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Section 376 in The Indian Penal Code
Section 511 in The Indian Penal Code
Section 506 in The Indian Penal Code
Section 354 in The Indian Penal Code
Section 164 in The Code Of Criminal Procedure, 1973

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Delhi District Court
State vs Somnath @ Ashok -:: Page 1 Of 41 ::- on 24 December, 2014
Author: Ms. Nivedita Sharma
                                                   -:: 1 ::-



           IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
                   ADDITIONAL SESSIONS JUDGE
                 (SPECIAL FAST TRACK COURT)-01,
                 WEST, TIS HAZARI COURTS, DELHI


Sessions Case Number                                             : 138 of 2013.
Unique Case ID Number                                            : 02401R0372282013.


State

                                                 Versus

Mr. Somnath @ Ashok
Son of Mr.Sohan Lal,
Resident of E-2, Amar Colony,
Kamruddin Nagar, Nangloi, Delhi.

First Information Report Number : 136/2013.
Police Station Nangloi.
Under sections 354/506/376/511 of the Indian Penal Code.

Date of filing of the charge sheet before                                      : 27.07.2013.
the Court of the Metropolitan Magistrate
Date of receipt of this file after committal                                   : 05.09.2013.
in this Court ASJ (SFTC)-01, West, Delhi.
Arguments concluded on                                                         : 24.12.2014.
Date of judgment                                                               : 24.12.2014.


Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
            State.
            Accused on bail with counsel, Mr.O.N.S. Gaba and
            Mr.Sumit Gaba.
            Ms.Shubra Mehndiratta and Ms.Poonam Sharma, counsel
           for the Delhi Commission for Women.
************************************************************

Sessions Case Number : 138 of 2013.
Unique Case ID Number : 02401R0372282013
FIR No. 136/2013, Police Station Nangloi
Under sections 354, 506, 376 and 511 of the Indian Penal Code.
State versus Somnath @ Ashok                                         -:: Page 1 of 41 ::-
                                                    -:: 2 ::-



JUDGMENT

"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.

1. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations as way back as in 1996 in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.

2. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and Sessions Case Number : 138 of 2013.

Unique Case ID Number : 02401R0372282013 FIR No. 136/2013, Police Station Nangloi Under sections 354, 506, 376 and 511 of the Indian Penal Code. State versus Somnath @ Ashok -:: Page 2 of 41 ::-

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other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim who is allegedly subjected to unwanted physical contact by a perverted male, known to her, as in the present case.

PROSECUTION CASE

3. Mr. Somnath @ Ashok, the accused, has been charge sheeted by Police Station Nangloi, Delhi for the offence under sections 354/506/376/511 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 01.05.2013 at unknown place and time he demanded Rs.4 lacs from the prosecutrix (name mentioned in the file and withheld to protect her identity) and threatened to kill her husband or to defame the prosecutrix in the locality; on 02.05.2013 at about 2.00 pm at Camp No.2 Nagloi near shop of Raju Tyre, Nangloi, the accused outraged the modesty of the prosecutrix by holding her hand; 10-11 months prior to 03.05.2013 at unknown time and place while coming back from Rohini Court with the prosecutrix, accused attempted to rape the prosecutrix and thereafter again accused attempted to rape her in Burari at unknown date and place.

Sessions Case Number : 138 of 2013.

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CHARGE SHEET AND COMMITTAL

4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 27.07.2013. and after its committal, the case was assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 05.09.2013.

CHARGE

5. After hearing arguments, vide order dated 11.11.2013, charge for offence under sections 354/506/376/511of the IPC was framed against the accused to which he pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

6. In order to prove its case, the prosecution has examined as many as 07 witnesses i.e. HC Mahender, duty officer; the prosecutrix as PW2; Mr. Pankaj Arora, learned Metropolitan Magistrate, as PW3; Ct. Rajesh, the witness of investigation, as PW4; Mr. Badri Prasad, the husband of prosectrix as PW5; SI Neelam, the first Investigation Officer of the case, as PW6; and ASI Ranbir Singh, the second Investigation Officer of the case, as PW7.

STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CRIMINAL PROCEDURE CODE

7. In the statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), the accused has controverted and rebutted the entire evidence against him submitting that he is Sessions Case Number : 138 of 2013.

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innocent and he has not committed any offence. This case has been falsely lodged against him. After his release on bail, he is receiving threats from Mr. Badri Prasad. He had purchased two gramin sewa which were in the name of prosecutrix and he has sale letters regarding the same but till date possession of the vehicle has not been given to him. He had sold spare parts for Rs. 2 lacs approximately to Mr. Badri Prasad but he has not paid the dues to me and instead he has got him falsely implicated in the present case through his wife.

8. The accused has preferred not to lead any evidence in his defence.

ARGUMENTS

9. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.

10. The Additional Public Prosecutor for the State had argued the matter at length and has requested for convicting the accused for having committed the offence under sections 384/506/354/376/511 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable. No motive can be assigned to the prosecutrix for false implication of the accused.

Sessions Case Number : 138 of 2013.

