Delhi District Court
State vs . 1. Ram Lal Yadav @ Ram on 4 April, 2013
1
FIR No. 398/11
PS - Rani Bagh
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 92/13
Unique ID No. : 02404R0131482012
State Vs. 1. Ram Lal Yadav @ Ram
S/o Sh. Bal Chand Yadav
R/o Village Mahetar Patari,
PS - Birpur,
Police Station - Baso Patati
District - Madhubani,
Bihar.
FIR No. : 398/11
Police Station : Rani Bagh
Under Sections : 376 IPC
Date of committal to session Court : 22/05/2012
Date on which judgment reserved : 20/03/2013
Date of which judgment announced : 04/04/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 43 2 FIR No. 398/11 PS - Rani Bagh report under section 173 Cr.P.C is as under : That on 28/12/2011, W/SI Harjinder Rana was called to the Police Station, Rani Bagh and in the reporting room, she met victim/prosecutrix (name withheld being a case u/s 376 IPC), her owner and Kusum Behan of NGO, Sampurna Sanstha and made interrogation to the victim and got her medically examined vide MLC No. 1885/11 on which Doctor has endorsed alleged H/o sexual assault seven months back. Victim made the statement which is to the effect that, she is the permanent resident of village Mandwa, PS - Boria, PO - Bazhi, District
- Sahib Ganj, Jharkhand and the present address is House No. 42, Model Apartments, Near M2K, Pitam Pura, Delhi, age - 1819 years. She is having no mother. She has two sisters. About two years back, for work she had come from her village and through Placement Agency, Punjabi Bagh had come to work at house no. 42, Model Apartments, Rani Bagh, Delhi and since then she is working at the said place. Her owner Sanjay Kapoor is having a factory of purse making at Nabi Karim, Delhi. In which one person named Ram S/o Bal Chand works as a servant. Who sometimes comes to the said house for cooking when the lady owner (Malkin) is not well as she (victim) does not know how to cook. During 2 of 43 3 FIR No. 398/11 PS - Rani Bagh this period friendship developed between them. In June, 2001, Ram continuously stayed at the said house due to the lady owner (Malkin) not well and he expressed his desire to marry with her (victim) and had committed wrong deed (established physical relations) upon her against her consent at the said house. In July, 2001, he (Ram) went back to the factory. He used to come in between and she told him about she having become pregnant on which he said do not worry he will perform the marriage and will make a family (mai shadi karunga aur ghar basaunga). He after bringing some medicines gave to her and said let she eat these medicines she will get right (yeh dawai kha lo, tum thik ho jaogi). She does not know what medicine it was. She kept on following what he kept on directing because he used to kept on saying to make a family (weh ghar banane ki baat kehta tha) and she wanted to live with him and for this reason, she did not disclose the incident to anyone. In November, 2011 because of having performed operation on the lady owner (Malkin), Ram came to the said house for cooking. Then also he kept on decepting for making the marriage (tab bhi weh mujh se shadi karne kebare mei jhansa deta raha) with her. In December, 2011, a few days ago on making the pretext of illness of his wife, to the lady owner, he left for his 3 of 43 4 FIR No. 398/11 PS - Rani Bagh village then only, she (victim) came to know that he is already married. On this today, she told all the incident to her lady owner, who has brought her to the Police Station. Ram, by representing him as unmarried and on the deception of making marriage had established wrong relations with her against her consent. Legal action be taken against Ram. Her statement has been recorded in the presence of her lady owner and has been read out to her and she has understood and heard the same and is correct. W/SI Harjinder Rana on the said statement got registered the case and carried out the investigation. During the course of investigation, the site plan was prepared. The relevant documents relating to the prosecutrix from Kangan Service Centre were collected. Statement of prosecutrix u/s 164 Cr.P.C. was got recorded and she was sent to Nari Niketan. Statements of the witnesses were recorded. On transfer of W/SI Harjinder Rana, further investigation of the case was handed over to W/ASI Sunita Gupta. Later on, the custody of the prosecutrix was handed over to her father by the Court. Search for the accused was made but could not be traced out. NBW against the accused were obtained, later on accused was arrested, his personal search was conducted and his disclosure statement was 4 of 43 5 FIR No. 398/11 PS - Rani Bagh recorded. Accused was got medically examined. The blood sample of the accused alongwith the sample seal as handed over by the Doctor were taken into Police possession. Court permission was obtained for DNA Test of victim and accused. Victim after delivery was taken for DNA Test. Accused for DNA Test was taken to Bhagwan Mahavir Hospital, Pitam Pura, Delhi. Samples of both the victim and accused were sent to the FSL, Rohini for DNA Test.
Upon completion of necessary further investigation, challan u/s 376 IPC was prepared against accused Ram Lal Yadav @ Ram and was sent to the Court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376 IPC IPC was made out against the accused. The charge was framed accordingly, 5 of 43 6 FIR No. 398/11 PS - Rani Bagh which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 13 witnesses. PW1 - HC Mohan Singh, PW2 - Lady Constable Sandhya, PW3 - HC Narender Singh, PW4 - Prosecutrix (name withheld), PW5 - Smt. Bobby Kapoor, PW6 - Dr. Mamta Varma, CMO Bhagwan Mahavir Hospital, Pitam Pura, Delhi, PW7 - Dr. Kalpana, SR (Gynae), Bhagwan Mahavir Hospital, Pitam Pura, Delhi, PW8 - Dr. Sanjay Kumar Dosar, SR (Surgery), Bhagwan Mahavir Hospital, Pitam Pura, Delhi, PW9 - Sh. Neeraj Gaur, Ld. MM, Tis Hazari Courts, Delhi, PW10 - Constable Dharmender, PW11 - Constable Satender Kumar, PW12 - SI Harjinder Rana and PW13 - ASI Sunita Dutta.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Mohan Singh is the Duty Officer who proved the computerized copy of FIR Ex. PW1/A, signed by him at point A and his 6 of 43 7 FIR No. 398/11 PS - Rani Bagh endorsement Ex. PW1/B on the rukka at point A, signed by him at point A. PW2 Lady Ct. Sandhya who joined the investigation on 28.12.2011 and deposed that she got conducted the medical examination of the prosecutrix at Bhagwan Mahavir Hospital and obtained her MLC and the doctor did not take any exhibit of the prosecutrix as she was pregnant. Statement of the prosecutrix was recorded by the IO who got the case registered.
