Main Search Premium Members Advanced Search Disclaimer
Cites 20 docs - [View All]
Section 376 in The Indian Penal Code
Section 342 in The Indian Penal Code
Section 354 in The Indian Penal Code
Section 164 in The Code Of Criminal Procedure, 1973
Section 294 in The Code Of Criminal Procedure, 1973

User Queries
Try out the Virtual Legal Assistant to take your notes as you use the website, build your case briefs and professionally manage your legal research. Also try out our Query Alert Service and enjoy an ad-free experience. Premium Member services are free for one month and pay only if you like it.
Delhi District Court
State vs Neeraj -:: Page 1 Of 38 ::- on 29 November, 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                                           : 77 of 2014
Unique Case ID Number                                          : 02401R0335682014.


State
                                                 Versus

Mr Neeraj
Son of Mr.Nanumal,
Resident of C-20, Ground floor,
Shiv Baksh Park, Nangloi, Delhi.

First Information Report Number : 435/2014.
Police Station Nangloi.
Under sections 342/354/376 of the Indian Penal Code.

Date of filing of the charge sheet before                                  : 15.07.2014.
the Court of the Metropolitan Magistrate
Date of receipt of this file after committal
in this Court ASJ (SFTC)-01, West, Delhi.                                  : 24.07.2014
Arguments concluded on                                                     : 29.11.2014.
Date of judgment                                                           : 29.11.2014.

Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
            State is on leave.
            Mr.Alok Saxena, Substitute Additional Public Prosecutor
            for the State.
            Accused on bail with counsel, Mr. J.K Sharma.
            Ms.Shubra Mehndiratta, counsel for the Delhi Commission
            for Women.
************************************************************


Sessions Case Number : 77 of 2014.
Unique Case ID Number : 02401R0335682014
FIR No. 435/2014, Police Station Nangloi
Under sections 342, 354 and 376 of the Indian Penal Code.
State versus Neeraj                                                  -:: Page 1 of 38 ::-
                                                    -:: 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 : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                            -:: Page 2 of 38 ::-
                                                    -:: 3 ::-



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, a neighbour as in the present case.

PROSECUTION CASE

3. Mr. Neeraj, the accused, have been charge sheeted by Police Station Nangloi, Delhi for the offence under sections 342/354/376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 22.06.2014 at about 2.00 p.m. at house no. C-20 Shiv Baksh Park, Nangloi, Delhi within the jurisdiction of Police Station Nangloi, while the prosecutrix (name mentioned in file but withheld to protect her identity) was coming downstairs to fill water and was going to her house upstairs, then the accused had forced the prosecutrix into his room and forcibly committed rape upon her, against her consent.

CHARGE SHEET AND COMMITTAL

4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 15.07.2014 and after its committal, the case was assigned to this Court i.e. Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                            -:: Page 3 of 38 ::-
                                                    -:: 4 ::-



Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 24.07.2014.

CHARGE

5. After hearing arguments, charge for offence under sections 342 and 376 of the IPC was framed against the accused vide order dated 28.07.2014.

PROSECUTION EVIDENCE

6. In order to prove its case, the prosecution has examined as many as 04 witnesses i.e. the prosecutrix as PW1; ASI Rajbir Singh, who is the first Investigation Officer, as PW2; Mr.Umesh Batra, who is husband of the prosecutrix, as PW3; and SI Sushila, who is the Investigation Officer of the case, as PW4.

7. The counsel for the accused, on the instructions of the accused, has made a statement on 28.07.2014 that the accused admits the evidence of PWs Dr. Brijesh (who had medically examined the prosecutrix as well as accused), Dr. Aditi (who had medically examined the prosecutrix and before whom prosecutrix had refused her external and internal medical examination), Ms, Swati Singh, learned Metropolitan Magistrate (who had recorded the statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the prosecutrix), HC Ajay Kumar (duty officer, who had lodged the formal FIR of the case) and Ms.Nazma (who had counseled the prosecutrix in the Police Station) as well as the documents prepared / signed by them.