Unique Case ID Number : 02401R0372282013 FIR No. 136/2013, Police Station Nangloi Under sections 354, 506, 376 and 511 of the Indian Penal Code. State versus Somnath @ Ashok -:: Page 5 of 41 ::-

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11. The counsel for the accused has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. The evidence of the prosecutrix is not reliable as it suffers from various contradictions. There is an unexplained delay in lodging of the FIR which indicates that the FIR has been lodged after deliberation and consultation and is motivated. The prosecutrix had refused her medical examination which also indicates that the case is false.

DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS

12. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the Sessions Case Number : 138 of 2013.

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evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.

13. Under this sphere, I now proceed to test the submissions of both the sides.

CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS

14. The prosecution story unveils on 02.05.2013 when one wireless operator handed over a rukka to HC Mahender (PW1) duty officer, who lodged the FIR (Ex.PW1/A), made his endorsement on the rukka (Ex.PW1/B) and issued certificate under section 65 B Evidence Act (Ex. PW1/C). After lodging of the FIR, the original rukka and copy of the FIR were handed over to Ct Rajesh (PW4) for investigation. HC Mahender (PW1) has also proved the DD No.22 A (Ex.PW1/D). On receipt of DD No. 22 A (Ex.PW1/D), ASI Ranbir Singh (PW7) along with Ct. Rajesh (PW4) went to Raju Tyre Shop near Lokesh Cinema near Metro pillar No.420 Camp No.2, Sessions Case Number : 138 of 2013.

Unique Case ID Number : 02401R0372282013 FIR No. 136/2013, Police Station Nangloi Under sections 354, 506, 376 and 511 of the Indian Penal Code. State versus Somnath @ Ashok -:: Page 7 of 41 ::-

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Nangloi where prosecutrix along with her husband Mr. Badri Prasad (PW5) and the accused were present. IO ASI Ranbir Singh recorded the statement of the prosecutrix (Ex.PW2/A) and made endorsement on the complaint and prepared rukka (Ex.PW7/A). The case got registered at PS Nangloi through Ct. Rajesh. ASI Ranbir Singh (PW7) prepared site plan (Ex.PW7/B). IO ASI Ranbir Singh (PW7) interrogated the accused vide his disclosure statement (Ex.PW2/C). The accused was arrested vide arrest memo (Ex.PW2/B) and his personal search was taken vide personal search memo (Ex.PW4/A). The accused was taken by IO ASI Ranbir Singh (PW7) and Ct. Rajesh (PW4) to SGM hospital for his medical examination where he was medically examined. Prosecutrix had refused to undergo medical examination. On 03.05.2013, the accused was produced in the Court and sent to judicial custody. Prosecutrix (PW1) was produced before learned Metropolitan Magistrate for recording her statement under section 164 of the Cr.P.C. The statement of the prosecutrix under section 164 of the Cr.P.C. (ExPW2/D) was recorded by Mr.Pankaj Arora, learned Metropolitan Magistrate (PW3) on the application of the IO (Ex.PW7/C) and copy of the statement was given to the IO on his application (Ex.PW7/D). The prosecutrix levelled the allegations of attempt to rape against the accused in her statement under section 164 of the Cr.P.C and IO ASI Ranbir Singh (PW7) added some more sections 376/511/384 of the IPC during investigation and recorded the statements of all the prosecution witnesses. On 26.07.2013, the further investigation wasmarked to ASI Neelam (PW6) and she filed the charge sheet.

15. The allegations against the accused are that on 01.05.2013 at Sessions Case Number : 138 of 2013.

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unknown place and time he demanded Rs.4 lacs from the prosecutrix (name mentioned in the file and withheld to protect her identity) and threatened to kill her husband or to defame the prosecutrix in the locality; on 02.05.2013 at about 2.00 pm at Camp No.2 Nagloi near shop of Raju Tyre, Nangloi, the accused outraged the modesty of the prosecutrix by holding her hand; 10-11 months prior to 03.05.2013 at unknown time and place while coming back from Rohini Court with the prosecutrix, accused attempted to rape the prosecutrix and thereafter again accused attempted to rape her in Burari at unknown date and place.

IMPORTANT ISSUES

16. The important issues and the points in dispute are being discussed hereinafter.

IDENTITY OF THE ACCUSED

17. There is no dispute regarding the identity of the accused Mr. Somnath @ Ashok who has been identified by PW1, the prosecutrix, as well as her husband, PW5 and the police witnesses of investigation. It is admitted that he was known to the prosecutrix prior to the alleged incidents.

18. Therefore, the identity of the accused stands established.

AGE OF THE PROSECUTRIX

19. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint/statement (Ex.PW2/A) Sessions Case Number : 138 of 2013.

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and statement under section 164 of the Cr.P.C. (Ex.PW2/D), the prosecutrix has mentioned her age as 30 years and her evidence before the Court, the prosecutrix has mentioned her age as 32 years. As per the prosecution, she was a major at the time of the alleged incident. Her age is not disputed by the accused.

