Delhi District Court
State vs 1. Gyasuddin on 5 August, 2011
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
FIR No. 17/08
State Vs 1. Gyasuddin
2. Mohd. Arif
Police Station Anand Parbat
Under Section 376/ 506/ 120B IPC
ORDER ON THE POINT OF SENTENCE
05.08.2011
Pre: Ld. APP for the state.
Ld. counsel Sh.
Ld. Counsel Sh.
ld. APP submits that offence of such types are increasing day by
day. Such type of convict persons are harmful for society and they should
be punished with severe punishment. Ld. APP submits that accused
Md.Arif for the offence punishable u/s 120/B IPC and accused
Gyasuddin for the offences punishable u/s 120B/ 376/ 506I IPC. Ld.
APP again submits that offence under section 376 IPC is punishable with
not less than seven years. He further submits that if lessor sentence is
granted to the accused, the court is required to give special reasons. Ld.
State Vs Gyasuddin
FIR no. 17/ 08
1 /
APP again submits the latest case law on the point of sentence is that
court must avoid leniency. On these grounds ld. APP submits that
sentence be awarded not less than 7 years which is prescribed as
minimum. In this regard ld. APP relied upon the judgment '2006 I AD (Cr.)
S. C. 201 (SC) Shailesh Jasvantbhai & Anr. Vs State of Gujarat &
Ors.'. Further, ld. APP submits that accused Mohd. Arif has been
convicted u/s 120 B IPC which is punishable u/s 109 IPC for abetment
where no express provision is made for its punishment. On these grounds
ld. APP submits that convict persons deserve maximum punishment. On
these grounds ld. APP submits that convict persons deserve maximum
punishment.
Contrary to it, ld. Counsel Sh. Kashish Batra for accused Mohd.
Arif submits that accused is 43 years old and he is a very poor person. He
has old parents to look after and two small children to look after. He further
submits that convict Mohd. Arif remained in judicial custody for about 13
months. Ld. counsel again submits that no previous criminal antecedents
have borne on record in respect of convict Mohd. Arif. Ld. Counsel again
argues and submits that it has been proved on record that accused Mohd.
State Vs Gyasuddin
FIR no. 17/ 08
2 /
Arif has not committed rape upon the prosecutrix. On these grounds ld.
counsel for convict prays for release of convict on probation of good
conduct taking lenient view at the time of awarding the sentence.
ld. Counsel Ms. Anu Narula for accused Gyasuddin argues and
submits that accused is unmarried and lonely person. He has no family
members. He is very poor person in the society. He further submits that
convict is languishing in judicial custody since 19.06.2008. Ld. counsel
again submits that no previous criminal antecedents have borne on record
in respect of convict. She further submits that accused Gyasuddin is
handicapped since his left arm is not working properly due to polio since
childhood. His father is in critical condition. Ld. Counsel again submits
that accused Gyasuddin has two sisters of marriageable age. On these
grounds ld. counsel for convict prays for taking lenient view at the time of
awarding the sentence.
I have heard the submissions of ld. counsel for the convict persons
and ld. APP as well. Keeping in view of the facts and circumstances of
the case and family background of convict persons I am of the view that
ends of justice will be met if Convict Gyasuddin is sentenced to undergo
3 years 6 months R.I. for the offences punishable u/s 120 B /506I /376
State Vs Gyasuddin
FIR no. 17/ 08
3 /
IPC and to pay a fine of Rs.5000/ collectively in default further Three
months rigorous imprisonment precisely for the reasons that convict
Gyasuddin has been convicted for unintended/involuntary consent of the
prosecutrix and also it transpires on record that prosecutrix had also
delivered a son with the relationship of other person namely Chhotu.
Besides, he is a handicapped person.
So long as the convict Mohd. Arif is concerned, the ends of justice
will be met if convict Mohd. Arif is sentenced to undergo Rigorous
imprisonment for 1 year and 4 months for the offence u/s 120B IPC read
with section 109 IPC precisely for the reasons that offence was committed
at his place where the prosecutrix was staying.
