Delhi District Court
State vs 1. Ajay Kumar S/O Lal Singh on 26 November, 2014
IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI
Unique Case I.D. No.02402R0725562007
SC No.124/13 Date of institution : 28.11.2007
FIR No.558/07 Date on which arguments
PS: Welcome were heard : 25.11.2014
U/S.376 (2)(g)/506 IPC, Date of judgment : 26.11.2014
363/366/328/376(2)(g) IPC
r/w sec.109 IPC, 506 IPC
State Versus 1. Ajay Kumar S/o Lal Singh
R/o Village- Malerna,
PS- Ballabhgarh, District-
Faridabad, Haryana.
2. Kumari Neetu @ Badi Lali
D/o Brahm Singh
R/o 313, Gali No.1, Chaju Gate,
Babarpur, Delhi (expired).
3. Subhash s/o Chote Lal Giri
R/o 876, Malerna Road, Adarsh
Nagar, Ballabhgarh, Faridabad,
Haryana.
JUDGMENT
1. The case of the prosecution as disclosed in the SC No.124/13 State v. Ajay Kumar etc. Page 1 of 31 chargesheet is that on 18.07.2007 the prosecutrix aged about 12 years alongwith her mother came to the police station Welcome and lodged a complaint against the accused persons wherein she made following allegations:
(i) Prosecutrix is a student of 4th standard. On 15.07.2007 at about 10.00 am, she was standing in front of Nalanda Public School. Accused Neetu @ Badi Lali who was the elder sister of a friend of the prosecutrix residing at Chaju Gate, Babarpur and known to the prosecutrix, came to her (prosecutrix). Accused Neetu @ Badi Lali purportedly cleaned sweat on the face of the prosecutrix with her own handkerchief and thereafter, the prosecutrix became unconscious.
(ii) When the prosecutrix regained her consciousness, accused Neetu @ Badi Lali made the prosecutrix drink soft drink Pepsi. After drinking Pepsi, the prosecutrix again became unconscious. When she regained some consciousness in the night, one man was doing wrong act with her (prosecutrix). When the prosecutrix tried to raise alarm, that person threatened to kill her.
Thereafter, another person came there and he also committed wrong act with the prosecutrix. When the prosecutrix tried to raise alarm, he also threatened to kill her. Thereafter accused Neetu @ Badi Lali slept with the prosecutrix. Subsequently, accused Neetu @ Badi Lali SC No.124/13 State v. Ajay Kumar etc. Page 2 of 31 threatened the prosecutrix.
(iii) On 16.07.2007 at about 7.00 am, accused Neetu @ Badi Lali and the other two persons (who had committed wrong acts with the prosecutrix) brought the prosecutrix in a car and left her in front of Rajiv Automobile. Due to fear, the prosecutrix did not disclose the incident to her parents initially. After regaining some mental strength, the prosecutrix disclosed the incident to her mother. Thereafter the prosecutrix alongwith her parents came to the police station and lodged the complaint against the accused persons. The prosecutrix knew accused Neetu @ Badi Lali. Prosecutrix also stated that she can identify the other two persons if shown to her.
2. On the complaint of the prosecutrix, an FIR u/s 363/376/506/34 IPC dated 18.07.2007 was got registered against the accused persons. The prosecutrix was got medically examined at GTB Hospital vide MLC No. 3191/07 on 18.07.2007. Exhibits received from the hospital were seized by the police. On search and on the identification of the prosecutrix, accused Neetu @ Badi Lali was arrested on 29.07.2007 and her disclosure statement was recorded. Thereafter co-accused Ajay Kumar who was one of the persons who had allegedly committed rape on the proseuctrix was arrested on 18.08.2007 and he was got SC No.124/13 State v. Ajay Kumar etc. Page 3 of 31 medically examined at GTB Hospital. Exhibits received from the hospital were seized by the police. Disclosure statement of co-accused Ajay Kumar was also got recorded. An application for Test Identification Parade (TIP) was moved by the IO but the accused refused to participate in TIP stating that he has already been shown to the witness by the IO when he was produced in the court. Car bearing no. DL-3CF-9127 which was used in commission of crime was got recovered from village Malerna, P.S. Ballabhgarh, District Faridabad at the instance of accused Ajay Kumar. Accused Subhash avoided his arrest and NBWs were issued against him by the court. Thereafter proceedings u/s 82/83 Cr.P.C were executed against accused Subhash and he was declared a proclaimed person.
