Delhi District Court
Sc No: 62/13 State vs . Raju Yadav on 25 March, 2015
SC No: 62/13 State Vs. Raju Yadav
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 62/13
FIR No. 142/12
Police Station Adarsh Nagar
Under Section 376 IPC
ID No. 02404R0- 266732012
State
Versus
Raju Yadav
S/o Sh. Dwarka Yadav
R/o H.No. 69, Malik Puri,
Delhi. ......Accused
Date of institution 09.10.2012
Judgment reserved on 11.03.2015
Judgment Pronounced on 25.03.2015
Decision Convicted
Judgment 1 of 28
SC No: 62/13 State Vs. Raju Yadav
JUDGMENT
1. Accused Raju Yadav is facing trial in the present case on allegations that about 7-8 months prior to 17.06.2012 at H.No. 140, Village Malikpur, Delhi he committed rape upon prosecutrix S aged about 12 years.
2. The brief facts as noted in the charge-sheet are that on 15.06.2012 ASI Krishan Lal received DD no. 16A regarding an unknown girl is sitting near Britannia Chowk. He went to the spot that is Jhuggi near the Britannia Chowk where he met two ladies Gainda and Phoolmati. They produced the prosecutrix S who was native of West Bengal.ASI searched for the relative of the prosecutrix but was not able to find. On 16.06.2012, he recorded the statement of prosecutrix wherein the prosecutrix alleged that she was raped by one person who is friend of one Rajeev. On the basis of the information given by the prosecutrix, the FIR in question was registered.
Judgment 2 of 28
SC No: 62/13 State Vs. Raju Yadav
3. Search for the Aunt (Bua) namely 'Munni' of the prosecutrix was carried out. On 18.06.2012, Munni was found. Statement of Munni was recorded wherein she supported the version of prosecutrix and stated that she even confronted the culprit Raju Yadav who admitted his guilt. At the instance of prosecutrix and Munni, accused was arrested. The accused refused to participate in the TIP proceedings.
4. The accused was charge-sheeted for the offence punishable U/s 376 IPC. The charge for the said offence was framed against the accused on 16.10.2012 to which accused pleaded not guilty and claimed trial.
5. The prosecution has examined 16 witnesses.
Judgment 3 of 28
SC No: 62/13 State Vs. Raju Yadav
6. PW1 ASI Satbir Singh tendered his evidence by way of an affidavit and proved the DD entry No. 4A in respect of arrival & departure of SI Kishan Lal to Kilkari Kashmere Gate, Observation Home as Ex. PW1/A.
7. PW2 HC Ramesh Kumar tendered his evidence by way of an affidavit and proved the DD No. 16A in respect of prosecutrix being found wandering as Ex. PW2/A.
8. PW3 HC Maya tendered her evidence by way of an affidavit and proved the FIR in question as Ex. PW3/A and her endorsement over it as Ex. PW3/B.
9. PW4 Ct. Rahul tendered his evidence by way of an affidavit and proved the seizure memo of the exhibits of the accused after his medical examination as Ex. PW4/A. Judgment 4 of 28 SC No: 62/13 State Vs. Raju Yadav
10. PW5 Ct. Amrit tendered her evidence by way of an affidavit and testified that on 15.06.2012 she got the prosecutrix medically examined vide MLC No. 43312/12 at BJRM Hospital.
11. PW6 Dr. Gagan medically examined the prosecutrix on 15.06.2012 vide MLC no. 43312 as Ex. PW6/A.
12. PW7 SI Kishan Lal on receipt of DD No. 16A reached near the Britannia Chowk where the prosecutrix was produced before her by two ladies Gainda and Phool Mati. He found that the prosecutrix, a minor, was native of West Bengal and was found roaming aimlessly in the jhuggi cluster. She was given shelter for night by those two ladies. The prosecutrix was brought to the PS where she informed that her aunt (Bua) namely Munni was residing at Azadpur. Aunt of the prosecutrix could not be found. Thereafter, the prosecutrix was medically examined and her Judgment 5 of 28 SC No: 62/13 State Vs. Raju Yadav statement Ex. PW7/A was recorded wherein the prosecutrix stated that she was raped. On the directions of CWC, the prosecutrix was sent to observation home vide relevant entries Ex. PW1/A and wireless message Ex. PW7/B. On the assistance of public persons who knew Bengali language and of the prosecutrix, the police team reached at the house no. D-1/3, Model Town. The owner of the house confirmed that the prosecutrix had worked in their house before 3-4 months and the said owner took the police team to A-67, Rameshwar Nagar, Delhi where Munni (bua) of prosecutrix and her husband Rajiv were found. Prosecutrix also pointed out one room in house no. A-67, wherein she was raped by a person known to Rajiv and at her instance. PW7 prepared a pointing out memo as Ex. PW7/C on which the public persons also put their signatures and thumb impressions. Thereafter, PW7 handed over all the related documents to the SHO concerned.