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                            -:: Page 4 of 38 ::-
                                                    -:: 5 ::-



8. On the basis of the statement of the counsel for the accused and under section 294 Cr.P.C., the above stated witnesses were ordered vide order dated 28.07.2014 not to be examined as their evidence and the documents prepared / signed by them were admitted. The documents prepared / signed by Dr.Brijesh, Dr.Aditi, Ms.Swati Singh, HC Ajay Kumar and Ms.Nazma were exhibited as follows:

          i.     The MLC of the accused-Ex.PX1.
         ii.     The MLC of the prosecutrix-Ex.PX2.
        iii.     The statement of the prosecutrix under section 164 of the
                 Cr.P.C-Ex.PX3.
        iv.      The FIR-Ex.PX4.
         v.      The certificate under section 65-B of the Evidence Act-Ex.PX5.
        vi.      The endorsement on rukka-Ex.PX6
       vii.      The counseling report-Ex.PX7.


9. The counsel for the accused, on the instructions of the accused, has made a statement on 12.08.2014 that the accused admits the evidence of PWs W/Ct.Om Prabha, who had taken the prosecutrix for her medical examination, the evidence of Mr. Balram Yadav, landlord of the prosecutrix as well as the accused, HC Harminder Singh who had prepared the PCR form, as well as the documents prepared / signed by them.

10. On the basis of the statement of the counsel for the accused and under section 294 Cr.P.C., the above stated witnesses were ordered vide order dated 12.08.2014 not to be examined as their evidence and the documents prepared / signed by them were admitted. The documents Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                            -:: Page 5 of 38 ::-
                                                    -:: 6 ::-



prepared / signed by were exhibited as follows:

i. PCR form dated 22.06.2014-Ex.PX8.

11. The counsel for the accused, on the instructions of the accused, has made a statement on 14.09.2014 that the accused admits the evidence of PW Ct. Vijay Kumar as well as documents prepared/signed by him at point X i.e. arrest memo (Ex.PW1/C); personal search memo (Ex.PW2/C); disclosure statement (Ex.PW2/B ); pointing out memo (Ex.PW2/D) and that he had taken the accused to SGM hospital for his medical examination and handed over the exhibits pertaining to the accused to the IO vide seizure memo (Ex.PW4/B).

12. On the basis of the statement of the counsel for the accused and under section 294 Cr.P.C., the above stated witness i.e. Ct.Vijay Kumar was ordered vide order dated 14.09.2014 not to be examined as his evidence and the documents prepared / signed by him were admitted.

STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.

13. In the statement under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has not committed any offence and the case has been falsely lodged against him by the prosecutrix as Mr.Mahesh and Mr. Umesh @ Sonu in connivance with each other falsely implicated him to extort money and as Mr. Umesh @ Sonu did not want to live with his wife.

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                            -:: Page 6 of 38 ::-
                                                    -:: 7 ::-



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

ARGUMENTS

15. 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.

16. Mr.Ateeq Ahmad, Substitute Additional Public Prosecutor for the State had argued the matter at length on 17.11.2014 and Mr.Alok Saxena, Substitute Additional Public Prosecutor for the State had argued the matter at length today i.e. on 29.11.2014. Both the Substitute Additional Public Prosecutors for the State have requested for convicting the accused for having committed the offence under sections 342 and 376 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. It is also argued that the accused had admitted the evidence of several prosecution witnesses and the documents prepared / signed by them. No motive can be assigned to the prosecutrix for false implication of the accused.

17. 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 Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 7 of 38 ::-
                                                    -:: 8 ::-



consultation and is motivated. Even the place of occurrence is not proved. The prosecutrix had refused her gynecological examination and her clothes are not seized. There are several contradictions in the evidence of the prosecutrix and her husband which also indicates that the case is false.

DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS

18. 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 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 Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                            -:: Page 8 of 38 ::-
                                                    -:: 9 ::-



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.

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

CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS

20. The prosecution story unveils on the intervening night 22/23.06.2014 when at about 9.30 pm, DD No. 47A (Ex.PW2/A) was received. On the receipt of said DD, ASI Rajbir Singh (PW2) who was on Emergency duty along with Ct. Vijay (his evidence is admitted) reached at H. No. 20, Shiv Baksh Park, Nangloi, where the prosecutrix (PW1) along with her husband Mr. Umesh (PW3) were present. The accused was apprehended by the police and all of them were taken to the Police Station. The statement of prosecutrix (Ex.PW1/A) was recorded by the police. Upon enquiry from the prosecutrix, ASI Rajbir Singh knew that the matter related to rape, so he telephoned at PS Nangloi and requested to send some lady police official at the spot. On 22.06.2014, as per the directions of SHO PS Nangloi, SI Sushila (PW4) along with Lady Ct. Om Prbha (her evidence is admitted) went to the spot C-20, Shiv Baksh Park, Nangloi, Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                            -:: Page 9 of 38 ::-
                                                    -:: 10 ::-