20. Therefore, it is clear that the prosecutrix was a major at the time of incident.

VIRILITY OF THE ACCUSED

21. Although the prosecution has no proved the MLC of the accused (document of the prosecution which has not been proved) but he has not disputed the fact that he is virile and capable of performing the physical relations with a woman. He has not disputed that he was taken to SGM Hospital by Ct.Rajesh, PW4, where he was medically examined. No suggestion has been put by the accused to the prosecution witnesses that he is not capable of the act.

22. It is mentioned in the MLC of the accused (document of the prosecution which has not been proved) that he had brought to SGM Hospital by Ct.Rajesh on 02.05.2013 at 8.40 pm with alleged history of physical assault and he had several injuries. He was not found in casualty. He was not examined for potency and virility.

23. Therefore, as it is not disputed by the accused, it is clear that the accused is virile and is capable of performing sexual act and is Sessions Case Number : 138 of 2013.

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capable of committing the act of rape.

NO MLC OF THE PROSECUTRIX

24. It has been argued on behalf of the accused that as there is no medical evidence against the accused, it indicates that he has been falsely implicated in this case. The prosecutrix had refused her medical examination.

25. On perusal of the file, it transpires that the Investigation Officer had not sent/taken the prosecutrix to any hospital for her medical examination and it is mentioned in the chargesheet that although ASI Ranbir Singh, PW7, had made a request for her medical examination after the addition of sections 376/511 of the IPC but the prosecutrix had refused any kind of medical examination and did not give it in writing.

26. The fact that the prosecutrix had refused her medical examination after leveling very serious allegations of rape against the accused and not giving any explanation for the same, indicates the possibility of false implication of the accused. No justification or logical reason is coming forth from the prosecution regarding the refusal of the prosecutrix for her medical examination. The refusal of the prosecutrix to get her medical examination conducted and give samples indicates the possibility of false prosecution of the accused and throws a doubt on the veracity of her allegations against the accused.

Sessions Case Number : 138 of 2013.

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DIFFERENT STATEMENTS OF THE PROSECUTRIX

27. In order to ascertain the veracity of the case, it is important to discuss and analyse the different statements of the prosecutrix.

28. In her complaint/statement to the police (Ex.PW1/A) which is on 02.05.2013, the prosecutrix has stated they have 11 Garmin Seva vehicles out of which 3-4 are looked after by the accused. Whenever any vehicle is impounded, she used to go with the accused to Rohini Court and Burari Authority. About one year ago when she had gone with the accused to Rohini Court, he had outraged her modesty (galat niyat se ched chad ki) and when she said that she will tell her husband, he threatened to kill her husband and told her to stay with him due to which she remained silent. After few days, on the pretext of opening a shop and he needed money, he took Rs.30,000/-, one pair of gold tops and one ladies gold ring from her, assuring to return them. When she asked him to return the money, he threatened to kill her husband. About six months ago, when she went with the accused to Burari Authority for transfer of vehicle in her name, he outraged her modesty (galat niyat se ched chad ki). On 01.05.2013, the accused demanded Rs.4 lacs from her and on her refusal, he threatened to defame her in her locality and to kill her husband. On 02.05.2013 at about 2 pm, she went to the shop of the accused, with wrong intentions and in a wrong manner, he held her hand and raised her saree (galat nniyat se ve galat tarike se mera haath pakda ve meri saree uthahi). Then she told her husband everything.

29. In her statement under section 164 of the Cr.P.C. Sessions Case Number : 138 of 2013.

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(Ex.PW2/D) recorded on 03.05.2013, the prosecutrix has stated that her husband has 12 Gramin Sewa vehicles out of which 2 are in her name. The responsibility of all the vehicles has been given by her husband to the accused. About one year ago, the accused had brought her to Tis Hazari Courts for release of a vehicle. At the time of return, he had tried to rape her and she had not disclosed this incident to anyone. 10-11 months ago, the accused had brought her to Rohini Court for release of a vehicle and on return, he had tried to rape her. He had threatened her several times to tell everyone of the rape. He had taken Rs.30,000/- and one tola gold also. Later, the accused had tried to rape her by taking her to Burari. He had threatened to kill her husband and children. He told her that he shall kidnap her children from school and no one would know. Day before yesterday (parson), he came to her house and demanded Rs.4 lacs and one her refusal, he threatened to kill her husband.

30. In her examination in chief before the Court, as PW1, the prosecutrix, has deposed that her husband owned about 10-12 vehicles of Gramin Sewa and all the vehicles were being looked after by accused Mr.Somnath @ Ashok. Accused had been plying their all vehicles on contract basis. Her husband had provided a mobile phone to the accused and one vehicle had been given to him for his personal use. Accused had taken her Burari Transport Authority twice in the year 2013 and tried to rape her in the vehicle provided to him by her husband. Accused removed her sari and tried to open her petticoat both the times when he attempted rape on her. She gave beatings to the accused, abused him and could save herself. She told the accused that she would inform to her husband Sessions Case Number : 138 of 2013.

