Rajender Gupta v. State of NCT of Delhi

1. Aggrieved by a judgment dated 01.06.2010 of learned Addl. Sessions Judge in Sessions Case No.04/2008 emanating from FIR No.33/2008 registered at Police Station Timarpur by which the appellant - Rajender Gupta was convicted under Sections 376/506/342 IPC, the instant appeal has been preferred by him. By an order dated 05.06.2010, he was awarded RI for ten years with fine `2,000 under Section 376 IPC; SI for one year under Section 506 IPC and SI for three months under Section 342 IPC. The substantive sentences were to operate concurrently. 2015:DHC:8820

2. Briefly stated, the prosecution case as reflected in the chargesheet was that on 11.01.08 at around 7.30 a.m. in a Blind Hostel located at B-2544, Street No.66, Sant Nagar, Burari where the prosecutrix ‘X’ (assumed name), a visually impaired girl, aged around twenty years used to study and live, the appellant committed rape upon her after criminally intimidating her. Subsequent to that, she was not prevent to go out of the hostel and was confined there against her wishes. Police machinery came into motion on getting telephonic information about commission of rape from one Nirmala Sharma of Jagriti Mahila Samiti and DD No.40 (Ex.PW-8/A) dated 15.01.2008 came into existence at 8.45 p.m. at PS Timarpur. Nirmala Sharma conveyed to the police that a blind girl ‘X’ along with her sister was present in her office and she had complained to be the victim of sexual assault by the appellant in the Blind Hostel. The investigation was assigned to SI Sanjeev Verma who with Constable Rajender and Lady Constable Sunita went at Nirmala Sharma’s office. Subsequently, the investigation was taken over by ASI Mithlesh Yadav. After recording victim’s statement (Ex.PW-1/A), she lodged First Information Report on 16.01.2008. ‘X’ was medically examined; she recorded her statement under Section 164 Cr.P.C. The accused was arrested and medically examined. Statements of witnesses conversant with the facts were recorded. Exhibits collected during investigation were sent to Forensic Science Laboratory for examination. Upon completion of investigation, a charge-sheet was laid before the Court against the appellant. The prosecution examined fifteen witnesses to establish the appellant’s guilt. In 313 statement, the appellant denied his involvement in the crime and alleged false implication. He examined five witnesses in defence. After considering the rival contentions of the parties and on appreciation of the evidence, the Trial Court, by the impugned judgment, held the appellant guilty for the commission of offences mentioned previously. Being aggrieved and dissatisfied, the instant appeal has been preferred.

3. I have heard the learned counsel for the parties and have examined the file. Appellant’s conviction is primarily based upon the solitary statement of the prosecutrix ‘X’. It has not been corroborated in material particulars from any other independent source.

