Delhi District Court
Sc No. 75/2007 1 State vs Mahender on 2 July, 2010
SC No. 75/2007 1 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC IN THE COURT OF SH. VINOD KUMAR ADDITIONAL SESSIONS JUDGE01, NORTH DISTRICT, DELHI Sessions Case No. 75/07 FIR No. 337/07 PS Sarai Rohilla U/S 376IPC State Vs Mahender S/o Man Singh, R/o WZ6, Nimdi Village, Shastri Nagar, Delhi Date of Institution - 3.11.07 Date of Arguments 4.5.2010. Date of Judgment- 2.7.2010 JUDGMENT
1. Prosecution case in brief is that the prosecutrix Ms R.(PW3) aged 11 years lives with her mother (PW4) and two elder sisters at house No. B1410, Shastri Nagar. Her mother (PW4) used to treat the accused as a brother and was desirous to shift from her rented house. Therefore she sent Ms R. to call him. At about 7.15 pm on 9.8.2007, Ms. R. returned to her house and was weeping. She was also not able to walk properly. On inquiry from her mother, she told her that accused had raped her. After consulting her relatives, PW4 informed the police. This information was recorded as DD no. 14 A (EXPW9/DA) at 11.40 hours on 10.8.2007 in SC No. 75/2007 2 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC police station Sarai Rohilla.
2. On 10.8.2007, Inspector Ram Kumar (PW9) was posted as Sub Inspector in P.S Sarai Rohilla. On that day, on receipt of DD no. 14A, Sub Inspector Ram Kumar alongwith ASI Anita reached at B 1410, Shastri Nagar and recorded the statement (EXPW1/A) of PW4 (the mother of the victim). Sub Inspector Ram Kumar sent Ms R. alongwith her mother and ASI Anita to Hindu Rao hospital for her medical examination. Sub Inspector Ram Kumar also reached the hospital where medical examination of Ms R. was conducted. Sub Inspector Ram Kumar made endorsement Ex.PW9/A on the statement of PW4 and handed over it to ASI Anita. In the hospital, Inspector Ram Kumar collected the MLC and seized the exhibits ie slide of vaginal swab vide memo EXPW8/A and undergarments of victim vide memo EXPW8/B. Sub Inspector Ram Kumar(PW9) sent ASI Anita to P.S Sarai Rohilla for registration of the case. Sub Inspector Ram Kumar alongwith the victim and her mother reached at the spot ie B 1400, Shastri Nagar, Delhi. The spot was a factory and the same was locked. Sub Inspector Ram Kumar came to know that accused Mahender used to work in factory and the key of the lock of the factory was with the wife of accused. Wife of the accused was called at the spot and she opened the lock of the factory. In the meantime, ASI Anita also reached at the spot after registration of the case and handed over to Sub Inspector Ram SC No. 75/2007 3 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC Kumar a copy of FIR alongwith original rukka. Sub Inspector Ram Kumar searched the spot at the instance of Ms R. in presence of her mother and he recovered two cloth pieces of blue colour stated to be used by the accused after committing rape for wiping his private parts and semen on the person Ms. R. The same were sealed in a parcel duly sealed with the seal of RK and seized vide memo EXPW4/A. Sub Inspector Ram Kumar prepared site plan and recorded supplementary statement of complainant and statement of the victim. Sub Inspector Ram Kumar alongwith ASI Anita came back to police station. Exhibits were deposited in malkhana.
3. On 11.8.2007, Sub Inspector Ram Kumar(PW9) searched for accused. Accused Mahender was apprehended on the way from Daya Basti to Shastri Nagar at the instance of complainant. Accused was interrogated and arrested vide memo EXPW4/DA and his personal search was conducted vide memo EXPW9/C. Accused was medically examined in Hindu Rao Hospital. Blood sample of accused was taken vide memo EXPW9/D.
4. On next day, accused was produced in the court from where he was sent to J.C. Sub Inspector Ram Kumar filed an application for medico legal opinion regarding the potency of accused which was conducted on 14.8.07. Accused was found capable for doing sexual intercourse. Statement of prosecutrix was got recorded U/S 164 Cr.P.C. The exhibits were sent to FSL from Malkhana. Result SC No. 75/2007 4 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC from FSL was collected and placed on file which is EXPX. On completion of investigation, Sub Inspector Ram Kumar submitted the same to SHO for challan. Chargesheet was filed in the court of Ld Metropolitan Magistrate and the case was committed to the Sessions Court.
5. On above accusations, a charge U/S 376 IPC was framed to which accused pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution examined following witnesses:
PW1 recorded the FIR EXPW1/A. PW2 constable Adesh took the exhibits from MHCM on 29.8.07 and deposited the same in FSL Rohini.
PW3 is the victim. After satisfying that she is a competent witness, her testimony was examined on oath. She testified that she was studying in JSKV Sarvodya Kanya Vidyalya in 6th class. On 9.8.07, her mother sent her to call accused at about 6.30 pm. When she reached the factory, accused called her inside the factory.