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regarding these incidents on which accused stated that her husband would not believe her, rather he believed the accused. Accused further threatened her that he would kill her if she disclosed the incidents to anybody. Out of fear, she did not narrate the incident to anyone. After about a month of the abovesaid incidents, the accused took her to Transport Authority Rohini for getting their one vehicle released which had been impounded. On that day also, the accused did some 'Ched Chad' with her in the vehicle which was a car of blue colour. 'Ched Chad' means that the accused tried to take off her clothes and attempted to rape her. She resisted and could manage to escape herself from the clutches of the accused after giving beatings to him and could come out of the vehicle. After sometime, the accused told her that he would drop her back to her house. She again sat in the car with the accused and on the way to her house, he demanded Rs. 30,000/- from her and threatened her that if she did not give this amount to him, he would tell her husband that she was having illicit relations with him. On the same day, after reaching her house, she gave Rs. 30,000/- to him as she was very much scared of the accused. After about a week of this incident, the accused telephoned her and demanded Rs. 20,000/- or Rs.30,000/- from her and asked her to arrange it from anywhere. Since she was not having any money with her at that moment, so she gave him one gold ring of approximately half tola (5 gms) and a pair of gold ear tops of half tola (5 gms). After about 2-3 months of handing over gold to the accused, he brought her to Tis Hazari Court for the purpose of getting their vehicle released from the Court. After completing the work at Tis Hazari, when he was taking her back to her house in the car, on the way, the accused again tried to rape her. The accused made attempts to remove her clothes. Sessions Case Number : 138 of 2013.

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She gave beatings to the accused and managed to save herself. Thereafter, she was dropped by the accused in her house. After about 4-5 months of the above mentioned incident, the accused telephoned her and demanded Rs.4 lacs from her and threatened her that if she did not fulfill his demand, he would get her son kidnapped from the school. The name of her son is Rishabh and he is aged about 5 ½ years. She has four children. The elder three children are daughters and youngest is her son namely Rishabh. Next day, she told this incident to her husband and she along with her husband went to Police Station Nangloi where she lodged the complaint (Ex. PW2/A) against the accused on 02.05.2013. Her husband had also put signatures on her complaint. The accused was interrogated and arrested by the police in her presence from near Lokesh Cinema, Nangloi vide the arrest memo ( Ex.PW2/B) and the disclosure statement (Ex. PW2/C) of the accused was recorded by the police. She was produced before the learned Metropolitan Magistrate who recorded her statement (Ex. PW2/D).

31. In the leading questions put to the prosecutix, she admitted that on 02.05.2013 at about 2.00 p.m, she had gone to the accused at shop located at camp no. 2, Nangloi near the shop of Raju Tyre where accused caught her hand and lifted her saree and she told the same to her husband who telephoned the police at number 100 where police reached and they handed over the accused to the police. She admitted that her statement (Ex. PW2/A) was recorded by the police at that spot. She admitted that she had forgotten about the details due to lapse of time.

Sessions Case Number : 138 of 2013.

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32. She has been cross examined at length on behalf of the accused.

33. It can be seen from the different statements of the prosecutrix that she has made several contradictions and variations. The same have neither been explained by the prosecutrix nor the prosecution and are blemishes which are fatal to the prosecution case indicating that the same is false. The prosecutrix and the prosecution have not been able to give any justification or explanation for the contradictions in her different statements. The contradictions are being tabulated below.

Complaint (Ex.PW2/A) Statement under section Examination in chief 164 of the Cr.P.C.

(Ex.PW2/D) They have 11 Garmin Seva Her husband has 12 Gramin Her husband owned about 10-12 vehicles out of which 3-4 are Sewa vehicles out of which 2 are vehicles of Gramin Sewa and all looked after by the accused. in her name. The responsibility the vehicles were being looked of all the vehicles has been given after by accused by her husband to the accused.

No such mention of accused No such mention of accused Accused had been plying their all looking after vehicles looking after the vehicles vehicles on contract basis. No mention of husband giving No mention of husband giving Her husband had provided a mobile phone and one vehicle for mobile phone and one vehicle for mobile phone to the accused and personal use to accused. personal use to accused. one vehicle had been given to him for his personal use.

No mention of any incident of About one year ago, the accused No mention of any incident at Tis Tis Hazari Courts. had brought her to Tis Hazari Hazari Courts prior to giving Courts for release of a vehicle. gold to the accused. At the time of return, he had tried to rape her and she had not disclosed this incident to anyone.

No mention of two incidents at No mention of two incidents at Accused had taken her Burari Burari Burari Transport Authority twice in the year 2013 and tried to rape her in the vehicle provided to him by her husband. Accused removed her sari and tried to open her petticoat both the times when he attempted rape on her.

Sessions Case Number : 138 of 2013.

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About one year ago when she 10-11 months ago, the accused Accused took her to Transport had gone with the accused to had brought her to Rohini Court Authority Rohini for getting their Rohini Court, he had outraged for release of a vehicle and on one vehicle released which had her modesty (galat niyat se ched return, he had tried to rape her. been impounded. On that day chad ki) and when she said that He had threatened her several also, the accused did some 'Ched she will tell her husband, he times to tell everyone of the rape. Chad' with her in the vehicle threatened to kill her husband which was a car of blue colour. and told her to stay with him due to which she remained silent.