Accordingly, Convict Gyasuddin is sentenced to undergo
3 years 6 months R.I. for the offences punishable u/s 120
B /506I /376 IPC and to pay a fine of Rs.5000/ collectively
in default further Three months rigorous imprisonment :
Convict Mohd. Arif is sentenced to undergo Rigorous
imprisonment for 1(one) year and 4 months for the
offence u/s 120B IPC read with section 109 IPC and to pay
a fine of Rs.2000/ in default one month S.I.
Benefit of section 428 Cr. PC be given to the convict
persons.
Copy of this order and judgment be given to the convict at
free of cost forthwith. Orders accordingly.
ANNOUNCED IN THE OPEN COURT
ON THIS 05.08.2011
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
State Vs Gyasuddin
FIR no. 17/ 08
4 /
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 326/ 1/10
Assigned to Sessions. 29.09.2008
Arguments heard on 19.07.2011
Date of order. 01/08/11
FIR No. 17/08
State Vs 3. Gyasuddin s/o Md. Moinuddin
R/o Village Chooti Kodarjana PS
Mufsil Distt. Sahib Ganj,
Jharkhand
4. Mohd. Arif s/o Shakbar r/o
F154, Punjabi Basti, Baljeet
Nagar, Delhi.
Police Station Anand Parbat
Under Section 376/ 506/ 120B IPC
JUDGEMENT
1. Briefly facts of the case are that prosecutrix Ms. Pratima Khalko (PW2) is the resident of District Gadwa, Jharkhand. She came to Delhi along with her Bua Kulwati in search of job. Smt. Kulwati got arranged job for her in Rajouri Garden in a house. The prosecutrix worked there in Rajouri Garden for about 5 to 6 months, then she went back to her native village Bargarh along with her bua Kulwati. After few days in Bargarh, the State Vs Gyasuddin FIR no. 17/ 08 5 / prosecutrix along with her Bua Kulwati came back to Delhi. Thereafter, her bua Kulwati took her to the office of accused Md. Arif. The prosecutrix and Kulwati remained in the office of Arif for about six days. Thereafter, Kulwati went back to her native place leaving the prosecutrix in the office of Mohd. Arif. Accused Mohd. Arif was operating Kamila Placement Agency through which, he got arranged a job of household work like cooking, cleaning etc. for the prosecutrix in Gurgaon.
2. The prosecutrix worked in Gurgaon hardly for a month but she was not feeling convenient and comfortable there. She came back to the office of Kamila Placement Agency of Mohd. Arif. The prosecutrix stayed there for about 4 days and then, another job was got arranged by the agency in Delhi, where she worked for about one month. Thereafter, the agency arranged another job for the prosecutrix in Patel Nagar, where she worked for about 4/5 months.
3. Prosecutrix was doing job in the house of Ms. Geeta. On the day of incident i.e. on 13.10.2007 accused Mohd. Arif called the prosecutrix in State Vs Gyasuddin FIR no. 17/ 08 6 / his office on telephone. However, prosecutrix refused to go to the office of Mohd. Arif. On her refusal, accused Mohd. Arif sent Gyassudin at the house of Ms. Geeta to take the prosecutrix to his office. The prosecutrix accompanied Gyassuddin, who took her to the office of accused Mohd. Arif at Patel Nagar.
4. Mohd. Arif asked the prosecutrix to prepare meal. In the process of preparing meal, it became late night and the prosecutrix requested Smt. Kamila, wife of Mohd. Arif to let her go at the residence of Ms. Geeta. But accused Mohd. Arif asked to leave the prosecutrix at the house of Ms. Geeta on next day morning since there was already night hence, the prosecutrix had to stay there. At that time there were accused Mohd. Arif, Smt. Kamila, their children, Mohd. Arif's cousin Gyassuddin along with prosecutrix and two or three more girls were also present there.
5. Thereafter, on the intervening night of 13/1410.2007 at about 11:30 p.m. ot 12 Midnight, when the prosecutrix was sleeping in the room where all other were also sleeping, accused Gyassuddin started teasing State Vs Gyasuddin FIR no. 17/ 08 7 / the prosecutrix for 10 to 15 minutes and when she resisted, accused Gyassuddin threatened her that in case she does not consent, she would be sold by them. Thereafter, accused Gyassuddin forcibly took off her salwar and forcibly raped her. She apprised and requested the other girls, who were present in the room by shouting but they did not awake. She remained in the room in the night and on the following day, she was taken to the house of Ms. Geeta by accused Gyassuddin, where she was working for the last about 3 months.
