Delhi District Court
Counsel Also Referred The Case Of Beeru vs . State Nct Of on 13 April, 2015
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE - SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI
Unique Case ID No. 02406R0219842011
SC No. : 115/13
FIR No. : 106/11
U/s. : 376/506 IPC
PS : New Friends Colony
State (Govt. of NCT of Delhi)
..... Complainant
Versus
Harun
S/o Sh. Abdul Sattar
R/o Jhuggi No. 471,
I.G. Camp Pahar No.2,
Taimur Nagar, New Delhi
..... Accused
Date of Institution : 21.01.2013
Judgment reserved for orders on : 10.04.2015
Date of pronouncement : 13.04.2015
J U D G M E N T
Facts
1. Briefly the facts are that on 28.05.2011 prosecutrix with her mother came at the police station New Friends Colony, New Delhi and gave a written complaint alleging therein that about SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 1/ 40 six years ago she was married to Anwar according to Muslim rites. With this wedlock, she has a daughter aged about 4 ½ years. After 3 years of her marriage, her husband expired. She has now been living in her inlaws house. Her parental home is near to her matrimonial house where she used to go to meet her mother.
She alleged that the character of her father is not good. He has relations with many women. On 05.05.2011 she went to her mother's house. At about 12.30 PM when her mother had gone to her place of work, her father i.e. accused came and enquired about her mother. When she told him that she has gone to her place of work, he asked her to bring water. She went to bring water but in the meantime, he bolted the door from inside and started outraging her modesty. When she objected, he lifted a knife from the room and threatened her, if she would raise alarm, he would kill her. At the point of knife, he committed rape upon her and also threatened not to tell it to anyone lest he would kill her and her daughter. She was frightened. Due to fear she did not tell the incident to anyone.
On 10.05.2011, her nephew Parvez came to her and told her that her Dadaji was calling her since her Dadiji was SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 2/ 40 not well. On hearing, she went to her parental house. She did not find her mother in the house. Her father i.e. the accused bolted the door from inside and gagged her mouth. When she resisted, he put a knife on her neck and threatened her not to raise alarm lest he would kill her. Thereafter, he committed rape upon her. Due to fear she did not tell the incident to anyone.
She alleged that on 22.05.2011 there was marriage in her neighbourhood. She with her relatives attended the marriage. At about 10.00 PM, her daughter started sleeping. Her mother asked her to take her to her house and make her sleep. She went to her mother's house where her father was present. He caught her hand and started outraging her modesty. When she told him that she would complain to her mother, he lifted a knife and put it on her daughter and thereafter committed rape upon her. He also threatened her not to disclose the incident to anyone otherwise, he would kill her and her daughter and also divorce her mother. She alleged that her father taking benefit of her helplessness committed rape upon her number of times. She then stopped going to her mother's house.
She alleged that on 26.05.2011 evening, her mother SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 3/ 40 came at her house and asked her as to why she was not coming in her house for 56 days. Tears came in her eyes and she narrated the whole incident to her mother in presence of her motherinlaw and sisterinlaw. Thereafter, she and her mother came at the police station and lodged report.
Investigation
2. On the basis of this complaint, case was registered at the police station u/s 376/506 IPC vide FIR 106/11. Prosecutrix was taken to the hospital where she was medically examined. Before the doctor, she alleged that she was raped by her step father for 34 times. Site plan was prepared at the instance of the prosecutrix. Her vaginal swab was taken by the doctor. Statement of the prosecutrix was also got recorded u/s 164 Cr.P.C. The accused was arrested. He was got medically examined. His blood in gauge, penial swab, control swab and pant were taken into possession. The exhibits were sent to FSL. After the investigation, the accused was sent for trial for the offences punishable u/s 376/506 IPC.
3. After complying with the requirements contemplated under SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 4/ 40 section 207 Cr.P.C., the case was committed to this Court. Charge
4. Prima facie case was made out and vide order dated 20.10.11 charge was framed against the accused for the offences punishable under section 376/506 IPC. Prosecution Evidence
5. To substantiate its case, prosecution examined as many as 12 witnesses.
PW1 is the prosecutrix. PW5 is the mother of the prosecutrix. I will discuss their testimony during appreciation of evidence.
