Delhi District Court
State vs Anil Kaushik S/O Prem Kaushik on 24 September, 2014
IN THE COURT OF SMT. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
Unique Case I.D. No.02402R0277732012
SC No. 42/13 Date of assignment : 07.12.2012
FIR No. 252/12 Date on which case was
PS. Welcome reserved for judgment : 05.09.2014
U/S. 376/506(II)/323 IPC Date of judgment : 24.09.2014
State Versus Anil Kaushik S/o Prem Kaushik
R/o C-5, Gali No.2, Kabir Nagar,
Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 10.08.2012 DD No.23B dated 10.08.2012 and the connected MLC No. 3591/12 of the prosecutrix was handed over by SI Rizwan to SI Neera Singh. Accordingly, SI Neera Singh recorded the statement of the prosecutrix wherein she made following allegations:-
(i) The prosecutrix has been residing at her matrimonial home for the last 13 years. She has five children. Her husband is a TSR driver. Her mother in law is running a dairy of buffaloes in that house. Two tenants are also residing in the said property. On the first floor, the prosecutrix is residing with her five children, husband and SC No. 42/13 State vs. Anil Kaushik Page 1 of 30 mother in law. Her eldest son is aged about eleven years and the youngst son is aged about one month ten days. On the second floor of the house, accused Anil Kaushik has been residing alongwith his wife and children for the last 5-6 years as a tenant and who is also the brother in law of the prosecutrix in relation being the son of aunt of her husband (fufiya saas ka beta).
(ii) Accused used to commit rape on the prosecutrix whenever he found her alone in the house and the accused also asked her not to disclose the same to any person otherwise he will kill her family members as he is the son of bad element. Prosecutrix got afraid.
(iii) On 08.08.2012 at about 2/2.30 pm, when the prosecutrix was alone in her room, accused entered her room and pressed her mouth with his hand. He laid the prosecutrix on the floor and opened her salwar and committed rape on her and thereafter he left her room.
(iv) On 10.08.2012 at about 7.30 am in the morning, accused again committed rape on the prosecutrix and when she raised alarm accused beat her. After sometime police reached there and she informed the police about sustaining some injuries by her in a quarrel. Police took the prosecutrix to hospital. After medical examination, the prosecutrix reached her home without informing the police. On reaching her home, she disclosed the entire SC No. 42/13 State vs. Anil Kaushik Page 2 of 30 incident to her mother in law who informed the police about all acts of the accused. Thereafter the prosecutrix got the strength and went to the police station and disclosed the entire incident to the police. She was got medically examined again at GTB Hospital and exhibits received from the hospital were sent to FSL, Rohini. She also stated that as she was scared and thus she could not disclose the entire facts to the doctor. Prosecutrix stated that accused committed rape on her by force. He also threatened to kill her.
2. On the basis of the complaint, an FIR u/s 376/506 IPC was got registered against the accused. During investigation, accused was arrested and he was got medically examined at GTB Hospital and sealed exhibits were received from the hospital which were subsequently sent to FSL, Rohini for examination. After completion of investigation, chargesheet u/s 376/506 IPC was filed against the accused.
3. Since the major offence in this case was triable by the Court of Sessions, vide order dated 03.12.2012, learned M.M. committed the case to the Court of Sessions. Thereafter this case was assigned to this court for trial.
SC No. 42/13 State vs. Anil Kaushik Page 3 of 304. Vide order dated 11.01.2013 passed by my learned predecessor, a charge u/s 376/506(II)/323 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution examined seventeen witnesses i.e. Dr. Parmeshwar Ram, CMO, GTB Hospital, Delhi as PW1, Dr. Bharat Sagar, CMO, GTB Hospital Delhi as PW2, Dr. Nidhi Arora, Senior Resident, GTB Hospital, Delhi as PW3, HC. Arvind as PW4, Wct. Kavita as PW5, ASI Yashin Khan as PW6, Ct. Shishpal Singh as PW7, HC. Devender Kumar as PW8, Ct. Manoj as PW9, mother in law of prosecutrix as PW10, Ct. Bijender Kumar as PW11, husband of prosecutrix as PW12, prosecutrix as PW13, Ct. Yogender Kumar as PW14, SI Rizwan Khan as PW15, Lady Ct. Suman as PW16 and W/SI Neera Singh as PW17.
