Delhi District Court
42. In Vadivelu Thevar vs . State Of Madras Air 1957 Sc 614 It Was ... on 15 March, 2008
S. C. No. 44/06 1
IN THE COURT OF SHRI H.S.SHARMA, ADDL.SESSIONS JUDGE, DELHI.
S.C. No. : 44/06
FIR No. : 604/05
P.S. : Nangloi
U/Secs. :363/366/342/376/34 IPC
STATE
VERSUS
1. NIRMAL SINGH
S/o Shri Hari Singh,
R/o M-257, Camp No.3,
Nangloi, Delhi.
2. SUDHIR @ RINKU
S/o Shri Hari Singh,
R/o M-175, Camp No.3,
Nangloi, Delhi.
3. GAURI
W/o Shri Nirmal Singh,
R/o M-257, Camp No.3,
Nangloi, Delhi.
4. KULDEEP
S/o Shri Chhatar Pal Singh,
R/o H.NO. 3635, Qutab Road,
Singhara Chowk, Sadar Bazar, Delhi.
Date of Institution : 29.09.2005
Date of receipt of this case in this Court : 13.07.2007
Date of Arguments : 28.02.2008
Date of Decision : 15.03.2008
Shri R.K.Tanwar, Addl.P.P for the state.
Shri R. K. Chandiwal, Advocate for accused Nirmal, Sudhir and Smt. Gauri.
Shri Yogesh Verma and Shri Ashish Mishra, Advocates for accused Kuldeep.
S. C. No. 44/06 2
JUDGMENT
Ms. Gauri accused has a tailoring shop. Accused Nirmal is her husband. Accused Sudhir @ Rinku is her brother-in-law (Dewar). Accused Kuldeep is her real brother.
2. The prosecution case, as per the statement Ex.PW1/B made by the prosecutrix before the police is that her parents had allowed her (the prosecutrix Ms. P, name withheld) to go to the shop of accused Gauri to learn stitching. At that time she was aged around 16 years. On 12/06/05 accused Nirmal had come to the house of the prosecutrix and had told her that she was being called by his wife Gauri for stitching purposes. Accordingly, the prosecutrix had accompanied accused Nirmal. The prosecutrix was left outside the house. Accused Nirmal had then left. The prosecutrix asked accused Gauri to give her the clothes for stitching. Accused Gauri asked her to go inside the room to collect the clothes. Accused Sudhir @ Rinku was present inside the room. When the prosecutrix had gone inside the room, accused Sudhir @ Rinku had increased the volume of the TV. Accused Gauri had closed the door of the room from outside. Accused Rinku then misbehaved with the prosecutrix and after removing her clothes, he had raped her. Thereafter, he had asked accused Gauri to open the door. Accused Sudhir @ Rinku then brought a TSR. Accused Nirmal had also come there. The prosecutrix S. C. No. 44/06 3 was asked to change her clothes. She was assured that she would be sent to her house. The accused Sudhir @ Rinku and Gauri had given her beatings. The prosecutrix was then taken to Nabi Karim in a TSR by accused Rinku and Nirmal. She was locked there. She was asked to stay there in the room with accused Nirmal. In the room accused Nirmal had raped her. On the next day accused Rinku and Kuldeep had gone to the room. Two more persons namely Bharat and Chanchal had also reached there with accused Gauri. Accused Gauri told the prosecutrix that she would be left at her parents house. She was given beatings by the accused. She was raped by accused Kuldeep and Nirmal. She was also raped by one Bharat. When the prosecutrix told the accused that she would tell all the facts to her parents, her feet were tied with a rope. She was given beatings. Accused Bharat had asked the other accused to kill her. Accused Rinku had informed that her father had lodged the report therefore she should not be given beatings. Accused Rinku asked her to telephone her parents and to tell them that she was speaking from Agra. Accordingly, she had talked with her mother and told that she was speaking from Agra. Before she could narrate other facts, the telephone was disconnected by accused Rinku. Thereafter, the prosecutrix was brought to Nangloi by accused Nirmal. She was locked in a room. Accused Gauri had brought the police with one Chanchal. She was given beatings. She was pressurized to make statement against her parents. Accused Kuldeep had threatened her that he would repeat the offence with her sisters and would kill S. C. No. 44/06 4 her parents in case she (prosecutrix) made correct statement. Therefore, she had given false statement against her parents.