PW 2 Dr. Shahshank Punia conducted the medical examination of the accused vide MLC Ex.PW2/A and found him capable of performing sexual intercourse under normal circumstances. He collected blood in gauge, penial swab and pant of the accused, sealed it and handed over to the police alongwith the sample seal.
PW 3 HC Vijay, registered the FIR Ex.
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PW3/A and handed over the investigation to SI Kamini.
PW4 SI Ichha Ram was on duty on the day the complaint was lodged. He stated that on the directions of SHO, he made endorsement on the complaint Ex.PW4/A and gave it to the Duty Officer, who registered the case. He stated that the prosecutrix had come at the police station with her mother at about 12.50 PM.
PW6 W Ct. Savita Chaudhary had taken the prosecutrix to AIIMS for her medical examination. She collected the exhibits alongwith the sample seal and MLC and handed over to the IO vide Ex.PW6/A. She stated that the mother of the prosecutrix had also accompanied to the hospital.
PW7 Ct. Ghanshyam had taken the exhibits to FSL on 21.06.2011 vide RC no. 45/21/11 and handed over its acknowledgment to MHC(M).
PW8 HC Munni Ram Meena took the
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accused to AIIMS for his medical examination. He collected the exhibits from the doctor and gave it to the IO vide memo Ex.PW8/A. PW9 WASI partly investigated the case. She recorded the statement of Ameena Khatoon, got the exhibits sent to FSL through PW7 and prepared the charge sheet. She collected the FSL result Ex.PW9/B which she tendered in evidence.
PW10 Ms. Colette Rashmi Kujur recorded the statement of the prosecutrix u/s 164 Cr.P.C. on 30.05.2011 Ex.PW10/B. PW11 Dr. Vaishali Sharma did the gynecological examination of the prosecutrix on 28.05.11 vide MLC Ex.PW11/A. She collected the swab and handed over to the police alongwith the sample seal.
PW12 WSI Kamini Gupta did the investigation of this case. She prepared the site plan Ex.PW12/A, arrested the accused, got the accused and the prosecutrix medically examined and recorded statement of SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 7/ 40 witnesses.
FSL Report
6. As per the FSL report Ex.PW9/B, the vaginal swab Ex.1a, 1b, 1c, control samples of the accused Ex.2, blood cloth piece of the accused Ex.3, penial swab of the accused Ex.4 and pant of the accused Ex.5 were subjected for biological examination. Blood of O group (human) was detected on Ex. 3, however, semen was not detected on Ex.1a, 1b, 1c, 2, 4 and 5.
Statement of the accused u/s 313 Cr.P.C.
7. Accused was examined under section 313 Cr.P.C., wherein he denied all the incriminating evidence against him and pleaded his innocence. He stated that he got married to Ruhi (mother of the prosecutrix) 10 years ago. Initially his relations with Ruhi were cordial but after few years, she started pressurising him to transfer his property in her name. Since he had the responsibility of two sons and mother, he was apprehensive. He stated that prosecutrix started misbehaving with him and his sons as she wanted to throw him out of the house. He tried his level best to convince her but she did not SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 8/ 40 listen. Thereafter, he got married to another woman namely Firoza. He stated that this case has been filed as an animosity against him because he has married with another woman. He stated that the prosecutrix is like daughter to him and he did not commit any such act as alleged.
8. In defence, the accused examined as many as 03 witnesses.
9. DW1 Md. Shaukat is the neighbour of the accused. He stated that he knows the accused for 78 years. The mother of the prosecutrix also lives in a room adjoining his house. She lives separately as she has strained relations with the accused for 45 years. They used to quarrel on the issues concerning money. She used to insist that the jhuggi be transferred in her name by the accused. Prosecutrix used to come at her mother's house daily. He stated that on 05.05.11 he did not hear any quarrel from the house of the accused. Even on 20.05.11 he was in his house. He stated that the prosecutrix did not come at her mother's house in the evening of 20.05.11. He stated that accused got married to Firoza on 16.05.2011 and started living at Zakir Nagar. He did not visit the house for 1012 days after the marriage.
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10.DW2 Firoza is the wife of the accused. She stated that she was married to the accused on 16.05.2011. She stated that accused had dispute with his previous wife in regard to property. She was also creating obstacles in their marriage.
