Delhi District Court
Complainant vs Vijay Pal Yadav on 10 April, 2015
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE - SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI
Unique Case ID No. 02406R0150562014
SC No. : 140/14
FIR No. : 351/14
U/s. : 376/341 IPC
PS : Saket
State (Govt. of NCT of Delhi)
..... Complainant
Versus
Vijay Pal Yadav
S/o Sh. Amar Nath Yadav
R/o Flat No. H29/D, Saket, New Delhi
Permanent R/o VPO Meer Muhu,
PS Mawhi, Distt. Faizabad, U.p.
..... Accused
Date of Institution : 08.07.2014
Judgment reserved for orders on : 10.04.2015
Date of pronouncement : 10.04.2015
J U D G M E N T
Facts
1. An information was received at the Police Station Saket vide DD no. 29A dated 26.05.2014 from Madan Mohan Malviya SC No. : 140/14 FIR No. : 351/14 PS : Saket Page No. 1/ 13 Hospital that a lady aged about 30 years was brought in the hospital in injured condition who has been referred to Safdarjung Hospital. SI Amar Singh with Ct. Jitender went to Safdarjung Hospital where he collected the MLC of the girl and the exhibits. The doctor declared the patient unfit for statement. Since on the MLC, history of sexual assault was recorded, case was registered u/s 376 IPC. After the patient / lady was declared fit for statement, her statement was recorded.
She interalia alleged that she has been working as maid servant at H29D, Saket, New Delhi. About two months ago she had met the accused who had been working as domestic servant in the said flat. On 26.5.2014 at about 1.00 PM after completing the work, when she was leaving the flat, accused caught hold of her and expressed his love for her. She told him that she is already married. He did not leave her and dragged her in the bed room. He got her laid on the bed, removed her undergarments and committed rape upon her. He discharged her at about 1.20 PM. She started bleeding. She went to her house. At down stairs, she met her friend Parul who took her to Madan Mohan Malviya Hospital for her examination.
SC No. : 140/14
FIR No. : 351/14
PS : Saket Page No. 2/ 13
2. Investigation was taken up. MLC was collected from the hospital. Statement of prosecutrix u/s 164 Cr.P.C. was got recorded. Accused was arrested. He was sent to AIIMS for his medical examination. Bed sheet of the room was seized. Site plan of the spot was prepared. Exhibits qua the accused were collected from the hospital. All the exhibits were sent to FSL for analysis. Landlord of the flat in question was examined. After the investigation accused was sent for trial.
3. After complying with the requirements contemplated u/s 207 Cr.P.C., this case was committed to this Court.
4. Primafacie case was made out and vide order dated 31.07.2014 charge was framed against the accused u/s 376 IPC to which he pleaded not guilty and claimed trial.
5. To substantiate its case prosecution examined as many as 11 witnesses.
6. PW1 Dr. Vivek Kumar, Medical officer of Madan Mohan Malviya Hospital did the examination of the prosecutrix vide SC No. : 140/14 FIR No. : 351/14 PS : Saket Page No. 3/ 13 MLC ExPW1/A and referred her to Sr. Gynecologist. According to him, the prosecutrix was brought with the history of bleeding per vagina following injuries by glass table as stated by her. No external injury was seen.
PW2 Dr. Vandana Goyal was the Medical Officer of Pt. Madan Mohan Malviya Hospital. She stated that after 20 minutes of counselling, the prosecutrix admitted her sexual assault by a known person at her place of work. There was no active bleeding. No vaginal tear and no cervix could be visualised due to excessive bleeding. She stated that there was high vault tear due to bleeding. Perineum and thighs were stained with blood. A small 0.5 cm. superficial laceration was present on posterior fochette. She prepared the MLC Ex.PW2/A and proved the observation recorded by Dr. Ritu Ex.PW2/C. She stated that swab from posterior fochette and high vaginal swab were taken and given to the police alongwith the sample seal. She stated that since they could not visualise the site of injury, they referred the patient to Safdarjung Hospital.