3. When the prosecutrix did not return to her house on 12/06/05, her father Suresh (PW4) then went to the police station Nangloi and lodged the FIR, carbon copy of which is Ex.PW2/A.
4. It is the prosecution case that on 15/06/06 the prosecutrix was taken to the police station by her father. The prosecutrix was got medico legally examined. She was X-rayed for determining her bone age. Her statement (Ex.PW1/A) under Section 164 CrPC was got recorded. Accused Nirmal had surrendered on 07/07/05 before the court by moving an application Ex.DA. The remaining accused were arrested. After completion of investigation they were challaned.
5. Charges under sections 363/34, 366/34, 376(2)(g) were framed against accused Nirmal and Sudhir. Charge under Section 376(2)(g) read with Section 109 IPC was framed against accused Gauri. All these charges had been typed on the same sheet. Charge under Section 376 IPC was framed against accused Kuldeep. All the accused pleaded not guilty and claimed trial.
6. All the accused pleaded not guilty to the charges and claimed trial. S. C. No. 44/06 5
7. In order to substantiate the charges, prosecution has examined 15 witnesses in all.
8. The prosecutrix has appeared as PW1. Her mother Smt. Usha Devi has appeared as PW3 and her father Suresh has appeared as PW4. I shall mention their statements in the later part of my judgment.
9. W/ASI Rajbala (PW2) was the duty officer on 13.06.2005. She had directly recorded the FIR in the FIR register on the basis of the statement made by Suresh (PW4). Its copy is Ex.PW2/A.
10. Constable Hawa Singh (PW5) has deposed that on 08.07.2005 he had joined the investigation. Accused Nirmal Singh, who had surrendered before the Court, on interrogation, had suffered a disclosure statement Ex.PW5/A. The accused was got medically examined. His blood sample was seized vide memo Ex.PW5/B. He had pointed out the places of occurrence vide memo Ex.PW5/C. He had again joined the investigation on 04.08.2005. On the pointing out of the Suresh (PW4), accused Sudhir was arrested and interrogated. His disclosure statement is Ex.PW5/D. He had also pointed out the place of occurrence vide memo Ex.PW5/E. Accused Sudhir was also got medically examined. The doctor S. C. No. 44/06 6 had seized his undergarments and blood sample which were taken into possession vide memo Ex.PW5/F.
11. Lady HC Sudesh (PW6) had joined the investigation on 15.06.2005. In her presence the prosecutrix was produced by her father. She was seized vide memo Ex.PW6/A. She was taken to hospital for her medical examination. The doctor had handed over five sealed parcels to her which were seized vide memo Ex.PW6/B.
12. In the presence of Lady HC Murti (PW7) accused Gauri was arrested on 23.08.2005, she had suffered a disclosure statement Ex.PW7/A. She had pointed out the place of occurrence vide memo Ex.PW7/B.
13. Constable Ajeet (PW8) had joined the investigation on 23.08.2005, with W/SI Savita (PW12) and W/HC Murti (PW7).
14. Shri A. K. Kuhar, ld. Addl. C.M.M., New Delhi had recorded statement Ex.PW1/A U/S 164 Cr.P.C. of the prosecutrix on 25.06.2005.
15. HC Virendar (PW10) was the MHC(M) at the relevant time. He had been handed over 5 sealed pullandas on 15.06.2005, 2 sealed pullandas on S. C. No. 44/06 7 08.07.2005, 2 sealed pullandas on 04.08.2005 and 2 sealed pullandas on 23.08.2005. He had sent these sealed pullandas, FSL form and 4 sample seals to FSL on 31.08.2005. He had made entries in register no. 19, copies of which are Ex.PW10/A to Ex.PW10/D. Copy of the relevant entry of RC Register is Ex.PW10/E.
16. ASI Ram Diya (PW11) had partly investigated the case. On 13.06.2005 he had searched the prosecutrix. Since, father of the prosecutrix had received a telephonic call that the prosecutrix was in Agra, therefore, he had gone to Agra but could not locate the place or the accused or the prosecutrix. On 15.06.2005 the prosecutrix was produced in the Police Station by her father. She was seized vide memo Ex.PW6/A. The prosecutrix was got medically examined. She was got X-Rayed for determining her bone age. The doctor had handed over 5 sealed pullandas to him which were seized vide memo Ex.PW6/B. On 16.06.2005 the prosecutrix was produced before the Ld. M.M. for getting her statement recorded U/S 164 Cr.P.C. but the same could not be recorded.