where ASI Rajbir Singh (PW2) and Ct.Vijay (his evidence is admitted) were already present. Prosecutrix (PW1) along with her husband Mr. Umesh (PW3) and the accused were also present. IO SI Sushila (PW4) examined prosecutrix and recorded her statement (Ex.PW1/A). Thereafter IO prepared rukka (Ex.PW4/A) and handed the same to Ct.Vijay for registration of the case. Ct. Vijay went to the Police Station, got the FIR registered and came back to the spot and handed over copy of the FIR (PX4) and rukka (Ex.PW4/A) to the IO SI Sushila as the investigation was assigned to her. IO SI Sushila interrogated the accused and arrested him vide arrest memo (Ex.PW1/C), his personal search was conducted vide personal search memo (Ex.PW2/C) and recorded his disclosure statement (Ex.PW2/B). The accused pointed out the place of incident vide pointing out memo (Ex.PW2/D). IO had prepared the site plan (Ex.PW1/D) at the instance of prosecutrix. Ct. Vijay (his evidence is admitted) had taken the accused to SGM Hospital for his medical examination and the prosecutrix (PW1) was taken by Ct. Om Prabha (her evidence is admitted) to SGM hospital for her medical examination. Ct. Vijay handed over to IO the samples pertaining to the accused and the IO seized the same vide seizure memo (Ex.PW4/B). Since the prosecutrix had refused to undergo her internal examination, so no samples were collected by the doctor. The exhibits pertaining to the accused were deposited in the Malkhana by the IO. Ms. Najama from NGO Nav Shrishti (her evidence is admitted) was called in Police Station and she counselled the prosecutrix and prepared the counselling report (Ex.PX7). On 23.06.2014 , the statement of the prosecutrix under section 164 of the Cr.P.C. (ExPW1/B) was recorded by Ms. Swati Singh, learned Metropolitan Magistrate (her evidence is Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 10 of 38 ::-
                                                    -:: 11 ::-




admitted) on the application of the IO for recording the statement under section 164 of the Cr.P.C. (Ex.PW4/C) and copy of the statement was given to the IO on her application (Ex.PW4/D). IO/SI Sushila(PW4) recorded the statement of Mr. Balram Yadav, landlord of prosecutrix (his evidence is admitted) and recorded his statement under section 161 of the Cr.P.C. During the investigation, IO had sent the exhibits pertaining to the accused to the office of FSL Rohini but same were not accepted as the exhibits pertaining to prosecutrix not sent along with the same. IO/SI Sushila (PW4) recorded the statement of all the witnesses under section 161 of the Cr.P.C.

21. The allegations against the accused are that on 22.06.2014 at about 2.00 pm at House No. C-20, Shiv Baksh Park, Nangloi, Delhi, while the prosecutrix (PW1) was coming downstairs from her residence on the first floor, to fill water and was going to her house upstairs, then he had forced the prosecutrix into his room, which was on the ground floor, and forcibly committed rape on the prosecutrix, against her consent. The accused pulled her inside his house and raped her. Her husband came there and when she narrated the incident to him, he called the police at 100 number.

IMPORTANT ISSUES

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

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 11 of 38 ::-
                                                    -:: 12 ::-



IDENTITY OF THE ACCUSED

23. There is no dispute regarding the identity of the accused Mr.Neeraj who has been identified by PW1, the prosecutrix, as well as her husband, PW3 and the police witnesses of investigation, PWs 2 and 4. It is also not in dispute that they were known to each other prior to the lodging of the FIR as they were neighbours with the accused living on the ground floor and the prosecutrix living on the first floor. Accused is also named in the complaint (Ex.PW1/A) and the FIR (Ex.PX4).

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

AGE OF THE PROSECUTRIX

25. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint/statement (Ex.PW1/A), statement under section 164 of the Cr.P.C. (Ex.PW1/B), her MLC (Ex.PX2) and her evidence before the Court, the prosecutrix has mentioned her age as 28 years. As per the prosecution, she was a major at the time of the alleged incident.