PW3 HC Narender Singh who joined investigation on 20.12.2011 and deposed on the investigational aspects and proved the arrest memo of accused Ex. PW3/A , his personal search memo Ex. PW3/B and his disclosure statement Ex. PW3/C, signed by him at points A. PW4 Prosecutrix is the victim who deposed regarding the incident and proved her complaint made to the police Ex. PW4/A, signed by her at point A, her statement U/s 164 Cr. PC Ex. PW4/B, signed by 7 of 43 8 FIR No. 398/11 PS - Rani Bagh her at point A and deposed that she gave birth to a baby girl on 12.3.2012 and thereafter she took her child to her native place . Blood sample was taken from her and her child at the time of delivery. Accused never told her that he was married.
PW5 Smt. Bobby Kapoor who deposed that she had procured services of prosecutrix from Kangana Placement Agency sometimes in the year 2009 with her wages fixed at Rs. 2000/ per month and her age was told to the 18 years to her by the placement agency when she hired her. She further deposed that accused Ram Lal Yadav had been working for her family since last about 13 years and he used to do work of cooking and had started going to her husband factory since about last six years and deposed on the investigation aspects which she joined.
PW6 Dr. Mamta Varma, CMO, Bhagwan Mahavir Hospital, Pitam Pura, Delhi who on 15.3.2012 medically examined the patient/accused Ram Lal Yadav vide MLC Ex. PW6/A, signed by her at point A. 8 of 43 9 FIR No. 398/11 PS - Rani Bagh PW7 Dr. Kalpana, SR(Gynae), Bhagwan Mahavir Hopital, Pitam Pura, Delhi who proved the gynaecological examination as conducted by Dr. Rooma Gupta , S.R . Gynae. From point A to A1 on the MLC Ex. PW7/A, signed by Dr. Roma Gupta at point 'A2'.
PW8 Dr. Sanjay Kumar Dosar, SR (Surgery), Bhagwan Mahavir Hospital, Pitam Pura, Delhi who proved the medical examination of patient/accused Ram Lal Yadav conducted on 20.02.2012 by Dr. Prachi Arora from point A to A1 on the MLC of the accused Ex. PW8/A, signed by Dr. Prachi Arora at point A2. He further deposed that accused was serogically examined by Dr. Mayank and proved his examination from point B to B1 on MLC Ex .PW8/A, signed by Dr. Mayank at point B2.
PW9 Sh. Neeraj Gaur, Ld. MM who recorded the statement of the prosecutrix U/s 164 Cr. PC and proved the application for recording the statement Ex. PW9/A. The statement U/s 164 Cr. PC Ex. PW4/B, signed by her at point A. Certificate regarding true and 9 of 43 10 FIR No. 398/11 PS - Rani Bagh correctness of the statement Ex. PW9/B, his signature at points B on the all the pages of the proceedings, supply of the copy of the statement to the IO vide application Ex. PW9/C and the carbon copy of the application of the IO vide which the prosecutrix was sent to Nari Niketan Ex. PW9/D. PW10 Ct. Dharmender who deposed that on 19.3.2012 MHC(M) HS Suresh handed over to him two sealed pulindas and sample seal vide RC No. 9/21/12 for depositing the same in FSL Rohini. He after depositing the same came back to the PS and handed over the receipt to the MHC(M).
PW11 Ct. Satender Kumar, who joined investigation with IO and deposed on the investigational aspects and besides proving the other memos also proved seizure memo of the sealed exhibits which were handed over by the concerned doctor after the medical examination of the accused Ex. PW11/A , signed by him at point A. PW12 SI Harjinder Rana who is the initial IO of the case 10 of 43 11 FIR No. 398/11 PS - Rani Bagh who deposed on the investigational aspects and deposed that she recorded the statement of prosecutrix Ex PW4/A, signed by her at point B and proved her endorsement Ex. PW12/A on it and got the case registered. She proved the site plan Ex. PW12/B, signed by her at point A, the seizure memo of the registration form of Kangan Service Centre regarding biodata of prosecutrix Ex. PW12/C, signed by her at point A. She further deposed that on 29.12.2011 she got recorded the statement of prosecutrix U/s 164 Cr. PC Ex. PW4/B. Thereafter, she took the prosecutrix in Matrav Chhaya, Rai Rohilla and left the prosecutrix at Matrav Chhaya.