/
6. She has learnt that Nirman Niketan had taken all the records maintained by Mohd. Arif's Agency pertaining to the persons placed by that agency. The said records also contained the particulars of the prosecutrix. The accused Mohd. Arif was got arrested by Nirman Sanstha. Nirman Sanstha had gone through the record and ascertained the persons being placed by Mohd. Arif's Agency.
7. A letter was received in the name of the prosecutrix at the residence of Ms. Geeta, who read out that Mohd. Arifs, through whose agency the State Vs Gyasuddin FIR no. 17/ 08 8 / prosecutrix was placed at her residence, has been got arrested. Then prosecutrix contacted Nirman Niketan on telephone from the residence of Ms. Geeta. The prosecutrix was inquired that in case she has any complaint or grievances, she may disclose them. Then she narrated the whole incident. Thereafter, a lady from Nirman Niketan Sanstha and Ms. Bibyani Minz came to the prosecutrix and asked whether she wants to stay in Delhi or want to go back to his native place, the prosecutrix opted to remain in Delhi since she realized that she has been conceived so prosecutrix started living with Nirman Niketan Sanstha.
8. Then the prosecutrix along with members of Nirman Nikethan Sanstha went to police station on 01.02.2008 at that time she was foetal maturity of 15 weeks 5 days and she narrated the whole incident to the police and her statement was recorded vide Ex.PW2/A. Accordingly, a case was registered against accused persons for the offences punishable u/s 376/506/120B IPC vide FIR Ex.PW1/B. Since, proseuctirx was alone in Delhi and there was no one to help her hence she was under fear therefore, she could not report the police on her own, as she apprised to State Vs Gyasuddin FIR no. 17/ 08 9 / the police at the time of giving her statement on rukka vide Ex.PW1/A.
9. Thereafter, accused Gyasuddin was arrested on 18.06.2008 vide arrest memo Ex.PW14/A and other accused Md. Arif was arrested on 27.06.2008 vide arrest memo Ex.PW15/A.
10.The allegations of rape are against accused Gyasuddin and allegations for making conspiracy and getting done the alleged offence of rape are against accused Md. Arif and accused Gyasuddin.
11.This case was committed to this Court and received on 29.09.2008 for trial as it pertains to the heinous crime committed under section 376/ 506/ 120 B IPC which is exclusively triable by court of Sessions. Ld. predecessor of this court passed a detailed order dt. 20.01.2009 on the point of framing of charge. Charge for the offence u/s 120B IPC has been framed in respect of both accused persons namely Gyasuddin and Md. Arif . Charge for the offence u/s 376 / 506 IPC I IPC has been framed in respect of accused Gyasuddin . Accused persons did not State Vs Gyasuddin FIR no. 17/ 08 10 / plead guilty and claimed trial.
12.To prove and substantiate its case the prosecution has examined 15 witnesses namely PW1 HC Ajeet Singh - formal witness who recorded FIR of the present case on 01.02.2008 being duty officer. He got exhibited the copy of FIR as Ex.PW1/B and endorsement on tehrir as Ex.PW1/A. He deposed that case was marked to SI R P Minz for further investigation. This witness has been crossexamined by defence counsel. No contrary evidence has come on record which may go to the root of this case; PW2 Prosecutrix is the most material witness in this case being victim; PW3 Vinod Kumar - Project Manager in NGO Nirman Sanstha; PW4 Geeta Malhota - material witness at whose house prosecutrix was working and she affirmed the fact that accused Arif was operating Kamila Placement Agency and salary of prosecutrix was collected by accused Arif. She has also affirmed the fact that on the day of incident accused Gyasuddin came to her house and took the prosecutrix Pratima with him to celebrate Id since accused Gyasuddin told her that he has been asked by accused Arif to bring the prosecutrix; PW5 Bibiyani Minj - is also