No mention of accused No mention of accused She again sat in the car with the demanding and prosecutrix demanding and prosecutrix accused and on the way to her giving Rs.30,000/- on the same giving Rs.30,000/- on the same house, he demanded Rs. 30,000/- day when accused took her to day when accused took her to from her and threatened her that Burari and committed any Burari and committed any if she did not give this amount to offence. offence. him, he would tell her husband that she was having illicit relations with him and she gave him Rs.30,000/- on the same day.

After few days, on the pretext of He had taken Rs.30,000/- and After about a week of this opening a shop and he needed one tola gold also. incident, the accused telephoned money, he took Rs.30,000/-, one her and demanded Rs. 20,000/- or pair of gold tops and one ladies Rs.30,000/- from her and asked gold ring from her, assuring to her to arrange it from anywhere.

return them.                                                                Since she was not having any
                                                                            money with her at that moment,
                                                                            so she gave him one gold ring of
                                                                            approximately half tola (5 gms)
                                                                            and a pair of gold ear tops of half
                                                                            tola (5 gms).
When she asked him to return the     No mention of asking for return        No such mention.
money, he threatened to kill her     of money or threat by accused
husband.
About six months ago, when she       Later, the accused had tried to        Tried to rape ger twice in Burari
went with the accused to Burari      rape her by taking her to Burari.      Authority in 2013.
Authority for transfer of vehicle
in her name, he outraged her
modesty (galat niyat se ched
chad ki).
No mention of any threat.            He had threatened to kill her          No such mention except that
                                     husband and children. He told          accused would kill her.
                                     her that he shall kidnap her
                                     children from school and no one
                                     would know (At Burari).
No such mention.                     No such mention.                       After about 2-3 months of
                                                                            handing over gold to the accused,
                                                                            he brought her to Tis Hazari
                                                                            Court for the purpose of getting
                                                                            their vehicle released from the
                                                                            Court.      After completing the
                                                                            work at Tis Hazari, when he was
                                                                            taking her back to her house in
                                                                            the car, on the way, the accused
                                                                            again tried to rape her.

Sessions Case Number : 138 of 2013.
Unique Case ID Number : 02401R0372282013
FIR No. 136/2013, Police Station Nangloi

Under sections 354, 506, 376 and 511 of the Indian Penal Code. State versus Somnath @ Ashok -:: Page 17 of 41 ::-

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On 01.05.2013, the accused Day before yesterday (parson), Accused telephoned her and demanded Rs.4 lacs from her and he came to her house and demanded Rs.4 lacs from her and on her refusal, he threatened to demanded Rs.4 lacs and one her threatened her that if she did not defame her in her locality and to refusal, he threatened to kill her fulfill his demand, he would get kill her husband. husband. her son kidnapped from the school.

On 02.05.2013 at about 2 pm, she     No mention of any incident of         No such mention in examination
went to the shop of the accused,     02.05.2013 of going to shop of        in chief of any incident of
with wrong intentions and in a       accused etc.                          02.05.2013 except in leading
wrong manner, he held her hand                                             question.
and raised her saree (galat nniyat
se ve galat tarike se mera haath
pakda ve meri saree uthahi).

Then she told her husband            No mention of her telling her         Next day, she told this incident to
everything.                          husband                               her husband and she along with
                                                                           her husband went to Police
                                                                           Station Nangloi



34. Besides the above tabulated contradictions in the different statements of the prosecutrix, there are some more unbelievable versions coming forth in her cross examination, which also indicate that that the accused has been falsely implicated in this case.

35. In her cross examination, the prosecutrix has deposed that "We had been paying a monthly salary of Rs.15,000/- to the accused for looking after our Gramin Sewa Vehicles. I had not told this fact regarding the monthly salary of Rs.15,000/- to the police in my statement." However, neither the prosecutrix nor her husband, PW5, have produced any document or proof to show that the accused was being paid salary.

36. She has mentioned that at the time of first incident at Burari, which occurred in the year 2013, during the summer season, at around 12.00noon-1.00pm, only one vehicle was impounded. However, she has Sessions Case Number : 138 of 2013.

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not been able to give any particulars of the vehicle and the impounding. She also did not remember the name of the driver who drove back the impounded vehicle after its release.

37. The prosecutix has deposed in her cross examination that when the accused had tried to rape her at Burari Authority, she had come out of the car and saved herself. She had wrapped her saree hurriedly around herself and inside the car and came out of the car and saved herself. She had stood at the distance of car. It does not appear to be possible and probable that a woman would be able to wrap a saree around herself in a car as it is a small vehicle with just sitting space and it would not have been possible to wrap or tie a saree, which is a long garment, around herself is such a small space.

38. Further, no explanation has been furnished by the prosecutrix as to why she went back inside the car to be dropped back by the accused, when the accused had allegedly attempted to rape her. Despite having admitted that the buses keep plying on the road and there are restaurants and a tea shop, neither any shopkeeper nor any public persons asked her anything nor she told them anything. A normal reaction would have been to immediately shout for help or approach the persons available and telling them about such an incident.