Accused thereafter pulled down the Shutters to some extent and gave her push and felled her on settee on which the blanket was already spread. She testified that accused opened his pant and started fiddling his penis . After some time, some fluid came out of the penis of the accused which he wiped off with a cloth and had hidden it in a gunny bag. Thereafter, accused asked her to leave SC No. 75/2007 5 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC immediately and threatened her that if she told anything to her mother, then he would get them to jail and also get killed. The victim reached her house weeping and narrated the incident to her mother. At about 8.30 pm accused came to her house. When he came to know that she had narrated the entire incident to her mother, he ran away. She testified that accused had come to her house to show them a room on rent. Ld APP with the permission of the court, cross examined the witness. In cross examination, she admitted that accused had committed '' Bura Kaam'' with her and thereafter some hot fluid dropped on her legs. She also admitted it to be correct that accused cleaned himself and some sticky material which had fallen on her with a piece of cloth. She admitted that by the word ''Bura Kaam'' she meant that accused had inserted his penis in her vagina. Victim also identified the blue colour cloth EXP1 taken out from a sealed envelope with the seal of FSL as the same with which accused had cleaned himself and the slacks. Another envelope sealed with the seal of FSL containing slacks EXP2 of black colour was taken out and shown to the witness and she identified the same which she was wearing at the time of offence.
In cross examination by Ld defence counsel, the victim testified that she had narrated the incident to her elder sister and her mother was not present at that time and had gone to see a house SC No. 75/2007 6 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC with the accused. She explained that when she reached the house, her mother was present there and had left after some time. Accused had come to take her mother to show her a room and that her mother had left with the accused happily. She testified that her mother returned to her house after half an hour with the accused and thereafter accused kept on sitting for 1015 minutes. She testified that their house consists of only one room. She testified that when her mother returned with accused to home, her elder sister pointed out to her mother that accused had committed wrong act. Her mother did not inform the police but turned the accused out of her house after insulting him. This witness testified that on the next morning, she cleaned the house and that she did not take bath in the morning before arrival of the police. She testified that from the police station she and her mother had gone to hospital in a truck. She testified that she did not shout when the accused switched off the lights and that she did not try to open the shutters and that she had felt pain when accused had inserted his penis but she had not bled and the accused continued doing "Galat Kaam" for about 50 minutes. She further testified that accused had not hidden the cloth in the gunny bag. She also stated that when her clothes were seized by the police, the slacks did not have any cut and it was not washed. She further testified that her mother had applied Betadine on the part of injury but her private parts SC No. 75/2007 7 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC were not washed by her.
PW4 the mother of the victim testified that her husband had expired and that she was residing at house no. B1410, Shastri Nagar. Accused Mahender is her foster brother and that on 9.8.2007 she had sent her daughter Ms R at abut 6:30 pm to the factory of accused. Ms R returned back at 7:30 pm and also could not walk properly. On inquiry her daughter replied them that accused had misbehaved (Galat Kaam) with her in the factory. After 10 - 15 minutes accused also came to her residence and she confronted the accused with this allegation. On this accused left her residence. She consulted all her family members i.e. her mother and brother and thereafter she made a call to police through telephone on next day. her daughter was medically examined in hospital and police recorded her statement Ex.PW1/A. Police seized the clothes, which were kept by the accused inside a gunny bag after committing rape vide seizure memo Ex.PW4/A. In cross examination she stated that name of her father in law is Rameshwar and he is Nai (Barber) by caste. She admitted that her husband was also called by the nick name like Tuiya and Lalla while his original name was Ranpal. He belong to Itah, U.P. She stated that she was married to Ranpal in the year 1990. She did not tell the years in which her husband had expired. She sated that after marriage her husband continued to live in Delhi in Shastri SC No. 75/2007 8 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC Nagar. She clarified that she stated about the death of her husband because she does not know whether he was alive or not for last 10 - 11 years. A certificate issued by one Pradhan of village Panchayat Majhola District Itah were shown by Ld. Defence Counsel to this witness. This certificate is dated 22.2.2008 and it certifies that Ranpal @ Tuiya S/o Rameshwar Dayal is the resident of village Kahanpur and is residing there eve now. This witness further admitted that at the time of incident she was working in the factory of Devender Nagpal at Shastri Nagar but she was dismissed from the said employment at the instance of the wife of the accused. She further testified that slacks of prosecutrix was not torn or cut from anywhere. She also stated that two pieces of clothes were recovered from gunny back at the pointing out of the victim. She had applied some betadin to the injuries of the victim but she did not give her bath. She give bath after examined by the doctor. She denied the suggestion that when accused came to her residence after 10 - 15 minutes, she accompanied to find out a rented accommodation. She admitted the suggestion that her statement was taken by the police at her residence. She also stated that she took slacks with her to the hospital and handed over the same to doctor and doctor converted it into the parcel and sealed the same with the seal of RK.
PW5 Dr. Chhavi Shukla testified that on 10.8.2007 she SC No. 75/2007 9 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC examained Ms R. aged abut 11 years when she referred by Dr. Neeta Aggarwas for gynae examination. On examination she did not find any evidence of physical injury. Her hymen was found torn and the vagina admitted one finger easily. Two slides of vaginal swabs were taken. The patient had changed the clothes two times and betadin vaginal wash was already done by the patient at home. She prepared her notes on MLC Ex.PW5/A. In cross examination she stated that there was no bleeding in the vaginal swab of the patient and that the patient was only prepubertal patient as she did not find any pubic hair and under arm hair.