material witness through whom prosecutrix State Vs Gyasuddin FIR no. 17/ 08 11 / came into contact of Nirman Sanstha; PW6 SI Om Prakash - is the witness who recorded statement of prosecutrix on 01.02.2008 on arrival of her at police station along with field worker Ms. Bibiyani Minz of Nirman an NGO of Pitampura, Delhi and he got registered the present case; PW7 HC Bahadur Singh - is the witness who apprehended accused Gyasuddin on 18.06.2008 from the house of his brother Maqsood at village Tekhar; PW8 Dr. Aruna is the material witness who medically examined prosecutrix and prepared her MLC vide Ex.PW8/A she referred the proseuctrix for Gynae department; PW9 Dr. Nirmal appeared in the witness box in place of Dr. Karam Jeet Kaur (Gyane) and on seeing MLC no.1754/08 of prosecutrix she identify the signature of Dr. Karam Jeet Kaur on the MLC and deposed that prosecutrix was brought with the alleged history of rape by known person of placement agency about four month back. She deposed that on clinical examination, there was 14 to 15 weeks size of uterus; PW10 Dr. Uma came to the witness box in place of Dr. Dheeraj who had examined accused Guyasuddin. He got exhibited the MLC of accused as Ex.PW10/A and identified the signature of Dr. Dheeraj on the said MLC. State Vs Gyasuddin FIR no. 17/ 08 12 / He opined that on examination, there was no evidence to suggest that accused was incapable of sexual intercourse; PW11 W/ Ct. Bharti - formal witness who took the prosecutrix at hospital on 01.02.2008 for medical examination; PW12 W/ SI R P Minz formal I.O. to whom investigation of this case was marked after registration of the case and she prepared site plan vide Ex.PW12/A . She has also tried her best to apprehend the accused persons but in the meanwhile she was transferred to other place; PW13 A K Srivastava is the most material witness being the witness of DNA Unit. He examined the exhibits and blood samples of DNA of Ex.1 of Gyasuddin , Ex.2 female baby of Ms. Pratima and Ex.3 Ms. Pratima Khalko (prosecutrix). It was found that DNA profile is sufficient to conclude that Ex.1 (Gyasuddin) and Ex.3 (Proseutrix) are the biological father and mother of Ex.2(female child). His detailed report in this regard is Ex.PW13/D collly; PW14 Ct. Jot Ram - is the witness who apprehend the accused Gyasuddin on 18.06.2007 along with PW7 HC Bahudur Singh from village Tehkhar; and PW15 SI Sushil I.O. of the case.
State Vs Gyasuddin FIR no. 17/ 08 13 /
13.All these witnesses have been crossexamined at length by the defence counsel Ms. Anu Narula - Amicus Curiae at length. I have perused the same. I found some contradictions and variations in their statements. So long as the contradictions which have come in the testimony of prosecution witnesses are concerned, it has been held by Hon'ble Supreme Court of India in 'Meharban Singh Vs State (1996) 10 SCC 615' that:
"Even some improvements or exaggerations or some minor discrepancies do not hurt the prosecution case."
Again, it has been observed in 'Hardev Singh Vs Harbhej Singh (1997) 1 SCC 80: 1997 SCC (Cri) 5' that :
"When there was a sudden assault, minor discrepancy in describing the correct distance from where the gun was fire, is immaterial."
In 'State of UP vs M K Anthony AIR 1985 SC 48: 1985 Cr. LJ 493' it has been held that :
"Minor discrepancies not going to the root of the matter would not permit rejection of evidence. Every honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
In judgment 'Faquira Vs State AIR 1976 SC 915: (1976) 1 SCC 661 the Hon'ble Supreme Court held that :
State Vs Gyasuddin FIR no. 17/ 08 14 / "Minor discrepancies guarantee that the witnesses are not tutored."
14.Therefore, in light of these judgments (supra) I am of the view that these contradictions are minor type of nature which are attributable due to the long duration of time and memory of a human being. These contradictions do not go to the root of this case.