6. PW15 SI Rizwan Khan deposed that on 10.08.2012 on receipt of DD No.23B Ex. PW4/A regarding quarrel, he alongwith Ct. Shishpal went to the spot where the prosecutrix met them and disclosed about beating given to her. This witness deposed that the lady Constable Kavita was called from the police station and she took the prosecutrix to GTB Hospital for medical examination. He SC No. 42/13 State vs. Anil Kaushik Page 4 of 30 further deposed that the prosecutrix left without disclosing anything but at about 4.00 pm she again reached at the police station and her statement was recorded by SI Neera Singh.
7. PW4 HC. Arvind deposed that on 10.08.2012 on receipt of information from BETA 50 on telephone, he recorded the same in Roznamcha vide DD No.23B and proved the same as Ex. PW4/A.
8. PW5 W/Ct. Kavita deposed that on 10.08.2012 on the instruction of SI Rizwan, she took the prosecutrix to GTB Hospital for medical examination and after medical examination, MLC of prosecutrix was handed over to the IO.
9. PW1 Dr. Parmeshwar Ram, CMO, GTB Hospital deposed that he had examined the prosecutrix aged about 32 years who was brought in the hospital with the alleged history of assault on 10.08.2012 at 7.30 am. On her local examination, multiple abrasion over left hand dorsal aspect with swelling of left little finger, multiple abrasion over right hand dorsal aspect, bruises over right lower thigh 2 cm x 2 cm, abrasion over knee joint, abrasion right cheek 3 cm x 1 cm. During cross examination this witness deposed SC No. 42/13 State vs. Anil Kaushik Page 5 of 30 that patient did not tell him the name of person who had assaulted her. He further deposed that on enquiry, the patient had replied that she sustained injuries in a quarrel. Witness further deposed that the injuries mentioned in the MLC are not possible by fall and the injuries were caused by some blunt object.
10. PW16 Lady Constable Suman deposed that on 10.08.2012, the prosecutrix was taken to GTB Hospital for her medical examination. She also deposed that Ct. Manoj also accompanied them. After medical examination of prosecutrix, the sealed exhibits received from the hospital were seized by the IO vide memo Ex.PW16/A. Ct. Manoj was sent to police station alongwith rukka for registration of FIR who came back alongwith copy of FIR and handed over the same and rukka to IO. IO prepared the site plan Ex.PW13/B. Accused was arrested vide arrest memo Ex.PW9/A on the pointing out of prosecutrix. Personal search of accused was also conducted and his disclosure statement was recorded.
11. PW6 ASI Yashin Khan deposed that on 11.08.2012 he was working as Duty Officer in police station Welcome and he got recorded the FIR in the present case on the basis of rukka and proved the same as Ex. PW6/A. SC No. 42/13 State vs. Anil Kaushik Page 6 of 30
12. PW14 Ct. Yogender Kumar deposed that on 10/11.8.2012, the duty officer handed over him a rukka for typing on computer and after typing the FIR on the basis of rukka, the same was handed over to duty officer alongwith rukka.
13. PW9 Ct. Manoj deposed that on the night of 10/11.08.2012 he was on emergency duty. At about 10.00 pm, he alongwith SI Neera Singh, lady Constable Suman and prosecutrix reached at GTB Hospital where the prosecutrix was got medically examined. This witness deposed that he took the rukka to police station for registration of FIR. After registration of FIR, he reached the spot and handed over the copy of FIR and rukka to IO. He further deposed that on the identification of prosecutrix, the accused was apprehended and arrested vide arrest memo Ex.PW9/A and his personal search Ex.PW9/B was conducted. Accused made disclosure statement Ex.PW9/C. Thereafter he alongwith Ct. Bijender took the accused to GTB Hospital where he was got medically examined and the sealed parcels given by the doctor were seized by the IO vide memo Ex. PW9/D.
14. PW3 Dr. Nidhi Arora, Senior Resident, GTB SC No. 42/13 State vs. Anil Kaushik Page 7 of 30 Hospital deposed that on 10.08.2012 at about 11.15 pm, the prosecutrix was brought in the hospital by a woman constable Suman. She was also brought to casualty in the morning but at that time she did not give any history of sexual assault. This witness deposed that at that time the prosecutrix gave history of sexual assault at 6.30 am on 10.08.2012 and also on 8.8.2012 and once six months back by the accused. This witness also deposed that the patient came to the police station after having bath. She proved the MLC of the prosecutrix as Ex.PW3/A and the emergency sheet regarding the medical examination of the prosecutrix as Ex. PW3/B.