PW6 Dr. Sued Rehan Hussain examined the accused on 1.8.2002 vide MLC Ex.PW6/A and did not find any fresh injury on the person of accused.
PW7 HC Virender is the MHC(M). He testified that on 10.8.2007, SI Ram Kumar deposited 3 sealed parcels in Malkhana and that he sent the pulandas to FSL Rohini on 29.8.2007. He received back exhibits with sample of FSL on 28.2.2008. He proved relevant entries in Msalkhana register.
PW8 ASI Anita is the Investigating Officer. PW9 Inspector Ram Kumar is the main Investigating Officer. PW10 Sh. Sanjay Jindal, ACMM recorded the statement Ex.PW10/B of the victim on 14.8.2007.
SC No. 75/2007 10 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC
PW11 Dr. Pramod Kumar proved the potency report Ex.PW11/A, which shows that the accused was capable of doing sexual intercourse.
7. In statement under Section 313 CrPC accused denied all the allegations. Accused examined as many as six defence witnesses in his support. He moved an application under Section 315 CrPC to examine himself as a witness, which was allowed and therefore accused was examined on oath as DW7.
DW1 Smt. Saroj, the wife of the accused, testified that on 9.8.2007 she was working with her husband in the factory. PW4, the mother of victim, came to the factory and asked her husband i.e. accused to show a house. Accused asked her to come at 6:00 pm. PW4 sent her daughter at about 6:00 pm. She told the accused that her mother was calling him. She testified that at that time this girl was carrying currency notes of denomination of Rs.100/ in her hands. The accused asked her (i.e. the victim) as to from where she had brought the money. The girl told the accused not to tell this fact to her mother and that her mother was calling him. Accused told her to return to her house and that he would reach there. The witness testified that accused closed the factory and at that time she was present with her husband. Her husband went to the house of PW4 and she (i.e. DW1) went to her house. After sometime the elder daughter of PW4 came to call her at about SC No. 75/2007 11 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC 7:00 pm, therefore she accompanied her to the house of PW4 along with her Jethani DW5 Draupadi. She found that PW4 and accused were sitting and accused was asking him to get the one room constructed on the first floor as she was not able to find any room or in alternative DW1 should vacate the ground floor of the house given to her. DW1 expressed her inability to vacate the ground floor and get the one room constructed as she has no money. DW1 further testifies that PW4 pressurized the accused to get the room constructed and also requested her jethani DW5 Draupadi in this regard. Thereafter PW4 asked them to leave and stated that she would have no relation with them thereafter. She further testified that accused left for Punjab as his mother suffered heart attack. On 10.8.2007 PW4 brought the police to her house, who made inquiries about his whereabouts. At about 10:30 pm her husband returned and the accused along with Jethani DW5 Draupadi and one Savitri and Jai Prakash went to police station. Police started investigation but did not hear her version. DW2 Smt. Sneh Lata testified that on 10.8.2007 she had produced the accused at PS Sarai Rohilla and that she had brought the accused from Kotkapura.
DW3 Shyam Lal testified that on 9.8.2007 accused and PW4 had come to his house as PW4 wanted a room on rent but she did not take the room on rent.
SC No. 75/2007 12 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC
DW4 Kishan Pal testified that on 9.8.2007 at about 8:30 or 9:00 pm he had seen PW4 and the victim purchasing vegetables in the market and they were laughing and talking to each other. DW5 Smt. Dropdi supported the version of DW1. DW6 Tulsi Ram testified that he is the neighbour of the accused. On 10.8.2007 at abut 7:00/8:00 pm he saw huge crowd collected outside the house of the accused and that he along with the other relatives of the accused produced the accused in the police staion.
DW7 is the accused Mahender, who examined himself under Section 315 CrPC.
In his examination in chief record on 10.2.2010, he testified that on the date in question Ms R came to his factory where he was working along with his wife. Ms R. told her that her mother had called him to her house and at that time she was carrying a lot of money and cash in her hands and was eating something. When accused made inquiries, Ms R. told her not to tell her mother about it and hurriedly went from there. Thereafter he closed the factory and told his wife to go home after giving the keys and went to the house of PW4. Thereafter he took her to show one house on rent and then came back to his house. This house belong to one Shyam Lal but PW4 did not agree to take this house on rent. Thereafter she insisted that the accused should construct one room to rent it out to SC No. 75/2007 13 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC her on the top floor of his house. When he did not agree, she sent her elder daughter to fetch his wife and Bhabhi from his house. But none of them agreed to fulfill demands of PW4 on which she threatened them of dire consequences. Accused further testifies that thereafter he left for Punjab after leaving his wife at home because his mother in law had suffered an heart attack. On next day his wife telephoned him and asked him to come back immediately, therefore he came back Delhi and his wife, Bhabhi and neighbours took him to police station. Further examination in chief was deferred. The remaining examination of accused took place on 11.2.2010. Accused further testified that after his arrest the Investigating Officer Ram Kumar forcibly sent him to toilet and was forced to give his semen sample on white paper with the threat that if I did not give the semen it would be forcibly extracted him in the police station.