3. Accused Subhash was ultimately got arrested on 02.12.2007. An application for conducting TIP was moved by the IO but the accused Subhash also refused to participate in TIP proceedings. After completion of investigation, the chargesheet u/s 363/366/376(2)
(g)/506/34 IPC was filed against the accused persons.
4. Since the major offences in this case were triable by the Court of Sessions, vide order dated SC No.124/13 State v. Ajay Kumar etc. Page 4 of 31 19.11.2007, the learned M.M. committed this case to the Court of Sessions against accused Ajay Kumar and Neetu @ Badi Lali. Vide order dated 28.01.2008 the case against accused Subhash was also committed to the Court of Sessions and on allocation, case was assigned to this court.
5. Vide order dated 09.04.2008 passed by my learned predecessor, a charge u/s 376/506 IPC was framed against accused Ajay Kumar and Subhash. Additional charge u/s 363/366/506 IPC and u/s 328 IPC read with section 109 IPC was also framed against accused Neetu @ Badi Lali. All the accused persons pleaded not guilty and claimed trial.
6. On 26.11.2010, learned Addl. PP moved an application u/s 216 Cr.P.C for amendment of charge which was allowed by my learned predecessor. Thereafter, vide order dated 11.03.2011, the charge u/s 376 (2)(g)/506 IPC was framed against accused Ajay Kumar and Subhash. Charge u/s 363/366/506/328IPC and u/s 376(2)(g) IPC read with section 109 IPC was framed against accused Neetu @ Badi Lali. Accused persons pleaded not guilty and claimed trial to these charges also.
7. During the pendency of this trial, accused Neetu SC No.124/13 State v. Ajay Kumar etc. Page 5 of 31 @ Badi Lali expired on 04.09.2014. Factum of death of accused Neetu @ Badi Lali was verified by the concerned SHO. It appears that an FIR No.497/2014 u/s 302 IPC has also been registered at police station M.S.Park in connection with alleged murder of accused Neetu @ Badi Lali. Accordingly, vide order dated 13.10.2014 passed by this court, the trial against accused Neetu @ Badi Lali was declared abated.
8. In support of its case, prosecution has examined fifteen witnesses i.e. Prosecutrix as PW1, Sh. Bhagat Singh as PW2, Lady Constable Indu as PW3, Constable Suresh as PW4, Constable Mahipal as PW5, Dr. Himsweta, Assistant Professor, Department of Obs. & Gynae, GTB Hospital Delhi as PW6, ASI Sheela as PW7, Ms. Sushil Kumari, Principal, M.C. Primary School Jyoti Colony, Delhi as PW8, Constable Yogesh as PW9, Constable Rajeev Vashisth as PW10, Dr. Parmeshwar Ram, CMO, GTB Hospital, Delhi as PW11, ASI Ali Ahmad Khan as PW12, Constable Dharampal as PW13, Sh. Devender Kumar, ADJ, Patiala House Courts, New Delhi as PW14 and Dr. P.K. Phukan, CMO, GTB Hospital as PW15.
9. PW1 (prosecutrix) aged about 13 years deposed that on 15.07.2007 at about 10.00 am, she was standing in front of Nalanda Public School. Accused Neetu @ Badi Lali SC No.124/13 State v. Ajay Kumar etc. Page 6 of 31 came to her and told her that "Apna pasina poonch lo" and she cleaned the sweat on the face of the prosecutrix with her (Neetu's) handkerchief. Thereafter the prosecutrix became unconscious. When the prosecutrix regained her consciousness, accused Neetu @ Lali gave a bottle of Pepsi (coca cola colour) to the prosecutrix and induced her to consume it. Prosecutrix consumed Pepsi. Accused Neetu also extended threats to the prosecutrix that if she will not drink Pepsi then this accused will kill her. After consuming Pepsi, prosecutrix again became unconscious. When she regained her consciousness, she found that accused Subhash was committing rape on her. Prosecutrix further deposed that thereafter another person also committed rape on her but that second person was not present in the court and she does not know his name. Thereafter the prosecutrix slept with the co-accused Neetu @ Lali. Accused Neetu also extended threats to kill the parents of prosecutrix if she will disclose the incident of rape to any person. Prosecutrix further deposed that next day, accused Neetu alongwith two other accused persons namely Subhash who is facing trial in this case and other person left her near the office of Rajiv Automobile in a car. At that time, mother of the prosecutrix who was going to buy milk saw the prosecutrix and she took the prosecutrix home. The prosecutrix was not in a position to narrate the story to SC No.124/13 State v. Ajay Kumar etc. Page 7 of 31 her parents as she was nervous. On 18.07.2007 she narrated the incident to her mother who took her to police station 'Welcome'. Police officials recorded her statement and she was got medically examined at GTB Hospital. Accused Neetu was arrested at her instance. On 22.07.2007 the prosecutrix was taken to Tihar Jail to identify the accused persons but the proceedings were not conducted in her presence and she was brought back without taking part in TIP proceedings. Accused Subhash was also arrested in her presence.