4. Admitted position is that ‘X’ is a visually impaired girl; so is the appellant and his wife Saroj. ‘X’ used to stay at the Blind Hostel being run and managed by the appellant since 02.05.2007. The prosecutrix was allegedly sexually assaulted by the appellant on 11.01.2008. The matter was, however, reported to the police only on 15.01.2008 in the evening. Inordinate delay in lodging the FIR has remained unexplained. ‘X’ continued to stay in the hostel after the incident till the time she allegedly managed to flee from there on 15.01.2008. The circumstances in which ‘X’ was able to come out of the hostel on 15.01.2008 are doubtful. In her statement (Ex.PW-1/A), ‘X’ informed that on 15.01.2008 in the morning when Saroj (appellant’s wife) and Neetu (warden of the hostel) were involved in an altercation, she slipped from the room; made a telephone call to her sister Uma who arrived the spot and took her along with her. ‘X’, however, did not elaborate as to from which ‘place’ she had made a telephone call to her sister Uma after exiting from the hostel. She also did not reveal if Uma had taken her to Jagriti Mahila Samiti at Rajouri Garden, and if so, at what time. In 164 Cr.P.C. statement (Ex.PW- 9/B), she disclosed that it was Tuesday when she managed to go out of the hostel and contacted her sister Uma on phone. Uma took her along with her that day itself. ‘X’ did not mention in 164 Cr.P.C. statement about her visit to Jagriti Mahila Samiti. It was also not clarified as to from where Uma had taken ‘X’ with her. A conflicting version has been given by ‘X’ in her Court statement. She deposed that on 15.01.2008, when Neetu and Saroj were quarrelling, finding the main gate open, she rushed outside and went to Raju’s shop to make telephone call to her sister Uma from an STD Booth. She narrated the entire occurrence to her sister Uma, who took her to Nirmala Sharma. Apparently, ‘X’ has made vital improvements in her Court deposition. PW-4 (Uma), X’s sister, has given completely inconsistent and contradictory version in this regard. She deposed that on getting telephone on 15.01.2008 from her sister to save her from the appellant, perpetrator of the crime/rape, she along with her elder brother Bal Mukund went to the hostel. On reaching there, she noticed that ‘X’ was sitting on the roof of the building and three or four individuals had encircled her. Saroj, appellant’s wife, sitting along with her sister requested her not to lodge report against the appellant and to settle the matter then and there, which she declined. Thereafter, she and her brother brought ‘X’ down from the roof. The accused, who was sitting in the office tendered an apology and offered to give in writing whatever they wanted to settle it. Thereafter, she went to the office of Jagriti Mission, Rajouri Garden, and narrated X’s ordeal to Nirmla Sharma. She (Nirmla Sharma) contacted her sister ‘X’ on telephone and called her in the office to verify the facts. Thereafter, Nirmla Sharma informed the police on phone. PW-4 (Uma) did not corroborate X’s version that she had taken her along with her from Raju’s STD Booth. Needless to say, conflicting version has emerged in the statement of ‘X’ and her sister Uma as to where and under what circumstances, ‘X’ exited from the hostel on 15.01.2008. Nirmla Sharma to whom Uma had approached at first instance has not been examined to corroborate her version. No call details record was collected from the STD Booth to ascertain as to at what time ‘X’ had made telephone call to her sister Uma on 15.01.2008. Strange enough, STD booth owner Raju has not been examined to prove if ‘X’ had made any call to her sister at the relevant time. It has come on record that ‘X’ parents, brothers and sisters used to live at Uttam Nagar. It is unclear as to why ‘X’ did not contact them. ‘X’ and her sister Uma did not furnish any reason as to why the matter was not reported promptly to the police. Instead of making telephone call at 100 or to the local police, ‘X’ purportedly contacted her sister Uma. She also did not lodge any report/complaint with the police soon thereafter and brought ‘X’ to her house. Thereafter she, on her own, alone went to Rajouri Garden to meet Nirmla Sharma. It is unclear as to why she did not take ‘X’ along with her to Nirmla Sharma. Daily Diary (DD) No.40 (Ex.PW-8/A) came into existence at 8.45 p.m. Again, delay in lodging the information with the police has remained unexplained. Serious flaw in the prosecution case is that it did not bother to examine Bal Mukund - X’s brother, who had allegedly accompanied Uma to the hostel for her rescue. Major infirmities have surfaced as to the place where Uma met ‘X’ i.e. at STD booth or on the roof of the hostel. DW-2 (Durgesh Kumar Gupta), a guard on the main gate of the hostel was not questioned if ‘X’ had gone out of the hostel gate to make telephone call at STD Booth. Uma did not produce call details record of her phone on which she had got the information from her sister ‘X’.

5. In her statement (Ex.PW-1/A) ‘X’ informed the police that she had taken admission in the Blind Hostel on 02.05.2007; used to study and live there and the appellant was her teacher. In the first week of December, 2007, when the appellant outraged her modesty, she was forced to give up her study from him. The appellant apprised his wife about it. Saroj after coming to know about it, persuaded her to continue her studies from the appellant to which she consented. In 164 Cr.P.C. statement (Ex.PW-9/B), ‘X’ did not specifically mention the date or month when she was teased or molested for the first time. She merely stated that the accused used to tease her and she had stopped her studies. She further disclosed that appellant’s wife had asked her to continue her studies from the appellant to which she agreed. In her Court statement, she deposed that after three or four months of admission in the hostel, the accused who used to teach teased and outraged her modesty. After the said episode, she left studying from him. But on the advice of his wife, she started going to study from him. She was evasive to disclose as to when and in what manner, she was molested by the appellant prior to the rape incident. At no stage prior to the occurrence, ‘X’ or her sister ever objected to the appellant’s conduct and behaviour. Her sister Uma was a regular and frequent visitor to the hostel. ‘X’ had cordial relations with her fellow members. She did not apprise them about the alleged objectionable activities of the appellant. No plausible explanation has been offered by the prosecutrix for maintaining silence for so long. ‘X’ was not expected to go for studies from the appellant after she had stopped it because of the objectionable behaviour of the appellant without ensuring her safety. PW-4 (Uma) is silent if before the incident, ‘X’ was molested any time.