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

VIRILITY OF THE ACCUSED

27. Accused has admitted the evidence of Dr.Brijesh as well the document prepared/ signed by him. Dr.Brijesh had examined the accused vide MLC (Ex.PX1).

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 12 of 38 ::-
                                                    -:: 13 ::-




28. It is mentioned in the MLC of the accused (Ex.PX1) that "There is nothing to suggest that this person can not perform the act of sexual intercourse"

29. Even on physical examination, the doctor has found that penis, testis and scrotum were well developed and the secondary sexual characters were well developed.

30. Therefore, it is clear that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.

MLC OF THE PROSECUTRIX

31. Accused has admitted the evidence of Dr.Brijesh and Dr.Aditi as well as the documents prepared / signed by them. Dr.Brijesh and Dr.Aditi had medically examined the prosecutrix vide MLC (Ex.PX2). The prosecutrix had refused her gynecological internal examination.

32. 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. She had refused her gynecological internal examination and she does not have any injury on her private parts.

33. The fact that the prosecutrix had refused her internal medical gynecological examination does affect the prosecution case adversely as no forensic or medical evidence could be collected which would have been Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 13 of 38 ::-
                                                    -:: 14 ::-



very relevant and important. Although the prosecutrix has deposed in her evidence that ".........I refused my gynecological examination as had been told by some lady police official not to get the same conducted" but neither the name of that lady police official has been disclosed nor any justified reason has been shown for the refusal. The refusal of the prosecutrix to get her gynecological 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.

DELAY IN FIR

34. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.

35. 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 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.

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 14 of 38 ::-
                                                    -:: 15 ::-



36. 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.

37. 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.

38. 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 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 Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 15 of 38 ::-
                                                    -:: 16 ::-



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.

39. 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."

40. 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"

41. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 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 Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 16 of 38 ::-
                                                    -:: 17 ::-



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"

42. It is claimed by the accused that as the FIR (Ex.PX4) has been lodged on 22.06.2014 at 23:35 hours (11.35 pm) while the allegations made by the prosecutrix in her complaint (Ex.PW1/A) are that the accused had raped her on 22.06.2014 at about 14:00 hours (2.00 pm). The delay in lodging of the FIR has been not explained by the prosecution.

43. The Substitute Additional Public Prosecutors, on the other hand, have submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix and husband informed Mr.Mahesh Pradhan and then after he came at about 7.00 pm, they talked to the accused who did not confess his crime and then finally reported the matter to the police at 11.35 pm and the FIR was lodged.

44. As per the complaint / statement of the prosecutrix to the police, Ex.PW1/A, the date of the offence is 22.06.2014 at about 2.00 pm. She has mentioned that when the accused raped her, in the meanwhile her husband came to whom she narrated the incident and then he called the police at 100 number at her instance.

45. In her statement under section 164 of the Cr.P.C. (Ex.PW1/B), Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 17 of 38 ::-
                                                    -:: 18 ::-



the prosecutrix has deposed that on 22.06.2014 at about 4.30 pm, the accused had caught hold of her hand (she has not mentioned about rape).

46. In the counseling report (Ex.PX7), the prosecutrix has stated that on 22.06.2014 at about 4.30 pm, she went to the room of the accused to take the mixi and her husband saw her coming out of the room and got a wrong impression (she has not mentioned about rape).

47. In her evidence before the Court, the prosecutrix has deposed that on 22.06.2014 at around 2.00-2.30 pm and the accused raped her. She escaped from there, her husband was sitting near the staircase and she narrated the incident to him and accused Neeraj remained at his room. Her husband talked with the accused and told him that he would talk to him after Mr. Mahesh comes there. Her husband telephoned Mr. Mahesh who is the Pradhan of the area and Mr. Mahesh told her husband that he would reach by 5.00 - 6.00 pm. He, however came at 7.00 pm. She told about the incident to Mr. Mahesh and her husband also told him about the same and accused Mr.Neeraj was not in his room at that time. Later on accused Mr.Neeraj came to the first floor to her portion and on the inquiry by Mr.Mahesh, accused Mr.Neeraj did not confess his crime and there was a heated argument and when accused Mr.Neeraj did not confess his crime, her husband telephoned the police. At about 8.30 pm, the police came to the spot.