8. Ld defence counsel has argued that the accused himself is having three unmarried daughters and that it is not possible for him to commit such a heinous offence. Ld defence counsel has drawn my attention to the MLC EXPW5/A of the victim which shows that there was no evidence of external physical injury. The hymen was found torn and the vagina of the victim admitted one finger easily. Ld defence counsel has drawn my attention that there is no injury on the person of the accused as per MLC EXPW6/A. Ld defence SC No. 75/2007 14 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC counsel submits that if a child aged 11 years is raped, she is bound to receive injuries inside the vagina. It is submitted that even if the intercourse was consensual, the victim must receive some injury at the time of commission of the offence. Ld defence counsel has drawn my attention to the FSL report and submits that no semen was found on the slacks of the victim. Ld defence counsel further argues that the manner in which the victim has explained the facts show that she remained quite normal after rape which is not possible. Ld defence counsel has drawn my attention to a few contradictions in the testimony of the prosecutrix and her mother (PW4). Ld defence counsel has further argued that it is not clear as to whether one cloth was seized by the police from the factory of the accused or two pieces of cloth were seized. It is further argued that the Gadda' and the blanket spread on the settee upon which the prosecutrix was laid and was raped were not taken in possession by the Investigating Officer as the same are of great importance. Ld defence counsel has drawn my attention to the testimony of the accused who examined himself as DW7 and submits that he was forced by the police to give his semen sample on a white paper under threat. It is submitted by Ld counsel that this is how the semen was planted upon the piece of the cloth which was later on sent to FSL. Ld defence counsel has drawn my attention towards testimony of DW7 ie the accused who had SC No. 75/2007 15 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC testified that the mother of the prosecutrix wanted him to construct a room above his house ( ie house of the accused, but since he and his family refused, the mother of the prosecutrix had falsely implicated him in the present case.
9. I have considered the submissions of Ld defence counsel and my findings on the points raised by the parties are as under:
Whether the prosecutrix and her mother are unworthy of reliance?
10. Ld. Defence Counsel has referred to various improvement and contradictions in the testimony of victim i.e. PW3 and her mother PW4. It is argued by Ld. Defence Counsel that PW4 was blackmailing the accused and asking him to construct a room on his roof for the purpose of letting it out to them. Ld. Defence Counsel has drawn my attention to the testimonies of the defence witnesses in this regard. It is argued by Ld. Defence Counsel that in backdrop of the defence taken by the accused and the evidence led by him, the contradictions and improvements assume a very important role. He has drawn my attention to the testimony of PW3 (i.e. Ms R), who testifies that when she reached her home, her mother had gone to see a house for rent along with accused, however she further explains that when she reached the house, her mother was present there and had left after sometime. Accused had come to take her mother to show her the room and that her mother had left SC No. 75/2007 16 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC the accused happily. Ld. Defence Counsel has drawn my attention to the testimony of PW4, the mother of the prosecutrix, who testifies that she had not seen any house on the said day.
11. Ld. Defence Counsel has assailed the character of PW4 and has drawn my attention to the fact that although her husband is still alive, she has stated that he had died many years ago. Ld. Defence Counsel has pointed out that as per her cross examination she admits that she had been dismissed from the service where she used to work.
12. Ld. Defence Counsel has vehemently assailed the testimony of Ms R. It is argued that she has testified that at the time of offence, the accused pulled down the shutters of the factory only to some extent. It is argued by Ld. Defence Counsel that no man would commit rape when the gate of the factory is partially opened. It is submitted that normally a person would commit such offence after fully closing the shutters. Ld. Defence Counsel has drawn my attention to the cross examination of this witness wherein she stated that accused kept raping her for 50 minutes and during those 50 minuted accused kept his penis inserted in her vagina. It is argued by Ld. Defence Counsel that it is not possible for even a young and robust male to continue the act of rape for almost one hour, whereas the present accused is an old man aged about 60 years suffering from various ailments. It is argued by Ld. Defence SC No. 75/2007 17 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC Counsel that the witness appears to be a tutored and is unworthy of reliance.
13. Ld. Defence Counsel further argues that there is a delay of one day in registration of FIR, which gives rise to a grave doubt that the mother of the prosecutrix took her own time after discussion from her relatives to cook a cock and bull story and therefore the delay in reporting the matter to police is fatal to the prosecution case.
14. I have considered the submissions of Ld. Defence Counsel and I am of the opinion that all the contradictions are very minor in nature. The same do not go to the root of the matter. PW4 might not be telling the facts about her husband correctly. Possibly she also went with the accused for finding out some house on rent. But the same does not affect the trustworthiness of the victim. Ms R has testified that accused had pulled down the shutters to some extent. She also testifies that accused switched off light except one and took her to the other side. Ld. Additional Public Prosecutor submits that If the shutters were not fully down, there was no need for the accused to switch on one light. The offence was committed in the month of August, which means that it was not a winter time when the Sun light gets reduced. Had the shutters been partly opened, there would have been sufficient light inside the place where the offence was committed as it was about 6:00 pm to 7:00 pm. Ld. Additional Public Prosecutor further submits that probably SC No. 75/2007 18 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC the victim is not able to recall all the facts very correctly but that does not mean that the prosecutrix should be disbelieved.