17. W/SI Savita (PW12) had investigated the case.
18. Dr. Poppy Hazarika (PW13) was examined to prove the MLC of the prosecutrix as the concerned Doctor Indra was reported to have left the hospital. S. C. No. 44/06 8 The MLC Ex.PW13/A (portion A, B, C, D and the signatures at point A) was proved by the witness.
19. Dr. Manisha (PW14) was examined to prove the handwriting and signatures of Dr Sireen, the Gynae, who had examined the prosecutrix vide portion L, M, N and O (Ex.PW14/A). Dr. Sireen was also reported to have left and her whereabouts were not known.
20. Dr. R. K. Mishra (PW15) had given the bone age of the prosecutrix as between 14 to 16 years. He has based his opinion on the X-ray films of wrist, elbow, shoulder and pelvis. His report is Ex.PW15/A.
21. After closure of evidence of prosecution, the accused were examined u/S 3132 Cr.P.C.
22. Accused Kuldeep has put forth the following plea :-
"I am innocent. It is a false case. Police officials had unnecessarily harassing my mother and other family members. They had repeatedly visited my house. At that time, I was a patient of jaundice. When I found that the police officials were bent upon to arrest my family members, I went to Police Station Nangloi and inquired from them as to why they were harassing my mother and my sister. The police officials inquired my name and my relation. When I disclosed my relationship with Gauri, they asked me to sit in the Police Station. Thereafter, I was falsely implicated in this case."S. C. No. 44/06 9
23. Accused Sudhir took the plea that he was falsely implicated in this case by he police officials.
24. Accused Nirmal took the following defence.
"This is a false case. A quarrel had taken place on 12/06/05 at 10.00pm between Suresh and me. He had abused me while he was on the road. I then informed the police by telephonic on number 100. I had telephoned the police on 12/06/05 at 10.20pm. Thereafter, I had gone to the Police Station where I wanted to lodge a report against Suresh. However, the police officials did not record my complaint. I told them that I am a social worker and a worker of Congress Sewa Dal. Since the police officials did not record my report, therefore, there had been heated arguments between me and the police officials. I told the police officials that incase my report is not recorded, I will make complaints against them to their senior officers. Thereafter, I had gone to my house. After 15-20 days I came to know that Suresh had lodged a false report of kidnapping of his daughter against me. I then surrendered in the Court of Shri Paramjeet Singh, the then ld. Magistrate, on 08/07/05 for which an application dated 07/07/05 was filed by me on 07/07/05. I had informed the Court that I was being falsely implicated. The application of my surrender is Ex.DA. After my surrender, SI Savita in the presence of Constable Hawa Singh had obtained my signatures on a number of blank papers. When I informed this fact to the ld. MM, I was told that my signatures on arrest memo have been obtained. From there, I was taken to Police Station Nangloi. I did not make any disclosure statement or any other statement. I was not produced before any senior police official. On 09/07/05 in the afternoon I was got medically examined and thereafter I was produced in the Court. All the charges levelled against me are absolutely false. I have no previous criminal record."
25. Accused Gauri put forth the following plea:
"It is a false case. A quarrel between Suresh and my husband had taken place. Father of the prosecutrix had demanded money/charges for the work done by the prosecutrix. However I had not paid him the money and had told him that I will not make the payment. I do not know as to what talks between my husband and Suresh had taken place in this regard."S. C. No. 44/06 10
26. No defence was produced by any of the accused.
27. The MLCs of the accused Nirmal, Sudhir and Kuldeep were not disputed by these accused. Accordingly, these were exhibited as Ex.PA to Ex.PC vide order dated 24.10.2007.
28. I have heard Ld. Addl.P.P for the state and Ld. Counsel for the accused. I have also gone through the file.
29. In the present case first of all it will have to be found out as to whether any such occurrence, as alleged by Suresh (PW4) and the prosecutrix (PW1) had ever taken place or not. It is to be determined as to whether the prosecution has put forth a concocted story to falsely implicate the accused in fact and no occurrence, whatsoever, had taken place. Lastly, it will have to be seen as to whether the prosecutrix was a consenting party or not.