PW3 Sh. Keshav Sharan Sharma was the owner of the flat H29D, Saket, New Delhi. He stated that the accused was his servant for 67 years but after his arrest he left the SC No. : 140/14 FIR No. : 351/14 PS : Saket Page No. 4/ 13 job. Prosecutrix had been working as maid servant. On 26.05.2014 at about 6.30 PM he found the police officials with the accused in his house. On enquiry he came to know that accused had committed upon the prosecutrix. When he enquired from the accused he denied this fact. On the instructions of the police, he locked the room. Police seized the bed sheet from the room vide memo Ex.PW3/A. The prosecutrix after discharge from the hospital pointed out the room where the alleged incident took place. He stated that he did not receive any complaint against the accused from anyone from the colony during his tenure as domestic servant nor the prosecutrix complained about the misbehaviour of the accused.
PW4 Dr. Upasna Verma did the medical examination of the prosecutrix at Safdarjung Hospital vide MLC Ex.PW4/A. On 27.05.2014 she declared the prosecutrix fit for statement.
PW5 ASI Om Parkash recorded the FIR Ex.PW5/A and handed over the investigation to SI Aditi Lili.
PW6 Ms. Sonam Singh recorded the statement of prosecutrix u/s 164 Cr.P.C. Ex.PW6/B. PW7 is the prosecutrix. She has stated that she has been working as maid servant in different houses for about SC No. : 140/14 FIR No. : 351/14 PS : Saket Page No. 5/ 13 three years. Accused had been working as domestic help in H. No. H29 Saket. She stated that on the asking of the accused she started working in the said flat. Gradually, they became friends and started talking to each other. She stated that whatever had happened with her was with her consent and she made the complaint Ex.PW7/A, her statement u/s 164 Cr.P.C. Ex.PW7/B and narrated the history to the doctor on the MLC Ex.PW2/A and B and Ex.PW1/A due to fear of her parents as they had come to know of their relations. She was declared hostile by the prosecution. On being cross examined by Ld. Addl. PP she denied that accused committed sexual intercourse with her forcibly. She was confronted with her statements to which she stated that because of fear of her parents she had stated those facts. She identified the photographs Ex.PW7/1 to Ex.PW7/3 of the place of incident.
PW8 Smt. Parul is the friend of the prosecutrix. She stated that prosecutrix was her neighbour. She did not know the accused. She denied that the prosecutrix had told her anything with regard to the accused. She stated that she had taken the prosecutrix to the hospital since she was standing on the staircase and was under shock. She saw her pyjami SC No. : 140/14 FIR No. : 351/14 PS : Saket Page No. 6/ 13 stained with blood. When she asked about the blood she told her (gir gayi). She was also declared hostile by the prosecution. On being crossexamined she denied that prosecutrix had told her that she was raped by the accused.
PW9 Ct. Amit Kumar had gone to Safdarjung Hospital where he met SI Aditi Lili. He joined the investigation with SI Aditi Lili. In his presence the accused was arrested and his underwear was seized. He proved the arrest memo Ex.PW9/A and stated that the disclosure statement of accused Ex.PW9/C was recorded in his presence. He collected the exhibits from the doctor and gave to the IO vide Ex.PW9/B. PW10 Ct. Sumit was on emergency duty on 26.05.2014. Hon receipt of call vide DD no. 29A went to Madan Mohan Malviya Hospital and collected the MLC of the prosecutrix from Dr. Vivek. Exhibits of the prosecutrix were also handed over to him which he gave to SI Amar Singh vide Ex.PW10/B. PW11 Ct. Kumbha Ram took the exhibits to FSL on 06.06.2014 vide RC Ex.PW11/A and gave its acknowledgment to the MHC(M). He stated that the case property was not tampered with in any manner till it remained SC No. : 140/14 FIR No. : 351/14 PS : Saket Page No. 7/ 13 in his custody.
7. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
SC No. : 140/14
FIR No. : 351/14
PS : Saket Page No. 8/ 13
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
8. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
Age of the prosecutrix
9. In the statement Ex.PW7/A prosecutrix has given her age as 27 years. On her MLC the age of the prosecutrix has been recorded as 30 years. In her testimony prosecutrix / PW7 has given her age as 26 years. She has stated that she is SC No. : 140/14 FIR No. : 351/14 PS : Saket Page No. 9/ 13 illiterate and works as domestic help. In her statement recorded u/s 164 Cr.P.C. she has given her age as 26 years. There is no other document collected by the investigating agency in support of her age. The alleged incident took place on 26.05.2014. Thus, from the complaint and other documents, I find that the prosecutrix was above 18 years of age at the time of alleged incident, thus, major and capable of giving consent.
Whether the accused is guilty of the offence punishable u/s 376 IPC or not?
10.The question that falls for consideration is whether the accused committed sexual intercourse with the prosecutrix, if yes, whether this will amount to consent or not or whether the accused committed sexual intercourse against her wishes or consent. For deciding this question, it is relevant to appreciate the testimony of prosecutrix and other witnesses with the relevant record.
11. In the present case, star witness was the prosecutrix/PW7 as whole prosecution machinery came into motion on her complaint. She has categorically stated that whatever had SC No. : 140/14 FIR No. : 351/14 PS : Saket Page No. 10/ 13 happened with her was with her consent. She has stated that she had given the complaint Ex.PW7/A, her statement u/s 164 Cr.P.C. Ex.PW6/B and the history on the MLC Ex.PW1/A and Ex.PW2/A to Ex.PW2/B because of fear of her parents as they had come to know of her relation with the accused. She denied that on 26.05.2014, the accused had caught hold of her, dragged her in the bedroom, bolted it from inside and committed sexual intercourse with her forcibly. PW8 who is the friend of the prosecutrix has stated that when she saw blood on the pyjami of PW7, she enquired from her who told her that she sustained injuries due to fall. She denied that prosecutrix / PW7 had told her that she was raped by the accused and due to that she had bleeding.
12.The testimony of the prosecutrix shows that she had freely agreed to submit herself at the time of sexual intercourse. There was no influence or fear or terror on the person of the prosecutrix at the time of alleged incident. Her testimony is categorical to the effect that whatever had happened was with her consent. She was crossexamined at length by the Ld. Addl. PP but she remained cogent and consistent on the fact that the accused had committed sexual intercourse with her SC No. : 140/14 FIR No. : 351/14 PS : Saket Page No. 11/ 13 consent. In the instant case the prosecutrix was above 18 years of age, so, her consent is material in the present case.
13.Keeping in view the testimony of the prosecutrix / PW7 which is also supported by PW9, I am of the view that necessary ingredients of the offence punishable u/s 376 IPC against the accused are not proved. Although in this case out of 15 witnesses, 11 witnesses have been examined but on considering the testimony of PW7 who has categorically stated that she had consented to sexual intercourse, I did not find any purpose to examine the remaining witnesses who are the police officials and came in motion at the instance of the prosecutrix. The prosecution evidence was accordingly closed as examination of other formal witnesses would have been a dead formality. Since the prosecutrix did not narrate any incriminating fact against the accused, so his statement under section 313 Cr.P.C was dispensed with.
14. Considering the testimony of PW7, who has categorically stated that sexual intercourse had taken place with her consent, I am of the view that prosecution case is not proved against the accused under section 376 IPC. The accused SC No. : 140/14 FIR No. : 351/14 PS : Saket Page No. 12/ 13 deserves to be acquitted of the charges framed against him. I therefore, acquit the accused of the offence punishable under section 376 IPC. Accused is directed to furnish bail bond in the sum of Rs. 10,000/ with one surety in the like amount, in compliance of section 437A Cr.P.C.
15. File be consigned to record room.
Announced in the open
court today i.e. 10.04.2015 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi : 10.04.2015
SC No. : 140/14
FIR No. : 351/14
PS : Saket Page No. 13/ 13