PW13 ASI Sunita Dutta who deposed that on 15.01.2012, further investigation was entrusted to her. She deposed on the investigational aspects and deposed that on 16.01.2012 by the orders of the court, she took the prosecutrix to Nari Niketan after getting her release from Matrav Chhaya and left the prosecutrix at Nari Niketan. On 02.02.2012 the custody of the prosecutrix was handed over to her father. She further deposed that at the instance of secret informer accused Ram Lal Yadav was arrested vide arrest memo Ex. PW3/A, his 11 of 43 12 FIR No. 398/11 PS - Rani Bagh personal search was conducted vide memo Ex .PW3/B, signed by her at points C and his disclosure statement was recorded Ex. PW3/C, signed by her at point B. She proved the seizure memo of the blood samples of the prosecutrix and her child for DNA printing handed over by the doctor Ex. PW13/A, signed by her at point A and also proved the seizure memo of blood samples of the accused handed over by the concerned doctor Ex. PW13/B, signed by her at point A. She further deposed that on 19.02.2012 she deposited the blood samples of the prosecutrix, accused and the child for DNA finger printing and after depositing of the samples, handed over the acknowledgment receipt to the MHC(M). After completion of the necessary investigation, filed the challan in the Court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused namely Ram Lal Yadav @ Ram was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and opted not to lead any defence evidence.
12 of 43 13 FIR No. 398/11 PS - Rani Bagh
7. Ld. Counsel for the accused submitted that PW4 - prosecutrix has specifically stated in her crossexamination that she was having love affair with accused and she established her physical relations with the accused of her own sweet will without any force or coercion though PW4 has stated in examinationinchief that accused promised to marry her and further promised to keep her happy throughout after marriage with her but the main point for consideration for this Court is to see the conduct of prosecutrix and broad probabilities. Even in the chief examination the prosecutrix has nowhere deposed that any kind of such threat was given to her by the accused on account of which the prosecutrix was so scared or the life of the prosecutrix was in such a danger not to disclose the acts of accused to anyone. Neither any weapon was shown by the accused on account of which the prosecutrix was so such afraid not to disclose her relations with the accused to anyone including her "MALKIN". PW4 in her crossexamination has admitted that she established physical relations with the accused as she was in love with him and accused never forced himself upon the prosecutrix. PW4 was not a child rather she was a grown up lady knowing all the consequences of having physical relations with some person and after 13 of 43 14 FIR No. 398/11 PS - Rani Bagh knowing all consequences she herself established physical relations with the accused without any kind of fear or threats shown by the accused to PW4. It is an admitted fact that the accused used to come off and on in the house of Sh. Sanjay Kapoor where PW4 was a maid servant and accused was not permanently residing in that house. PW4 was having all chances to inform the conduct and intention of the accused to her Malkin or to her employer as she was permanently residing in that house but she did not choose to inform until she became 7 months pregnant when she was questioned by her Malkin. Prosecutrix has categorically stated in her crossexamination that she was free to use telephone installed in the house and there was no restrictions upon her movements. Prosecutrix did not level any allegation against the accused particularly when accused had gone away at his native place i.e. Bihar for months altogether. This conduct of the prosecutrix is abnormal.
Ld. Counsel for accused has further submitted that it is fully proved that the prosecutrix established physical relations with accused out of her own free will though as per the prosecutrix the accused promised to marry her but the evidence of Malkin PW5 cannot be ignored who has admitted that the prosecutrix was aware that the 14 of 43 15 FIR No. 398/11 PS - Rani Bagh accused was already married because at a number of times the accused used to get calls from his native place from his wife and PW5 once even handed over telephone to the prosecutrix and informed her to hand over the telephone to accused as his wife wanted to talk to him. Thus it cannot be believed that the prosecutrix was not aware that the accused was married. No evidence has been led by prosecution to prove that the offence of rape was committed by the accused without consent of prosecutrix and by force or by giving any kind of threats to the life of the prosecutrix. Even the IO has admitted in her crossexamination that it was a case of consensual sex.
Ld. Counsel for accused has further submitted that it is not plausible and believable that the prosecutrix did not know that the accused is already a married man and suddenly she came to know that the accused was a married man when she was 7 months pregnant and on that very day the prosecutrix went to the Police Station along with the complainant and got the FIR registered against the accused. Moreover, IO could have recorded any statement of the complainant u/s 161 Cr.P.C. as the same are not supposed to bear the signature of the complainant, however, the statement of the complainant is also silent to the fact that 15 of 43 16 FIR No. 398/11 PS - Rani Bagh the prosecutrix did not know that the accused is already a married man.
Ld. Counsel for accused has further submitted that the prosecution has failed to stand on its leg and has failed to make out a prima facie case u/s 375 IPC. The ingredients of an offence u/s 375 IPC are not at all attracted and thus accused is liable to be acquitted and prayed that accused may kindly be acquitted with full honour, in the interest of justice.
Ld. Counsel for accused also referred to the cases and reported as 'Uday Vs. State of Karnataka', 2003 Crl. L.J. 1539, 'Dalip Singh Vs. State of Bihar', 2004(4)RCR Crl. 972, 'Sri Chand Vs. State of Haryana', 2004 (3) RCR Crl. 481, 'Sudhangshu Sengupta Vs. State of West Bengal', 2005 (4) Crimes 476 (Cal.), 'Ram Lal Mahto Vs. State of Bihar', 2001 (3) Crimes 117, 'Panchapathi Vs. State', 2007 (4) Crimes 378 (Mad.), 'K. P. Thimmappa Gowda Vs. State of Karnataka', AIR 2011 SC 2564, 'Krishna Pada Mahato Vs. State of West Bengal', 2005 (3) Crimes 644, 'Kumaresh Chikkappa Bagodi Vs. State of Karnataka', Crl. Appeal No. 2002 (2) RCR 208, 'Khaderbasha Vs. State of Karnataka', 2001(4) RCR 806, 'Sunil Vishnu Salve Vs. State of Maharashtra', 2006 Crl. L.J. 587, 'Gauttam Vs. State of Rajasthan', 2005 Cri. L.J. 981, 'Naravan @ 16 of 43 17 FIR No. 398/11 PS - Rani Bagh Naran Vs. State of Rajasthan', 2007 Cri. L.J. 2733, 'Lakhan Lal Vs. State of M.P.', 2004 Cri. L.J. 3962, 'Lakshmana Naik Vs. State of Karnataka', 2004 Cri.L.J. 3913 and 'Hari Majhi Vs. State', 1990 Cri.L.J. 650.