10. The prosecutrix was cross examined on behalf of the State with the permission of the court on the issue of identity of accused Ajay Kumar. During cross examination, prosecutrix denied the suggestion that the accused Ajay present in court is the same person who had committed rape on her on 15.07.2007. She denied that the accused Ajay was arrested at her instance. She also denied the suggestion that she has been won over by accused Ajay Kumar. This witness was cross examined at length on behalf of accused Subhash and Neetu.
11. PW2 Sh. Bhagat Singh deposed that he knew accused Ajay Kumar as accused Ajay Kumar has a farm near his farm in village Mallina, Ballabhgarh. He further SC No.124/13 State v. Ajay Kumar etc. Page 8 of 31 deposed that he is the owner of Maruti Car no. DL-3CF-9127. He deposed that he never gave that Maruti Car to anyone.
12. Since this witness did not support the case of prosecution, he was cross examined by learned Addl. PP for the State. During cross examination, he denied that on 16.07.2007 accused Ajay Kumar had taken his Maruti Car no. DL-3CF-9127.
13. PW3 Lady Constable Indu deposed that on 18.07.2007 she was posted at police station Welcome. On the direction of SHO she took the prosecutrix to GTB Hospital where medical examination of prosecutrix was got done at the gynecology department. The sealed pullanda received from the hospital was handed over to the IO who seized the same vide seizure memo Ex. PW3/A.
14. PW6 Dr. Himsweta deposed that she has seen the MLC No.B-3191/07 of the prosecutrix who was medically examined by Dr. Rajni. She also deposed that Dr. Rajni had since left the services of the hospital and her present whereabouts are not known. This witness deposed that she can identify handwriting and signature of Dr. Rajni as she had seen her writing and signing during the course SC No.124/13 State v. Ajay Kumar etc. Page 9 of 31 of her duties. She proved the MLC of the prosecutrix as Ex.PW6/A.
15. PW7 ASI Sheela and PW4 Ct. Suresh Kumar deposed that on 29.07.2007 they were posted at police station 'Welcome'. On that day they joined investigation of the present case with ASI Ali Ahmad Khan and complainant. They visited Chhajju Gate, Babarpur where accused Neetu @ Badi Lali was arrested vide arrest memo Ex.PW4/A and her personal search vide Ex.PW4/B was conducted. Her disclosure statement Ex.PW4/C was recorded by the IO.
16. PW9 Ct. Yogesh deposed that on 18.08.2008 he was posted at police station Welcome. He deposed that on receipt of secret information that accused Ajay would be available at Yadav General Store, Adarsh Nagar Colony, he alongwith ASI Ali Ahmad reached at village Malerna, PS Ballabhgarh. Accused Ajay was arrested in the present case vide arrest memo Ex. PW9/A and his personal search was conducted vide memo Ex.PW9/B. His disclosure statement Ex. PW9/C was recorded by the IO.
17. PW5 Ct. Mahipal deposed that on 18.08.2007 he was posted at police station Welcome. On that day he SC No.124/13 State v. Ajay Kumar etc. Page 10 of 31 alongwith Ct. Brijpal took the accused Ajay to GTB Hospital for medical examination. After his medical examination, the sealed parcels received from the hospital were seized by the IO vide seizure memo Ex. PW5/A.
18. PW11 Dr. Parmeshwar Ram, CMO, GTB Hospital deposed that he has seen the MLC No.B-3754/07 of accused Ajay who was medically examined by Dr. Sanjib Sarkar, Junior Resident. She deposed that Dr. Sanjib Sarkar had left the services of the hospital and his present whereabouts are not known. This witness deposed that he can identify his handwriting and signature as he has seen him writing and signing during the course of duties. He proved the MLC of the accused Ajay as Ex.PW11/A.