15. PW2 Dr. Bharat Sagar, CMO, GTB Hospital deposed that on 11.08.2012 accused Anil Kaushik was brought into the hospital by Ct. Bijender for his medical examination. Patient was examined by Dr. Anil Singh, Junior Resident who had left the services of the hospital and his whereabouts are not known. This witness identified the handwriting and signatures of Dr. Anil Singh stated that he has seen him writing and signing during the course of his official duties. He proved the MLC of accused as Ex. PW2/A.
16. PW8 HC Devender Kumar deposed that on 11.08.2012, SI Neera Singh handed over sealed parcels SC No. 42/13 State vs. Anil Kaushik Page 8 of 30 alongwith sample seal with the seal of GTB Hospital and he deposited the same in malkhana of police station vide entry No.2490 in register no.19. He proved the said entry as Ex. PW8/A. This witness sent the sealed exhibits to FSL, Rohini through Ct. Shishpal vide RC No.138/21 and proved the entry in this regard as Ex. PW8/B and Ex.PW8/C.
17. PW11 Ct. Bijender Kumar deposed that on 11.08.2012 he alongwith Ct. Manoj, W/SI Neera Singh went to GTB Hospital with accused and the accused was got medically examined and the sealed parcels handed over to him by the doctor were seized by the IO vide memo Ex.PW9/D.
18. PW7 Ct. Shishpal Singh deposed that on 21.8.2012 he took the sealed exhibits alongwith sample seal from MHC(M) for depositing the same at FSL, Rohini. He deposited the same at FSL, Rohini and handed over the copy of RC to MHC(M).
19. PW17 W/SI Neera Singh, IO of the case deposed that on 10.08.2012 she was posted at police station Welcome. On that day SI Rizwan informed her regarding the present case and she reached the police station. SI Rizwan produced MLC of the prosecutrix before her. She SC No. 42/13 State vs. Anil Kaushik Page 9 of 30 recorded the statement of prosecutrix as Ex. PW13/A. She further deposed that the prosecutrix was taken to GTB Hospital for her medical examination and the sealed parcels received from the hospital were seized vide memo Ex. PW16/A. This witness made endorsement Ex. PW17/A on the statement of prosecutrix and got the FIR Ex. PW6/A registered. Thereafter IO alongwith lady constable and prosecutrix reached at the spot and prepared site plan Ex.PW13/B at the instance of porsecutrix. She made enquiries regarding the present case. Ct. Manoj also joined the investigation. Accused was arrested vide arrest memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW9/B. Disclosure statement Ex.PW9/C of accused was recorded. IO further deposed that Ct. Bijender was called and he also joined investigation. Accused was got medically examined at GTB Hospital and sealed exhibits received from the hospital were seized vide memo Ex.PW9/D. All the exhibits were deposited in the malkhana and later on sent to FSL for examination and the report thereof are Ex. PW17/B and Ex. PW17/C.
20. PW13 prosecutrix deposed that she had five children but one of them expired. She deposed that her husband is a TSR driver and her mother in law is running a dairy on the ground floor of her house. She further deposed SC No. 42/13 State vs. Anil Kaushik Page 10 of 30 that she resides on the first floor and on the second floor, accused was residing alongwith his wife and two children. Prosecutrix also deposed that whenever accused found her alone in the house, he used to rape her. She deposed that accused also threatened to kill her husband and children if she will disclose the incident to any person. She further deposed that on 08.08.2012 at about 2.30 pm, she was alone in the house and accused forcibly committed sexual intercourse with her after removing her salwar and pushing her on the floor. She deposed that she narrated the incident to her mother in law and accused apologised before her mother in law and assured her that he would not commit such mistake in future. She further deposed that on 10.08.2012 at about 7.30 am, the accused again committed rape on her. She raised alarm and her mother in law came on the first floor. She also saw accused climbing on the stairs. She deposed that when she told the incident to her mother in law, accused beat her and said that he was son of bad character (badmas). She also deposed that a quarrel started and someone informed the police. She further deposed that police came and took her and the accused to the police station. She was taken to GTB Hospital for her medical examination but she did not tell the complete facts to the doctor as she was scared. Prosecutrix also deposed that she again went to police SC No. 42/13 State vs. Anil Kaushik Page 11 of 30 station and narrated the entire facts to the police and police recorded her statement Ex.PW13/A. Police again took her to the hospital for her medical examination. In the hospital she told the entire facts to the doctor and her samples and clothes were taken. She deposed that she had shown the place of incident to the police and site plan Ex.PW13/B was prepared. Accused was arrested. She identified her clothes Ex. P1 i.e. salwar, shirt and chunni in the court. She deposed that the clothes Ex. P1 are same clothes which she was wearing at the time of incident.