39. The prosecutrix has also deposed that she did not appear before any Court after getting the vehicle released from Burari Authority. Without getting an order for release of a vehicle, it is not possible to get the same Sessions Case Number : 138 of 2013.

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released.

40. The prosecutrix did not remember the date and month of the incident at Rohini Transport Authority, which occurred in the year 2013 saying that it was during the winter season at around 12.00 noon-2.00pm. The vehicle was to be got released from the Rohini Courts. There must have been some work in the Rohini Transport Authority as the accused had taken her there. The accused had tried to rape her inside the car in the parking of the Rohini Transport Authority. There were many vehicles in the car parking. She did not notice any persons in the car parking. There was one parking attendant. They were in the car parked for about 10 minutes. This incident occurred after the release of vehicle. Thereafter, they returned home. This narration also does not appeal to reason as in a busy place like the Rohini Transport Authority, besides one car parking attendant, there would be several other persons available. She claims to have abused the accused but not in a loud tone and did not even open a window to seek help. She was wearing her saree when she came out of the car. This time also she did not shout for help or tell anyone of the incident and despite an alleged attempt of rape, she preferred to return with the accused. These facts make this incident unbelievable.

41. Regarding the incident at the Tis Hazari Courts, the prosecutrix has deposed in her cross examination that she did not remember the name of learned Judge or the Court room number where she had appeared. Accused had done 'Ched Chad' with her in the parking of Tis Hazari Courts. There were several cars in the car parking. She did not know Sessions Case Number : 138 of 2013.

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whether any men were also in the car parking. She did not notice anyone in the car parking. She did not know where the car was parked and in which car parking at Tis Hazari. She did not remember from which gate of the Court they had entered into the complex of Tis Hazari Courts. The parking attendant had given parking ticket to the accused. She did not know how many parking attendants were available in the car parking. There were no vendors nor vending stalls nor lawyers chambers near the car parking. She did not engage any counsel for getting her vehicle released from the Court. Some fine was imposed by the learned Court but she did not remember the amount. Her vehicle was impounded in an accident case. The driver of the impounded vehicle had not come to the Court on that day. She did not know the name of Police Station where the case was lodged nor the FIR number. She did not raise alarm nor shout for help when the offence was committed in the Car Parking of Tis Hazari Courts. She did not inform the police regarding the incident. She returned home in the same car with the accused. This part of the evidence of the prosecutrix also indicates that the accused is falsely implicated as in a busy place like the Tis Hazari Courts and the car parking, besides the car parking attendants, there would be several other persons like lawyers, litigants, staff, vendors etc. available. It does not appear to be possible that a man would attempt to rape a woman in a car in the car park of Tis Hazari Courts where he could be apprehended immediately since it is a very congested and busy place. This time also she did not shout for help or tell anyone of the incident and despite an alleged attempt of rape, she preferred to return with the accused. These facts make this incident also unbelievable.

Sessions Case Number : 138 of 2013.

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42. The prosecutrix has further deposed in her cross examination that after lapse of about 2-3 months of the incident at Tis Hazari Courts, the accused asked her to come to the shop calling her on telephone. This fact has not been narrated by her in any of her statements.

43. She has deposed that the accused called on mobile which is kept at home but she did not remember the mobile number. She alone went to the shop at about 2.00 pm. Except the accused, no other person was present at the shop. The neighbouring shops were open and running. The shop of the accused is situated at Najafgarh Main road. The accused runs the shop of spare parts of vehicles. She voluntarily stated that she had called the accused on telephone that she is visiting to a shop to collect the money of Rs. 30,000/- which she had given to him under threat. On one hand, she has deposed that the accused had telephoned her and on the other hand, she says that she had called him.

44. The prosecutrix has deposed that she was outside the shop of the accused when the accused had tried to lift her saree. Other shopkeepers were doing their work. She did not raise alarm or call the shopkeepers for her help. She had only telephoned her husband and told him about the incident. When he arrived at the shop, he had called other shopkeepers. It does not seem possible that the accused would lift the saree of the prosecutrix when she was outside his shop as the same would be visible to the others on the road and the neighbouring shopkeepers and the accused could have been caught.

Sessions Case Number : 138 of 2013.

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45. It may also be mentioned here that neither any money i.e. Rs. 20,000/- or Rs.30,000/- or any jewellery i.e. gold tops or ring belonging to the prosecutix have been recovered from the possession of the accused or at his instance which also makes the prosecution version not worthy of credence.

46. It is not believable that a woman would go many times with a man after he has attempted to rape her once earlier. It is also not believable that a woman on whom a man has attempted rape several times, will not disclose about the same to her husband or family or any one else. It is also not believable that a woman to whom a man has given threats several times, will not disclose about the same to her husband or family or any one else. It is also not believable that a woman would give money and jewellery to a man who has committed any offence against her, without disclosing about the same to her husband or family or any one else. When a woman is fully aware that a man is wrong since he has attempted to rape her and has given her threats, she will never go with him again knowing how dangerous he can be and shall never make herself vulnerable for more offences.

