Delhi District Court
State vs 1.Rajiv S/O Lallu Lal on 29 May, 2009
1 ID No.02402R0289082004
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
KARKARDOOMA : DELHI
SC No. 133/09
FIR No. 266/04
PS Kalyan Puri
u/s 376/120-B IPC
State versus 1.Rajiv s/o Lallu Lal
r/o Shamshan Ghat,
Gazipur,Delhi.
2. Brahmanand s/o Mool Chand
r/o Shamshan Ghat,
Gazipur,Delhi.
Date of institution :18.9.04
Judgment reserved on : 26.5.09
Date of final decision : 29.5.09
JUDGMENT
1. The case of the prosecution in nutshell , is that at around 1.15 p.m. on 13.05.2004 prosecutrix (PW-1) Smt. Mehtab made a complaint at police post Kondli about rape committed upon her by accused Rajiv and Brahmanand at about 12.15 noon at Ghazipur, behind Shamshan Ghat in the bushes of Kikar, against her will and without her consent. IO(PW8) prepared rukka Ex.PW8/A on the basis of statement Ex.Pw1/A of PW1 whereupon FIR NO.266/04 PS Kalyanpuri u/s 376(2) (g)/120-B IPC Ex.Pw4/A was registered. On completion of investigation,IO filed the chargesheet in the court.
2 ID No.02402R02890820042. Upon committal of the case to the Court of Sessions, charge for the offence u/s 376 IPC against accused Rajiv and charge u/s 109 read with section 376 IPC against accused Brahamanand was framed on 8.11.04.On 13.10.06, Ld. Predecessor of this court amended the charge u/s 376 (2) (g) IPC against both the accused . Accused pleaded not guilty to the charge and claimed trial.
3. In order to prove its case prosecution examined 11 witnesses . PW-1 Smt. Mehtab, the prosecutrix, PW-2 const. Ravinder, PW-3 const. Narender,PW-4 lady const. Reena, HC Ajab Singh was examined again as PW-4(now PW4-A), PW-5 Dr. Chandra Kanta, PW-6 Abdul Wahid, PW-7 const. Shiv Kumar, PW-8 SI Dharambir Gautam, PW-9 Ms. Anita Chhari and PW-10 DR. Parmesh Sharma, Sr. Medical Officer, LBS hospital.
4. On conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C was recorded. In the statement, accused persons denied the incriminating evidence put to them. They stated that prosecutrix came at the shop of Rajiv to purchase clothes as she had to give the same to some tantrik . Rajiv handed over a piece of cloth to her and when he demanded money from her, she refused to give money and became aggressive. She got a false case registered against them. Accused stated that they have been picked up by the police from the shop of Rajiv and it was a false case registered on the complainant of the prosecutrix. They 3 ID No.02402R0289082004 are innocent and falsely implicated in this case. The accused produced one defence witness Sh. Sarvesh Kumar.
Dw1 Sh.Sarvesh Kumar produced on behalf of accused deposed that during the time of incident, he was working as a pandit in Ghazipur Shamshan Ghat. At about 10a.m.,Smt.Mehtab, w/o Nazar Mohd. came at the shop of Rajeev in cremation ground, Gazipur. At that time Rajeev, Brahamanand and he himself were present at the shop. He deposed that Brahamanand was the servant of Rajeev. Dw1 deposed that when Smt.Mehtab did not pay the amount of purchasing the goods , some altercations took place between accused and complainant and she slapped Rajeev and a quarrel had taken place. Dw1 was cross examined by ld.Additional PP. He deposed that he did not know where Rajeev and Brahmanand had taken Mehtab. He did not know Smt.Mehtab and never seen her. Dw1 deposed that he did not know what Rajeev and Brahamanand had done with Smt.Mehtab and he did not know where Rajeev and Brahamanand were present at 12.15p.m. on 13.5.04. Dw1 admitted that he had not seen Rajeev and Brahamanand after 10a.m. and on that day he was not present with Rajeev and Brahamanand in the bushes behind Ghazipur Shamshan Ghat. Dw1 was inside the Shamshan Ghat at that time and did not know as to what had happened in the bushes as he was not there.