19. PW10 Ct. Rajeev Vashisth deposed that on 27.08.2007 he was posted at police station Welcome. On that day, accused Ajay was taken on police custody remand and on his pointing out car no. DL-3CF-9127 was got recovered from a farm house at Ballabhgarh, District Faridabad. The car was seized by the IO vide seizure memo Ex.PW10/A and was deposited in the malkhana. This witness identified the car Ex. P1.
20. PW8 Ms Sushil Kumari, Principal, MC Primary SC No.124/13 State v. Ajay Kumar etc. Page 11 of 31 School Jyoti Colony, Delhi produced the summoned record i.e. admission and withdrawal register of the prosecutrix. She proved the photocopy of entires as Ex.PW8/A. This witness also proved the photocopy of admission form and affidavit as Ex.PW8/B and Ex. PW8/C. This witness deposed that as per the school record, the date of birth of the prosecutrix is 22.06.1995 and proved the same as Ex.PW8/D.
21. PW12 ASI Ali Ahmad Khan (IO) deposed that on 18.07.2007 he was posted at police station Welcome. On that day, prosecutrix alongwith her mother came to the police station. Statement of the prosecutrix Ex. PW1/A was recorded. The prosecutrix was taken to GTB Hospital by constable Indu. The sealed exhibits received from the hospital were seized vide seizure memo Ex.PW3/A and were deposited in the malkhana. PW12 made endorsement Ex. PW12/A and rukka was produced before duty officer for registration of the case. Efforts were made to trace out the accused persons.
22. This witness further deposed that on 29.07.2007 he alongwith SI Sheela and Ct. Suresh Chand reached at the house of prosecutrix. The prosecutrix accompanied them and they went to Babarpur bus terminal. They SC No.124/13 State v. Ajay Kumar etc. Page 12 of 31 received a secret information that accused Neetu @ Badi Lali had come to her house. Thereafter they reached Chajjupur at the house of Neetu where accused Neetu @ Badi Lali alongwith her mother met them. Accused Neetu was identified by the prosecutrix and was arrested vide arrest memo Ex.PW4/A, her personal search Ex.PW4/B was conducted by the ASI Sheela. Her disclosure statement Ex.PW4/C was recorded. Accused Neetu was got medically examined. On the next day, IO moved an application Ex.PW12/B for grant of police custody remand of accused Neetu and one day police custody remand of accused Neetu was granted by the court. They tried to trace out accused Subhash but he could not be traced out. Accused Neetu was produced before the court and she was sent to judicial custody.
23. IO further deposed that on 06.08.2007 NBW of accused Subhash was obtained and he tried to trace him out. On 18.08.2008 he alongwith Ct. Yogesh reached the native place of accused Subhash to execute NBW against him. Mother of accused Subhash namely Shashi Kaur met them who disclosed that her son Subhash was residing at Delhi but his exact place was not disclosed by her. Sister of accused Subhash also met them who stated that friend of Subhash namely Ajay was running a shop at Malerna SC No.124/13 State v. Ajay Kumar etc. Page 13 of 31 Road, Ballabhgarh in the name of Yadav Timer Store. This witness deposed that when they came out from the house of Subhash, they received an information that accused Ajay is sitting at Yadav Timber Store. Accordingly they reached there and accused Ajay was apprehended on the pointing out of the secret informer. Accused Ajay was arrested vide arrest memo Ex.PW9/A, his personal search was conducted vide memo Ex.PW9/B and his disclosure statement Ex.PW9/C was recorded. Accused was brought to Delhi and sent to GTB Hospital for medical examination. The sealed exhibits received from the hospital were seized vide seizure memo Ex.PW5/A and were deposited in the malkhana.
24. Next day, accused Ajay was produced in the court and he was sent to judicial custody. PW12 moved an application Ex. PW12/C for TIP of accused Ajay. Prosecutrix alongwith her father reached at Tihar Jail for TIP of accused Ajay but he refused to participate in TIP proceedings. On 24.08.2007, IO moved an application Ex.PW12/D for production of accused Ajay for 27.08.2007. On 27.08.2007, accused Ajay was produced before the court and IO moved an application Ex. PW12/E for police custody remand of the accused. One day police custody remand of the accused Ajay was granted by the court. Accused Ajay led the police SC No.124/13 State v. Ajay Kumar etc. Page 14 of 31 party to village Malerna, District Ballabhgarh and got recovered Esteem Maruti Car bearing registration no. DL-3CF-9127 from a farm house which was seized vide seizure memo Ex.PW10/A. The said car was identified by the victim that it was the same car which was used by the accused.