48. In the PCR form (Ex.PX8), it is mentioned that Mr.Deelep Kumar Enogiya, B-185, Sector-26, Noida, UP had called from mobile Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 18 of 38 ::-
                                                    -:: 19 ::-



number 9718296071 at 21:23:43 that the prosecutrix had been raped at 4.30 pm.

49. In DD No.47A dated 22.06.2014, PS Nangloi (Ex.PW2/A), it is mentioned that at 9.31 pm, an information was received that a lady has been raped and this was passed on to ASI Rajbir Singh for investigation.

50. In the endorsement on rukka (Ex.PX6), the incident is mentioned to have been informed on 22.06.2014 at 11.35 pm.

51. The contention of the prosecution that there is no delay in lodging the FIR as the prosecutrix and her husband waited for Mr.Mahesh to come and when he came, they all discussed the matter with the accused but when he did not confess his crime, the matter was reported to the police.

52. The contention of the counsel for the accused has argued that there is a delay in lodging the FIR which was lodged after due deliberation and consultation.

53. It is clear from the record that Mr.Deelep Kumar Enogiya has not been examined by the prosecution. His name is not even mentioned in the list of the witnesses of the prosecution. All the prosecution witnesses are silent about him.

54. It is also clear from the record that Mr.Mahesh has not been Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 19 of 38 ::-
                                                    -:: 20 ::-



examined by the prosecution. His name is not even mentioned in the list of the witnesses of the prosecution. As per the evidence of PWs 1 and 3, the prosecutrix and her husband respectively, Mr.Mahesh was present during investigation. However, PW2, first IO, has deposed that he cannot tell whether or not Mr.Mahesh was present at the spot. PW4, second IO, has deposed that she had not met Mr.Mahesh during investigation nor his name was disclosed by the prosecutrix and her husband.

55. These facts make the version of the prosecution doubtful that the prosecutrix and her husband waited for Mr.Mahesh to come and when he came, they all discussed the matter with the accused but when he did not confess his crime, the matter was reported to the police.

56. Further, no reasonable or logical explanation is coming for the from the prosecution regarding the delay in lodging of the FIR at 11.35 pm when the alleged incident occurred at about 2.00 pm (as mentioned in Ex.PW1/A); at about 4.30 pm (as mentioned in Ex.PW1/B); at about 4.30 pm (as mentioned in Ex.PX7); at about 4.30 pm (as mentioned in Ex.PX2); at about 4.30 pm (as mentioned in Ex.PX8);and at about 2.00-2.30 pm (as mentioned in examination in chief of PW1).

57. The FIR has admittedly been lodged on 22.06.2014 at 11.35 pm.

58. The prosecutrix and the prosecution have not been able to justify the delay between at about 2.00 pm or even 4.30 pm to 11.35 pm. Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 20 of 38 ::-
                                                    -:: 21 ::-



and why the prosecutrix did not report the matter immediately or earlier. No logical explanation has been furnished by the prosecution for the delay of at least over seven hours to over nine and a half hours.

59. 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 and the documents regarding 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.

60. 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.

PLACE OF INCIDENT

61. The record reveals that there is a discrepancy in the place of incident which has not been satisfactorily explained by the prosecution.

62. As per the complaint / statement of the prosecutrix to the police (Ex.PW1/A) as well as the FIR (Ex.PX4), the place of incident is C-20 Shiv Baksh Park, Nangloi, Delhi, ground floor. In her statement under section 164 of the Cr.P.C. (Ex.PW1/B), the prosecutrix has not specifically deposed about the address, but she has given her address as C-20 Shiv Baksh Park, Nangloi, Delhi in her particulars and mentions that accused Mr.Neeraj was residing on the ground floor. In the PCR form Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 21 of 38 ::-
                                                    -:: 22 ::-




(Ex.PX8), the place of incident is mentioned as Shiv Bhakas Park, Nangloi, C-20, near Mahesh Pradhan ka Purana Office. In the DD No.47A (Ex.PW2/A), the place of incident is mentioned as Shiv Baksh Park, C-2, Mahesh Pradhan ka Office.

63. In her evidence (examination in chief) before the Court, the prosecutrix has deposed that she resides at C-20 Shiv Baksh Park, Nangloi, Delhi, first floor and the incident occurred on the ground floor. In her cross examination, she has deposed that Mr.Mahesh has an office near his residence and he is residing in the area since a long time but she has not disclosed his address.