Judgment 6 of 28
SC No: 62/13 State Vs. Raju Yadav
13. PW8 Dr. Rachit examined the prosecutrix on 20.06.2012 vide MLC 42678 proved on record as Ex. PW8/A.
14. PW9 Gainda found the prosecutrix near Jhuggis near Seven Sea Banquet Hall. At about 10 PM, the prosecutrix intimated the witness that she came to the house of her Bua but has lost her way to the house of her Bua. The prosecutrix stayed her house in the night and on the next morning the witness made a call to police at 100 number. The witness deposed that the police reached there and recorded her statement as Ex. PW9/A.
15. PW10 Phoolmati also deposed to the effect that the prosecutrix met them near the jhuggis behind Seven Sea Banquet Hall and told them that she has lost the way to the house of her Bua. On the next day, the police was called and her statement Ex. PW10/A was recorded by the police.
Judgment 7 of 28
SC No: 62/13 State Vs. Raju Yadav
16. PW12 prosecutrix S deposed that she came to Delhi from her native place at West Bengal with her Bua namely Munni who had brought her to work in Delhi. Munni kept her for 5-6 days and on an evening Munni stated that she was going to railway station to leave her mother and left the prosecutrix at the house of her friend Archana who is the wife of accused Raju. At the house of Archana only her husband Raju was present. At night, Raju removed her clothes and also removed his own clothes and put his penis inside her vagina on which the prosecutrix started screaming after which the accused left her. On the next morning, Munni returned and woke her up and then the prosecutrix disclosed about the act of accused. However, she did not listen and instead of put her to work in a house at Model Town where she worked for about six months and later on she was thrown out from the said house and then the prosecutrix got lost and was found by a lady. She took shelter in the house of said lady and on the next morning she was handed over to the police. In the hospital, she was medically Judgment 8 of 28 SC No: 62/13 State Vs. Raju Yadav examined and was later on produced before CWC where she was sent to Nirmal Chaya. Her statement was recorded by Ld. MM on 21.06.2012 which is on record as Ex. PW12/A. She duly identified the accused as the person who raped her. Prosecutrix deposed that she pointed out the place where the accused committed her rape and at her instance the accused was arrested vide memo Ex PW12/B and his personal search was conducted vide memo Ex PW12/C.
17. PW13 Dr. Niyati Srivastva medically examined the prosecutrix vide vide MLC Ex. PW8/A wherein she refused her internal examination. The bone age estimation of the prosecutrix was conducted as per the MLC Ex. PW13/A and the observations on the estimated age which was found to be 16-18 years is on Ex. PW13/B.
18. PW14 Dr. Shipra Rampal deposed that after examining the prosecutrix physically her age estimation was given between 16-18 years as per the report Ex. PW14/A. Judgment 9 of 28 SC No: 62/13 State Vs. Raju Yadav
19. PW15 Dr. Seema proved the MLC of the accused as Ex. PW15/A.
20. PW16 SI Upkar Kaur is the IO of the case. She proved the arrest of accused as per the memo Ex. PW12/B and she also proved the disclosure statement given by the accused Ex. PW9/B. She completed the investigation and filed the charge-sheet in the court.
21. Although the prosecution cited PW Munni (bua of the prosecutrix) as a prosecution witness, however, the said witness was dropped. Munni was investigated of her role in the commission of the offence, however, no material evidence came against the accused Munni on record and vide orders dated 18.07.2013, she was discharged from the present case.
Judgment 10 of 28
SC No: 62/13 State Vs. Raju Yadav
22. The statement of accused was recorded U/s 313 Cr.P.C. in which the accused claimed his innocence and stated that at the relevant time he was on duty and the prosecutrix has not named him as an offender. He stated that as per the victim the offence was committed by a friend of Rajeev but he does not know any Rajeev and he had met the said Rajeev for the first time in the Police Station.