15. Unfortunately the Investigating Officer has not prepared the detailed site plan and has not shown the gate/shutters of the factory in question. But at the same time I agree with Ld. Additional Public Prosecutor that a rape victim cannot be supposed to remember each and every fact in detail. I may refer to AIR 1983 Supreme Court 753 wherein Hon'ble Supreme Court threw light as to why the discrepancies, contradictions and improvement appear in the testimonies of the witnesses. I deem it necessary to reproduce those reasons as under :
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed an the metal screen.
(2) Ordinarily it so happens that a witness is overtaken by events, The witness could not have anticipated the occurrence which so often has an element of surprise.
The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on the person's mind, whereas it might go unnoticed on the part of another.
SC No. 75/2007 19 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment an the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the timesense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a SC No. 75/2007 20 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC truthful and honest account of the occurrence witnesses by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
(8) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilitiesfactor"
echoes in favour of the version narrated by the witnesses.
16. The perusal of the testimonies of PW3 and PW4 would show that the contradictions and improvements as pointed out by Ld. Defence Counsel are of very minor nature. Whether the shutters were fully closed or not and whether Smt. Sudha PW4 went along with accused to look out for a house for rent are immaterial. As per the testimony of PW3 she stated the incident to her sister, who later on stated the same to PW4. Even if it is presumed that PW4 had gone with the accused to see a house for rent, it is clear that she was not aware of this incident. I may point out that people generally forget the sequence of the incidents and therefore there is a conclusion in the testimonies of PW3 and PW4 regarding the sequence of the incidents. The duration of rape as stated by PW3 appears to be a clerical mistake. There is a phonetic similarity in the numerals "fifteen" and "fifty". It appears that the prosecutrix might have spoken "fifteen" minutes but it was got typed as "50"
SC No. 75/2007 21 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC minutes. Even if she has stated the duration of rape to be 50
minutes, the same is not of any importance considering the fact that the witness was of tender age and was studying in sixth class only and probably did not have clear understanding of the duration of the time.
17. Ld. Defence Counsel had drawn my attention to the testimony of the prosecutrix wherein she stated that she and her mother along with the police had gone to the hospital in truck. I am unable to understand as to what difference it would make if these persons would have gone to the hospital in some other vehicle or on foot. The fact that the prosecutrix reached the hospital and was examined by the doctor has been duly proved by the prosecution by examining PW5 Dr. Chhavi Shukla.
18. Ld. Defence Counsel has drawn my attention to the fact that the prosecutrix slept normally in the night after the offence and on next day morning she did the normal household work. It is argued that a female of young age, who has been ravished, would be totally devastated and would be unable to sleep and work normally. I partly agree with the submissions of Ld. Defence Counsel but I would add that the poverty does not give any comfort to a person even if she is a victim of one of the most heinous offences. Such person has to come to terms with the normal life.
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19. I have perused the testimony of PW3. The witness is truthful and worthy of reliance. PW4, who is the mother of the prosecutrix, is also a truthful witness and she has explained as to why she did not state the correct facts in FIR about her husband. In this regard PW4 has testified in cross examination that she does not know as to whether her husband is alive or not because she did not know as to whether he was alive or not for last 10 / 11 years. Even if it is presumed that she is concealing a material fact about her personal life, the same cannot be presumed to be a fact so material that suppression of it would tarnish her entire testimony. Ld. Defence Counsel wants to assail the credibility of this witness, which to my mind is a fruitless effort in view of the credit worthy testimony of the victim.
20. So far as the question of delay in lodging the FIR is concerned, it is necessary to take in account the testimony of PW4. She testifies that at about 6:30 pm, she sent her daughter to the factory of the accused. Her daughter returned back at about 7:30 pm and was at that time weeping and also could not walk properly. On query , her daughter told PW4 about the incident in question. After 10 - 15 minutes, accused came to her house, on which she confronted the accused with the allegations of her daughter. Thereafter accused left her house. This entire sequence shows that accused would have left the house of PW4 at about 8:00 pm on 9.8.2007. PW4 further SC No. 75/2007 23 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC testifies that thereafter she consulted all her family members i.e. her mother and brother and then she made a telephonic call next day to the police. This evidence shows that consultation process with the family members would have continued till late night on 9.8.2007 and even in the morning next day. In view of the image of the police in India hardly any person would like to approach the police station late in night. Further family members of a woman in the tradition bound non permissible society of India would be extremely reluctant to report to the police any incident which is likely to reflect on her chastity. Such unfortunate family faces the danger of being ostracized by the society or being looked down by the society, friends and neighbours. Such reluctance on the part of the family members is all the more exhibited when the victim is an unmarried child. Such` a family apprehends that if the offence is disclosed, it would be difficult to secure a marital alliance with a suitable match. In view of such prevailing conditions of the mind set, it is natural for PW4, who is the single female parent of the victim to call her relatives and to consult them. The incident took place at about 7:00 pm on 9.8.2007. The matter was reported to the police on 10.8.2007. Therefore the delay of about one day in lodging the FIR is well explained and is not fatal to the prosecution case.
SC No. 75/2007 24 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC
Whether the victim was actually raped or simply molested?