21. PW10 mother in law of the prosecutrix, deposed that the accused was residing on the second floor of her house as a tenant. She further deposed that her son is running an auto rickshaw and he is residing on the first floor of the house alongwith his wife (prosecutrix) and four children. She deposed that his son used to leave the house in the morning at about 5.00 am and used to come around 8.00 pm. She further deposed that on 08.08.2012, prosecutrix told her that the accused used to tease her and committed rape on her against her will. She deposed that accused raped her under influence of liquor. This witness deposed that she enquired from the accused regarding the incident on which he tendered his apology and assured her (PW10) not to repeat this act in future. She further deposed SC No. 42/13 State vs. Anil Kaushik Page 12 of 30 that on 10.08.2012 accused again committed rape on prosecutrix by force and a quarrel took place. She (this witness) reached upstairs after hearing the quarrel. She also deposed that she saw the accused while going to his floor from the room of prosecutrix. She deposed that a quarrel took place with the accused and he took out a pistol and threatened to shoot them if they will raise alarm. Someone informed the police and police reached their house and took them to the police station. The prosecutrix was got medically examined by the police. She also deposed that brother of accused namely Sunil Kaushik visited their house under influence of liquor and threatened them to change their statement otherwise her son and other family members would be killed.
22. PW12 husband of the prosecutrix deposed that he is a TSR driver by profession. He alongwith his family members is residing on the first floor of the house. He deposed that accused alongwith his wife and children was residing on second floor of the house. He further deposed that on 10.08.2012 as in routine, he left his house at about 5.00 am and came back at house at about 7.00 pm. He came to know that accused who was a tenant in his house had raped his wife and had beaten her.
SC No. 42/13 State vs. Anil Kaushik Page 13 of 3023. After completion of prosecution evidence, statement of accused u/s 313 Cr. P.C was recorded in which he denied the case of the prosecution. He further stated that there was a money transaction between him and the family of prosecutrix. The family of prosecutrix had borrowed a sum of Rs. 7 lacs from him in the year 2011 and when he demanded his money back, he has been falsely implicated in the present case.
24. The accused did not lead any evidence in his defence.
25. I have heard arguments addressed by learned Additional Public Prosecutor for the State and learned defence counsel.
26. The evidence on record shows that at the time of alleged incident, the prosecutrix alongwith her husband and children was residing at the first floor of her house. Mother in law of the prosecutrix was also staying with them and she was running a dairy on the ground floor of the premises. Accused, who is cousin of husband of prosecutrix was staying as tenant with his family in the house of mother in law of the prosecutrix.
SC No. 42/13 State vs. Anil Kaushik Page 14 of 3027. In her statement in the court, prosecutrix has stated that she was forcibly raped by accused. Her evidence finds support from the report of her medical examination MLC Ex.PW3/A which was got done on the same day.
28. It has been contended on behalf of accused that present case is an instance of false accusation which has been made on account of a monetary dispute between the accused and the family members of the prosecutrix. In his statement u/s 313 Cr. P.C, also the accused has stated that the prosecutrix and her family members had borrowed a sum of Rs. 7 lacs from him in the year 2011 and when he demanded his money back, the prosecutrix and her family members including her husband have falsely implicated him in the present case.
29. PW10 mother in law of the prosecutrix in her cross examination admitted that her family was liable to pay a sum of Rs. 3 lacs to the accused out which Rs. 1 lac was paid to him prior to the registration of the case and Rs. 1, 74,000/- was paid to the accused after registration of the case. PW12 husband of the prosecutrix also admitted that he was liable to pay Rs. 3 lacs to the accused. He deposed that he paid a sum of Rs. 2,27,000/- to the SC No. 42/13 State vs. Anil Kaushik Page 15 of 30 accused after the incident. The prosecutrix has also admitted that there was a money transaction between her husband and the accused and her husband had paid Rs. 2,00,000/- to Rs.2,25,000/- to the accused after the incident through brother of accused namely Sunil Kaushik. PW10 (mother in law of the prosecutrix) and PW12 (husband of the prosecutrix) were suggested during their cross examination that they were liable to pay a sum of Rs. 7 lacs to the accused but this suggestion was denied by them. No such suggestion was given to the prosecutrix.
