Prosecutrix M v. State of NCT of Delhi and Ors.

1. The present appeal has been instituted by the prosecutrix under Section 372 read with Section 482 Cr.P.C thereby seeking setting aside of the judgment of acquittal rendered by the Sessions Court in SC NO. 417/2020 arising out of FIR No. 481/2019 registered under Sections 376/377/34 IPC at P.S. Chhawala.

2. The background of the facts is that on 04.12.2019, DD No. 44A came to be recorded in P.S. Chhawala wherein, the prosecutrix alleged that she was married to respondent no. 2/Shailesh, on 21.11.2016 as per Hindu rites and customs. Her in-laws, i.e., father-in-law Ramesh, brothers-in-law Rohit and Devender, sisters-in-law Suman and Sheetal, and her own husband, were CRL.A. 241/2023 Pg. 2 of 9 unhappy and used to beat her for bringing insufficient dowry. As her parents were not capable of giving more dowry, her brother in-law Rohit not only had an evil eye on her but also molested her. The complainant further stated that on 20.10.2018, when she was alone at her matrimonial house, her brother-in-law Rohit, at about 10:00 a.m., raped her and also recorded the entire incident on his mobile. He further threatened her not to disclose the incident, otherwise he would make the said video viral on the internet. He thereafter raped her on many occasions. When she informed the incident to her husband and father, both asked her to keep quiet. Her husband also used to commit unnatural sex with her. She left for her parental home on 28.02.2019. On 14.07.2019, when she reached her matrimonial house, she was beaten by all of her in-laws, whereupon a call at 100 number was also made. She then went to her parental house, and on 01.12.2019, her in-laws including her father in-law, her brother-in-law, Devender, and others, visited her house. One Raghunath was allegedly carrying a pistol and threatened to kill her and her family members. Her brother-in-law Devender also showed her the video recording and asked her to keep quiet, else the same would be made viral. The prosecutrix informed the incident to her Aunt Omwati, which resulted in the filing of the concerned complaint.

3. With these background facts, the FIR came to be registered and a chargesheet was filed against her husband Shailesh/respondent no. 2, her brothers-in-law, Rohit/respondent no. 3 and Devender/respondent no. 4, and her father-in-law Ramesh, while the names of her sisters-in-law and other accused were placed in column no. 12. The prosecutrix thereafter filed a protest petition seeking summoning of the accused mentioned in column no. CRL.A. 241/2023 Pg. 3 of 9 12; however, vide order dated 14.09.2020, the same was dismissed and cognizance was taken only against the persons mentioned in column no. 11. That order remained unchallenged and attained finality on 23.02.2021. While all of the accused were discharged for the offences under Sections 406/498A, charges were framed only against Shailesh for offences under Sections 377/323 IPC, against Rohit under Sections 376/506 IPC, and against Devender for 506 Part 2 II IPC. The accused pleaded not guilty and claimed trial. The said order was not assailed and thus attained finality.

4. The prosecution examined 4 witnesses to prove its case. The prosecutrix was examined as PW-1; her aunt Omwati as PW-2; Amit Kumar, Deputy Director at ESIC Headquarters, Ministry of Labour and Employment was examined as PW-3; and the I.O., W/ASI Saroj, was examined as PW-4. Notably, the MLC of the prosecutrix, admitted under Section 294 Cr.P.C., was exhibited as PW-1/B. The medical examination was conducted on 05.12.2019 at DDU Hospital and the MLC does not show any external injuries, either on the body or the genital parts. It is also pertinent to note that though, on the allegations of recording of the video, Rohit’s mobile phone was seized and sent to FSL, learned counsels for the parties as well as the State, stated that no FSL report was placed on record. The I.O./PW-4 in her deposition, however, stated that she had checked the mobile phone and no such video was found.

CONTENTIONS

5. Learned counsel for the prosecutrix assailed the impugned judgment on the ground that the Trial Court erred in not appreciating the testimony of the prosecutrix, wherein she had consistently stated about the commission of rape by respondent no. 3/Rohit, unnatural sex by her husband/respondent no. CRL.A. 241/2023 Pg. 4 of 9 2 Shailesh, and the threats extended by respondent no. 4/Devender. It was further submitted that the Trial Court erred in observing that there was a delay in reporting the incident, whereas the delay stood sufficiently explained as the last incident had occurred on 01.12.2019 and the FIR came to be registered on 05.12.2019.