21. A perusal of statement U/S 164 Cr.P.C EXPW10/B would show that the victim had stated that accused removed his slacks and thereafter did ''Galat Kaam '' with her and that thereafter something hot fell between his legs. Ld defence counsel has drawn my attention to the FSL report EXPX (admissible u/s 293 CrPC perse) which shows that no semen was detected on the vaginal swabs/micro slides. It is argued that if the accused had raped the victim, semen must have been detected in the vaginal swabs through which two micro slides were prepared. Ld. Defence Counsel has drawn my attention to statement U/S 164 Cr.P.C of the victim and submits that in this statement she does not state anywhere that she was raped. Ld defence counsel has further drawn my attention to the cross examination of the victim ( PW3) who states that accused raped her for 50 minutes. This means that in such a situation the vaginal swab must show the semen of the accused. Ld defence counsel submits that even in examination in chief, the prosecutrix does not state that rape was committed upon her. She only testifies that "Galat Kaam" was done by the accused. Ld defence counsel argues that in cross examination by Ld Addl. Public Prosecutor, the prosecutrix kept on admitting all the facts put by the prosecution and therefore, the fact that the penis of the accused was inserted in her vagina was admitted by her in SC No. 75/2007 25 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC mechanical manner and therefore, this does not prove beyond reasonable doubt as to whether the rape was actually committed or not. Ld defence counsel has drawn my attention to the testimony of doctor who has testified that the hymen of the prosecutrix was torn and that vagina admitted one finger easily. Ld defence counsel argues that if the prosecutrix had been raped, there should be fresh tear on the hymen which was not so in the present case. In fact, there was no bleeding and the fact that her vagina admitted one finger easily shows that the victim was having previous experience of sexual intercourse.
22. I have considered the facts and circumstances of the case. The prosecutrix was examined on the next day of the offence. In such situation, it is not necessary that the vaginal swab would show the presence of semen. From the testimony of the witness, it appears that the accused did not ejaculate inside vagina, rather he did so outside it. Such a situation was considered by our own High court in Death Reference No. 1/2010 of High Court of Delhi, State Vs Ranjeet Singh, Judgment dt. 7.5.2010, wherein Hon'ble Mr Justice Pradeep Nandarajog speaking on behalf of Division Bench considered similar defence submissions and opined that ''it is possible that ejaculation took place not when the male sex organ of the accused was inside the vagina of the victim but when it was pulled out''. Therefore, if the accused has ejaculated SC No. 75/2007 26 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC after commission of the rape outside vagina, there is no chance that any semen would be detected in the vaginal swab taken by the doctor PW5 Dr Chhavi Shukla. Even if it is presumed that any semen was left inside vagina, still the possibility of detection of semen in the vagina after one day is always very scant. Therefore non detection of semen in the micro slide prepared by taking vaginal swab will not be fatal to the testimony of the prosecutrix.
23. I also do not find any substance in the arguments that the suggestion of the prosecution regarding insertion of the penis into the vagina was admitted by the prosecutrix in mechanical manner. I may point out that the victim was examined as PW3 and my Ld predecessor has noted the fact that witness is of the age of tender years. As per the prosecution also she is only 11 years old. It is also important to note that the Prosecutor asking the questions was a male Prosecutor and the prosecutrix was testifying before a male Judge. The child belongs to lower strata of a family. The crucial ingredients of rape are always very difficult to be stated by a woman even of a mature age. The feeling of shame, feeling of being victimized and the environment of the court coupled with the tender age of the child victim is enough to create a mental block in the mind of such a witness to state freely the facts and details, which constitute the ingredients of offence of rape. This is the reason that Ld Addl. Public Prosecutor had specifically asked as to SC No. 75/2007 27 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC what is meant by ''Bura Kaam'' (the bad act). I am of the opinion that although there was no need to specifically ask this question because in colloquial language the word ''Bura Kaam'' means ''sexual intercourse''. It appears that since the witness was not able to fully explain the nature of the act, hence Ld Public Prosecutor was constrained to ask this question. It is pertinent to note that when this witness was cross examined by a lady defence counsel, the witness did not hesitate to state that accused got his penis inserted in her vagina for 50 minutes. In these circumstances, any possibility of simple molestation is ruled out and the testimony of the prosecutrix clearly proves that it is a case of rape.
hether corroboration required W
24. By now, it is a well settled law that corroboration is not the sine qua non for a conviction in a rape case in the Indian setting. Refusal to act on the testimony of a victim of sexual assault in absence of corroboration as a rule, is adding insult to the injury. The evidence of rape victim should not be viewed with the aid of spectacles fitted with the lenses tinged with doubt, disbelieve or suspicion. In AIR 1983 Supreme Court 753(1), the Supreme Court compared the situation in West and the ground realities in India. It is necessary to reproduce the relevant portions of this judgement as under : "We must not be swept off the feet by SC No. 75/2007 28 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC the approach made in the Western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. it is wholly 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. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :
1. The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
2. She may be suffering from psychological neurosis and may see an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
3. She may want to wreak vengeance on the male for real or imaginary wrongs. She may have grudge against a particular male, or males in general, and may have the design to square the account.
4. She may have been induced to do so in SC No. 75/2007 29 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
5. She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of selfimportance in the context of her inferiority complex.
6. She may do so on account of jealousy.
7. She may do so to win sympathy of others.
8. She may do so upon being repulsed.
9. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, 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 as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because : (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 SC No. 75/2007 30 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC 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 of 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. (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 husbands' family of a married woman, would also more often 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 innocent. (12) SC No. 75/2007 31 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC The reluctance to face interrogation by the investigating agency, to face the Court, to face the crossexamination by counsel for the culprit, and therisk of being disbelieved, act as a deterrent."