47. The veracity of the testimony of the prosecutrix, as mentioned in her examination in chief, is shattered in her cross examination, which makes it highly improbable that such incidents, as alleged by her, ever occurred. The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent Sessions Case Number : 138 of 2013.

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contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/prosecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix is that the prosecution case against the accused is false.

48. The prosecutrix has claimed that she was threatened by the accused several times. However, the effect of the alleged threats has not been disclosed anywhere. Neither the words used nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was threatened does not suffice for convicting the accused as she remained in his association for a very long time and there was no reason why she could not have disclosed about the alleged threats to her husband, family, police and others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence. Her conduct, on the other hand, shows that she herself was in the company of the accused with her consent so much so that she was even taking the benefit of getting the impounded vehicles released with his help.

49. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and Sessions Case Number : 138 of 2013.

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reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:

"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."

50. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases

487.

51. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.

52. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. Sessions Case Number : 138 of 2013.

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53. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.

54. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made different inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.

55. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material and there being refusal by the prosecutrix to undergo medical examination, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) Sessions Case Number : 138 of 2013.

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LRC 137 (SC).

56. If one integral part of the story put forth by a witness- prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).

57. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 384, 506, 354 and 376/511 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the accused made extortion from the prosecutrix, threatened her, outraged her modesty and attempted to rape her.

CONTRADICTIONS IN THE EVIDENCE OF PWS 2 AND 5

58. On perusal of the record, it transpires that there are several contradictions in the testimonies of the prosecutrix-PW2 and her husband- PW5.

59. PW1 has deposed that her husband had 10-12 Gramin Sewa vehicles while PW5 has deposed that he owns 18 vehicles including 07 autos and 11 Gramin Sewa vehicles.

Sessions Case Number : 138 of 2013.

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60. PW1 has deposed that on 02.05.2013, accused had held her hand and lifted her saree while PW5 has deposed that his wife told him that accused had held her hand and tried to lift her saree.

61. PW1 has deposed that on 02.05.2013, she had gone to the shop of the accused to collect Rs.30,000/- given by her under threat while PW5 has deposed that his wife told him that she had gone to the shop of the accused to take back the gold ring and pair of ear gold tops (balli) which she had given to the accused earlier.

62. PW1 has deposed that whenever she had gone with the accused to get an impounded vehicle released, he had attempted to rape her while PW5 has deposed that his wife told him that whenever she had gone with the accused to get an impounded vehicle released, he had teased her and misbehaved with her.

63. PW1 has deposed that when she called her husband, he came to the shop of the accused while PW5 has deposed that when his wife called him, he along with his friend Mr.Mohit Sharma went to the shop of the accused. This Mr.Mohit Sharma has neither been cited as a witness nor examined by the prosecution.

64. No explanation is furnished by the prosecution for all the above elaborated contradictions. The same are blemishes which cannot be ignored and they throw a shadow of doubt on the prosecution version and Sessions Case Number : 138 of 2013.

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the possibility of false implication of the accused cannot be completely ruled out.

65. The veracity of the prosecution case is shattered due to the unexplained contradiction sin the evidence of its two material witnesses, PWs 2 and 5, which makes it highly improbable that such incidents, as alleged by the prosecutrix, ever occurred. The prosecution has failed to furnish any explanation in respect of the contradictions in the evidence of the prosecutrix and her husband. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence of the prosecutrix and her husband suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecution is that the prosecution case against the accused is false.

DELAY IN FIR

66. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the Sessions Case Number : 138 of 2013.

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circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.

67. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.

68. In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.

69. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:

"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory Sessions Case Number : 138 of 2013.

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explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.

70. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:

"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."

71. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:

"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"

72. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, Sessions Case Number : 138 of 2013.

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1992 Cr.L.J. 715, has held as under:

"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"

73. It is clear from the record that the FIR (Ex.PW1/A) has been lodged on 02.05.2013 at 15:25 hours (03.25 pm) while the allegations made by the prosecutrix in her complaint (Ex.PW2/A) are that (at the time of alleged first offence), the accused had attempted to rape her about one year ago (which would mean May, 2012); (at the time of alleged second offence) after few days, he had taken Rs.30,000/- and one pair of gold tops and one ladies gold ring (again in 2012); (at the time of alleged third offence) six months ago, he had attempted to rape her at Burari Authority (November-December, 2012); and (at the time of alleged fourth and fifth offences) she has given the incidents of 01.05.2013 and 02.05.2013. The delay in lodging of the FIR has been not explained by the prosecution.

74. As per the complaint / statement of the prosecutrix to the police, Ex.PW2/A, the date of the first offence is about one year prior to the lodging of the FIR. The prosecutrix has not given any logical explanation or reasonable justification for waiting for one year to approach the police especially when more alleged incidents occurred in between.

Sessions Case Number : 138 of 2013.