11. DW3 is also the neighbour of the accused. She stated that accused and the mother of the prosecutrix had matrimonial dispute and they used to live separately. When the accused told her that he would remarry, the mother of the prosecutrix threatened him to see how he gets remarried. She stated that accused remarried and started living in Zakir Nagar. The mother of the prosecutrix had pressurised the accused to transfer the property in her name. She stated that the prosecutrix is the daughter from the first marriage of Ruhi and is the stepdaughter of the accused. She stated that she does not know if on 05.05.11, 10.05.11 and 22.05.11 she was on leave.
Arguments and contentions
12.I have heard the arguments advanced by Ld. counsel Ms. Binita Gaur for the accused and Ld. Addl. PP for the state.
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13.Ld. counsel for the accused vehemently argued that the present complaint has been filed to pressurise the accused to transfer his property in the name of PW5. Ld. counsel stated that the incident was allegedly narrated by the prosecutrix to her mother on 26.05.2011 but the report was lodged on 28.05.2011. No explanation came from the side of the prosecution as to the delay. Ld. counsel stated that there is variance in the complaint, statement recorded u/s 164 Cr.P.C. and the evidence of the prosecutrix (PW1) as regards the fact whether the husband of the prosecutrix has died or he had divorced with prosecutrix and the dates of incidents. Ld. counsel stated that there are contradictions as to the time of third incident. Since as per the complaint, the incident happened at 10.00 PM but the prosecutrix in her statement has said that she was subjected to rape at 7.00 PM. Further, when the accused had an evil eye on the prosecutrix why she went there for the third time. Ld. counsel stated that the story was cooked up by the mother of the prosecutrix after conniving with the prosecutrix just to grab the property of the accused. Ld. counsel stated that FSL report nagates the incident. Further, there were no injuries on the person of the prosecutrix and the accused as evident from their MLCs.
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There is no conclusive proof as to the involvement of the accused in the commission of the alleged offences. Ld. counsel stated that the defence witnesses have proved the innocence of the accused and their testimony deserve the same treatment as the prosecution witnesses do. Ld. Counsel also referred the case of Beeru Vs. State NCT of Delhi Crl.A. 1079/2010 decided on 11.12.13, Raju Vs. State Crl. A. 828/2001 decided on 20.03.14 and Krishan Vs. State Crl. A. 967/2001 decided on 12.02.14 by Hon'ble High Court to contend that the prosecution has failed to prove its case against the accused and the accused deserves to be acquitted.
14.Ld. Addl. PP on the contrary argued that the testimony of the prosecutrix is cogent and consistent which is corroborated by PW5. Nothing has come in her crossexamination to doubt on the varasity of the prosecution case. The accused was the step father of the prosecutrix. He had threatened the prosecutrix with dire consequences and for this reason the prosecutrix had taken time to lodge the complaint after mustering courage. Ld. Addl. PP stated that it may or may not be necessary that every incident of rape would result into SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 12/ 40 injuries on the person of the prosecutrix and the accused. As regards FSL report, Ld. Addl. PP submits that the last incident was of 22.05.2011 and the report was lodged on 28.05.2011, so, by that time the semen might have been washed out when the vaginal swab of the prosecutrix was taken for analysis.
Findings
15.I have considered the submissions and gone through the material placed on record.
16.Section 375 defines rape. It reads as :
"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: 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 SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 13/ 40 that he is another man to whom she is or believes herself to be lawfully married. Fifthly:With her consent, when, at time of giving such consent, by administration 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.
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
Age of the prosecutrix
17. As per the MLC Ex.PW11/A, the age of the prosecutrix was 23 years. In her statement recorded u/s 164 Cr.P.C., prosecutrix has given her age as 23 years. During evidence recorded on 27.07.2012 prosecutrix has given her age as 25 years. She has stated that she is married and has a daughter aged 4½ years. She is illiterate. There is no other document SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 14/ 40 in support of her age. In view of testimony of PW1/prosecutrix and her MLC, I find that the prosecutrix is above 18 years of age and thus major and was capable of giving consent.
Whether the accused is guilty of the offence punishable u/s 376 IPC or not?