5. I have heard submissions advanced by Sh. Taufiq 4 ID No.02402R0289082004 Ahmed, ld. Additiona PP for State and Sh. Abdul Sattar, Ld. Amicus Curiae for accused persons and have perused the material on record carefully .
6. Sh. Taufiq Ahmed, Ld. Additional PP for State submitted that on 13.05.2004 complainant Smt. Mehtab approached one Baba who was sitting near the wall of school and narrated her problem regarding her husband so that her trouble should come to an end. The Baba told him to bring dust/clay from the Kabristan (Cremation ground) so that he may do something about her. Thereafter, she went towards the cremation ground where both the accused persons namely Rajiv and Brahmanand met her. It was 10.30 am. Both the accused namely Rajiv and Brahmanand took her to near a Mazaar outside the cremation ground. It has been deposed by the victim that she was dragged behind the bushes by both the accused persons. Pw1 has also stated that accused Brahmanand caught hold of her hands and accused Rajiv raped upon her. She also testified that Brahamanand had helped Rajiv whereas accused Rajiv had committed rape upon her. Accused Rajiv had also torn her clothes. She was threatened that in case she raise hue and cry other 10/12 person would also come there. The victim had correctly identified both the accused persons before the court. Ld. Additional PP argued that there is no dispute regarding identify of accused persons as the witness has correctly identified both the 5 ID No.02402R0289082004 accused persons. The complainant had also taken the police to the spot where the offence of rape was committed and the pieces of bangles, the key of the lock of the house of complainant were recovered from the spot which also shows the presence of the victim at the spot and since the broken pieces were collected at the spot which shows that there was scuffle between accused persons and victim . The shirt and Angocha which were worn by accused at the time of this offence were also recovered from the room at the instance of prosecutrix and seized by the police vide Ex.PW1/A. The clothes of prosecutrix, vaginal swab, slides were also seized by police and were sent to FSL regarding which it was opined by PW9 scientific expert that semen was detected on Ex.1a, 1b,2a,2b,3 and 5, blood was detected on Ex.P4. PW9 proved her report Ex.PW9/A. Ld.Additional PP submitted that she was not cross examined by Ld. defence counsel, hence her testimony stands unrebutted . All the police official testified before the court regarding investigation done by them. Nothing has come in their cross-examination which shows that either of the accused has been falsely implicated in this case. He submits that the prosecutrix was threatened that if she made any noise or cry other person will also come to the spot. The victim was already depressed due to her problem and the accused persons took the benefit of that situation and moreover, she was also threatened by accused persons, so she was compelled to keep 6 ID No.02402R0289082004 quite but after being free from the clutches of accused persons she went to the police station immediately and lodged the matter to the police. It is further argued by ld.Additional PP that there is no delay in lodging the FIR and narration of the incident to the police , hence, both the accused persons are liable to be convicted for the gang rape by virtue of Explanation-I of section 376(g)(2).PW-5 Dr. Chandrakanta who examined the victim and the MLC of prosecutrix also shows that she was assaulted by some person. On general examination fresh mark of abrasion were present on both elbows and on lateral side of legs. PW-5 Dr. Chandrakanta also found pieces of grass and leaves on both breasts which also corroborates the narration of prosecutrix. The pieces of grass and leaves remained present upto her examination in the hospital. All the witnesses identified the case property correctly which was taken in to possession at the spot. Ld.Additional PP for the state that prosecution has proved its case beyond the shadow of reasonable doubts .