15.However, in the case in hand the most material witness is PW2 proseuctrix Pratima Khalko. I have perused her testimony very carefully. In her testimony she has categorically stated that on the intervening night of 13/1410.2007 at about 11:30 p.m. ot 12 Midnight , when the prosecutrix was sleeping in the room of accused Md. Arif where all other were also sleeping, accused Gyassuddin started teasing the prosecutrix for 10 to 15 minutes and when she resisted, accused Gyassuddin threatened her that in case she does not consent, she would be sold by them. Thereafter, accused Gyassuddin forcibly took off her salwar and forcibly raped her. She apprised and requested the other girls, who were present in the room by shouting but they did not awake. She remained in the room in the night and on the following day, State Vs Gyasuddin FIR no. 17/ 08 15 / she was taken to the house of Ms. Geeta by accused Gyassuddin, where she had bee working for the last about 3 months. Thereafter, on 01.02.2008 with the help of members of Nirman Nikethan Sanstha she went to police station , at that time she was having foetal maturity of 15 weeks 5 days and narrated the whole incident to the police and upon her statement vide Ex.PW2/A, a case was registered against accused persons for the offences punishable u/s 376/506/120B IPC vide FIR Ex.PW1/B. Since, proseuctirx was alone in Delhi and there was no one to help her hence she was under fear therefore, she could not report the police on her own. Testimony of PW13 A. K. Srivastava, Assistant Director (Biology), DNA Unit, FSL, Rohini also corroborates that father and mother of female baby is accused Gyasuddin and Pratima Khalko (prosecutrix). In this regard he has got exhibited his detailed report as Ex.PW13/D. He has also got exhibited the three forms as Ex.PW13/A to PW13/C. No material contradiction has come on record in the the crossexamination of PW13.
I have also perused the crossexamination of prosecutrix PW2 which has been done at length. In her testimony it has come on record State Vs Gyasuddin FIR no. 17/ 08 16 / that at the time of her rape there were Md. Arif, his wfie Kamila, their children, and two or three more girls were also sleeping in the room and she tried to awake them but none was awaken. Besides, the case has been registered after a long gap of rape with the intervention of Nirman NGO. The interesting fact is also that on the next morning accused Gyasuddin dropped the prosecutrix at the house of Geeta Malhotra where she was working, there she does not tell anything to Geeta Malhotra about her rape. Since, testimony of PW Geeta Malhotra has been perused but no where she has deposed that prosecutrix told her about the incident of rape. All these facts indicate to think that whether the prosecutrix was consented or not.
16.After recording prosecution evidence, statements of accused persons recorded u/s 313 Cr.P.C. All the allegations and evidence were put to them. They denied all the allegations of the prosecution side. They did not lead any defence evidence. They pleaded that they are innocent and they have falsely been implicated in this case. State Vs Gyasuddin FIR no. 17/ 08 17 /
17.After recording statement of accused persons, case was fixed for final arguments. Final arguments were heard. Ld. counsel for the accused persons argued and submitted that accused persons are innocent and they have been falsely implicated in this case. Ld. counsel for the accused persons again argued and submitted that there are so many contradictions in the testimonies of all witnesses. Testimony of prosecutrix is also not reliable.
18.Ld. counsel further argued and submitted that it is admitted fact that the incident of place of a small room where 7/ 8 persons were present at the time of incident. It is also admitted fact that there is corroboration whatsoever. Neither any witness has been examined nor any corroboration has been done that there was either any teasing or threat or rape committed by accused Gyasuddin. Ld. counsel again argued and submitted that it is improbable, impossible, unbelievable that if such an act was committed, no one saw or objected or heard or restrained the accused. It is also argued and submitted that testimony of prosecutrix is self contradictory because at one place she stated that she apprised State Vs Gyasuddin FIR no. 17/ 08 18 / and requested the other girls by shouting but they did not awake while on the other hand she stated that she was scared and therefore she could not resist. Ld. counsel again argued and submitted that this contradiction is patent as it relates to the state of mind of prosecutrix because she was so scared of Gyasuddin and did not resisit she would not have screamed. And if she screamed shouted and also told other girls, this means she was not scared, or was not forced for cohabitation. This assumes greater significance as none of these girls have been examined. Further, the children of Arif were also sleeping there and it is not possible that Aif or his wife would have permitted such an act.