18.The question that falls for consideration is whether the accused committed rape upon the prosecutrix. For deciding this question, it is relevant to appreciate the testimony of prosecutrix and other witnesses with the relevant record.
19.PW1/prosecutrix has testified on oath that about six years ago she was married to Anwar from whom she has one daughter. She stated that she used to visit her mother's place frequently. On 05.05.2011, she had gone to her mother's house, who after leaving her there went for her duty. When she was cleaning utensils in the kitchen, accused Harun came there and asked her to bring a glass of water. When she went to bring the water, accused bolted the door and started outraging her modesty. She told the accused that she would raise alarm but the accused lifted a knife, pointed on SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 15/ 40 her and said "if she would raise alarm, he would kill her". Thereafter, he committed rape upon her. Her mother returned home and thereafter, she went to her inlaws place.
She stated that on 10.05.2011 her nephew Parvez came at her house and told her that her grandfather is ill. On hearing, she went to her mother's house but did not find her there. When she enquired from Parvez as to why she was called there, he told her that her grandfather had called her. She stated that by the time accused came and put his hand on her mouth. She wanted to raise alarm but the accused intimidated her to kill. He then bolted the door and committed rape upon her. She could not tell the incident to her mother or anybody else as the accused had intimidated her and said that he would divorce her mother.
She stated that on 22.05.2011 there was marriage in her neighbourhood. She alongwith her daughter and other relatives went to attend the marriage. In the night, her daughter starting sleeping. On the asking of her mother, she went to her mother's house for making her daughter sleep where the accused was present. He committed rape upon her again. Thereafter, she stopped going to her mother's house. She stated that after about 56 SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 16/ 40 days, her mother came at her house and asked her as to why she has not come at her house for 56 days. She started weeping and narrated the entire incident to her mother. Thereafter, she alongwith her mother went to the police station where she made the complaint Ex.PW1/A. On being crossexamined she stated that her husband was not well behaved and after taking divorce from her husband she came to her mother's place where accused used to live with her mother. She denied that she knew Firoza. She admitted that there are jhuggis adjoining the jhuggi of her mother. She stated that there were two rooms in the jhuggi and there used to be quarrel between the accused and her mother. She stated that her mother and accused had been living separately for about 1 ½ / 2 months prior to the incident. She stated that none else was present in the jhuggi when the accused committed rape upon her. She stated that she did not raise alarm when the accused committed rape since he had intimidated her by showing a vegetable cutting knife which he had brought from the kitchen. She stated that her inlaws house is in the neighbourhood of her parental house. She stated that she had gone to attend the music function at about 7.00 PM alongwith her inlaws and when her SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 17/ 40 daughter was sleeping, her mother asked her to take her to her house and make her sleep. She stated that two sons of the accused used to live with the accused in the said jhuggi. She does not know whether the accused has divorced her mother. She denied that she has falsely implicated the accused at the instance of her mother as the accused solemnized the marriage with Firoza and her mother was annoyed with the accused. She denied that she has framed her father in this case at the instance of her mother to grab his property.
20.In the statement recorded u/s 164 Cr.P.C., Ex.PW10/B, prosecutrix has stated that she used to go to meet her mother daily. On 05.05.2011, she went to her mother's house who asked her to stay in the house and clean the utensils. After completing the work, when she was in the kitchen, accused entered, gaged her mouth and did "ulta sidha kaam" with her. When she told him that she would tell her mother, he threatened her to kill. She stated that the accused used to outrage her modesty. However, she did not tell it to her mother. She stated that due to the act of the accused, she stopped going to her mother's house. Her mother came after SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 18/ 40 04 days and asked her as to why she was not coming. She started weeping and narrated the whole story to her mother in presence of her motherinlaw and sisterinlaw. She stated that since the accused had showed her knife and given threats to kill her and her daughter and to divorce her mother she could not muster courage.
In the history recorded on the MLC Ex.PW11/A prosecutrix had alleged that she was raped by her stepfather i.e. the accused 34 times lastly on 26.05.2011.