23. In his defence, the accused examined DW1 Pradeep Yadav, who deposed that the accused was working in Grand Plaza Restaurant at Model Town and on 18.06.2012, some police officials came in a civil dress to the restaurant from where they lifted the accused at about 10-10:30 pm.
24. The defence in the present case has contended that the accused has not been named in the FIR nor his identity has been established on record. There is no medical or forensic evidence to link the accused with the commission of crime. There is absolutely Judgment 11 of 28 SC No: 62/13 State Vs. Raju Yadav no corroborating evidence to rely upon the version of the prosecutrix and in the absence of the statement of Munni (aunt of the prosecutrix), the narration of events as testified by the prosecutrix cannot be relied upon.
25. I have the Ld Addl PP for State and Ld Amicus Curiae appearing on behalf of the accused. I have also gone through the material on record. Let us examine the strength of the arguments of defence.
26. Accused not named in the FIR nor his identity has been established:- The FIR in question was registered on the basis of the statement given by the prosecutrix Ex. PW7/A wherein the prosecutrix alleged that a friend of Rajeev had committed wrong act with her and she can identify the person who had committed the wrong act. It has been contended on behalf of the accused that the prosecution in order to establish the identity of the accused was under obligation to examine the said Rajeev who could verify the Judgment 12 of 28 SC No: 62/13 State Vs. Raju Yadav claim of the prosecutrix that the accused is the same person to whom the prosecutrix has referred as friend of Rajeev. It is submitted that there is absolutely no description of the person in the initial complaint who committed rape on the prosecutrix, therefore, the prosecution has failed to establish the identity of the accused as the culprit.
27. It has come on record that the prosecutrix is an illiterate girl native of West Bengal. She deposed that her bua Munni had brought her to Delhi as her family sent her to work in Delhi. She resided with Munni for about 5-6 days and on one evening as Munni was going to Railway Station, the prosecutrix was left at the house of Munni's friend Archana. She deposed that in the said house only husband of Archana namely Raju was present who removed his clothes and removed her clothes and lay down on the her and put his penis inside her vagina on which she started screaming, after which the accused left her. The witness duly identified the accused as the person who committed rape on her.
Judgment 13 of 28
SC No: 62/13 State Vs. Raju Yadav
28. It is evident that she has not named the accused in her initial complaint Ex. PW7/A but while appreciating the circumstances of the case, it has to be kept in mind that the victim came to Delhi just 5-6 days prior to the incident in an alien environment. She was left by her Aunt in a house of a stranger. In the said night, the rape was committed on her and the next morning, she left the said house. Thus, the prosecutrix had no opportunity to have known the name of the accused. Therefore, the non-disclosure of the name of the accused in the FIR cannot be held fatal to the case of the prosecution. As far as identity of the accused is concerned, the prosecutrix has duly identified the accused as the person who committed rape on her. This being the case, the non- examination of the person Rajeev does not hamper the case of the prosecution in any manner.
Judgment 14 of 28
SC No: 62/13 State Vs. Raju Yadav
29. Medical evidence:- It has been contended on behalf of the accused that there is absolutely no medical evidence to establish that the victim has been raped or that the said rape was committed by the accused person. The defence has referred to the MLCs of the prosecutrix proved on record as Ex. PW6/A & Ex. PW8/A to point out that the prosecutrix herself refused for her internal examination. Relying upon the case titled as "State of Kartnatka Vs Mapilla P P Soopi", 2003 Legal Eagle (SC) 794, it is argued that in absence of the medical evidence the accused cannot be convicted for commission of rape.
30. The MLC Ex. PW6/A is dated 15.06.2012 which mentions that the prosecutrix, a resident of Bengal, aged about 12 years was wandering near Keshavpuram and was searching for her Aunt. She disclosed to the Doctor about the sexual assault on her but was unable to give any details regarding the date/ place of such an assault. The MLC mentions that the patient is a minor, not accompanying by any guardian and nobody is willing to consent on Judgment 15 of 28 SC No: 62/13 State Vs. Raju Yadav her behalf. The MLC Ex. PW8/A is dated 20.06.012 and as per the MLC, the IO has consented for the internal examination of the prosecutrix but the prosecutrix was not willing for the internal examination and the said consent was withdrawn.