30. Above would show that there was a money transaction between the accused and the family members of the prosecutrix and the husband of the prosecutrix owed some money to the accused on the date of alleged incident i.e. 08/10.08.2012. However, there is also no dispute that even after the dates of the alleged incident i.e. 08.08.2012 and 10.08.2012, the amount owed by the family members of the prosecutrix was continued to be paid to the accused. Since the family of the prosecutrix continued to repay the payment of loan even after the dates of alleged incidents and during the period of custody of accused, I am of the opinion that the testimony of the prosecutrix cannot be disbelieved on this ground. If the prosecutrix was to make an allegation on account of money transaction, there was SC No. 42/13 State vs. Anil Kaushik Page 16 of 30 no reason for return of amount to the accused through his brother after the date of alleged incident. Moreover, money disputes are double edged reasons and may well be the motive for commission of such type of offences.
31. It is next contended that the evidence on record shows that the prosecutrix was got medically examined twice on 10.8.2012 firstly at about 1.30 pm by Dr. Parmeshwar Ram vide MLC Ex.PW1/A. This MLC records that at that time, the prosecutrix was brought to the hospital with the alleged history of assault. At that time, the prosecutrix had not disclosed about the alleged rape but only referred to a quarrel. Thereafter the prosecutrix was again taken to GTB Hospital at about 11.15 pm on the same day i.e. on 10.08.2012 with the alleged history of rape and thus she was medically examined by PW3 Dr. Nidhi Arora. First time, the prosecutrix was brought without alleged history of sexual assault and thus the gynecological examination of the prosecutrix was not got conducted. It was only during the second examination that the prosecutrix was subjected to internal gynecological examination It is contended that this shows that the allegation of sexual assault/rape made by the prosecutrix is an afterthought and is a cooked up story.
SC No. 42/13 State vs. Anil Kaushik Page 17 of 3032. The prosecutrix in her deposition stated that she did not inform about the sexual assault in the first instance as she was scared. PW3 Dr. Nidhi Arora who had medically examined the prosecutrix, in her cross examination also deposed that as per her recollection, she had asked the prosecutrix when she was brought second time as to why this fact was not disclosed by her in the morning, on which, the prosecutrix replied that her husband was not present in the house and she was afraid at that time.
33. I am of the opinion that statement of the prosecutrix cannot be rejected on the ground that she did not disclose about the history of sexual assault to the doctor in the first instance. Rape is an offence which may cause stigma on the reputation of victim. In such circumstances, explanation given by the prosecutrix that she was afraid and did not disclose the sexual assault cannot be rejected outrightly. Evidence on record also shows that the husband of the prosecutrix is a TSR driver who used to leave the home in the morning between 5 to 6 am. The prosecutrix would have gathered strength to disclose the facts after knowing the views of her husband on the subject. Moreover, the statement of the prosecutrix needs to be seen in the light of her medical evidence which shows injuries all over her body including her breast and SC No. 42/13 State vs. Anil Kaushik Page 18 of 30 near her private parts.
34. It is also contended on behalf of accused that FSL report dated 27.12.2012 Ex.PW17/B also does not support the case of the prosecution. It is pointed out that said report shows that no human semen was detected on the vaginal swab, finger swab, vaginal swab, vaginal swab smear, cervical mucus swab,pubic hair clippings, vaginal washing, rectal swab, rectal swab smear, oral swab, oral swab smear and clothes of the prosecutrix. It is contended that this evidence is an indicative of the fact that there was no sexual intercourse between the prosecutrix and the accused.
35. Absence of semen on the body and the clothes of the prosecutrix by itself cannot be a ground to reject the case of prosecution. In order to constitute offence of rape punishable u/s 376 IPC, penetration of male organ in female organ is sufficient and ejaculation is not essential. In this regard reference can be made to the judgment reported as Beeru vs. State [judgment dated 11.12.2013 in CRL.A. 1079/2010] wherein the Hon'ble Delhi High Court held as follows.