21. PW5 who is mother of the accused has deposed that about 30 years ago she was married to Manan. From him she has two children namely Wahid and the prosecutrix. About 22 years ago, her husband died. She married with the accused about 1516 years ago. She stated that her children are married. Her daughter lives in her inlaws house near by her house. She used to come at her place to meet her daily. She stated that few days prior to the complaint, her daughter had stopped coming at her house. She went to her jhuggi and asked her as to why she was not coming at her house. She started weeping and on her insistence, she narrated the th th incident to her that on 05 , 10 accused had raped her in her SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 19/ 40 nd house and again on 22 when the marriage ceremony was going on in her neighbourhood, the accused committed rape upon her in her house and due to that reason, she stopped coming at her house. She stated that prosecutrix had told her that the accused had intimidated her not to tell the incident to anyone. She stated that the prosecutrix had told her that on nd 22 when she went to make her daughter sleep in her jhuggi, accused showed her a knife, intimidated to kill her and committed rape upon her. She stated that she alongwith her daughter went to the police station and made complaint.
On being crossexamined she stated that her statement nd was recorded by the police on 31.05.2011. On 22 May she went to the marriage ceremony in her neighbourhood at about 8.00 PM and returned at about 10.30/11.00 PM. Her daughter had come at about 8.00 PM. In between 8.00 PM to 11.00 PM she did not visit her inlaws house. Her inlaws had also attended the marriage. She stated that she does not have any fixed time to return from her work place, however, she goes in the morning in between 7.00 to 9.00 AM. She stated that accused lived with her in the said jhuggi. She stated that about 78 months prior to the incident, the accused had heated arguments with her and started living in SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 20/ 40 a separate room in the jhuggi and the reason of her living separately was that he used to bring females for sexual intercourse which she did not like. She stated that she went to her daughter's house after three days of 22.05.2011 when she stopped coming at her house. She stated that the complaint was typed on the asking of the police. She denied that the accused had married to Firoza on 16.05.2011 and for that reason she got annoyed from the accused and falsely implicated him in this case through her daughter.
22.On an analysis of the testimony of the prosecutrix i.e. PW1 and PW5 I find that the prosecutrix was subjected to rape by the accused on 05.05.2011, 10.05.2011 and 22.05.2011 at her mother's house. The accused is the step father of the prosecutrix. Every time the accused had threatened the prosecutrix to kill her and her daughter in case she reported the incident to anyone. On 05.05.2011 PW1 had gone to meet PW5. On the asking of PW5 she stayed at her mother's house. Accused was not present at that time. He came afterwards. Firstly, he asked the prosecutrix to bring water for her and when she went to the kitchen, he bolted the door, put a knife on her and committed sexual intercourse SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 21/ 40 with her forcibly. Secondly, on 10.05.2011 prosecutrix went to the house of her mother on the calling of her grandfather. At that time PW5 was not in the house. The accused bolted the door and again committed sexual intercourse with her. He also threatened the prosecutrix with dire consequences. Thirdly, on 22.05.2011, prosecutrix had gone to attend marriage with her daughter. On the asking of her mother she took her daughter to her house to make her sleep. The accused was alone in the house. He again committed sexual intercourse with her forcibly by showing the knife.
PW1 has stated that after the first incident she stopped going to her mother's house. On 10.05.2011 she was called by Parvez, her nephew so, she had gone to her mother's house. On 22.05.2011 on the asking of her mother she went there to make her daughter sleep. It is not the case that after the incident of 05.05.2011, she went of her own to her mother's house. As regards the contention that why the prosecutrix went for the third time on 22.05.2011 to her mother's house when the accused had an evil eye on him, from the testimony of PW1 and PW5 I find that the prosecutrix had gone to attend a function in the neighbourhood with her inlaws and daughter. On the asking SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 22/ 40 of her mother she went to her house to make her daughter sleep. She had never apprehended that her father would be alone in the jhuggi at that time. It was also contended by Ld. Counsel that there is variance as to the time of third incident as according to PW1 she was subjected to rape at about 7.00 PM, however, in her complaint she has alleged that she was raped at about 10.00 PM. Perusal of the testimony of PW1 would show that she went to attend the function at about 7.00 PM. She never said that she was raped at about 7.00 PM. PW5 has stated that she had asked the prosecutrix to make her daughter sleep in the house and thereafter, she went to her house. The testimony of PW1 and PW5 is cogent and consistent as to the incident on 22.05.2011.