31. During the course of her cross examination, the prosecutrix categorically deposed that she was scared and for this reason she did not consent for her internal examination. The circumstances of the case goes to show that when the prosecutrix was brought for her medical examination on 15.06.2012 and 22.06.2012 and on both occasions she did not have any person to explain her about the procedure of examination to be conducted.
32. Prosecutrix was a destitute minor girl aged about 12 years who was brought in Delhi to work as a domestic servant. The prosecutrix was sexually assaulted on the above she was made to work as domestic servant in a house for about 6 months and from there also she was thrown out. Later on found wandering in the Judgment 16 of 28 SC No: 62/13 State Vs. Raju Yadav jhuggi areas. It is also observed during couse of her examination that the prosecutrix was not well acquainted with Hindi language being a native of Bengal.
33. The ordeal narrated by the prosecutrix shows that she being a small girl was subjected to the atrocities through out her small life, firstly by her parents (sending her with her aunt to work in Delhi), then by a person with whom she was left by her aunt (who sexually assaulted her) and then by her employer who threw her away. As a result of the hardships faced by her in her life, the prosecutrix must not be having any confidence left in her to face the world. So, the prosecutrix has rightly explained in her cross examination that she was scared and thus refused to undergo the internal medical examination and no fault can be found in her conduct of refusing the medical examination. This being the scenario, medical evidence in respect of the rape of the prosecutrix was difficult to attain and the case of the prosecution cannot be faulted on this account. Needless to say that judgement cited by the Judgment 17 of 28 SC No: 62/13 State Vs. Raju Yadav defence has no relevance to the present case as in that case there was un- explained delay in lodging of the FIR.
34. Non examination of Aunt (Bua) of prosecutrix:- The defence contends that Munni, Aunt of prosecutrix was the most material witness but the prosecution did not examine her to non-suit the case of the defence. It is argued that as per prosecutrix Munni left her in the company of the accused and on the next date, she recovered the prosecutrix from his house. It is further submitted that as per the prosecutrix, she narrated the entire incident to Munni and hence testimony of Munni could have thrown the light on the true account of events of the case.
35. It is noteworthy that, while recording the evidence of prosecutrix, the Court observed that the Munni was found in the company of the wife of the accused and her demeanor appeared to be under the influence of the accused and his family. At the request of the State, Munni was dropped as prosecution witness and later Judgment 18 of 28 SC No: 62/13 State Vs. Raju Yadav on, the present case was investigated against her to find out her role whether the victim was trafficked to work in Delhi through her. The above noted facts would show that the role of Munni was itself under the scanner, moreover, the prosecutrix has herself deposed that Munni was the first person to whom she narrated the incident of rape but Munni did not take any action in the matter being the only guardian of the prosecutrix in Delhi. Moreover, the prosecutrix was able to narrate the incident as it happened with her, therefore, no much relevance can be attached to the non-examination of Munni by the prosecution.
36. Testimony of the prosecutrix: It is well settled that the woman who is a victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accomplice. As a matter of fact her evidence is similar to the evidence of an injured or complainant. The testimony of the prosecutrix, if found reliable by itself may be sufficient to convict the culprit and no corroboration of her evidence is necessary.
Judgment 19 of 28
SC No: 62/13 State Vs. Raju Yadav
Secondly, in prosecution of rape, the law does not require corroboration. The evidence of the prosecutrix may sustain a conviction. It is only by way of abundant caution that Court may look for some corroboration so as to satisfy its conscience and rule out any false accusations.
37. After going through the testimony of prosecutrix I find that she has been truthful and has given the true account of the incident as it happened with her. While appreciating her testimony it has to be borne in mind that the prosecutrix had come to Delhi only 5-6 days prior to the incident and she had no motive to impute false accusations against the accused. It is not disputed by the defence that she stayed in the room of the accused on the fateful night. The prosecutrix has also been able to point out the place of occurrence to the IO and duly identified the accused as the person who committed rape on her.
Judgment 20 of 28
SC No: 62/13 State Vs. Raju Yadav
38. The accused in his statement recorded U/s 313 Cr.P.C. has not denied that the prosecutrix had come to stay in the room occupied by him rather he has set up a defence that he shared a room with one Dhruv and when Munni left the prosecutrix in the said room, the said Dhruv was present in that room and the accused was on duty at Gian Plaza Restaurant, Model Town II, Delhi. However, the accused failed to produce any reliable evidence to substantiate his absence from his house on the date of incident nor he produced any evidence to suggest that the room of occurrence was shared by him with so called Dhruv.