25. Accused Subhash was not traceable. The process u/s 82/83 Cr.P.C was received against this accused from the court. On 02.12.2007, Ct. Mahipal joined investigation and they reached at Babarpur bus terminal where he received the secret information that Subhash was standing at Shiv Mandir, Babarpur. Accordingly, they reached there and accused Subhash was arrested vide arrest memo Ex. PW12/G, his personal search Ex. PW12/H was conducted and disclosure statement Ex. PW12/I was recorded. Accused was brought to police station and he was got medically examined. IO moved an application Ex.PW12/J for TIP of accused Subhash but accused refused to participate in TIP Proceedings. Accused was produced in the court and he was sent to judicial custody. The sealed parcels were sent to FSL and result of FSL are Ex.PW12/K and Ex.PW12/L. The date of birth of the prosecutrix was verified from her school record and her birth certificate was seized vide seizure memo Ex. PW12/M. SC No.124/13 State v. Ajay Kumar etc. Page 15 of 31
26. PW13 Ct. Dharampal deposed that on 02.12.2007 he was posted at police station Welcome. On that day he alongwith SI Ali Ahmad reached at Babarpur bus terminal on the pointing out of secret informer, accused Subhash was arrested vide memo Ex. PW12/G and his personal search Ex.PW12/H was conducted. His disclosure statement Ex.PW12/I was recorded. Accused was taken to GTB Hospital where he was medically examined. The sealed exhibits received from the hospital were seized vide seizure memo Ex. PW13/A.
27. PW15 Dr. P.K. Phukan, CMO GTB Hospital deposed that she has seen the MLC of accused Subhash who was medically examined by Dr. Ashar. This witness proved the MLC of accused Subhash as Ex.PW15/A.
28. PW14 Sh. Devender Kumar, learned ADJ deposed that on 03.12.2007 he being a Metropolitan Magistrate conducted the TIP proceeding of accused Subhash at Tihar Jail and proved the same as Ex. PW14/A to Ex. PW14/H.
29. After the prosecution evidence was closed, statements of accused persons u/s 313 Cr.P.C were got recorded in which they claimed themselves to be innocent.
SC No.124/13 State v. Ajay Kumar etc. Page 16 of 31In his statement, accused Subhash also stated that a scuffle had taken place between him and the father of the prosecutrix about six to seven months prior to the date of of the incident and the father of the prosecutrix had threatened to implicate him in a false case.
30. Accused Neetu stated that she has been falsely implicated in this case to create pressure upon her mother to withdraw an old civil litigation which is pending between her and her uncles (chacha and tau of accused Neetu @ Badi Lali). She also stated that the parents of the prosecutrix were well known to uncles of accused Neetu. This accused also claimed that she never met the proecutrix.
31. I have heard learned Addl. PP for the State and the learned defence counsel and perused the record.
32. The accused persons Ajay Kumar and Subhash are facing trial for the commission of offences punishable u/s 376(2)(g)/506 IPC.
Accused Ajay Kumar
33. During the course of evidence, the prosecutrix SC No.124/13 State v. Ajay Kumar etc. Page 17 of 31 (PW1) has deposed that on the date of incident she was raped by two persons. However, the prosecutrix did not identify the accused Ajay Kumar as one of the persons who had committed rape on her. Even during cross examination on behalf of the State, the prosecutrix maintained that the accused Ajay Kumar was not the person who had committed rape on her alongwith accused Subhash on 15.07.2007. No evidence has come on record to show that the accused Ajay Kumar had threatened the prosecutrix. The prosecutrix also denied the suggestion on behalf of the State that she had been won over by this accused and as such she has not deposed against the accused Ajay Kumar. In the circumstances, no substantive evidence has come on record to connect the accused Ajay Kumar with the offence of gang rape and the offence of criminal intimidation. Thus, accused Ajay Kumar is acquitted of the charge of commission of offences punishable u/s 376(2)
(g)/506 IPC.