30. In order to find out as to whether any such occurrence had taken place or not, we will have to see the FIR, copy of which is Ex.PW2/A. It was directly recorded in the FIR Register. Name of Nirmal @ Nitin was mentioned as the person who had taken away/enticed the prosecutrix on 12.06.2005 at 12.30pm. The FIR was registered on 13.06.2005 at 09.55am. The prosecutrix was produced S. C. No. 44/06 11 before the police on 14.06.2005, as stated by ASI Ram Diya (PW11). Ld. Counsel for the accused has submitted that prosecutrix (PW1) and Suresh (PW4) in their cross examinations have exonerated the accused, therefore, it be held that no such occurrence had taken place.
31. In order to appreciate this particular argument, I will be mentioning the dates of examination and cross examination of the material witnesses i.e. PW1, PW3 and PW4. I will also mention as to what had been stated by them in their chiefs and the cross examinations.
32. The prosecutrix appeared on 29.10.2005. His examination in chief running into 4 typed pages was recorded. It was deferred by my Ld. Predecessor for want of the case property presumably the undergarments of the prosecutrix which had been sent to FSL. On that day she had fully supported the prosecution as mentioned in para 2 of the judgment. The prosecutrix then appeared again on 01.08.2006 and her examination in chief was concluded. She was cross examined on behalf of accused Kuldeep and since she deposed that she was seeing accused Kuldeep for the first time and he had not committed the rape on her, therefore, she was cross examined by the Addl.P.P. Thereafter an opportunity was given to the remaining accused to cross examine her but not even a single question was put to her.
S. C. No. 44/06 12
33. In the cross examination dated 06.08.2007 she deposed that Nirmal had come to her house at about 12.00 o'clock. He (Nirmal) had told her that because of some stitching work she should reach the shop of Gauri, therefore, she had gone to the shop of Gauri and after the work she had gone to the house of her Bua(sister of her father Suresh) Smt. Chanda. She had stayed there for 2 days.
34. No suggestion was given to the prosecutrix that in fact she had not gone to the house of the accused. Therefore, it can be said that on 12.06.2005 accused Nirmal had gone to the house of prosecutrix and on his asking the prosecutrix had gone to the house of the accused.
35. The second question which arises for determination is as to whether the prosecutrix had been raped? If so, by whom?
36. Ld. Counsels for the accused have vehemently argued that the prosecutrix having given a clean chit to the accused by stating that she had not been raped, therefore, the accused cannot be convicted. I will take this submission accused- wise.
37. First of all I shall take the case of accused Nirmal, Sudhir @ Rinku and S. C. No. 44/06 13 Smt. Gauri.
38. In order to appreciate the arguments it is necessary to mention a few facts, though at the cost of repetition.
39. The occurrence had taken place on 12.06.2005. I have already held that the prosecutrix had gone to the house of accused Gauri on the asking of the accused Nirmal. In her statement under Section 164 Cr.P.C. (Ex.PW1/A) dated 25.06.2005 the prosecutrix had stated that Nirmal had come to her house and had asked her to accompany him to his house as she was being called by his wife Smt. Gauri. It is not disputed even by accused Gauri that she (Gauri) used to do the stitching work and the prosecutrix used to come to her to do the "turpai" (the stitching done by hand and not by machine) work. Therefore, there was nothing abnormal on the part of accused Nirmal to go to the house of the prosecutrix. There was nothing abnormal on the part of the prosecutrix to go to the house of accused. The prosecutrix in her cross examination dated 06.08.2007 had described the extent of accommodation available with the accused. She has stated that the house of the accused has ground floor and first floor. She admitted that accused Gauri resides on the first floor. She (Gauri) has two children - one son and one daughter. She further admitted that on the ground floor accused Nirmal resides with his family. There are two rooms on the ground floor and one room on S. C. No. 44/06 14 the first floor. The bathrooms of Gauri's house are in the gali. Gauri prepares her meal in open in front of the room and she does not have a separate kitchen. These facts clearly indicate that the prosecutrix had correctly described the extent of accommodation of the accused.