25. I have quoted from the above stated judgement extensively because the defence has specifically raised a plea during final arguments that there is a great probability that PW3 had a sexual adventure with some other person but shifted the guilt to the accused. Ld. Defence Counsel has drawn my attention to the testimony of the accused (DW7) under Section 315 CrPC. I reproduce the relevant portion of this testimony as under : "On 9th day of a month, about more than two years ago, the girl R. had come to call me from the factory where I was working along with my wife. We were doing the fitting work of Car Doors, at about 6 pm. She told that her mother had called him to the house and at that time the girl R. was carrying a lot of money/cash in her hands and also eating something. I asked her to fromwhere she has got so much money, upon which she replied that "uncle, do not tell my mother and hurriedly went from there. Thereafter I closed the factory and I told my wife to go home after giving the keys and I went to the house of S., the mother of the prosecutrix. S. was waiting for me outside house at her gate and R. was playing in the gali..........."
26. Ld. Defence Counsel has drawn my attention to the testimony of DW1 Smt. Saroj (the wife of the accused), who has also testified in the same manner.
27. I have considered the testimonies of the accused and DW1. The implication of this portion of their statements is that Ms R had some SC No. 75/2007 32 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC sex with some other person and had got money for it. In view of such type of defence, the anxiety of the court is to look for some corroboration to the prosecution case, though the same is not required by law. The investigation carried out in this case would show that SI Ram Kumar (PW9) along with Smt. S and Ms R reached at the factory of the accused, which was locked at that time. The accused was not present there. The Investigating Officer came to know that the key of the lock of the factory was with the wife of the accused. The wife of the accused was called and she opened the lock of the factory. At the instance of the prosecutrix, he recovered two cloth pieces of blue colour stated to be used by the accused after committing rape. The same were seized vide memo Ex.PW4/A. It is pertinent to note that these two pieces of cloth were sent to FSL where the same were found to have human semen as per the report Ex.PX (admissible perse under Section 293 CrPC). Ld. Defence Counsel has assailed the recovery of the two pieces on the ground that the recovery memo Ex.PW4/A mentions it to be one piece cloth. I have perused this memo where it is written that the cloth of blue colour, with which accused had cleaned his private part was recovered and sealed with the seal of RK. There appears to be a minor mistake in this writing because as per the FSL report itself the sealed pulanda (parcel no.3) was sealed with the seal of RK and when opened, the parcel was found SC No. 75/2007 33 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC to contain two cloth pieces having darker stains. The Defence Counsel did not point out to the Investigating Officer as to how there is no mention of two pieces of cloth in the memo Ex.PW4/A. Therefore this appears to be a minor mistake in the writing of the rukka. In fact when this point was raised during final arguments, I called for the case property. In order sheet dated 15.5.2010 I have specifically mentioned that when the pulanda sealed with the court seal was opened, the same was found to have two pieces of blue cloth, which were of the same material and same colour. Therefore there is no substance in the arguments of Ld. Defence Counsel that the recovery of cloth pieces is doubtful. Ld. Defence Counsel argues that the semen on the cloth pieces was planted by the Investigating Officer. She has drawn my attention to the testimony of the accused (DW7) dated 11.2.2010, wherein he testified as under :
"On the next day of my arrest, at about 4 pm in the evening, the police officer Ram Kumar forcibly sent me to the Toilet and I was forced to give my semen sample on a white paper of copy on the threat that if I will not give the semen, it will be forcibly extracted from me in the P.S. On 11th itself, I was taken to the hospital also for my medical check up and thereafter on the same day in the evening, police brought me to the lock up in Tis Hazari. The key of the factory was handed over by me by my wife while I was going back from the house of Sudha and I left my wife near my house for going to Punjab. The keys mentioned earlier were of my house. This is a false case. I do not want to say anything more."
28. Ld. Defence Counsel argues that the semen of the accused might have been planted upon the cloth piece. The perusal of the record SC No. 75/2007 34 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC would show that this testimony of the witness is false. The FIR was registered in this case on 10.8.2007 and the cloth piece was recovered on that very day from the factory of the accused in his absence. The keys were taken from the wife of the accused, which shows that after commission of the offence till the recovery of the aforesaid cloth pieces, the scene of crime remained undisturbed and no one else had intervened during this time. The cloth pieces were sealed with the seal of RK. As per MHC(M) (PW7 HC Virender), on 10.8.2007 he was posted at PS Sarai Rohilla as MHC(M). On that date SI Ram Kumar deposited three parcels out of which two parcels were sealed with the seal of HRH and another was sealed with the seal of RK. He made an entry in this regard in register no.19, Serial No. 2648. The relevant entry has been proved as Ex.PW7/A. As per his testimony, on 29.8.2007 he sent the exhibits to FSL through Ct. Adesh Kumar (PW2). PW7, the MHC(M) and PW2 Ct. Adesh Kumar have testified that the sealed parcels remained untempered/intact. The accused was arrested on 11.8.2007. Therefore there is no possibility that the semen of accused could have been planted by the Investigating Officer on the cloth pieces. Otherwise also there is no reason as to why the police would create a false evidence. The prosecutrix belongs to very poor family and has no capacity to influence the police officials. Therefore I do not find any substance in the defence version and SC No. 75/2007 35 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC the testimony of the accused (DW7) that police had planted his semen on the cloth pieces.