8. While the Ld. Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Sh. S. C. Sroai, Ld. Addl. PP for the State and Sh. Vinod Mahla Ld. Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offence punishable u/s 376 IPC against accused Ram Lal Yadav @ Ram is that in the month of June, 2011, at House No. 42, Model Apartment, Near M2K, Pitam Pura, Delhi, within the jurisdiction of PS - Rani Bagh, he repeatedly raped prosecutrix 17 of 43 18 FIR No. 398/11 PS - Rani Bagh (name withheld) D/o Mangal, without her consent and against her wishes.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW12 - SI Harjinder Rana, IO in her examinationinchief had deposed that the registration form of Kangan Service Centre regarding biodata of prosecutrix was seized vide seizure memo Ex. PW12/C signed by her at point 'A'.
The perusal of the registration form dated 12/07/2011 shows the date of birth of the prosecutrix as 18 years.
PW4 - prosecutrix in her statement recorded on 11/10/2012 has stated her age as 19 years.
Since PW4 - prosecutrix has stated her age as 19 years on 18 of 43 19 FIR No. 398/11 PS - Rani Bagh 11/10/2012 at the time of recording of her evidence/statement and as the date of the alleged incident is June, 2011, on simple arithmetical calculation, the age of prosecutrix comes to 18 years 07 months and 19 days. Moreover, the factum of the age of the PW4 - prosecutrix has not been disputed by the accused Ram Lal Yadav @ Ram.
Despite grant of opportunity, PW6 - Dr. Mamta Verma and PW8 Dr. Sanjay Kumar Dosar were crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands established on record that PW4 prosecutrix was aged 18 years 07 months and 19 days as on the date of alleged incident in the month of June, 2011.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW7 - Dr. Kalpana, SR Gynae, MV Hospital, Delhi proved the gynaecological examination of the prosecutrix as was conducted by Dr. Roma Gupta, SR Gynae from points 'A' to 'A1' on the MLC of the prosecutix Ex. PW7/A signed by Dr. Roma Gupta as point 'A2'.
Despite grant of opportunity PW7 - Dr. Kalpana was not 19 of 43 20 FIR No. 398/11 PS - Rani Bagh crossexamined by the accused and on behalf of the accused.
In the circumstances, the gynaecological examination of PW4 - prosecutrix as was conducted by Dr. Roma Gupta, SR Gynae stands proved on the record.
VIRILITY OF THE ACCUSED
14. PW6 - Dr. Mamta Verma, CMO MV Hospital, Delhi proved the medical examination of accused Ram Lal Yadav as was conducted on 15/03/2012 vide MLC Ex. PW6/A signed by her at point 'A'.
PW8 - Dr. Sanjay Kumar Dosar, SR Surgery, proved the medical examination of accused Ram Lal Yadav as was conducted on 20/02/2012 by Dr. Prachi Arora from point 'A' to 'A1' on the MLC of the accused Ex. PW8/A signed by Dr. Prachi Arora at point 'A2' and also proved the medical examination of accused Ram Lal Yadav as was conducted by Dr. Mayank from point 'B' to 'B1' signed by Dr. Mayank at point 'B2'.
The perusal of MLC of accused Ram Lal Yadav Ex. PW8/A interalia shows that it been opined that there is no evidence to suggest impotency.
20 of 43 21 FIR No. 398/11 PS - Rani Bagh Despite grant of opportunities neither PW6 - Dr. Mamta Verma nor PW8 - Dr. Sanjay Kumar Dosar were crossexamined on behalf of accused.
In view of above and in the circumstance, it stands proved on record that the accused was capable of performing sexual intercourse. DNA FINGER PRINTING EVIDENCE
15. As per DNA Report Ex. PX, the description of the sources, DNA examination, result of examination and conclusion reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel 1 : One cloth parcel sealed with the seal of "BMH GOVT. OF NCT OF DELHI PITAMPURA DELHI" containing exhibit '1'. Exhibit 1 : A piece of Gauze cloth having dark brown stains described as "Blood sample in Gauze piece of new born baby". Parcel 2 : One cloth parcel sealed with the seal of "BMH GOVT. OF NCT OF DELHI PITAMPURA DELHI" containing exhibit '1' (Be read as exhibit '2').
Exhibit 2 : A piece of Gauze cloth having dark brown stains described as "Blood sample in Gauze piece of accused Ramlal Yadav".
21 of 43 22 FIR No. 398/11 PS - Rani Bagh DNA EXAMINATION The source of exhibits '1' & '2' were subjected to DNA isolation. DNA was isolated from the source of exhibits '1' & '2'. The DNA Profile for the exhibits '1' & '2' were prepared. STR analysis was used for the sample. Date was analysed by suing Genescan and Gene Mapper IDX software.