19.Ld. counsel again submitted that it is admitted on record that case was registered after the NGO came into picture. She has also admitted in her crossexamination that members of organisatioin including lawyers were also present with her for the case. It is also admitted fact that she has been made to understand about the statement she should give in the court. It has also been admitted in the crossexamination by PW2 prosecutrix that when she came to Delhi from Village she was pregnant State Vs Gyasuddin FIR no. 17/ 08 19 / with an illegitimate child, which was given birth in Arif's office. It is also admitted by her in the crossexamination that said child was given in adoption against consideration amount. She further admitted in her crossexamination that first child was from one Chottu Ram and her parents were not informed by her about this child. On these grounds ld. counsel for accused persons submitted that from this part of testimony it can easily be considered that prosecutrix is fiercely independent minded and she has no hesitation in establishing conjugal relationships outside wedlock and also has no problem in giving birth to children concerned from such relations. In support of her contentions she has relied upon the following judgments:
i) '2010 (2) JCC 888' wherein it has been observed that :
"Even in case of rape, the prosecution has to prove its case beyond reasonable doubt. There can be no presumption that a prosecutrix would always tell the truthfully."
ii) '2006 (4) RCR Criminal 505 P&H ' in this judgment it has been observed that : 'Silence on every occasions by the State Vs Gyasuddin FIR no. 17/ 08 20 / prosecutrix shows that the prosecutrix was a consenting party.'
iii)In another case '2003 (1) Crimes 452 SC' it has been held that :
'Even though the sole testimony of prosecutrix can be considered, but it has to be very very convincing.
Though she is not an accomplice and only an injured witness, but broad probabilities have to be considered and prudence requires that corroboration be there if available.
Though delay is not a serious factor, but in such cases of section 376 IPC it is an important feature to be considered.
Though it is correct that no girl will put her however at stake, but there can be some loose ends like everyone already getting to know about it.
Though the previous character of the girl is not of any consequences in such cases but where the medical evidence suggests otherwise, it becomes a relevant consideration.'
iv) In Crl. A 461/2005 DOD 09.03.2010 'Azim Vs State , Delhi High Court' it has also been observed that : 'Not raising alarm at any stage . The prosecutrix is a consenting party.'
v) In another case '2007 (3) RCR Criminal 818 P&H' it has State Vs Gyasuddin FIR no. 17/ 08
21 / been observed that :
'When the prosecutrix does not make any complaint to persons coming across or present either during traveling in buses or at the place of the stay. It shows that she is a consenting party.' On these grounds ld. counsel Ms. Anu Narula for accused persons submitted that prosecution has failed to prove its case beyond reasonable doubt against accused persons.
20.Contrary to it, ld. APP argued and submitted that there is sufficient material available on record to hold the accused Gyasuddin guilty for committing rape. Ld. APP argued and submitted that nowa days incident of rape are increasing day by day. Ld. APP further argued and submitted that prosecutrix has categorically stated and deposed that accused Gyasuddin has committed rape upon her without her consent and accused Md. Arif is also guilty for getting done the rape in his house by accused Gyasuddin. Accused Gyasuddin has also threatened her that in case she does not cooperate, she would be sold by him. On these grounds ld. APP submitted that there is no way to escape from the clutches of law after committing the heinous crime i.e. rape. Ld. APP State Vs Gyasuddin FIR no. 17/ 08
22 / further argued that Hon'ble Supreme Court of India in various cases has held that evidence of prosecutrix is sufficient to hold the accused guilty of rape. In support of his contentions he has stated that it has been held on the point of sexual assault that:
"The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict and accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape of sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence on an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.
State Vs Gyasuddin FIR no. 17/ 08
23 / It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice.
Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity I the shape of rule of law is introduced through a new form of testimonial tyranny making justice a causality. Courts cannot cling to a fossil formual and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable." In another case of S. Ramakrishna Vs. The State 2008 (11) JT 635, the Apex Court while delivering this judgment also observed:
"10. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (In short "the Evidence Act") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence "
Therefore, Ld. APP requested to convict the accused persons for the offences u/s 376/506/120B IPC.
21.Definition of rape has been given under section 375 IPC. For the sake of clarity section 375 IPC is being reproduced verbatim which is as under: "375. Rape - A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: State Vs Gyasuddin FIR no. 17/ 08 24 / First. Against her will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is under sixteen years of age.
Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Explanation. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
22.Before reaching at any conclusion the relevant sections are being re produced which are as under: Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with 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 unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever, State Vs Gyasuddin FIR no. 17/ 08 25 /
(a)being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to him; or
(b)being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits 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:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1 - 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 subsection.