"24. The Division Bench of this court in the matter of Pappu vs. State of Delhi 2010 (1) SC No. 42/13 State vs. Anil Kaushik Page 19 of 30 Cri. LJ 580 (Delhi) dealing with similar medical condition of the prosecutrix of six years of age whose hymen was also found torn and her vagina admitted two fingers easily and no injury found on private part, after placing reliance on the medical jurisprudence (5th Edition by Dr. R. M. Jhala and BB Raju) held as under:-
"The reason is obvious. Medical jurisprudence evidences that in adolescent girls the hymen is situated relatively more posteriorly and for said reason there is a possibility of rape being committed without the hymen being torn; the converse whereof would be that if the hymen of an adolescent girl is torn due to rape, the penetration has to be a deep penetration. The medical jurisprudence guides that the labia majora are the first to be encountered by the male organ and they are subjected to blunt forceful blows, depending on the vigour and the force used by the accused and counteracted by the victim. The narrowness of the vaginal canal makes it inevitable for the male organ to inflict blunt, forceful blows SC No. 42/13 State vs. Anil Kaushik Page 20 of 30 on the labia and such blows lead to contusion because of looseness and vascularity. The feature of such contusion is revealed against the pink background of the mucous membrane dark red contusion being evident to the naked eye"
25. As can be seen from the aforesaid authoritative view of the experts in the medical field as referred to by the Hon'ble Division Bench and by Justice Verma Committee, the condition of hymen being torn of the prosecutrix may not necessarily mean a previous sexual intercourse and conversely the hymen being not torn also does not necessarily mean that there was no sexual intercourse. In some of the females hymen can also be missing and in such cases also, mere absence of hymen will not necessarily prove the previous sexual intercourse and likewise will also not rule out the previous sexual assault. Much would depend on the quality, reliability and credibility of the testimony of the prosecutrix and if the same is found to be of unimpeachable character, the conviction of the accused can be based on the same even without looking for corroboration from the medical evidence. The SC No. 42/13 State vs. Anil Kaushik Page 21 of 30 same principle equally applies to the evidence of the Forensic Science as the same is also not a substantive piece of evidence and may not support even otherwise clear and cogent evidence of the prosecutrix. It is also a settled legal position that for proving the offence of rape, penetrative sexual assault may not necessarily result in ejaculation and therefore in such cases there can hardly arise any question of stains of semen being there on the clothes of the victim and the perpetrator of the crime. Thus the contention raised by learned counsel for the appellant on this aspect also lacks merit and the same is rejected." (emphasis added)
36. In Luv Kush vs. State (NCT) of Delhi [judgment dated 31.01.2011 in Criminal Appeal No.235/2008], the Hon'ble Delhi High Court observed as under:
"There is no rule of law that the testimony of a rape victim cannot be acted upon without corroborating any material particulars. Prosecutrix in a rape case is a victim and she is not comparable with an accomplice to the crime. Her status is that of a victim of crime and her testimony is to be appreciated on the principle of probabilities, just like the testimony of any other witnesses.
SC No. 42/13 State vs. Anil Kaushik Page 22 of 30Her testimony can be acted upon by the court without corroboration unless there are compelling reasons which necessitate looking for corroboration of version of the prosecutrix. The court should not find any difficulty in acting on the testimony of a victim of sexual assault to convict the accused when her testimony inspires confidence. Admittedly, the prosecutrix was a young girl aged about 09 years at the time of occurrence and the appellant, as per the case of the prosecution, was an adult. Therefore, it is natural that she could not have physically resisted him. As such, absence of physical injuries on her person cannot be taken as a circumstance to negate the theory of rape. As regards of FSL report Ex. PW8/C, the salwar and Kamiz of the prosecutrix were sent for analysis and no traces of blood and semen were found on the same. The absence of traces of blood and semen on the clothes of the prosecutrix by itself is no reason to assume that no rape was committed. Section 375 of the Indian Penal Code defines rape and the Explanation to the said Section provides that even a slightest penetration constitutes the sexual intercourse necessary to the offence of rape. From this, it is apparent that to constitute SC No. 42/13 State vs. Anil Kaushik Page 23 of 30 an offence of rape, it is not necessary for the accused to have full blown sexual intercourse resulting in substantial penetration in the vagina and ejaculation of semen. Therefore, absence of blood or semen on the clothes of the prosecutrix or the vaginal swab does not rule out the theory of rape." (emphasis added)
37. In the present case, the statement of prosecutrix to my mind, inspires full confidence. Statement of the prosecutrix finds support by her medical evidence. MLC Ex.PW3/A of the prosecutrix shows that a bruise of 1x1 cm (red over right breast around areola) and bruise marks over right thigh were found on the prosecutrix. Another 1x1 cm abrasion was seen in area over perineum (right side) 1.5 cm from introitus. The local examination of the body of the prosecutrix vide her MLC Ex.PW1/A also shows multiple abrasions over left hand dorsal aspect with swelling of left little finger, multiple abrasion over right hand dorsal aspect, bruises over right lower thigh 2 cm x 2cm, abrasion over knee joint, abrasion right cheek 3cm x1cm.