29. The recovery of the cloth pieces having semen stains from the factory of the accused on 10.8.2007 serves two purposes. First, it fully corroborates the version of the victim that she was raped. Secondly, it also rules out the possibility, as pleaded by the accused during arguments, of Ms R having step into a sexual misadventure with some other person, out of her own volition or for money.
30. In view of above discussions, I am of the opinion that that the testimony of Ms R. is not only worthy of credence but is also fully corroborated. The defence of the accused and the testimonies of the defence witnesses is unable to falsify the prosecution case. Ld. Defence Counsel has tried to touch the emotions by producing three daughters of the accused. It is argued that a man with three daughters of marriageable age is most unlikely to commit such type of offence. I am of the opinion that it is not possible to predict or define the working of mind of a human being. In AIR 1983 Supreme Court 753(1) the appellant convicted for attempt to rape was also a father of a daughter. Therefore benefit of doubt cannot be given to an offender simply on the basis that he being the father of daughters is unlikely to commit such offence.
31. In view of above discussions, I hold that prosecution has proved its case beyond reasonable doubt. As per the prosecution case, the SC No. 75/2007 36 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC age of the prosecutrix is below 12 years at the time of offence. There is one school certificate on judicial file showing the date of birth of the victim as 29.10.1995. The offence was committed on 9.8.2007. Therefore prosecution argues that the accused should be convicted under Section 376(2)(f) of IPC. I have considered this submission. There is no evidence to prove as to on what basis this date of birth was recorded by the school. It is a well known fact that getting a lesser age by one year in the school record by the parents is a common practice in India. Therefore the courts are always particular to take the exact evidence of the age. In the present case it is nowhere testified by the mother of the victim as to where the prosecutrix was born. It is nowhere stated as to whether she was born in Delhi or at the native place of her husband. No evidence is on record to show that the date of birth was recorded in the village records or in municipal records. No evidence was collected as to on what basis the school recorded the date of birth. In such circumstances it would be highly unsafe to conclude that the victim was less than 12 years of age. Hence I am not inclined to convict the accused under Section 376(2)(f) IPC rather I convict him under Section 376(1) IPC.
32. Ld. Defence Counsel argues that there is an alternative probability of consensual sexual intercourse between accused and the prosecutrix. It is argued by Ld. Defence Counsel that since the SC No. 75/2007 37 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC age of the prosecutrix has not been proved, it is possible that she might be more than 16 years of age and might have attained the age of discretion. I disagree with the submission. At the time of examination of the victim, my Ld. Predecessor specifically notes that the witness is of tender years. The witness testifies that she was a student of 6th class. My Ld. Predecessor put questions to this witness to ascertain as to whether she understands the sanctity of oath. This itself shows that the child had not reached the age of discretion. Further there is no defence of consensual sexual act during the entire cross examination of the victim. In these circumstances the submissions of Ld. Defence Counsel has to be rejected outrightly.
33. In view of above discussions, the accused stands convicted under Section 376(1) of Indian Penal Code. Announced in the open court on 2.7.2010.
(VINOD KUMAR)
Additional Sessions Judge01
North District, Tis Hazari Courts
Delhi
SC No. 75/2007 38 State Vs Mahender
FIR No. 337/2007 Judgement dt. 2.7.2010
PS Sarai Rohilla
U/s 376 IPC
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGEI, NORTH DISTRICT, DELHI SC No. 75/2007 FIR No. 337/2007 PS Sarai Rohilla U/s 376 IPC State Vs Mahender ORDER ON SETNENCE 3.7.2010 Present: Ms Alka Goel, Ld. Addl. P. P. for State.
Convict from J.C. with counsel Sh. Hiren Sharma, adv.
Arguments on sentence heard. Ld. Additional Public Prosecutor prays for maximum sentence as the convict has betrayed the trust of a woman i.e. mother of the victim, who used to treat the convict as a brother.
On the other hand, Ld. Counsel for convict argues that the convict is the father of three marriageable daughters. He has suffered more than enough humiliation and is in J.C. since the year 2007. It is further stated by Ld. Counsel that convict is about 60 years of age and suffering from various ailments. It is further argued that neither the victim nor her mother are interested in prosecution of the case because none of them have ever appeared in the court except on the dates of their evidence.
I have considered all facts and circumstances and balancing all the circumstances, I sentence the convict to rigorous imprisonment for 7 years and a fine in the sum of Rs.1000/. In default of payment of fine the convict shall further undergo simple imprisonment for 15 SC No. 75/2007 39 State Vs Mahender FIR No. 337/2007 Judgement dt. 2.7.2010 PS Sarai Rohilla U/s 376 IPC days. Benefit under Section 428 CrPC be given to him. Sentence warrants be prepared. Copy of judgement be supplied free of cost. File be consigned to record room.
Announced in the open court on 3.7.2010.
(VINOD KUMAR) Additional Sessions Judge01 North District, THC, Delhi