State Vs Gyasuddin FIR no. 17/ 08 26 / Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] In '2007 Cri. L J 2903 - The State of Tripura Vs. Shri Chayan @ Santosh Saha' it has been observed that :
"Allegations that respondent accused kidnapped prosecutrix aged 20 years and put under confinement and committed rape on her on several occasions - Prosecutrix despite opportunity or chances during her shifting and staying in different places not disclosing to anybody about kidnapping and rape committed by respondent Plea that she was under threat or in fear is not supported at all by any convincing evidence - Doctor examining prosecutrix could not give any conclusive opinion whether she was raped or not. On facts and circumstances prosecutrix appeared to be consenting party Acquittal of accused, proper."
Again it has been observed by Hon'ble Apex Court in case titled as '2007 Crl. LJ 4704 - Radhu Vs State of Madhya Pradesh' that :
"15. The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gap in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The ld. counsel for the respondent submitted that ............................does not have much reliance, as the prosecution miserably failed to prove the charges. We are satisfied that the evidence does not warrant a finding of guilt at all, and the Trial Court and High Court erred in returning a finding of guilt.
16.We therefore, allow the appeal , set aside the State Vs Gyasuddin FIR no. 17/ 08 27 / judgments of the courts below and acquit the accused of all charges."
23.Ld. APP opposing the aforesaid contentions of the ld. counsel contended that in case 'B.C. Deva Vs. State of Karnataka 2007 VII AD (S.C.) 143= 2007 12 SCC 122', it has been held that merely because no injury was found on the private parts of the prosecutrix would not negate her testimony about the rape committed on her.
"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
24.In light of the above discussed facts and circumstances of the case I am of the view that in the catena of judgments delivered by the Apex Court it has been number of times reiterated that conviction can be safely awarded to the accused on the sole testimony of the prosecutrix but the rule of prudence required that the testimony of prosecutrix is to be examined/ scanned with great caution and circumspection. I have gone through the testimony of prosecutrix PW2 very carefully to ascertain the contradictions which have been argued by the defence State Vs Gyasuddin FIR no. 17/ 08 28 / counsel. In her testimony it has come on come record that at the time of incident 7 /8 persons were also sleeping in the room. Moreover, she has deposed in her testimony that she shouted and apprised the fact to the 3 girls who were also sleeping in the room but they did not awake. It is also admitted fact on record that this case was registered with the intervention of NGO. It has also come in her crossexamination that when she came to Delhi from Village she was pregnant with an illegitimate child and she gave birth to that child in Arif's office. This child was given in adoption. It has come on record that in her cross examination that first child was from one Chottu Ram and her parents were not informed by her about this child. All these contradictions are not sufficient to establish that accused persons are innocent and they have not played any role in this case precisely for the reasons that prosecutrix was confined in the room of Arif by accused Arif on the pretext of late night and accused Gyasuddin committed sexual intercourse with her without her consent and under threat. This fact easily be inferred from the testimony of prosecutrix PW2 that on the intervening night of 13/1410.2007 at about 11:30 p.m. ot 12 Midnight , State Vs Gyasuddin FIR no. 17/ 08 29 / when she was sleeping in the room of Arif, accused Gyassuddin started teasing her for 10 to 15 minutes and when she resisted, accused Gyassuddin threatened her that in case she does not consent, she would be sold by them. Thereafter, accused Gyassuddin forcibly took off her salwar and forcibly raped her. Besides, It has also come on record that DNA profile is sufficient to conclude that Ex.1 (Gyasuddin) and Ex.3 (Proseutrix) are the biological father and mother of Ex.2(female child). Detailed report in this regard is Ex.PW13/D collly.
25.The Hon'ble Supreme Court in the case of Om Prakash Vs. State, 2006 RLR 466, has interalia held that it is settled that the victim of sexual assault is not to be treated as an accomplice and as such her evidence does not require corroboration from any source including evidence of a doctor. It was further held that, in a given case, even if the doctor does not find sign of rape, it was no ground to disbelieve the sole testimony of the victim. According to the Apex Court evidence of the victim must receive the same weight as is attached to an injured in case of physical violence and the same degree of care and caution must State Vs Gyasuddin FIR no. 17/ 08 30 / attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more.