38. The injuries on the right breast, near to the private parts and all over her body supports the deposition SC No. 42/13 State vs. Anil Kaushik Page 24 of 30 of the prosecutrix that she was raped by use of force on 10.08.2012.
39. The prosecutrix is not an accomplice to the crime. No corroboration is required to support the testimony of the prosecutrix. Conviction can be based only on the sole testimony of the prosecutrix if it inspires confidence. In State of Punjab v. Gurmit Singh [1 (1996) 2 SCC 384], the Hon'ble Supreme Court observed as follows:
"8... 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. 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 SC No. 42/13 State vs. Anil Kaushik Page 25 of 30 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 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 complaints of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to SC No. 42/13 State vs. Anil Kaushik Page 26 of 30 be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. 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 to suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstance 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." [See also Santhosha Moolya and Another vs. State of SC No. 42/13 State vs. Anil Kaushik Page 27 of 30 Karnataka [(2010) 5 Supreme Court Cases 445]
40. In the present case, It may be noted that the statement of prosecutrix finds support from the MLC of the prosecutrix Ex. PW3/A and Ex. PW1/A in which she was found having injuries all over her body.
41. The contention of the learned counsel for the accused that there is delay of about 16 hours in lodging the FIR by the prosecutrix is also of no help to the accused. The prosecutrix in her testimony has deposed that she was also taken to the hospital in the morning by the police but she did not disclose all the facts to the doctor as she was scared. After discussing the facts with her husband and mother in law, she again went to the police station and narrated the entire incident to the police and then she was medically examined and narrated the entire incident to the doctor.
42. Rape is an offence which cause stigma to the reputation of the victim for life and thus a victim may not disclose true facts at the first instance. In the case reported as State of UP vs. Manoj Kumar Pandey [(2009) 1 SCC 72], the Hon'ble Supreme court has observed that consistent view of that court has been that the normal rule SC No. 42/13 State vs. Anil Kaushik Page 28 of 30 regarding the duty of prosecution to explain the delay in lodging FIR and the lack of prejudice and / or prejudice caused because of such delay in lodging of FIR does not per se apply to cases of rape. In Ashok Surajlal Ulke vs. State of Maharashtra [judgment dated 27.01.2011 in Crl. Appeal No. 251/06], the Hon'ble Supreme Court observed that in case of rape, the fact that the FIR has been registered after a little delay is of very little significance.
43. In view of above discussion, I am of the opinion that the prosecution has been able to establish its case for the offence punishable u/s 376 IPC that the prosecutrix was forcibly raped by the accused on 10.08.2012 and thus he is liable to be punished u/s 376 IPC.
44. The accused is also facing trial for the commission of offences punishable u/s 506 (II)/323 IPC. The evidence on record shows that the prosecutrix was threatened by the accused to kill her and her family members if she will disclose the incident to any person. The prosecutrix has suffered various injuries at the time of incident as noted above. PW1 Dr. Parmeshwar Ram in his evidence opined that the injuries mentioned in the MLC are not possible by fall and the injuries were caused by some blunt object. Under these circumstances, accused is also SC No. 42/13 State vs. Anil Kaushik Page 29 of 30 liable to be convicted for the offences punishable u/s 506 (II)/323 IPC.
45. The present incident pertains to the year 2012 thus the present case would be governed by the law as existed at that time.
46. In view of above discussion, it is held that the prosecution has been able to prove its case beyond reasonable doubt against accused that he has committed offences punishable u/s 376/506(II)/323 IPC. Thus, the accused Anil Kaushik is convicted for the offences punishable u/s 376/506(II)/323 IPC.
Announced in the open court on 24.09.2014 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
SC No. 42/13 State vs. Anil Kaushik Page 30 of 30