23.In the instant case, I do not find any material contradictions in the testimony of prosecutrix rather her testimony is consistent and cogent as to the incidents happened with her which she had alleged in her complaint Ex.PW1/A. PW5 has also stated about the incidents as narrated to her by the prosecutrix. Both PW1 & PW5 were subjected to detailed crossexamination but they firmly stood at the anvil of cross examination as to the incidents. PW5 has stated that when SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 23/ 40 her daughter stopped coming at her house after 22.05.2011, she went to her daughter's house and enquired as to why she was not coming. She started weeping and on her insistence she narrated the whole incident to her. The testimony of PW1 is also consistent with the testimony of PW5 on this aspect. It is relevant to note that prosecutrix is the step daughter of the accused. Her mother had been living with the accused. The accused had threatened to kill her and her daughter as well as to divorce PW5. It is true that the report was not lodged on 26.05.2011 when the matter came to the notice of PW5 and the report was lodged on 28.05.2011 but seeing the fact that there was threat from the side of the accused and that prosecutrix was the step daughter of the accused, she might have thought number of times before reporting the matter to the police particularly, when the prosecutrix had fiduciary relations with the accused. It requires tremendous courage for a woman to report such matters.
24.Although there is variance in the MLC Ex.PW11/A, statement recorded u/s 164 Cr.P.C. Ex.PW10/B and the complaint Ex.PW1/A as to the date of incidents but on considering the SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 24/ 40 testimony of PW1 which is supported by PW5 and is consistent with the complaint Ex.PW1/A, I find that the prosecutrix was subjected to rape thrice i.e. on 05.05.2011, 10.05.2011 and 22.05.2011. In the history recorded by PW11 prosecutrix has stated that she was raped 34 times. In her statement recorded u/s 164 Cr.P.C. she has specifically stated about the incidents happened on 05.05.11 how she was threatened and raped by the accused. Although, she did not narrate the incidents of 10.05.2011 and 22.05.2011 in the said statement she has stated that he used to outrage her modesty. So, nothing can be inferred from such statement that nothing had happened with her and she cooked up a story at the instance of her mother just to grab the property of the accused. Her testimony is specific to the incidents happened with her. She has stated how she was criminally intimidated before or after the rape. The complaint Ex.PW1/A, testimony of the prosecutrix (PW1) as well as of PW5 clearly show that she was raped on 05.05.2011, 10.05.2011 and 22.05.2011. Even otherwise, sexual intercourse once or thrice without consent would amount to rape and on this very ground the testimony of the prosecutrix cannot be rejected in toto and the above inconsistency SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 25/ 40 pointed out by Ld. Counsel do not prove fatal to the case of the prosecution. In this country it is rare to come across with the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. In the instant case, I do not find any material improvement in the testimony of PW1 as to the allegations made in her complaint Ex.PW1/A. As regards delay, PW1 has stated that the accused had threatened her to kill and her daughter and to divorce her mother, so she could not muster courage to lodge the report against the accused immediately after the incident. She after telling the incident to her mother, went to the police station where she gave the complaint. She has stated that after the incident of 22.05.2011 she had stopped going to her mother's house. It was only on 26.05.2011 when her mother came and enquired from her as to why she did not come to her house, she narrated the incidents / acts committed by the accused. Facts and circumstances show that after being consoled by PW5, PW1 mustered courage to lodge report against the accused, who is her stepfather. PW5 has stated that when SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 26/ 40 they went to lodge the report, the police had asked her to give the complaint in writing. So, she got the complaint typed and then lodged the complaint. So, nonreporting of matter immediately after the incidents does not prove fatal to the case of the prosecution. It is note worthy that the accused is the husband of her mother and there was a threat on behalf of the accused that he would divorce her mother. It is seen that normally such incidents, when the prosecutrix has been living in fiduciary relations, the matter is not reported immediately. It requires tremendous courage for the prosecutrix to makeup her mind and report the matter because reporting of such a matter may lead to many complications in the family. In State of Punjab Vs. Gurmit Singh & Ors., 1996 AIR SC 1393, the Apex Court made the following observations:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her".