39. As stated above, the prosecutrix has duly identified the accused as the person who committed rape on her and she was also able to point out the place of occurrence and her testimony is found to be trustworthy and reliable.
Judgment 21 of 28
SC No: 62/13 State Vs. Raju Yadav
40. Conclusion: In the light of the discussions made herein above, I am of the view that the testimony of the victim who is found to be a girl of 16-18 years, is trustworthy and reliable in respect of the incident of her rape on her by the accused. No circumstance has been brought by the defence to cast any doubt on the testimony of the prosecutrix. Accordingly, it is held that the allegations against the accused stands proved. The accused stands convicted for the offence punishable U/s 376 IPC. Matter be listed for hearing arguments on quantum of sentence for 30.03.2015.
Announced in open Court on Day of 25th March, 2015.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
25.03.2015
Judgment 22 of 28
SC No: 62/13 State Vs. Raju Yadav
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 62/13
FIR No. 142/12
Police Station Adarsh Nagar
Under Section 376 IPC
ID No. 02404R0- 266732012
State
Versus
Raju Yadav
S/o Sh. Dwarka Yadav
R/o H. No. 69, Malik Puri,
Delhi. ......Accused
ORDER ON SENTENCE
41. Accused Raju has been convicted U/s 376 IPC. I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and Sh. Rahul Verma Advocate, Ld. Amicus Curiae for the convict.
Judgment 23 of 28
SC No: 62/13 State Vs. Raju Yadav
42.. The learned Addl. PP has very vehemently argued
that the offence committed by the convict in this matter is of highly derogatory in nature. The little girl who came to work in Delhi was raped by the convict, despite the fact that her Aunt had left her in the company of the accused. The act of the convict has betrayed the faith of the victim.
43. It is further argued that the incestuous crimes in our society are presently on rise, which substantially hamper the mental and physical development of children. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 376 IPC in the matter, so that the same may act as deterrent for other impending offenders.
44. Per contra, the learned defence counsel has argued that convict is a married man aged about 38 years. He is having a son. Since the inception of the trial the convict is already Judgment 24 of 28 SC No: 62/13 State Vs. Raju Yadav undergone imprisonment as under-trial in this case and during this period, his conduct was never questioned by the Jail authorities. In the end, it is argued that the convict is the first time offender and leniency in sentencing qua him has been prayed for.
45. I have given thoughtful consideration to the arguments advanced by Bar by both the sides and to the facts and circumstances of the case in totality. In my considered opinion, the act of the convict to rape a destitute girl does not remand any leniency. The interest of justice would be met, if the convict is sentenced to Rigorous Imprisonment for a period of 7 years along with fine of Rs. 10,000/-, in default of payment of fine, further SI for a period of 3 months ;Benefit of Section 428 Cr.P.C is accorded to the convict.
46. Compensation: Hon'ble Apex Court has time and again observed that that subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to Judgment 25 of 28 SC No: 62/13 State Vs. Raju Yadav the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
47. The concept of welfare and well being of a woman is basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. However, the facts of the case demonstrates that the victim's trust was betrayed by the entire Society. She came to Delhi in search of work but instead was raped and then was thrown out on road with no place to go.
Judgment 26 of 28
SC No: 62/13 State Vs. Raju Yadav
48. Therefore, in order to provide Restorative and Compensatory Justice to the victim girl, I hereby grant compensation of Rs. 2,00,000/- (Rs. One lac only) to the victim. The learned Secretary, D.S.L.S.A, North District, New Delhi shall ensure that the said amount is given to the victim within one month on receipt of this order and shall further ensure that the said amount is disbursed in such a manner that the same be used for her welfare and rehabilitation.
49. A copy of this order along with the particulars of the victim be sent to learned Secretary, D.L.S.A, North District., Rohini Courts, Delhi for necessary compliance.
50. Convict is informed that he has a right to prefer an appeal. He has been apprised that if he cannot afford to engage an Advocate, he can approach the Legal Aid Cell, Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 34-37, Lawyer Chamber Block, High Court of Delhi, New Delhi.
Judgment 27 of 28
SC No: 62/13 State Vs. Raju Yadav
51. A copy of judgment and copy of order on sentence be supplied free of cost to convict.
File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
30.03.2015
Judgment 28 of 28