RESULTS OF EXAMINATION One set of alleles of the source of exhibit '2' (Blood sample in Gauze piece of accused Ramlal Yadav) are accounted in one set of alleles of the source of exhibit '1' (Blood sample in Gauze piece of new born baby). CONCLUSION The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that source of exhibit '2' (Blood sample is Gauze piece of accused Ramlal Yadav) is biological father of source of exhibit '1' (Blood sample in Gauze piece of new born baby). NOTE : 1. The remnants of the exhibit have been sealed with seal of "D.S.P. FSL DELHI".
On careful perusal and analysis of the DNA Fingerprinting test Evidence on record, it clearly shows that as per the DNA profiling, source of exhibit 2 (Blood sample in gauze piece of accused Ram Lal 22 of 43 23 FIR No. 398/11 PS - Rani Bagh Yadav) is biological father of source of exhibit 1 (Blood sample in the gauze piece of new born baby).
On a conjoint reading of the medical evidence, the gynaecological examination from point 'A' to 'A1' of the MLC of the prosecutrix Ex. PW7/A together with the MLC of accused Ram Lal Yadav Ex. PW6/A. In the light of the DNA Report Ex. PX detailed here inabove, it clearly indicates that after committal of the sexual intercourse upon the prosecutrix by accused Ram Lal Yadav, she became pregnant and delivered a baby whereby the genes were inherited by the new born baby from accused Ram Lal Yadav during the process of fertilization of the ovum of the prosecutrix by the sperm released by accused Ram Lal Yadav.
In the circumstances, it stands clearly established on the record that accused Ram Lal Yadav committed sexual intercourse upon the prosecutrix by complete penetration of penis with the emission of semen resulting in the fertilization of the ovum of the prosecutrix with the sperm of accused Ram Lal Yadav resulting in her pregnancy and delivery of the baby and of the inheritance of the genes from accused Ram Lal Yadav thereby he (accused Ram Lal 23 of 43 24 FIR No. 398/11 PS - Rani Bagh Yadav) is the biological father of the baby born to the prosecutrix.
As per the DNA Report Ex. PX, prosecution has discharged its initial burden of proving the accused as the biological father of the baby born to the prosecutrix.
Moreover, during his statement recorded u/s 313 Cr.P.C., accused Ram Lal Yadav @ Ram has admitted that he is the father of the child born to PW4 - prosecutrix. The relevant part of statement of accused Ram Lal Yadav @ Ram recorded u/s 313 Cr.P.C. reads as under : "Q18. It is in evidence against you that the exhibits were examined and DNA Report Ex. PX and the ultrasound report Ex. PY of prosecutrix PW4 - (name withheld) was filed in the Court. What you have to say? Ans. I am the father of her child and I undertake to maintain my child."
16. Now let the testimonies of PW4 - prosecutrix and PW5 - Smt. Bobby Kapoor, the House Lady (Malkin) in whose house PW4 - prosecutrix was working as maid servant be perused and analyzed.
PW4 Prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "In March, 2010, I Came from Jharkhand to work at House 24 of 43 25 FIR No. 398/11 PS - Rani Bagh No. 42, Model Apartment. I was doing work of cleaning at the said house of Sh. Sanjay Kapoor and Priya Kapoor. A personal by name of Ram was working in the factory of my employer Sanjay Kapoor. The witness has identified accused Ram Lal Yadav, who is present in the Court today through the design in the wooden partition. Accused Ram used to come to the house of my employer in the evening to cook food as I did not know cooking. Again said, accused used to come sometimes as and when Malkin (wife of employer Sanjay Kapoor) was unwell. Accused used to talk to me. Woh mujhse galat baat bhi karata tha. Court Ques. Galat baat se aap ka kya matlab hai?
Ans. Mujhse galat kaam karne ko kehta tha. Court Ques. What do you mean by 'galat kam'? Ans. Woh cheda chedi karata tha.
I did not tell about this to my Malkin or Malik as accused used to scold me and he told me not to tell about it to anyone.
On 05/06/2011, when all the family members had gone out, the accused did 'galat kaam' with me. Accused told me that he wanted to marry me, tumse shadi banaunga, tumhe achhi tarah rakhunga. In June, Malkin had undergone an operation and accused used to stay there to cook food. He did 'galat kaam' with me for about a month. Court Ques. What do you mean by 'galat kaam'?
Ans. What husband and wife do after marriage.
After three months accused told me that I was pregnant. I did not know about it. Accused also gave me some medicines but I do not know for what. Accused told me 'yeh kha ke, tum thik ho jao gi'. I ate those medicines but nothing happened. I did whatever accused told me to do. In November, 2011, accused went to his village after telling Malkin that his wife was not well. Accused did not tell me that he was 25 of 43 26 FIR No. 398/11 PS - Rani Bagh married and was having a wife. I was told by Malkin that accused had gone to his village as his wife was not well. I told everything to Malkin, who took me to PS. I told everything to the Police. I have studied upto 4th Class. Police wrote whatever I had told them.
At this stage, witness is shown her complaint from the judicial file and identifies her signatures at point 'A' thereupon. The complaint is now exhibits as Ex.PW4/A. I was taken to hospital for my medical examination but my examination could not be conducted as I was pregnant. I was sent to Nirmal Chhaya.
I went to Court once earlier where my statement was recorded. I had told before the Court whatever I have stated today. I had signed on my statement.
At this stage, sealed envelope bearing seal of 'NG' is taken out from the judicial file. The seal is opened and proceedings u/s 164 Cr.P.C. are taken out and witness is shown the same. The witness identifies her signatures at point 'A' thereupon. The proceedings are now exhibits as Ex. PW4/B. I gave birth to a baby girl on 12/03/2012. Thereafter, I took my child to my native village. Blood sample was taken from me and my child at the time of delivery. Accused never told me that he was married."