25.It was pointed out by Ld. counsel for the accused that there are contradictions as to whether the prosecutrix was divorced SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 27/ 40 or her husband has expired. Perusal of testimony of PW1, statement recorded u/s 164 Cr.P.C. and the complaint Ex.PW1/A reveals that her husband has expired and now she has been living in her inlaws house. Even otherwise, it does not carry any significance and on this very ground the case of the prosecution cannot be thrown out.
26.During arguments Ld. counsel for the accused referred the testimony of DW1 to contend that had there been sexual intercourse by the accused forcibly, the prosecutrix would have raised alarm which might have been heard by the neighbourers, however, the testimony of DW1 reveals that he did not hear any noise. I do not find force in this argument as the prosecutrix in her testimony has stated she did not raise alarm when the accused committed rape upon her since he had intimidated her by showing a knife that he would kill her and her daughter. So, there was no question of DW1 hearing the noise at the time of alleged incident.
27. As regards FSL report, I find that the last incident took place on 22.05.2011 and the MLC of the prosecutrix was prepared on 28.05.2011 i.e. after about six days of incident. Although, SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 28/ 40 the vaginal swab of the prosecutrix was taken and it was sent to the FSL for matching with the control swab of the accused, blood in gauge and penial swab of the accused and the report shows that the semen was not detected on the vaginal swab of the prosecutrix but it is to be noted that the sample was taken after 06 days, so, the possibility of washing out the semen prior to taking of sample qua vaginal swab cannot be ruled out. It is true that there were no injury marks on the prosecutrix as well as on the accused as per the MLC Ex.PW2/A and Ex.PW11/A, but as per the medical jurisprudence, even slightest penetration would amount to rape. It may or may not be necessary that the penetration may result into injuries on the person of the prosecutrix or the accused. Further, the penetrative sexual may not necessarily result in ejaculation. In the instant case both the accused and the prosecutrix are grown up and married. The testimony of PW1/prosecutrix is categorical to the fact that she was subjected to rape by the accused thrice. Nothing has come in her crossexamination to discredit her.
28.The Apex Court in the pronouncement reported at 2007 Crl.L.J. 4704 Radhu vs. State of Madhya Pradesh succinctly SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 29/ 40 laid down the principles thus: "It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent.
29.In Ranjit Hazarika vs State Of Assam, (1998) 8 SCC 635 the Apex Court observed thus : "The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. To constitute the offence of rape, SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 30/ 40 penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the crossexamination. Neither the nonrupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the crossexamination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake.
30.It was contended by Ld. Counsel for the accused that the mother of the prosecutrix wanted to grab the property of the accused and she with the help of the prosecutrix falsely implicated him in this case. Perusal of the testimony of PW5 shows that no such suggestions were put to this witness that she has falsely implicated the accused in order to grab the property of the accused. As regards, the marriage of the accused with Firoza DW2, PW1 has stated that she did not know whether the accused had married with Firoza. Although PW5 has admitted that she was not having cordial relations with the accused prior to the incidents but she has stated that they used to live in the same jhuggi. She has also stated that the reason for living in separate rooms was that the accused SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 31/ 40 used to bring females for sexual intercourse which she did not like. PW5 has denied that the accused had married with DW2 and for this reason she was annoyed with the accused and got him falsely implicated in this case. Although the accused has examined three witnesses in his defence but their testimony do not put any dent on the case of the prosecution. DW2 who claims to have married with the accused on 16.05.2011 has stated that she knew that there was dispute between the accused and PW5 in regard to the property but on perusal, I find that no such suggestions were put to PW5 during her crossexamination. DW1 is the neighbour of the accused. He has stated that accused had strained relations with PW5 who had been living separately for 45 years. He has stated that they used to quarrel on the issues concerning money and PW5 used to insist that jhuggi be transferred in her name by the accused. Perusal of testimony of PW5 would show that no such suggestions of this kind were given to PW5 by the accused. DW1 in his crossexamination has admitted that he has come to the court at the instance of the mother of the accused and he did not disclose the above facts to anyone before coming to the Court. DW3 is also the neighbourer of the accused. She SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 32/ 40 also deposed on the lines of DW1 but on considering the testimony of PW5 no much credence can be given to the testimony of this witness. She even could not tell whether on the day of incident she was at home or had gone to her place of work. The mandate of the law as settled by plethora of judgments is that if the statement of the prosecutrix inspires confidence then the conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required. I am of the view that in the instant case the defence miserably fail to mar the testimony of the prosecutrix and thus there remained no ground to blemish the credit worthiness of her statement. In the instant case, her testimony is of impeachable character.