6. The submissions made on behalf of the appellant were contested by learned Senior Counsel appearing for respondent nos. 2 to 4. It was submitted that the testimony of the prosecutrix is full of inconsistencies and material improvements over her previous statements, barring only one incident of rape allegedly committed on 20.10.2018. The allegations pertaining to other incidents of rape and anal sex are devoid of any specific details as to when and where the same were committed. It was further contended that from the date of her marriage till February 2019, i.e., when as per the case of the prosecution the prosecutrix left for her parental home, she had visited her home on a number of occasions, yet made no complaint during that time. He argued that the testimony of the prosecutrix stood falsified as respondent no. 3/Rohit was successfully able to establish a plea of alibi with respect to the incident dated 20.10.2018, which stood fortified by the testimony of PW-3 as well as documentary evidence collected during investigation.

DISCUSSION AND ANALYSIS

7. At the outset, it is pertinent to note that though the prosecutrix, in her complaint and subsequent statements, levelled allegations attracting various offences including under Sections 406/498A IPC against various members of her matrimonial family, the Trial Court, upon consideration of the chargesheet, found no prima facie case to proceed against them. Charges CRL.A. 241/2023 Pg. 5 of 9 were framed only against respondent no. 2/Shailesh under Sections 377/323 IPC, against respondent no. 3/Rohit under Sections 376/506 IPC, and against respondent no. 4/Devender under Section 506 Part II IPC. The protest petition filed by the prosecutrix seeking summoning of the sisters-in-law and others named in column no. 12 was dismissed, and that order, having remained unchallenged, attained finality on 23.02.2021. It is therefore manifest that part of the version of the prosecutrix stood disbelieved at the very threshold.

8. In her initial written letter to SHO, P.S. Chhawala, dated 14.07.2019 (Ex. PW-1/D-1), there was no reference to any act of rape or anal sex. In her statement under Section 161 Cr.P.C. (Ex. PW-1/A), she specifically stated only about a single incident of rape dated 20.10.2018. In her statement under Section 164 Cr.P.C. (Ex. PW-1/C), she alleged that she had been raped by Rohit seven times. In her testimony before the Court, she alleged repeated rape by respondent no. 3/Rohit, unnatural sex by respondent no. 2/Shailesh, and threats extended by respondent no. 4/Devender. A perusal of the record makes it evident that the allegations as levelled by the prosecutrix have not been consistent.

9. It also emerges from the evidence that the prosecutrix had gone to her parental home on five to seven occasions between her marriage and February 2019. Yet, despite repeated opportunities, she did not disclose the alleged acts of rape, unnatural sex, or threats to her family members. The silence of the prosecutrix despite ample opportunity of disclosure, coupled with complete absence of details as to dates and times, materially detracts from the credibility of her version.

10. Insofar as the incident of 20.10.2018 is concerned, the Trial Court CRL.A. 241/2023 Pg. 6 of 9 rightly accepted the plea of alibi raised by respondent no. 3/Rohit. The Deputy Director at ESIC Headquarters, who was examined as PW-3, proved that Rohit’s biometric attendance recorded him present at ESIC Hospital, Faridabad at 10:00 a.m. on 20.10.2018. The I.O./PW-4 Saroj also confirmed in her deposition that her investigation corroborated Rohit’s presence at his duty. While biometric records such as in the present case may not be infallible, it is of significance that no suggestion to the contrary was put to PW-3 or PW-4 by the prosecution. Further, the location obtained from CDR records also corroborates the defence version. It also reflects that Rohit was present in Faridabad. Thus, Rohit’s alibi at the time of the alleged incident stands duly proved.

11. The prosecutrix also alleged that Rohit had recorded a nude video of her and that respondent no. 4/Devender later showed her the same while issuing threats. The mobile phone of respondent no. 3 was duly seized and sent to FSL, but no FSL report was placed on record. More importantly, the I.O. in her testimony as PW-4 stated that she had checked the device and no such video was found. The allegation regarding the video is thus unsubstantiated.

12. The contradictions between Ex. PW-1/D-1, Ex. PW-1/A, Ex. PW-1/C, Ex. PW-1/B, and her testimony in Court, coupled with the proved alibi of respondent no. 3 and the unsubstantiated allegation regarding the nude video, materially erode the credibility of the prosecutrix’s version. It is settled law that a conviction can be based on the sole testimony of the prosecutrix only if it inspires confidence. In the present case, her testimony is neither consistent nor reliable.

13. The concerned contradictions go to the root of the matter. Once it is CRL.A. 241/2023 Pg. 7 of 9 shown that false allegations have been levelled against respondent no. 3 in respect of alleged incident dated 20.10.2018, and her allegation regarding the alleged nude video has been found to be unsubstantiated, her testimony cannot be bifurcated to accept some parts while discarding others. It must be assessed in its entirety, and on such assessment, it does not inspire confidence.