64. PW3 has deposed that the office of Mr.Mahesh is situated in another street.

65. PWs 2 and 4 have not deposed anything about Mr.Mahesh or his office. PW2 has also not deposed as to how he reached C-20 Shiv Baksh Park, Nangloi, Delhi when in the DD No.47A (Ex.PW2/A), the place of incident is mentioned as Shiv Baksh Park, C-2, Mahesh Pradhan ka Office. There is no investigation regarding Mr.Mahesh and his office.

66. These facts indicate that the possibility cannot be ruled out that the place of alleged incident is wrongly projected as C-20, Shiv Baksh Park, Nangloi, Delhi.

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 22 of 38 ::-
                                                    -:: 23 ::-



DIFFERENT VERSIONS GIVEN BY PROSECUTRIX

67. The prosecutrix has given different versions of the alleged incident in her different statements.

68. In the complaint / statement of the prosecutrix to the police (Ex.PW1/A) and FIR (Ex.PX4), she has stated that on 22.06.2014 at about 2.00 pm, she came from her residence on the first floor to the ground floor to fill water and after filling the same, when she was going up, accused Mr.Neeraj who was residing on the ground floor, came to her, stopped her from going up, caught hold of her hand, forcibly pulled her into his room, made her lie on the bed with bad intention and forcibly raped her.

69. In her MLC (Ex.PX2), the prosecutrix gave the history to the doctor of molestation by her neighbor and no history of sexual / physical assault. She also refused her gynecological internal examination.

70. In the counseling report (Ex.PX7), the prosecutrix told the counselor that on 22.06.2014 at about 4.30 pm, she came down to fill water and she went to the room of the accused to take the mixi and when she did not find it, she came out and then her husband saw her and he got a wrong impression that accused Mr.Neeraj has done something wrong with her but nothing wrong had happened with her nor there was any teasing.

71. In her statement under section 164 of the Cr.P.C. (Ex.PW1/B), the prosecutrix has stated that on 22.06.2014 at about 4.30 pm, she came to fill water from the tap on the ground floor and while she was filling water, Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 23 of 38 ::-
                                                    -:: 24 ::-



accused came to her and told her that his mother was calling her. She went to his house and saw that nobody was there. And when she asked the accused, he started laughing and told her to shut the door of the kitchen on her way out. When she turned to close the door of the kitchen, he pulled her from her hand. She escaped and came out.

72. In her evidence before the Court, the prosecutrix has deposed that on 22.06.2014 at around 2.00-2.30 pm, she came to ground floor to take water and accused Mr.Neeraj resides on the ground floor of the same premises. While she was filling water, accused Mr.Neeraj called her inside his house on the pretext that his mother was calling her and she came on the door of the accused Mr.Neeraj and noticed that his mother was not inside his house. Meanwhile, the accused caught hold her hand and put her chunni which she was wearing in her mouth and pulled her inside the room and he pushed her on the bed and raped her. As he had shut the door of the room, it was dark inside. There was no window in the room but a small ventilator was in the wall which was closed with the cardboard. The light of the room was switched off. She escaped from there, her husband was sitting near the staircase and she narrated the incident to him and accused Mr.Neeraj remained at his room. Her husband talked with the accused and told him that he would talk to him after Mr. Mahesh comes there. Her husband telephoned Mr. Mahesh who is the Pradhan of the area and Mr. Mahesh told her husband that he would reach by 5.00 - 6.00 pm but he came at 7.00 pm. She told about the incident to Mr. Mahesh and her husband also told him about the same and accused Mr.Neeraj was not in his room at that time. Later on, accused Mr.Neeraj Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 24 of 38 ::-
                                                    -:: 25 ::-



came to the first floor to her portion and on the inquiry by Mr. Mahesh, accused Mr.Neeraj did not confess his crime and there was a heated argument and when accused Mr.Neeraj did not confess his crime, her husband telephoned the police.