7. On the other hand, Sh. Abdul Sattar, Ld. Amicus Curiae for accused submitted that no offence has been committed by the accused . Prosecutrix was not in a position to tell the name of the owner of shop under whom she was working. He submitted that she did not know the name of first husband. The prosecutrix, was aged about 45 years and was having a daughter aged about 18 years at the time of this incident. In cross examination ,Pw1 7 ID No.02402R0289082004 deposed that she was firstly married in the year 1984 and got divorced from her first husband. The prosecutrix admitted in cross examination that her sister Naseem used to deal in the business of smack and her sister and four nephews used to raise suspicion on her conduct/character Ld. Amicus Curiae further submitted that the distance between mazaar and incident is about 100 yards but no one was called from mazaar. There is a Fish Market hardly at a distance of about 20 yards from the spot but none came forward. No one was called from the nearby residential houses by the IO to corroborate the version of prosecutrix. The prosecutrix did not remember the exact date of this incident. She did not know the month and year of the incident. As per rukka the time of this incident is 12.15 noon on 13.05.2004, whereas, complainant has stated that she had come to the PS and lodged her complainant at about 11.15 am. There is a busy road near the Shamshan Ghat but no one was called by the prosecutrix or by the police as a witness .As per the statement of prosecutrix four persons including both the accused were available at the spot. It has not been ascertained about remaining two persons. He submitted that the prosecutrix has not raised any alarm when she was dragged into a room or otherwise. In cross examination of prosecutrix Pw1 stated that at the time of committing rape there were three persons but nothing was stated about the third person or his role neither to the police nor the 8 ID No.02402R0289082004 doctor etc. Asper her statement police apprehended three persons with regard to this case but Pw1 has not said anything about the third person. Ld.defence counsel submitted that it is not humanly possible that a person would caught hold of the mouth of the prosecutrix with one hand and commits rape. There are no abrasion, or injury on the body of the prosecutrix to show that the prosecutrix objected or tried to rescue herself. It is submitted that the broken bangles and the worn clothes allegedly seized by the police were planted by the police. No public witness has been joined . The prosecutrix testified in her cross examination that she did not remember if her broken bangles were seized by police or not. Since, nothing such happened at the spot that is why she did not know whether the broken bangles and keys of her house were taken into possession or not. It is further argued that in order to implicate the accused falsely in this case the prosecutrix has produced her clothes before the IO later on to prove the case against the accused. The prosecutrix is habitual to sexual intercourse and there is nothing on record to show that accused Rajeev with the help of Brahamanand committed rape upon her. Sh. Sattar Ld. Amicus Curiae referred Pratap Mishra Vs. State AIR 1977 SC 1307 and submitted that in this case , it was held that "where fully grown up lady habitual to sexual intercourse was raped by number of persons and had no injury on her private parts or on body it will be a case of consent." He 9 ID No.02402R0289082004 further referred Vinod Kumar Vs. State 1987 Criminal Law Journal 154 MP to show that where one of the accused hold the girl's hand while other accused committed rape,this fact will negative of her being a consented party. Ld. Amicus Curiae relied upon 1972 CRLJ 270 to show that when no injury was found on the body of girl or boy, it will be inferred that sexual intercourse was not against her will." Ld. Amicus Curiae submitted that PW- 3 const. Narender Kumar did not remember the colour of clothes and DD No. of arrival and departure in the police station which shows that he did not join the investigation and the prosecutrix did not disclose the name of the rapist to const. Narender upto 11.15 am. He submitted that PW-4 lady const. Reena she did not remember the time when the prosecutrix was taken for medical examination and she does not know the gender of the doctor and his name which shows that she did not join the investigation and was cited as a witness in this case later on. PW-4 HC Ajab Singh admitted that he received rukka from SI D.V. Gautam at about 2.00 pm and he took about 30 minutes in recording the FIR whereas the record shows that the rukka was handed over to him at about 2.10 PM and there is contradiction of about 10 minutes in handing over rukka to the duty officer by SI D.V. Gautam. PW-6 Abdul Wahid examined by the prosecution is a planted witness. He has not supported the case of prosecution on some material points and was cross examined by ld. APP for the State. Ld. 10 ID No.02402R0289082004 Amicus Curiae further submitted that PW-8 IO of the case did not investigate the case properly. He did not record the statement of public witness, priest in the Shamshan Ghat or any other passers by or witnesses from Fish Market. He submitted that after arrest of accused persons the information regarding arrest of accused and the telephone number is mentioned in the arrest memo of the persons to whom the information of the arrest was allegedly given but being the IO of the case he did not know the name of those persons to whom the information was given. Ld. Amicus Curiae submitted that DW-1 Sarvesh Kumar has proved that the prosecutrix had come to purchase clothes from the shop of the accused Rajiv where Brahamanand was also working as servant. The accused Rajiv asked for Rs.500/- as payment of the cloth but prosecutrix had refused to give Rs.500/- and even slapped accused Rajiv and offered Rs.10/- only for the cloth on which some altercation between accused and prosecutrix took place and being aggrieved by this incident the complainant ran towards PS and lodged the matter with the police with the allegation that accused Rajiv had committed rape upon her with the help of accused Brahamanand. Ld.defence counsel has also relied upon Dilip and another vs State of MP . Ld. Amicus Curiae has submitted that both the accused persons are innocent and have been falsely implicated in this case.