From the aforesaid narration of PW4 - Prosecutrix it is clearly indicated that In March, 2010, she came from Jharkhand to work at House No. 42, Model Apartment. She was doing work of cleaning at the said house of Sh. Sanjay Kapoor and Priya Kapoor. Accused Ram 26 of 43 27 FIR No. 398/11 PS - Rani Bagh working in the factory of her employer Sanjay Kapoor used to come to the house of her employer in the evening to cook food as she did not know cooking. Accused also used to come sometimes as and when Malkin (wife of employer Sanjay Kapoor) was unwell. Accused used to take to her and used to do bad talk to her and also used to do touching/teasing (Cheda Chadi) with her. She did not tell about this to her Malkin or Malik as accused used to scold her and he told her not to tell about it to anyone. On 05/06/2011, when all the family members had gone out, the accused did 'galat kaam' with her. Accused told her that he wanted to marry her. In June, Malkin had undergone an operation and accused used to stay there to cook food. He did 'galat kaam' with her for about a month. Galat Kaam she means what husband and wife do after marriage. After three months accused told her that she was pregnant. She did not know about it. Accused also gave her some medicines but she does not know for what. Accused told her 'yeh kha ke, tum thik ho jao gi'. She ate those medicines but nothing happened. She did whatever accused told her to do. In November, 2011, accused went to his village after telling Malkin that his wife was not well. Accused did not tell her (prosecutrix) that he was married and was having a wife. She was told 27 of 43 28 FIR No. 398/11 PS - Rani Bagh by Malkin that accused had gone to his village as his wife was not well. She told everything to Malkin, who took her to PS. She told everything to the Police. She had studied upto 4th Class. Police wrote whatever she had told them. She gave birth to a baby girl on 12/03/2012. Thereafter, she took her child to her native village. Blood sample was taken from her and her child at the time of delivery. Accused never told her that he was married.
PW4 - Prosecutrix during her crossexamination negated the suggestions that accused never promised to marry her before she became pregnant or that he promised to marry her only after her pregnancy or that she knew from before that accused was married or that in October, 2011, a son was born to accused or that Malik had congratulated accused in her presence or that Malik and Malkin used to often ask about the well being of wife of accused in her presence or that she is deposing falsely.
During her crossexamination PW4 - prosecutrix has also deposed : "It is correct that I and accused were on friendly terms and I used to love him. It is correct that since I loved accused, I had physical relations with him and accused did not force himself upon me. When I 28 of 43 29 FIR No. 398/11 PS - Rani Bagh had physical relations with the accused, I did not try to find out on the accused whether he was married or not. There was a telephone connection in the house of Malik. It is correct that I was free to move around in the house and to go out as per my wishes and there were no restrictions from my Malik and Malkin on my movements."
Inspite of incisive crossexamination nothing material has been brought out on the record so as to impeach her creditworthiness.
Moreover the careful analysis of the deposition made and the suggestions put to PW4 - Prosecutrix as detailed herein above during her crossexamination also indicate that the fact of having physical relations by the accused with the prosecutrix and of knowing the fact of her having become pregnant by him and regarding her pregnancy and of promise to marry the prosecutrix after her pregnancy, have not been disputed by the accused.
In view of the clear and categorical testimony of PW4 - prosecutrix, it does not lie in the mouth of the accused to utter that prosecutrix established physical relations with the accused out of her own free will but the prosecutrix established physical relations with the accused on the promise of the accused to marry her. Accused established physical relations with the prosecutrix despite knowing it 29 of 43 30 FIR No. 398/11 PS - Rani Bagh well that he was already married and he cannot marry PW4 - prosecutrix whereby the promise of marriage was merely a hoax and being conscious of the fact had he not promised to marry the victim/PW1 - prosecutrix, she would never allowed him the physical intimacy with her. Further, during her crossexamination, PW4 - prosecutrix has been suggested by the accused that he promised her only after her pregnancy which was negated by the prosecutrix. Why a promise by the accused to marry her after pregnancy? No explanation has been placed by the accused as to why he promised to marry her after her pregnancy as suggested to her by the accused during her crossexamination despite, he (accused) being a Hindu, could he have married her after her pregnancy despite having a living spouse?
In the circumstances, there is no substance in the plea raised and in the theory of "Neither any weapon was shown by the accused on account of which the prosecutrix was so afraid not to disclose her relations with the accused to anyone including her "MALKIN"." as propounded by the accused and the same falls flat to the ground.
The testimony of PW4 - prosecutrix on perusal and analysis 30 of 43 31 FIR No. 398/11 PS - Rani Bagh is found to be clear, natural, cogent, convincing, trustworthy and inspires confidence. In the witness box she withstood the test of cross examination and her testimony is consistent throughout. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW4 - prosecutrix has also been corroborated by medical evidence and the Forensic Evidence; the DNA Finger Printing evidence (Ex. PX) as discussed hereinbefore.
The testimony of PW4 - prosecutrix is also found to be in consonance with her complaint Ex. PW4/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW4/B. The testimony of PW4 - prosecutrix is also found to be corroborated by the testimony of PW5 Smt. Bobby Kapoor, the House Lady (Malkin) in whose house PW4 - Prosecutrix was working as maid servant who suspected of her (PW4 - Prosecutrix) being pregnant and on her (PW5) being asked, PW4 - prosecutrix disclosed the facts relating to the crime after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
31 of 43 32 FIR No. 398/11 PS - Rani Bagh It is pertinent to reproduce the examinationinchief of PW5
- Smt. Bobby Kapoor which reads as under : "I am residing at above mentioned address with my family. I have two children. I had procured services of prosecutrix from Kangna Placement Agency some times in the year, 2009. Her wages were fixed at Rs. 2,000/ per month. Her age was told to be 18 years to me by the Placement Agency when I hired her.