73. It can be seen that the prosecutrix has given different accounts of the alleged incident including the timing, the incident itself, manner in which the alleged offence was committed, presence of Mr.Mahesh, etc. In her complaint and evidence, the prosecutrix has stated that she was raped by the accused but in her counseling report and statement under section 164 of the Cr.P.C. she says that she was not raped by the accused. PW1 has admitted that she had made the statement under section 164 of the Cr.P.C. voluntarily and without any threat, pressure, coercion or influence. When the prosecutrix says at one time that she was raped and another time that she was not raped, then her evidence before the Court that she was raped becomes unworthy of credence and unreliable. No explanation is coming forth from the prosecution regarding these material contradictions and discrepancies in the different statements of the prosecutrix which strike at the root of the prosecution case and are fatal blemishes which cannot be ignored.

74. The prosecution has failed to furnish any explanation in respect of the contradictions in the different statements of the prosecutrix. The inherent 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 prosecutrix suffer from such infirmities and Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 25 of 38 ::-
                                                    -:: 26 ::-



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 there appears to be a strong possibility of false implication of the accused.

75. 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 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."

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

487.

77. 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 Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 26 of 38 ::-
                                                    -:: 27 ::-



evidence and it may be excluded from consideration in determining the guilt of accused.

78. 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.

79. 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.

80. 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.

81. 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 gynecological examination, even though her version may be otherwise, 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 Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 27 of 38 ::-
                                                    -:: 28 ::-



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) LRC 137 (SC).

82. 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).

83. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 342 and 376 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 prosecutrix was confined and raped by the accused.

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 28 of 38 ::-
                                                    -:: 29 ::-



CONTRADICTIONS IN THE EVIDENCE OF PWS 1 AND 3

84. On perusal of the record, it transpires that there are several contradictions in the testimonies of the prosecutrix-PW1 and her husband- PW3.

85. PW1 has deposed that when she escaped from the house of the accused after the incident, her husband was sitting near the staircase. PW3 has deposed that he was standing in the balcony.

86. PW1 has deposed that her husband talked with the accused and told him that he would talk to him after Mr.Mahesh comes there. PW3 has not deposed anything about him talking with the accused prior to the arrival of Mr.Mahesh.

87. PW1 has deposed that Mr.Mahesh told her husband that he would reach by 5.00-6.00 pm and he came at 7.00 pm. PW3 has deposed that Mr.Mahesh told him that he would reach by 7.00-8.00 pm and he came at about 7.00- 8.00 pm.

88. PW1 has deposed that her mother in law is rich and she gives money to her husband. She did not know the names of her parents in law and address except that they lived in Gurgaon. PW3 has deposed that his mother, who lives in Gurgaon, is not on visiting terms with him and his wife and she was sending any money to him.

89. PW1 has deposed that "...my husband told him that as he had Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 29 of 38 ::-
                                                    -:: 30 ::-



committed the wrong act with me, he should now take my responsibility also and marry me as my husband would no longer keep me with himself". PW3 has deposed that "Out of anger I had told the accused if my wife was defamed due to this incident, would he marry my wife".

90. PW1 has deposed that "It is correct that the accused had told my husband and Mr. Mahesh as he had not committed any wrong, he would not take my responsibility and marry me". PW3 has deposed that "Accused Neeraj did not admit his fault and did not say anything".

91. PW1 has deposed that her husband had telephoned the police. PW3 has deposed that he called the police. However, in the PCR form (Ex.PX8), it is mentioned that Mr.Deelep Kumar Enogiya, B-185, Sector-26, Noida, UP had called from mobile number 9718296071 at 21:23:43 that the prosecutrix had been raped at 4.30 pm.

92. Admittedly, the prosecutrix is married. In such a situation, there was no occasion for her husband to offer her marriage with the accused since such a marriage is legally not permissible. It may be mentioned here that the hon'ble Supreme Court of India in the judgment reported as Prashant Bharti v. State of NCT of Delhi, MANU/SC/0063/2013: 2013 (1) SCALE 652 has observed in a similar case as follows:

"Priya married another man Manoj on 30.9.2008. This is evidenced by a certificate of marriage dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship based on the assurance of marriage."

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 30 of 38 ::-
                                                    -:: 31 ::-



93. In such a situation, the assertion made by the prosecution that the offer was made by the husband of the prosecutrix out of anger, is per se false and as such, unacceptable as the prosecutrix could not have married the accused during the subsistence of her marriage with PW3.

94. No explanation is furnished by the prosecution for all the above elaborated contradictions. The same may be minor but are blemishes which cannot be ignored and they throw a shadow of doubt on the prosecution version and the possibility of false implication of the accused cannot be completely ruled out.