40. The examination in chief of the prosecutrix had been recorded on 29.10.2005. It was deferred for want of the case property. She appeared again on 19.11.2005 but since my ld. Predecessor was to go to Tihar Jail for inspection, therefore, her statement was not recorded. She appeared again on 22.11.2005 and 20.12.2005 but on these dates also her statement was not recorded for want of the case property. She appeared again on 21.07.2006. However, on that date the matter was adjourned as a new Counsel had been engaged by these three accused. Ultimately, her statement was recorded on 01.08.2006 on which date the prosecutrix was not cross examined on behalf of these three accused. Counsel for these three accused had not appeared on that date. An application for recalling the prosecutrix moved on behalf of these accused had been allowed by my ld. Predecessor vide order dated 25.08.2006. Since the prosecutrix did not appear inspite of service, therefore, vide order dated 15.01.2007 she was ordered to be summoned through bailable warrants for 20.02.2007. The prosecutrix appeared on 20.02.2007 but her statement was not recorded as the Addl.P.P was not there. My ld. Predecessor then granted interim bail to accused Gauri vide order dated S. C. No. 44/06 15 23.02.2007. The prosecutrix appeared again on 07.03.2007 on which date accused Gauri was on bail. However, the cross examination of the prosecutrix was not recorded as a request had been made by the Counsel for these accused. Ultimately on 06.08.2007 she resiled and stated that she was not raped by the accused.
41. The courts have divided the witnesses in three categories-wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable. So far as the first two categories are concerned, the courts have little difficulty in arriving at a conclusion. In the first category, the witness is believed and the accused is convicted even on the basis of statement of a solitary witness. It is also well settled that it is the quality of the evidence which is material and decisive and not the quantity thereof. The object and the logic behind Section 134 Indian Evidence Act, 1872 is aptly reflected in this regard. So far as the second category is concerned, the accused is to be acquitted as the witness, because of his being wholly unreliable, cannot justify the conviction. The real difficulty for the Court arises in the cases where the witness falls in the third category. If the evidence of a witness falling in the third category remains un-corrobarated from other evidence, his evidence has to be discarded. However, if his evidence finds corroboration from other evidence produced by the prosecution, the conviction can be sustained.
S. C. No. 44/06 16
42. In Vadivelu Thevar Vs. State of Madras AIR 1957 SC 614 it was observed on Page 619, as under:-
"Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories namely:
(1)Wholly reliable.
(2)Wholly unreliable.
(3)Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation, In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses."
43. The above observations were approved in Jagdish Prasad Vs. State of M.P. AIR 1994 SC 1251 and Kunju Vs. State of Tamilnadu 2008 III AD (SC) S. C. No. 44/06 17
48.
44. The test is as to whether the evidence has a ring of truth, is cogent, credible and trustworthy or not.
45. It is also well settled that the evidence of a hostile witness is not to be discarded in its entirety. It does not get effaced from the record. That portion of the evidence of a hostile witness, which finds corroboration from the other evidence produced by the prosecution, can be relied. Reliance in this regard can be placed on Gura Singh Vs. State 2000 IX AD SC 299 and Radha Mohan Vs. State AIR 2006 951.
46. In the present case the prosecutrix falls in the third category. She is neither wholly reliable nor wholly unreliable. Further, she had been declared hostile by the Ld. Addl. P.P. Therefore, in view of the law mentioned above, it will have to be seen as to whether her statement finds corroboration from any other evidence on record and whether the statement given by her inspires confidence to nail these three accused or not.
47. In her statement Ex.PW1/A recorded by the Ld. M.M. Under Section 164 Cr.P.C., she had stated that accused Nirmal had come to her on 12th and had told S. C. No. 44/06 18 her that she (prosecutrix) was being called by his (Nirmal's) wife. Accordingly, she had accompanied with him. Nirmal had dropped her on the way and has asked her to go to his house. I have already mentioned that the claim of the accused that no such occurrence had taken place at all and the story has been cooked up by the prosecutrix and her parents, is unacceptable. This statement under Section 164 Cr.P.C. was recorded on 25.06.2005. In this particular statement it was further stated by her that the door was closed by accused Gauri. Rinku had increased the volume of TV. He had caught her hand. He had asked her not to raise the voice. He had removed her clothes and had done the ganda kaam and committed rape on her. Thereafter, he had asked Gauri to open the kundi. Accused Gauri had then opened the kundi. Later on she was removed by Nirmal and Rinku to Nabi Karim which was the house of the brother-in-law . There Nirmal had committed rape on her. When the prosecutrix appeared as PW1 on 29.10.2005 she reiterated these facts. As mentioned earlier, the statement of the prosecutrix had not been completed on 29.10.2005. It was completed on 01.08.2006 on which date she was not cross examined at all on behalf of these three accused. Ultimately she had been cross examined on 06.08.2007 on which date she had stated that she was not raped. I have already mentioned as to what had happened on the intervening dates. The prosecutrix had appeared time and again but her statement/cross examination could not be recorded for one reason or the other. During this period accused Gauri had been S. C. No. 44/06 19 released on bail. She is the wife of accused Nirmal. Accused Rinku @ Sudhir is the brother of accused Nirmal. Accused Kuldeep is the real brother-in-law of accused Nirmal being the real brother of accused Gauri. Accused Kuldeep had been ordered to be released on bail on 11.08.2006. Thus there had been sufficient time and opportunity for these two accused to win over the prosecutrix (PW1).