Accused Subhash
34. The prosecutrix has deposed that on 15.07.2007 at about 10.00 am she was standing in front of Nalanda Public School. Co-accused Neetu @ Badi Lali (since expired) reached there and cleaned the sweat on the face of the prosecutrix with her handkerchief. Thereafter the SC No.124/13 State v. Ajay Kumar etc. Page 18 of 31 prosecutrix became unconscious. When the prosecutrix regained her consciousness, accused Neetu @ Badi Lali made her consume Pepsi (coca cola colour) and after drinking Pepsi she again became unconscious. This witness has further deposed that after she regained consciousness, she found that the accused Subhash was committing rape on her. He also threatened her. Next morning, at about 5.00 am, accused Neetu, Subhash and the other person who had committed rape on her left her near Rajiv Automobile.
35. The deposition of the prosecutrix would show that in her evidence she has deposed that accused Subhash had raped her and had threatened her. She has identified the accused Subhash as the person who committed rape on her. Accused had earlier refused to participate in the TIP. In her medical examination hymen of the prosecutrix was found torn.
36. It is contended on behalf of accused Subhash that the deposition of the prosecutrix does not inspire confidence. However, I am not inclined to agree with this contention.
SC No.124/13 State v. Ajay Kumar etc. Page 19 of 3137. Accused Subhash has not been able to show as to why the prosecutrix would make a statement implicating him. During the course of cross examination of the prosecutrix on 06.10.2012, it was suggested to the prosecutrix that six or seven months prior to the day of alleged incident, a scuffle had taken place between the father of the prosecutrix and the accused. At that time her father was inebriated and he had threatened the accused Subhash by saying "mein tujhe dekh lunga" and due to this threat accused Subhash has been falsely implicated. This suggestion to the prosecutrix on behalf of accused is bereft of any particulars. The reasons for the alleged scuffle has not been disclosed on behalf of accused. Moreover, allegation of rape may cause stigma even to the reputation of the prosecutrix and her family. At the time of incident prosecutrix was of tender age of 12 years. It is not believable that just to settle scores for an alleged scuffle, the father of the prosecutrix would have implicated the accused in a case of rape of his own daughter.
38. The prosecutrix was kidnapped on 15.07.2007. As per the case of prosecution, the accused persons dropped the prosecutrix near Rajiv Automobile at about 5.00 am on 16.07.2007. FIR was got registered on 18.07.2007. It is submitted that there is delay in SC No.124/13 State v. Ajay Kumar etc. Page 20 of 31 registration of FIR.
39. I am of the opinion that the delay of two days in registration of FIR is of no consequence for the case of the prosecution and the same has been properly explained. The prosecutrix in her deposition has stated that subsequent to the time when the accused Subhash dropped her near the office of Rajiv Automobile, she was not in a position to narrate the incident to her parents as she was nervous. On 18.07.2007 she narrated the incident to her mother. Thereafter her mother took her to police station 'Welcome' where the police officials recorded her statement and the prosecutrix was taken to GTB Hospital for her medical examination.
40. The evidence on record would show that the prosecutrix was made unconscious on 15.07.2007. She was kidnapped and taken to some other place where she was subjected to rape by two persons. She was confined at that place for the whole night. Prosecutrix at the relevant time was 12 years of age. The incident of 15/16.07.2007 would have frightened any girl in her position. It is also a matter of common knowledge that allegation of rape may cause stigma on the reputation of victim also and thus some deliberation in the family before the registration of FIR may SC No.124/13 State v. Ajay Kumar etc. Page 21 of 31 consume time. In the circumstances, I am of the opinion that the delay if any in registration of FIR is of no consequence.
41. In the case reported as Om Prakash vs. State of Haryana (AIR 2011 SC 2682), the Hon'ble Supreme Court observed that a young girl who has undergone the trauma of rape is likely to be reluctant in describing those events to anybody including her family members. In that case, the moment the victim informed the fact of rape to her family members, FIR was got registered. Same is the position in this case. Moreover, in the case reported as State of UP vs. Manoj Kumar Pandey [(2009) 1 SCC 72], the Hon'ble Supreme court observed that consistent view of that court has been that the normal rule regarding the duty of prosecution to explain the delay in lodging FIR and the lack of prejudice and / or prejudice caused because of such delay in lodging of FIR does not per se apply to cases of rape. In Ashok Surajlal Ulke vs. State of Maharashtra [judgment dated 27.01.2011 in Crl. Appeal No. 251/06], the Hon'ble Supreme Court observed that in case of rape, the fact that the FIR has been registered after a little delay is of very little significance.