25.The accused took advantage of her lonelyness in Delhi and under threat seduced her to have illicit intercourse with her and had in fact raped her. Various contradictions appearing in the deposition of the victim as pointed out by ld. defence counsel, are insignificant and do not go to the root of the matter. Absence of injuries on the person of the victim and delay in lodging FIR of the present case would shed some water that she was a consenting party but in view of the fact that she was alone in Delhi and in the dominant association of accused persons so she appears to be influenced by pressure and threat of accused persons, therefore her unintendedconsent is of no significance. Significantly, the victim, in the Court, did not depose that she had given her consent to have sexual intercourse to the accused rather it has come on record that accused Gyasuddin threatened her to give consent for the purpose of sexual intercourse. This fact can be inferred from the DNA Test and gathering circumstances for his lust.
State Vs Gyasuddin FIR no. 17/ 08 31 /
26.Further, careful perusal of her statement reveals that certain inconsistencies with regard to the minute details appears on record and these evidently are bound to occur in the statement of the prosecutrix precisely for the reasons that the state of mind after such occurrence affects the physical and intellectual integrity of the prosecutrix as in the rape cases the victim has to suffer mental trauma causing mental faculties in perceptions and cognition affecting cognitive and intellectual faculties. In this regard observing the similar opinion Hon'ble Supreme Court in AIR 1983 held that:
"...........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 made chauvinism in a male dominated society."
AIR 1952 SC 54, Rel. on.
"A girl or a woman in the tradition bound nonpermissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. 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, she would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match State Vs Gyasuddin FIR no. 17/ 08 32 / from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a builtin assurance that the charge is genuine rather than fabricated."
It has been held by Hon'ble Supreme Court of India in 'Meharban Singh Vs State (1996) 10 SCC 615' that:
"Even some improvements or exaggerations or some minor discrepancies do not hurt the prosecution case."
Again, it has been observed in 'Hardev Singh Vs Harbhej Singh (1997) 1 SCC 80: 1997 SCC (Cri) 5' that :
"When there was a sudden assault, minor discrepancy in describing the correct distance from where the gun was fire, is immaterial."
In 'State of UP vs M K Anthony AIR 1985 SC 48: 1985 Cr. LJ 493' it has been held that :
"Minor discrepancies not going to the root of the matter would not permit rejection of evidence. Every honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
In judgment 'Faquira Vs State AIR 1976 SC 915: (1976) 1 SCC 661 the Hon'ble Supreme Court held that :
"Minor discrepancies guarantee that the witnesses are not tutored."
28.In light of the above observations of Hon'ble Supreme Court the State Vs Gyasuddin FIR no. 17/ 08 33 / contradictions in the statement of prosecutrix should be weighed with prudence and great circumspection.
29.Besides, accused persons have not brought any defence evidence in their defence. However, corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted. Besides, testimony of PW13 A K Srivastava, witness from DNA Unit also establishes that accused (Gyasuddin) and Ex.3 (Proseutrix) are the biological father and mother of Ex.2(female child) vide detailed DNA report Ex.PW13/D. Since, prosecutrix was in the custody of accused persons therefore, element of consent cannot be construed that she was consented with her free 'will' State Vs Gyasuddin FIR no. 17/ 08 34 / but appears to have been impacted by the influence of custody of prosecutrix in the premises of accused Mohd. Arif. The judgments/ citations as relied upon by the ld. defence counsel for accused persons are not applicable in the present case since, fact of the cited judgments are entirely different from the facts of the present case. Therefore, in light of the judgments 'S. Ramakrishna Vs. The State 2008 (11) JT 635, the Apex Court'; 'B.C. Deva Vs. State of Karnataka 2007 VII AD (S.C.) 143= 2007 12 SCC 122', I convict accused Md.Arif for the offence punishable u/s 120/B IPC and accused Gyasuddin for the offences punishable u/s 120B/ 376/ 506I IPC for the reasons as discussed above.
Accordingly, accused Md. Arif is convicted u/s 120 B IPC: And accused Gyasuddin is convicted for the offences punishable u/s 120B/506I/376 IPC.
ANNOUNCED IN THE OPEN COURT ON THIS 01.08.2011 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi State Vs Gyasuddin FIR no. 17/ 08 35 /