I was having health problems since June, 2011 and was advised bed rest. I was operated sometime in middle of November, 2011 and since I had been advised bed rest, I was not able to perform regular work in the house like cooking etc. Accused Ram Lal Yadav had been working for my family since last about 13 years. He used to do work of cooking and had started going to my husband's factory since last about 6 years. However, whenever there was requirement at home, he used to come to cook food. When I was confined to bed due to illness, accused Ram Lal Yadav used to cook food for our family. Accused Ram Lal Yadav stayed for one week in June, 2011 and about 15 days in November, 2011 at our house when I was in serious condition otherwise he used to stay in the factory. I used to call him as and when I required him.
Since I had been keeping maid for a long time I was aware for their health issues more particularly their irregular periods. When I had consulted my gynaecologist earlier that due to mal nutrition, the maids had delayed period and sometimes after gap of about three months. The prosecutrix was also having this problem so initially I thought that she had problem with her periods like other maids. Thereafter, I became ill. On 27/11/2011, I was with the prosecutrix and on seeing her, I suspected that she may be pregnant. When I asked her, 32 of 43 33 FIR No. 398/11 PS - Rani Bagh she revealed name of accused Ram Lal Yadav. I confronted prosecutrix and asked her why she had done so and was she not aware that accused was already married. She replied that she had committed a mistake and requested me to get the child aborted. I went to PS on next day with the prosecutrix and produced her before the Police. At the Police Station, statement of prosecutrix was recorded and a case was registered against accused. I had accompanied prosecutrix to the hospital for her medical examination also.
Court Ques. Did you verify about the age of prosecutrix by sering relevant documents of her age, when you obtained her services from the Placement Agency?
Ans. No. No such documents are provided to us by the Placement Agency, however, an employer contract copy was given to us in which age of prosecutrix was mentioned as '18 years'.
Accused Ram Lal Yadav is present in the Court today (witness has correctly identified the accused).
From the aforesaid narration of PW5 - Smt. Bobby Kapoor it is clearly indicated that PW4 - prosecutrix was working as a maid servant in her house. Accused Ram Lal Yadav had been working for her family since last about 13 years and used to do work of cooking in her house and had started going to her husband's factory since last about 6 years and whenever there was requirement at home, he used to come to cook food. Accused Ram Lal Yadav stayed for one week in June, 2011 33 of 43 34 FIR No. 398/11 PS - Rani Bagh and about 15 days in November, 2011 at her house when she was in serious condition otherwise he used to stay in the factory. She used to call him as and when she required. The prosecutrix was having problem of delayed period so initially she (PW5) thought that she (prosecutrix) had problem with her periods. On 27/11/2011, she was with the prosecutrix and on seeing her, she suspected that she may be pregnant. When she asked her, she revealed name of accused Ram Lal Yadav. She confronted prosecutrix and asked her why she had done so and was she not aware that accused was already married. She replied that she had committed a mistake and requested her to get the child aborted. She went to PS on next day with the prosecutrix and produced her before the Police. At the Police Station, statement of prosecutrix was recorded and a case was registered against accused. She had accompanied prosecutrix to the hospital for her medical examination also.
During her crossexamination PW5 - Smt. Bobby Kapoor has deposed that : "It is correct that prosecutrix knew from before that accused was married. Vol. Once or twice there was phone call from the wife of accused on my mobile phone which I had given to prosecutrix for 34 of 43 35 FIR No. 398/11 PS - Rani Bagh handing over to the accused so that he could talk to his wife stating that there was call from wife of the accused. On another occasion, accused had asked me to get him blessings of Sai Baba as his wife was expecting for third time and he wanted a male child and at that time, I had taken accused with me to Sai Baba Temple. All this talk has taken place in presence of prosecutrix. There was another occasion when I had asked prosecutrix to segregate my younger son small clothes for giving to daughter of the accused which she did. She gave said clothes herself to the accused.
Inspite of incisive crossexamination of PW5 - Smt. Bobby Kapoor, nothing material has been brought out on the record so as to impeach her creditworthiness. The crossexamination of PW5 - Smt. Bobby Kapoor as was conducted by Ld. Counsel for the accused on careful perusal and analysis is found to be cryptic and vague and of no aid and assistance to advance the defence of the accused. During the crossexamination, it has not been got clarified since when, from which date prosecutrix was knowing about the marital status of accused Ram Lal Yadav especially in view of categorical deposition of PW4 - prosecutrix in her examinationinchief that : 35 of 43 36 FIR No. 398/11 PS - Rani Bagh "In November, 2011, accused went to his village after telling Malkin that his wife was not well. Accused did not tell me that he was married and was having a wife. I was told by Malkin that accused had gone to his village as his wife was not well. I told everything to Malkin, who took me to PS. I told everything to the Police."
In the circumstances, there is no substance in the plea of the Ld. Counsel for the accused raised on the basis of the crossexamination of PW5 - Smt. Bobby Kapoor that prosecutrix was aware that the accused was already married because at a number of times, the accused used to get calls from his native place from his wife and PW5 once even handed over telephone to the prosecutrix and informed her to hand over the telephone to accused as his wife wanted to talk to him.