48. In Khujji Vs. State AIR 1991 SC 1859 the witness had appeared on 16.11.1976. His examination in chief was completed. He had identified the assailants by name. His cross examination was recorded on 15.12.1978. On that day he deposed that the backs of the accused were towards him, hence he could not see their faces. However, the Hon'ble Supreme Court had accepted his evidence and the appeal had been dismissed.
49. In Nisar Khan Vs. State 2006 II AD (SC) 46 two witnesses were examined and discharged on 04.01.2001. They were re-examined on 07.01.2002 on which date they had resiled. Earlier they had identified the accused but on 07.01.2002 they had resiled so far as the identity of the accused was concerned. The Hon'ble Supreme Court had convicted the accused. Our own Hon'ble High Court in Abdul Murasalin Vs. State 123 (2005) DLT 73 (DB) had come across such a case where the witness had appeared on 18.09.2000 and had identified the accused as S. C. No. 44/06 20 the culprit. His cross examination was deferred on the ground that the Counsel was in the Hon'ble High Court. His cross examination was recorded on 18.11.2000 on which date he resiled and stated that he was pressurized by the Inspector. It was held that in fact he was pressurized by the accused. It was further held that the chief can be taken into account as no protection was provided to the witness. In Ambika Prasad Vs. State AIR 2000 SC 718 the examination in chief of PW4 had been recorded on 06.02.1984 and the cross examination was deferred as the Counsel for the accused had sought adjournment on the ground that his uncle has died. The cross examination was recorded in July 1985 and the witness had resiled. However the conviction was upheld.
50. In the present case statement under Section 164 CrPC (Ex.PW1/A) was recorded on 25.06.2005. Shri A.K. Kuhar (PW9) had, in his proceedings recorded that the prosecutrix was making the statement voluntarily. No suggestion was put to Shri A.K. Kuhar (PW9) that the prosecutrix had been under threat of the police officials or that she had not made the statement Ex.PW1/A voluntarily. As mentioned earlier, the prosecutrix had appeared on 29.10.2005 and in her examination in chief she had stuck to her version as stated in her statement under Section 164 Cr.P.C. (Ex.PW1/A). However, when her cross examination was recorded on behalf of these accused on 06.08.2007, she had taken a somersault with regard to the fact that she had been raped by accused Nirmal and Sudhir. S. C. No. 44/06 21 She stated that she was not raped. However, nothing material could be brought on record with regard to her other deposition. In the earlier part of my judgment, I have mentioned that the prosecutrix is neither wholly reliable nor wholly unreliable. I have made these observations in view of the fact that in her statement Ex.PW1/A she had not named the names of the two persons (including that of Kuldeep) who had also raped her. However, in her statement dated 29.10.2005 she had stated that she was also raped by Bharat and she had again been raped by Nirmal and Kuldeep. It had never been her case before the ld. MM.
51. Ld. Counsel for the accused has relied on Narwan vs State of Rajasthan 2007 (2) JCC 1202, Dilip vs State AIR 2001 SC 3049, Raghunath vs State 2007 (2) JCC 1113, Suresh vs State 2002 Crl. Law Journal 498, State of Karnataka vs Suresh Babu 1994 Crl. Law Journal 1216, Daler Singh vs State 1995 Crl. Law Journal 1614, Bala Saheb vs State 1994 Crl. Law Journal 3044.
52. I have gone through these judgments. None of these judgments are applicable to the facts of the present case. Further a judgment in a criminal case cannot be applied in a mechanical manner. First of all it has to be seen as to whether the facts of the case relied on by a party are somewhat identical or similar in nature or not. In Rafiq vs State 1980 SCC (Crl.) 946 it was observed S. C. No. 44/06 22 by the Hon'ble Supreme Court as under:-
"Ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in the two cases. The facts and circumstances often vary from case to case. The crime situation and myriad psychic factors, social conditions and people's life style may fluctuate and so rules of prudence relevant in one fact situation may be inapt in another. Therefore, regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a bench in a reported decision cannot be mechanically extended to another case."