MENS REA / MOTIVE

95. 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.

96. 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 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 Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 31 of 38 ::-
                                                    -:: 32 ::-



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.

97. 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.

98. In the present case, a story has been projected that the accused has confined and raped the prosecutrix 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. PW3 has admitted that there was no quarrel between him and the accused prior to the incident and that his wife used to visit the house of the accused to meet his mother although he was not on visiting terms.

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 32 of 38 ::-
                                                    -:: 33 ::-




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

DEFENCE OF THE ACCUSED

100. 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 to extort money as well as PW3 did not want to live with his wife, the prosecutrix. He has preferred not to lead any evidence in his defence.

101. 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 1 and 3 which have been denied by them. Prosecutrix, being married to PW3, could not have married the accused, as offered by PW3 and this fact makes the defence of the accused probable that PW3 did not want to live with his wife.

102. However, the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.

103. 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.

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 33 of 38 ::-
                                                    -:: 34 ::-



INVESTIGATION

104. The investigation conducted in the present case has been deposed by PWs 2 and 4, the first and second Investigation Officers respectively. The FIR, MLCs of the prosecutrix and the accused, documents of arrest of the accused, documents prepared during investigation etc. have been admitted by the accused (Ex.PX1 to Ex.PX8).

105. 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.

106. 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.

107. However, it can be seen from the record that more serious investigation was required in this case which is of very serious and grave nature. No investigation has been conducted to identify and produce Mr.Deelep Kumar Knogiya who had called the PCR as well as mobile phone. The person who had set the prosecution into motion was an important witness but he has not even been examined by the IO and the prosecution. The clothes of the prosecutrix were not seized nor sent for Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 34 of 38 ::-
                                                    -:: 35 ::-



forensic examination. Mr.Mahesh was neither cited as a witness nor produced in evidence by the prosecution. The prosecution has also failed to make Me.Deelep Kumar Knogiya and Mr.Mahesh witnesses or produce and examine them despite both of them being material witnesses who could have deposed about the present case. No independent person from the public has been associated with the investigation despite the place of incident being situated in a residential area which is thickly populated. Clarification was also required to be taken regarding the place of alleged incident as there is discrepancy regarding the same in the documents of the prosecution (Ex.PW2/A, Ex.PX1, Ex.PX3, Ex.PX7 and PX8) but the same is lacking. Verification of the record of the mobile phone of the husband of the prosecutrix has also not been made to ascertain whether or not he had informed the police and whether or not he had called Mr.Mahesh. These facts make the version of the prosecution appear to be unreliable and untrustworthy.

FINAL CONCLUSION

108. 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 guilty;

Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 35 of 38 ::-
                                                    -:: 36 ::-



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.

109. Applying the above principles of law to the facts of present case, it stands established that the accused had not confine nor raped the prosecutrix. 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 an incident ever took place.

110. 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.

111. 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.

112. If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 36 of 38 ::-
                                                    -:: 37 ::-



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.

113. It is a case of heinous crime of confinement and 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 an incident ever took place.

114. The prosecution has miserably failed to prove that on 22.06.2014 at about 2.00 p.m. at house no. C-20 Shiv Baksh Park, Nangloi, Delhi while the prosecutrix (name mentioned in file but withheld to protect her identity) was coming downstairs to fill water and was going to her house upstairs, then accused Mr.Neeraj had forced the prosecutrix into his room and forcibly committed rape upon her, against her consent.

115. All the above facts indicate that there is no veracity in the prosecution case in respect of the offence of wrongful confinement and rape of the prosecutrix by accused Mr.Neeraj and the accused merits Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 37 of 38 ::-
                                                    -:: 38 ::-



to be acquitted for the offence under sections 342 and 376 of the IPC.

116. 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.Neeraj.

117. Accordingly, Mr.Neeraj, the accused, is hereby acquitted of the charges for the offence punishable under sections 342 and 376 of the IPC.

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

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

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

120. One copy of the judgment be given to the Substitute Additional Public Prosecutor, as requested.

121. 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 29th day of November, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.

**************************************************************** Sessions Case Number : 77 of 2014.

Unique Case ID Number : 02401R0335682014 FIR No. 435/2014, Police Station Nangloi Under sections 342, 354 and 376 of the Indian Penal Code.

State versus Neeraj                                             -:: Page 38 of 38 ::-