Nor there is any substance in the plea raised by Ld. Counsel for accused that it is not plausible and believable that the prosecutrix did not know that the accused is already a married man and suddenly she came to know that the accused was a married man when she was seven months pregnant and on that very day the prosecutrix went to the Police Station and got the FIR registered against the accused.
A futile attempt has been made by the accused to save his skin from the clutches of law. Accused has in fact misused/exploited 36 of 43 37 FIR No. 398/11 PS - Rani Bagh the innocence of PW4 prosecutrix which is also reflected from the part of her examinationinchief which reads as under : "After three months accused told me that I was pregnant. I did not know about it. Accused also gave me some medicines but I do not know for what. Accused told me 'yeh kha ke, tum thik ho jao gi'. I ate those medicines but nothing happened. I did whatever accused told me to do."
In the witness box PW5 - Smt. Bobby Kapoor has withstood the rigors of crossexamination without being shaken. Her testimony on analysis is found to be natural, clear, cogent, reliable, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
17. While analysing the testimonies of PW4 - Prosecutrix and PW5 - Smt. Bobby Kapoor, House Lady (Malkin) of the prosecutrix as discussed hereinabove inspite of incisive crossexamination nothing has come out in the statements of PW4 - Prosecutrix and PW5 - Smt. Bobby Kapoor which may throw even a slightest doubt on the prosecution 37 of 43 38 FIR No. 398/11 PS - Rani Bagh version of the incident. Though the suggestion by the defence to PW4
- Prosecutrix that accused never promised to marry her before she became pregnant or that he promised to marry her only after her pregnancy or that she knew from before that accused was married or that in October, 2011, a son was born to accused or that Malik had congratulated accused in her presence or that Malik and Malkin used to often ask about the well being of wife of accused in her presence or that she is deposing falsely were put, which were negated by PW4 - Prosecutrix but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
18. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : 38 of 43 39 FIR No. 398/11 PS - Rani Bagh "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 39 of 43 40 FIR No. 398/11 PS - Rani Bagh 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW4 - Prosecutrix in the light of medical evidence, the gynaecological examination from point 'A' to 'A1' on the MLC Ex. PW7/A of the prosecutrix, MLC of accused Ram Lal Yadav Ex. PW8/A together with the DNA Report Ex. PX detailed and discussed hereinbefore the act of performing of sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within the labia majora or the vulva or pudenda stands proved consequent upon which pregnancy occurred resulting in the delivery of a baby.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by the accused Ram Lal Yadav with PW4 - prosecutrix without her consent, whereupon, PW4 - prosecutrix became pregnant and delivered a baby whose DNA profiling matched with accused Ram Lal Yadav as a Biological Father.
40 of 43 41 FIR No. 398/11 PS - Rani Bagh
19. Ld. Counsel for accused referred to the cases and reported as 'Uday Vs. State of Karnataka', 2003 Crl. L.J. 1539, 'Dalip Singh Vs. State of Bihar', 2004(4)RCR Crl. 972, 'Sri Chand Vs. State of Haryana', 2004 (3) RCR Crl. 481, 'Sudhangshu Sengupta Vs. State of West Bengal', 2005 (4) Crimes 476 (Cal.), 'Ram Lal Mahto Vs. State of Bihar', 2001 (3) Crimes 117, 'Panchapathi Vs. State', 2007 (4) Crimes 378 (Mad.), 'K. P. Thimmappa Gowda Vs. State of Karnataka', AIR 2011 SC 2564, 'Krishna Pada Mahato Vs. State of West Bengal', 2005 (3) Crimes 644, 'Kumaresh Chikkappa Bagodi Vs. State of Karnataka', Crl. Appeal No. 2002 (2) RCR 208, 'Khaderbasha Vs. State of Karnataka', 2001(4) RCR 806, 'Sunil Vishnu Salve Vs. State of Maharashtra', 2006 Crl. L.J. 587, 'Gauttam Vs. State of Rajasthan', 2005 Cri. L.J. 981, 'Naravan @ Naran Vs. State of Rajasthan', 2007 Cri. L.J. 2733, 'Lakhan Lal Vs. State of M.P.', 2004 Cri. L.J. 3962, 'Lakshmana Naik Vs. State of Karnataka', 2004 Cri.L.J. 3913 and 'Hari Majhi Vs. State', 1990 Cri.L.J. 650.
I have carefully gone through the same. With due respect, the cases referred to are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In a case titled 41 of 43 42 FIR No. 398/11 PS - Rani Bagh Sunil Kumar Vs. State 181 (2011) DLT 528 (DB) it was held by the Hon'ble Division Bench of the Delhi High Court that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
20. In view of above and in the circumstances, prosecution has thus proved beyond shadows of all reasonable doubts that in the month of June, 2011, at House No. 42, Model Apartment, Near M2K, Pitam Pura, Delhi, accused Ram Lal Yadav @ Ram repeatedly raped PW4 prosecutrix, without her consent and against her wishes. Whereupon, PW4 - prosecutrix became pregnant and delivered a baby on 12/03/2012 whose DNA profiling matched with accused Ram Lal Yadav @ Ram as a Biological Father.
I, accordingly hold accused Ram Lal Yadav @ Ram guilty for the offence punishable u/s 376 IPC and convict him thereunder.
42 of 43 43 FIR No. 398/11 PS - Rani Bagh
21. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Ram Lal Yadav @ Ram in the commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Ram Lal Yadav @ Ram beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Ram Lal Yadav @ Ram guilty for the offence punishable u/s 376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 04th Day of April, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 43 of 43