53. In Krishna Mochi vs State 2002 IV AD SC 45 it was held that "the evidence on the facts of each case has to be analysed and conclusions drawn and there cannot be pigeon holing of evidence on any set formula."
54. In P.S. Rao vs State JT 2002 (3) SC 1 it was held that "there is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.
55. Now in Narwan's case (supra) the prosecutrix had made material improvements. Therefore, she was not believed. She had claimed that she had narrated the facts to PW6. However, PW6 had not supported the prosecution. S. C. No. 44/06 23 There was no corroborative evidence.
56. In Raghunath's case (supra) the appeal had been dismissed and it was held that the part of a statement of a hostile witness can be relied upon if it inspires confidence and receives corroboration from other evidence. It is not clear as to why this particular judgment which goes against the accused, have been cited.
57. In Suresh Kumar's case (supra) the prosecutrix had made material improvements. Earlier she had not stated that she was made to smell something which made her unconscious. No signs of struggle or resistance were found on her person.
58. In State of Karnataka vs Suresh Babu (Supra) the prosecutrix was held to be more than 16 years, therefore, it was held that she had not been taken away.
59. In Daler Singh's case (supra) material witnesses were not examined and the evidence of the prosecutrix was found to be contradictory. She was held to be a woman of easy virtue.
60. In Bala Saheb's case (supra) the prosecutrix appeared to have gone of her S. C. No. 44/06 24 own. Therefore the accused was acquitted as the boneage of was between 14 to 16 years and a margin of 3 years on either side was taken. Here I would like to mention that as per the judgment Jai Mala vs Home Secretary 1982 SC 1297 a margin of only 2 years on either side is to be given.
61. In the present case the defence of the accused is not that the prosecutrix had indulged in the sexual intercourse of her own freewill. Her statement finds corroboration from her MLC Ex.PW13/A (PW14/A). In Ex.PW14/A tenderness in hypogastrium (as per Concise Oxford Dictionary, 10th Edition, page 700 it means the front central region of the abdomen) and left iliac were noticed. Similarly tenderness and swelling over right calf had been noticed by the doctor. In Ex.PW13/A it was mentioned by the doctor that there was history of kidnapping and forcible sexual and physical assault by two men Rinku and Nirmal on 12.06.2005 for two days. The sexual assault had taken four times in two days. The hymen was found to be ruptured, old healed. No injury mark were found on the breast, face, abdomen and thigh etc. The absence of the injuries on these parts is immaterial in view of the law laid down in State Vs. Suresh 1997 Cr.L.J. 2003 and State Vs. Joseph AIR 2000 SC 1608. Now the tenderness could not have been in the absence of violence. The prosecutrix was examined on 15.06.2005 at 6.25pm by Dr. Indira. The prosecutrix had no enmity with any of the accused. Infact no enmity has been alleged by any of the accused. There was S. C. No. 44/06 25 no occasion for her to falsely state the names of these accused as the culprits. It is well settled that where there is no previous enmity, chances of false implication are altogether ruled out. Reliance can be placed on Kundalik vs State 1980 SCC
900.
62. Accused Nirmal had surrendered before the Court on 07.07.2005 and in his application Ex.DA he did not disclose that he had been named on the basis of his political rivals as suggested to Suresh (PW4). No such suggestion was given to prosecutrix that she was under pressure of the political opponents. No defence, as put forth by accused Gauri in her statement under Section 313 CrPC, had been suggested to the prosecutrix and her parents.
63. The Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai vs State AIR 1983 SC 753 observed as under:-
"In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society....... Corroboration may be considered essential to establish a sexual offence in the back drop of the social ecology of the western world. It is wholly S. C. No. 44/06 26 unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society and its profile."
Distinguishing western society from eastern society and considering circumstances in India, the Court ruled that it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor which can be said to be relevant in western society. The Court then described the following reasons for accepting testimony of the prosecutrix:
"(1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.
(2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours.
(3) She would have to brave the whole world.
(4) She would face the risk of losing the love and respect of her own
husband and near relatives, and her matrimonial home and happiness being shattered.
(5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an, acceptable family.S. C. No. 44/06 27
(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself.
(7) The fear of being taunted by others will always haunt her.
(8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo.
(9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy.
(10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour.
(11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence.
(12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by Counsel for the culprit, and the risk of being disbelieved, act as a deterrent."