6. Regarding the incident on 11.01.2008, ‘X’ in her statement (Ex.PW-1/A) informed the police that after the class was over, her warden Neetu asked her to keep the vegetables lying outside in the store. When she was in the process of keeping the vegetables in the store as directed, the accused arrived there and caught hold of her. When she objected to it and begged him to go, he forcibly committed rape upon her on a cot after opening string of her salwar. He threatened her not to disclose about it to anyone. She was not permitted to go out of the hostel thereafter. In 164 Cr.P.C. statement (Ex.PW-9/B), she informed that after the class was over on 11.01.2008 on the pretext to keep certain articles, her warden Neetu stopped her. When she was standing outside the store, the accused to whom she identified by voice caught hold of her and committed rape upon her on a cot. She was threatened of dire consequences, if she disclosed about the occurrence.

7. In her Court statement, she stated that on 11.01.2008 in the morning after the class was over, the accused teased her. She was confined in a room and was not permitted to move even to make a telephone call. The accused then raped her forcibly. In this statement, there is no mention if on the pretext to keep vegetables, she was stopped by Neetu - hostel warden or that the accused had chased or followed her upto store from the classroom and had committed rape upon her there. In the cross-examination, she introduced new facts. Regarding the incident of outraging her modesty for the first time, she elaborated that it was done when she alone was coming out from the bathroom after taking bath in the staircase of the hostel. She further disclosed that she had made complaint about it to Neetu, the warden, who had assured her to make the accused understand. She further deposed that on 11.01.2008, their class had commenced at 06.00 am and it ended at 07.00 am. Thereafter, Neetu asked her to place the bucket of vegetables in an outer room. She took the vegetables bucket there and the accused followed her and came there. He forcibly put her on the bed and committed rape upon her. She admitted that it was not her duty to keep the vegetables in the outer room. She further admitted that in her room nine other blind girls used to stay. She admitted that Neelam and Madhu were employees in the said hostel; Neelam used to cook food and Madhu used to clean the hostel. Madhu also used to accompany blind girls to move here and there.

8. The prosecutrix did not protest about appellant’s conduct to her room-mates. None of them was examined to corroborate X’s version. It is unclear as to where the prosecutrix stayed for about four days after the alleged rape incident. The Investigating Officer did not examine X’s roommates to verify if during these four days, she had not stayed with them in the said room. The prosecution also did not examine Nirmala Sharma from Jagriti Mahila Samiti to inform as to when and under what circumstances ‘X’ revealed her about the incident. The appellant examined Madhu in defence as DW-1. She was working as a caretaker there for the last three years. She deposed that the appellant had good behaviour with her and was a fatherly figure to the blind girls. Nothing was revealed by her if ‘X’ had complained about the incident to her. The appellant also examined DW-3 (Basanti Toppo), DW-4 (Lata Kumari) and DW-5 (Noor Jahan) X’s room-mates. None of them leveled any allegations against the appellant and spoke about his good conduct. None of them supported the prosecutrix about any untoward incident.

9. ‘X’ was medically examined on 15.11.2008 at about 11:15 p.m. vide MLC (Ex.PW-2/A) containing Dr.Malvika Kumud’s endorsement (Ex.PW-5/A). As per the MLC (Ex.PW-2/A), no fresh external injuries were visible on X’s body; hymen was found ruptured. There was no evidence of resistance or force. Exhibits collected during investigation were sent for examination. FSL report (Ex.PW-11/A) does not connect the appellant with the crime. During forensic examination, ‘semen’ could not be detected on Ex.1a and 1b (Two micro slides having faint whitish smear). No incriminating article showing the commission of rape at the crime spot was collected; no photographs of the spot were taken. The investigation conducted is not upto the mark. PW-13 (ASI Mithlesh Yadav) did not furnish any reason for not recording statements of X’s room-mates, the statement of STD Booth owner and statement of Nirmala Sharma. Her response in the cross-examination was that in the women hostel, there were other women inmates also but she did not talk to them. She was not aware if the room where the occurrence took place was located on the ground floor or first floor. She admitted that bed-sheet was not seized. She was not aware as to how many lady inmates were staying in the hostel that time. She admitted to have talked to hostel warden Neetu to record her statement subsequently. She purportedly declined to make any statement. It is unexplained as why no action was initiated against her for not assisting the investigation.

10. In the light of above discussion and considering the various infirmities and inconsistencies in the prosecution case, it would not be safe to base conviction on the sole testimony of the prosecutrix.

11. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the instant case, the unexplained delay in FIR, the non-examination of material witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. It shows several lacunae. There are various serious contradictions in her statement and actions, from which it can safely be concluded that she was not telling the truth.

12. 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 proseuctrix 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 alway 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. 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.”

13. 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 corelation 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.”

14. 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.'

15. In the light of above discussion, I am of the considered view that the prosecution has failed to establish its case against the appellant beyond reasonable doubt. The appellant deserves benefit of doubt. The appeal is allowed; conviction and sentence awarded by the Trial Court are set aside. The appellant shall be released forthwith if not required to be detained in any other case.