Wali Gali. At about 4:00 AM she met the

accused. Prosecutrix stated that accused established physical relation

with her forcibly. When she tried to raise alarm she was threatened by

the accused saying that he would disclose everything to her husband

which would harm her reputation. She further stated that accused

forcibly established physical relations with her several times. She, being

fed up with the situation, disclosed entire story to her husband. In her

164 Cr.P.C statemsent she reiterated the facts which she had stated in her

complaint.

5. In her Court statement as PW-2, 'X' deposed that she was learning

the work of stitching at Quresh Nagar since May 2013. Accused used to

follow her, when she went for stitching classes, for the last 8-9 months.

They became friendly and used to meet behind PS Sadar Bazar. They

exchanged mobile numbers. In November 2013 accused requested her to

give him Rs. 50,000/- for construction of his house. She withdrew the

amount and gave it to him. He assured her of returning money. When she

asked him to return money he told her not to demand money from him

on phone and to do so only when she would meet him personally.

Accused called her to meet in the gali at 4:00 AM stating that he would

return money to her. She further stated that she met him in a public toilet

which is at corner of Rehmet Wali Gali where accused established

physical relations with her forcibly. She was threatened not to raise

alarm. After 1 week accused again called her to meet him at about 8 PM

behind PS Sadar Bazar. She went to meet him. Accused again

established physical relations with her behind the cars parked near PS

Sadar Bazar. She did not object to act of accused as she was afraid that

her husband would beat her. Accused, after few days again called her in

the gali and again established sexual relations with her without her

consent. She deposed that accused committed rape on her 3-4 times.

Finally, being fed with this entire incident she disclosed the facts to her

husband. In cross-examination, she has deposed that she developed

friendship with the accused about 2-3 weeks before giving Rs.50,000/- to

him. She admitted that prior thereto she used to meet accused near

Police Station Sadar Bazar. She might have met him 20-25 times before

lending him Rs.50,000/-. Sometimes they used to meet during day and

sometimes at night. She further admitted that when she met with the

accused for the first time at the public toilet, she made a call to him at

4:00 AM on that day. She further deposed that when she became friendly

with the accused for the first time, she felt good. She also used to feel

good thereafter whenever she met him. Accused never committed any

offending act like kissing etc. whenever she met him prior to the

incident. She further deposed that her husband came to know about the

withdrawal of Rs.50,000/- by her from the bank account about one or

two days prior to the registration of FIR. He gave her beatings upon

coming to know about the accused after seeing the call made to her by

the accused at midnight.

6. PW-5 is the husband of the prosecutrix. He deposed that his wife

used to go to the stitching centre at Kasab Pura to learn stitching. About

two days prior to arrest of accused he saw a phone call on the mobile

phone of his wife. On enquiry his wife told him that it was a wrong

number. When he insisted she disclosed that one person used to tease her

when she goes to the stitching center. He further deposed that on

questioning of his wife she narrated the entire incident to him and told

him that accused approached her to have friendship with him. She told

him that he committed rape upon her and blackmailed her. She gave her

Rs. 50,000/- for construction of his house.

7. On scanning the various statements given by the prosecutrix at

various stages of investigation/trial, it reveals that she is not consistent.

Admitted position is that both the prosecutrix and the appellant were

well acquainted with each other before the incident and had friendly

relations. The prosecution has failed to prove beyond reasonable doubt if

at the time of first encounter in November 2013 the prosecutrix was

raped 'forcibly' by the appellant against her wishes. 'X' did not raise any

alarm at that time; nor she lodged any report with the police for the

forcible rape committed upon her. If the prosecutix was not a consenting

party, there was no occasion or reason not to report the incident to the

police for the heinous crime committed by the appellant to have physical

relations forcibly against her wishes. The accused continued to have

sexual intercourse with her. The place of incident of crime is a public

toilet/ public parking/ gali. No cogent evidence has emerged on record to

show that the physical relations were established with the prosecutirx

without her consent. She was mature enough to fully understand as to

what was happening between the two. There is nothing in her evidence

to demonstrate that she was incapable of understanding the nature and

implications of the acts which she consented to. Her consent for physical

relationship (if any) was an act of conscious reason. If a fully grown up

lady consents to the act of sexual intercourse and continues to indulge in

such activity for long, it is an act of promiscuity on her part. As per

medical evidence the prosecutrix was examined on 28th February, 2014.

She refused to undergo internal medical examination. The MLC (Ex.

PW5/A) recorded that accused forced her to have sexual intercourse with

him. This went for 3½ months. 'X' is not believed to allow the appellant

to have physical relations repeatedly without complaining. It was only

when the victim's husband got suspicious on seeing the missed call on

her phone and enquired about the same, the victim was compelled to tell

him about the physical relations.

8. Inordinate delay in lodging the FIR has remained unexplained.

The incident happened for the first time in November 2013. The incident

was thereafter repeated for number of times. X's husband came to know

about the appellants' involvement in the crime and lodged the report with

the police or else there was no plausible explanation to delay the lodging

of the FIR for 3 months.

9. Settled legal position is that conviction can be based upon the sole

testimony of the prosecutrix provided it is reliable and is of sterling

quality.

10. In '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 prosecutrix 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 DW-1."

11. In another case 'Raju v. State of Madhya Pradesh', (2008) 15

SCC 133, the Supreme Court stated that the testimony of a victim of rape

has to be tested as if she is an injured witness but cannot be presumed to

be a gospel truth.

"It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."

12. In 'Rai Sandeep @ Deepu vs. State of NCT of Delhi', (2012) 8

SCC 21, the Supreme Court commented about the quality of the sole

testimony of the prosecutrix which could be made basis to convict the

accused. It held :

"In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for

its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

13. In 'Tameezuddin @ Tammu v. State (NCT of Delhi) ', (2009) 15

SCC 566, the Supreme Court held :

"It is true that in a case of rape the evidence of the Prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."

14. In the instant case, the prosecutrix has miserably failed to establish

if her consent for physical relationship was obtained under threat.

Physical relations (if any) between the two were consensual. It cannot be

inferred with certainty that the consent of the prosecutrix was obtained

for physical relationship under threat. X's testimony tested on the above

settled principles, is wholly unreliable due to inherent infirmities therein.

15. The appeal filed by the appellant is accordingly allowed.

Conviction and sentence of the appellant are set aside. The appellant

shall be released forthwith if not required to be detained in any other

criminal case.

16. Trial Court record be sent back forthwith with the copy of the

order. A copy of the order be sent to the Superintendent Jail for