64. Accused Sudhir @ Rinku and Ms. Gauri have not taken any specific defence.
S. C. No. 44/06 28
65. The prosecutrix had not stated anything on 29.10.2005 with regard to her having been pressurized by the police officials. She did not say anything in this regard even on 01.08.2006. Even in her affidavit dated 14.01.2006 (mark A) filed by her to exonerate accused Kuldeep, she did not say that she had been pressurized by the police officials to name these three accused. It was on 06.08.2007 that the prosecutrix, for the first time, had come out with the plea that she had been compelled to make statement before the ld. MM as well as this Court. It was not inquired from her by Counsel for the accused as to on which dates she had been approached by the police officials to make false statements. From the circumstances it can be said that she had in fact been pressurized on behalf of these accused to twist the facts on 06.08.2007.
66. It is not the case of the accused that she was a consenting party. It is also not the case of the accused that she was a girl of an easy virtue. Therefore, I am not discussing the evidence with regard to her age. From the evidence it is clear that she was not a consenting party.
67. I, therefore, hold that the evidence of the prosecutrix inspires confidence. The defence of the accused is not only inconsistent but is an afterthought. It does not inspire confidence. The prosecutrix would not have made false allegations of S. C. No. 44/06 29 rape without there being compelling circumstances. No compelling circumstance has been highlighted by the accused.
68. The question arises as to whether it was a gang rape for which the accused have been charged or is a rape on two different dates by accused Rinku and Nirmal so as to take it out from the definition of gang rape. The explanation 1 attached to Section 376(2)(g) IPC reads as under:-
"Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section."
69. As per the prosecutrix she had been raped by accused Rinku @ Sudhir on 12.06.2005. She was raped by accused Nirmal on 13.06.2005. The argument for Counsel for the accused that the two brothers namely Rinku and Nirmal would not have raped her, one after the other, at the same place, is inconsequential in view of the deposition made by the prosecutrix. It is not her case that both these accused had committed rape on her on 12.06.2005 at the same place and at the same time. Therefore, in my view, the accused cannot be convicted under Section 376(2)(g) IPC. Accused Rinku @ Sudhir and Nirmal are liable to be convicted under Sections 376, 363/34 & 366/34 IPC. Accused Gauri is liable to be convicted under Section 376/109 IPC. They are accordingly convicted under these Sections. S. C. No. 44/06 30
70. Accused Kuldeep After the prosecutrix had been produced before the police on 15.06.2005, her statement (mark A) had been recorded by the police under Section 161 Cr.P.C. Name of accused Kuldeep was not mentioned in that particular statement. Here I would like to mention that a signed statement of the prosecutrix dated 16.06.2005 (Ex.PW1/B) was also recorded. In that particular statement also name of accused Kuldeep was not mentioned. Thereafter statement under Section 164 Cr.P.C. (Ex.PW1/A) of the prosecutrix was recorded on 25.06.2005. In this particular statement the prosecutrix had stated that when she had been taken to Nabi Karim which was the house of brother-in-law (sala) of accused Nirmal, his (Nirmal's) sala came there. They were two persons and they had raped her. Descriptions of those persons were not mentioned. No TIP of accused Kuldeep was got conducted. At the time of recording of the examination-in-chief of the prosecutrix (PW1) accused Kuldeep was not got identified although in the chief name of accused Kuldeep was mentioned as one of the rapists. The chief of the witness was concluded on 01.08.2006 on which date itself the prosecutrix in the cross examination of accused Kuldeep had stated that she had seen accused for the first time. She was not knowing accused Kuldeep prior to the incident. She had seen him on that day i.e. the date of recording of her statement. However, he had never committed rape on her. She admitted that the application S. C. No. 44/06 31 (in fact it is an affidavit) dated 14.01.2006 (mark A) was moved by her parents before Shri Sanjay Aggarwal, Ld. ASJ, Rohini, Delhi for the discharge of accused Kuldeep. Thereafter the prosecutrix was cross examined by ld. Addl.P.P. However, the witness remained firm that accused Kuldeep is not one of the rapists. She denied that during investigation she had identified the accused Kuldeep as one of the rapists on 23.08.2005 in Police Station Nangloi.
71. Accordingly, accused Kuldeep is acquitted of the charge. For order on sentence to come up on 19.03.2008.
Announced in the open court (H.S.SHARMA) On this day of 15th March,2008 ASJ/DELHI All pages signed