42. It is also contended on behalf of accused SC No.124/13 State v. Ajay Kumar etc. Page 22 of 31 Subhash that medical evidence on record does not support the case of the prosecution. Reference has been made to the FSL report dated 30.01.2008 (Ex.PW12/K) which records that no semen was detected on 1a and 1b i.e. the two microslides of vaginal swab of the prosecutrix. Reference has been made to the MLC Ex.PW6/A which though records that hymen of the prosecutrix was found torn but no injuries were found on her person. Absence of any injury or semen on the private part of the victim is not conclusive of the fact that there was no sexual penetration. The prosecutrix was subjected to rape on 15.07.2007. The present FIR was got registered on 18.07.2007. I have held above that the delay if any, in registration of FIR has been properly explained. On the registration of FIR, the prosecutrix was immediately taken to GTB Hospital where she was subjected to gynecological examination vide MLC Ex.PW6/A. The MLC Ex.PW6/A records that the patient had taken shower/changed clothes. She would have passed urine during this period. Thus, the FSL report is even not of otherwise much consequence. In a recent judgment titled as Beeru vs. State [judgment dated 11.12.2013 in CRL.A. 1079/2010], the Hon'ble Delhi High Court held as follows.
"24. The Division Bench of this court in the matter of Pappu vs. State of Delhi 2010 (1) Cri. LJ 580 (Delhi) dealing with similar medical SC No.124/13 State v. Ajay Kumar etc. Page 23 of 31 condition of the prosecutrix of six years of age whose hymen was also found torn and her vagina admitted two fingers easily and no injury found on private part, after placing reliance on the medical jurisprudence (5th Edition by Dr. R. M. Jhala and BB Raju) held as under:-
"The reason is obvious. Medical jurisprudence evidences that in adolescent girls the hymen is situated relatively more posteriorly and for said reason there is a possibility of rape being committed without the hymen being torn; the converse whereof would be that if the hymen of an adolescent girl is torn due to rape, the penetration has to be a deep penetration. The medical jurisprudence guides that the labia majora are the first to be encountered by the male organ and they are subjected to blunt forceful blows, depending on the vigour and the force used by the accused and counteracted by the victim. The narrowness of the vaginal canal makes it inevitable for the male organ to inflict blunt, forceful blows on the labia and such blows lead to SC No.124/13 State v. Ajay Kumar etc. Page 24 of 31 contusion because of looseness and vascularity. The feature of such contusion is revealed against the pink background of the mucous membrane dark red contusion being evident to the naked eye"
25. As can be seen from the aforesaid authoritative view of the experts in the medical field as referred to by the Hon'ble Division Bench and by Justice Verma Committee, the condition of hymen being torn of the prosecutrix may not necessarily mean a previous sexual intercourse and conversely the hymen being not torn also does not necessarily mean that there was no sexual intercourse. In some of the females hymen can also be missing and in such cases also, mere absence of hymen will not necessarily prove the previous sexual intercourse and likewise will also not rule out the previous sexual assault. Much would depend on the quality, reliability and credibility of the testimony of the prosecutrix and if the same is found to be of unimpeachable character, the conviction of the accused can be based on the same even without looking for corroboration from the medical evidence. The same principle equally applies to the evidence SC No.124/13 State v. Ajay Kumar etc. Page 25 of 31 of the Forensic Science as the same is also not a substantive piece of evidence and may not support even otherwise clear and cogent evidence of the prosecutrix. It is also a settled legal position that for proving the offence of rape, penetrative sexual assault may not necessarily result in ejaculation and therefore in such cases there can hardly arise any question of stains of semen being there on the clothes of the victim and the perpetrator of the crime. Thus the contention raised by learned counsel for the appellant on this aspect also lacks merit and the same is rejected." (Emphasis added)
43. In Luv Kush vs. State (NCT) of Delhi [judgment dated 31.01.2011 in Criminal Appeal No.235/2008], the Hon'ble Delhi High Court observed as under:
"There is no rule of law that the testimony of a rape victim cannot be acted upon without corroborating any material particulars. Prosecutrix in a rape case is a victim and she is not comparable with an accomplice to the crime. Her status is that of a victim of crime and her testimony is to be appreciated on the principle of probabilities, just like the testimony of any other witnesses. Her testimony can be acted upon by the court SC No.124/13 State v. Ajay Kumar etc. Page 26 of 31 without corroboration unless there are compelling reasons which necessitate looking for corroboration of version of the prosecutrix. The court should not find any difficulty in acting on the testimony of a victim of sexual assault to convict the accused when her testimony inspires confidence. Admittedly, the prosecutrix was a young girl aged about 09 years at the time of occurrence and the appellant, as per the case of the prosecution, was an adult. Therefore, it is natural that she could not have physically resisted him. As such, absence of physical injuries on her person cannot be taken as a circumstance to negate the theory of rape. As regards of FSL report Ex. PW8/C, the salwar and Kamiz of the prosecutrix were sent for analysis and no traces of blood and semen were found on the same. The absence of traces of blood and semen on the clothes of the prosecutrix by itself is no reason to assume that no rape was committed. Section 375 of the Indian Penal Code defines rape and the Explanation to the said Section provides that even a slightest penetration constitutes the sexual intercourse necessary to the offence of rape. From this, it is apparent that to constitute an offence of rape, it is not necessary for the SC No.124/13 State v. Ajay Kumar etc. Page 27 of 31 accused to have full blown sexual intercourse resulting in substantial penetration in the vagina and ejaculation of semen. Therefore, absence of blood or semen on the clothes of the prosecutrix or the vaginal swab does not rule out the theory of rape." (Emphasis added)
44. The defence counsel has not been able to point out any material contradiction which may impeach the veracity of deposition of the prosecutrix. Statements of the prosecutrix have remained consistent all through. The prosecutrix was 12 years of age at the time of incident and 13 years of age at the time of recording of her evidence in the court. Merely because the accused Ajay Kumar has not been identified by the prosecutrix in court is no ground to reject her testimony.
45. It is lastly contended that the accused Subhash is liable to be acquitted of the charge of gang rape as the prosecutrix has not identified co-accused Ajay Kumar as the person who committed rape on her.
46. I find substance in this submission of learned counsel of accused. The offence of gang rape as existed at the relevant time was punishable under section 376 (2)(g) SC No.124/13 State v. Ajay Kumar etc. Page 28 of 31 IPC. This section stipulated that the offence of gang rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Section 376 (1) IPC provides punishment for the commission of offence of rape simpliciter. This section provides that whoever commits rape shall be punished with an imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine.
47. In this case, co-accused Ajay Kumar has been acquitted of the offence of gang rape. Other co-accused Neetu @ Badi Lali has already expired and vide order dated 13.10.2014, present proceedings have been declared abated against her. Even otherwise, she being a lady was not facing trial for the commission of offence of gang rape but only for abetment of the offence of gang rape. Thus, she could not have been imputed with the common intention for commission of offence of gang rape.
48. In Rajesh vs. State of Goa [(2003) 11 Supreme Court Cases 736], the Hon'ble Supreme Court held that the case was not of that of gang rape in view of acquittal of co- accused and the case would be that of rape simpliciter.
SC No.124/13 State v. Ajay Kumar etc. Page 29 of 31In the circumstances, the present case would also fall within the ambit of offence of rape simpliciter and not the offence of gang rape which is an aggravated form thereof.
49. Prosecutrix was born on 22.06.1995. The incident is dated 15.07.2007. Thus, she was above 12 years of age on the date of the incident. Thus, accused Subash is liable to be convicted for the offence of rape simpliciter punishable u/s 376 IPC.
50. Prosecutrix has also deposed that she was threatened by the accused Subhash. There is no reason to disbelieve the prosecutrix on this aspect also. Thus, accused Subhash is also convicted for the offence punishable u/s 506 IPC.
51. In view of above, it is held that the prosecution has not been able to prove its case against accused Ajay Kumar for the commission of charged offences punishable u/s 376(2)(g)/506 IPC. Thus accused Ajay Kumar is acquitted of the charged offences punishable u/s 376(2)
(g)/506 IPC.
52. Prosecution has been able to prove its case against the accused Subhash for the commission of SC No.124/13 State v. Ajay Kumar etc. Page 30 of 31 offences punishable u/s 376/506 IPC. Thus, the accused Subhash is convicted for the offences punishable u/s 376/506 IPC.
Announced in the open court on 26.11.2014 (Sarita Birbal) Additional Sessions Judge, (SFTC), Karkardooma Courts, Delhi SC No.124/13 State v. Ajay Kumar etc. Page 31 of 31