31. In State of Maharasthra v. Chandraprakash Kewalchand Jain, 1990 AIR 658, it was observed: "A prosecutrix of a sexoffence cannot be put on par with an accomplice. She is in fact a victim of the crime. 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. If a prosecutrix is an adult SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 33/ 40 and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
32. In State of Punjab v. Gurmit Singh & Ors. supra, the Apex Court made the following observations:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no selfrespecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases 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 SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 34/ 40 alone to convict an 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 or sexual molestation be viewed with doubt, disbelief or suspicion? 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 in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula 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."
The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 35/ 40 difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
33. In Vijay @ Chinee v. State of Madhya Pradesh, Crl. Appeal No. 660/2008, the Apex court referred to the above two decisions in Chandraprakash Kewalchand Jain and Gurmit Singh supra and also few other decisions and observed as follows:
"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.".
The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix, the court must be SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 36/ 40 alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of woman's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the leveling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge
34. We must realize that ordinarily a woman, will not stake her reputation by levelling a false charge concerning her chastity. She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives. Instead of treating her with compassion and understanding, as one who is injured victim of a crime, she is, more often that not, treated as a sinner and shunned. It must therefore be realised that a woman who is subjected to sex violence would always be SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 37/ 40 slow and hesitant about disclosing her plight. The present case is a sad reflection of the present day society where a most faithful relationship had been spoiled by the debauch and the degrading act of a family member i.e. the accused who is the step father of the prosecutrix. He did not even differentiate that the prosecutrix was none else but his step daughter. The pain and shrieks of the prosecutrix did not bother him who after committing such heinous offence threatened the prosecutrix that if she narrated the incident to anyone, he would kill her and her daughter. In the instant case the testimony of the prosecutrix inspires confidence and it appears to be natural and trustworthy, free from any kind of influence or venom. Although she was duly crossexamined by the defence but the defence utterly failed to dislodge the credit worthiness of the testimony of the prosecutrix.
35. The cases referred by Ld. Counsel for the accused of Raju (Supra) and Krishan (Supra) are distinguishable on facts and do not help the accused. In the case of Raju (Supra) there were material contradictions going into the root of the matter. Further, there were inconsistencies in the testimony of the witnesses as to where the witnesses/prosecutrix were SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 38/ 40 sleeping. The prosecutrix had given the wrong date of incident. It was observed that it is highly improbable that the prosecutrix who is 40% physically disabled and 25% mentally unstable would in the middle of cold winter might go to the roof to have a bath and wash clothes. In the case of Krishan (Supra) there was inconsistency in the statement of the prosecutrix as to how many persons entered the jhuggi and threatened her. The trial court did not call the senior scientific officer in the crossexamination. In the present case the testimony of prosecutrix/PW1 is consistent and cogent as to the incidents with the complaint Ex.PW1/A. Her testimony is duly corroborated by PW5 and material particulars. The case of Beeru (Supra) does not help the case of the defence as in that case the testimony of the prosecutrix was found consistent and cogent and the conviction of the accused was upheld.
Conclusion
36. The facts and circumstances of the present case show that the prosecutrix on 05.05.2011, 10.05.2011 and 22.05.2011 was subjected to rape by the accused when she went to her mother's house. She was threatened with dire consequences SC No. : 115/13 FIR No. : 106/11 PS : New Friends Colony Page No. 39/ 40 by the accused using the knife. I am of the view that the prosecution has successfully proved the guilt of the accused beyond reasonable doubt and brought home all the ingredients of the offences for which he has been charged with.
37. In the light of what has been stated above and considering the case laws (Supra) I hold the accused guilty for the offences punishable u/s 376 / 506 IPC and convict him thereunder.
Announced in the open
court today i.e. 13.04.2015 (Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi : 13.04.2015
SC No. : 115/13
FIR No. : 106/11
PS : New Friends Colony Page No. 40/ 40