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75. These facts indicate that the possibility of the complaint being motivated or manipulated and the version of the prosecutrix being untrue cannot be completely ruled out. The discrepancies in the evidence of the material witnesses, no explanation coming forth for the delay in lodging of the FIR indicate that the prosecutrix and the prosecution are unable to justify the delay in lodging of the FIR which is fatal to the prosecution version.

76. Therefore, it can be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay has not been satisfactorily explained by the prosecutrix and the prosecution.

MENS REA / MOTIVE

77. Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

78. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of Sessions Case Number : 138 of 2013.

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any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

79. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

80. In the present case, a story has been projected that the accused has attempted to rape the prosecutrix several times at different public places and this version appears to be untrue as there is no reason why he would do so. There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution. Sessions Case Number : 138 of 2013.

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81. There does not appear to be any criminal intention and mens rea on the part of the accused.

DEFENCE OF THE ACCUSED

82. In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case. He has stated that "I had purchased two Gramin Sewa which were in the name of Prosecutrix and I have the sale letters regarding the same but till date possession of the vehicle has not been given to me. I had sold spare parts for Rs. 2 lacs approximately to Mr. Badri Prasad but he has not paid the dues to me and instead he has got me falsely implicated in the present case through his wife." He has preferred not to lead any evidence in his defence.

83. The defence of the accused appears to be plausible considering the unreliable evidence of the prosecution which suffers from overwhelming contradictions and glaring inconsistencies. The suggestions regarding his defence have been put to PWs 2 and 5 which have been denied by them. PW5 has, however, admitted in his cross examination that he used to purchase the spare parts from the shop of the accused. The accused has neither put any suggestion or question of PWs 2 and 5 regarding his purchasing two Gramin Sewa vehicles from PW5 nor produced the sale letters in the Court.

84. However, the prosecution has to stand of its own legs and is Sessions Case Number : 138 of 2013.

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required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.

85. It has already been discussed above that the evidence of prosecution is not reliable and is unworthy of credence. Therefore, the defence of the accused appears to be plausible.

INVESTIGATION

86. The investigation conducted in the present case has been deposed by PWs 6 and 7, the second and the first Investigation Officers respectively. The FIR, documents of arrest of the accused, documents prepared during investigation etc. have been proved properly in the prosecution evidence.

87. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.

88. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.

Sessions Case Number : 138 of 2013.

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89. However, it can be seen from the record that no investigation has been conducted to identify and produce Mr.Mohit Sharma, friend of PW5, who had gone with him to the shop of the accused on 02.05.2013 after the prosecutrix had called PW5 there. As per DD No.22 A dated 02.05.2013, information of the offence had been given from mobile phone number 8285819182 but the person who had set the prosecution into motion, who was an important witness, has not even been identified and examined by the IO and the prosecution. No independent person from the public has been associated with the investigation despite the place of incident as on 02.05.2013 being situated in a shop with neighboring shops. Verification of the record of the mobile phones of the prosecutrix, as mentioned in her complaint, and the mobile phones of her husband as well as the accused has also not been made to ascertain whether or not there was any conversation between them on 02.05.2013. These facts make the version of the prosecution appear to be unreliable and untrustworthy.

FINAL CONCLUSION

90. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is Sessions Case Number : 138 of 2013.

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guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

91. Applying the above principles of law to the facts of present case, it stands established that the accused had made extortion from the prosecutrix nor threatened her nor outraged her modesty nor attempted to rape her. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.

92. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.

93. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.

94. If the prosecution evidence is read and considered in totality of Sessions Case Number : 138 of 2013.

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circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.

95. It is a case of heinous crime of extortion, threat, outraging modesty and attempted rape, which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.

96. The prosecution has miserably failed to prove that on 01.05.2013 at unknown place and time, the accused demanded Rs.4 lacs from the prosecutrix and threatened to kill her husband or to defame the prosecutrix in the locality; on 02.05.2013 at about 2.00 pm at Camp No.2 Nagloi near shop of Raju Tyre, Nangloi, the accused outraged the modesty of the prosecutrix by holding her hand; 10-11 months prior to 03.05.2013 at unknown time and place while coming back from Rohini Court with the prosecutrix, accused attempted to rape the prosecutrix and thereafter again Sessions Case Number : 138 of 2013.

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accused attempted to rape her in Burari at unknown date and place.

97. All the above facts indicate that there is no veracity in the prosecution case in respect of the offences of extortion, threat, outraging modesty and attempted rape of the prosecutrix by accused Mr.Somnath @ Ashok and the accused merits to be acquitted for the offence under sections 385, 506, 354 and 376/511 of the IPC.

98. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Somnath @ Ashok.

99. Accordingly, Mr.Somnath @ Ashok, the accused, is hereby acquitted of the charges for the offences punishable under sections 384, 506, 354 and 376/511 of the IPC.

COMPLAINCE OF SECTION 437-AOF THE CR.P.C.

100. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.

101. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.

102. One copy of the judgment be given to the Additional Public Sessions Case Number : 138 of 2013.

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Prosecutor, as requested.

103. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.

Announced in the open Court on (NIVEDITA ANIL SHARMA) this 24th day of December, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.

********************************************************** Sessions Case Number : 138 of 2013.

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