8. In order to appreciate the submissions, it will be useful 11 ID No.02402R0289082004 now to summarize the evidence adduced by the prosecution witnesses. PW-1,the prosecutrix deposed that on 13th about one year back, she approached one Baba found sitting near wall of the school and asked him any method by which she could call her husband back as he was not residing with her for the last many years and to put an end to her troubles . Baba told her to bring some dust/clay from Kabristan (cremation ground) so that he could do something about her. Pw1 went cremation ground . Both the accused, Rajiv and Brahmanand were found standing near cremation ground along with 10-12 other persons. Pw1 proceeded inside the cremation ground at about 10.30 am. and she asked for dust/ashes from them. Accused took her inside a room and was made to sit on a bed. Pw1 further deposed that the accused Rajiv asked about her problem and after hearing her story , in order to remove her problem, asked her to bring one black colour cloth to do the needful. Rajiv also told her that Baba would not be able to solve her problem. Pw1 became happy and came to her house and brought a cloth from her house and came back at about 11.30 or 11.45 am. Pw1 deposed that when she came back there, only 4 persons were found there . Both the accused took her near the Mazaar outside the cremation ground in a fish market. Both the accused dragged her behind the bushes. In the examination-in-chief recorded on 24.2.05, she further deposed that accused Brahmanand caught hold of her hands and accused 12 ID No.02402R0289082004 Rajiv raped upon her. The accused Rajiv torned her clothes. She was having menstrual period at that time.Accused Rajiv had demanded Rs.500/- for doing the needful before she was raped. She offered him Rs.10/- as she had not brought the money as demanded by him. PW-1 lodged a report with police vide Ex.PW1/A. She was medically examined vide MLC Ex.Pw5/A. She testified that bangles and clothes were seized by the police vide memo Ex.Pw1/B and both the accused persons were arrested. Police also seized one agocha and one shirt from the spot belonging to the accused at the time of committing rape upon her vide memo Ex.Pw1/G. Pw1 identified her clothes including salwar,shirt ,brazier and chunni which were worn by her at the time of incident which were taken into possession by the police vide memo Ex.Pw1/H. In the further cross-examination recorded on 20.5.09 Pw1 deposed that she reiterated the date of incident as 13th and time about 10/10.30a.m. She denied that she had gone through her statement or somebody had tutored her. She maintained that she had gone to cremation ground to bring some ashes as told to her by one baba as she was not having good relations with her husband Nazar Mohd.Accused and many other persons were sitting in a sort of veranda of shamshaan ghat when she had gone . The accused present in the court told her that she should accompany them on the back side of shamshaan ghat, where she will be provided the ashes. Rajiv told her that he will 13 ID No.02402R0289082004 solve her problem. Rajiv had initially told her that he will charge Rs.10,000/- but ultimately he stated that he will agree for Rs.500/- but she told him that she was having only Rs.10/- with her. All these talks happened behind the bushes. She accompanied the accused persons voluntarily to procure ashes upto the road near the gate but thereafter the bushes started and it was loneliness. At that time she had apprehension of fear whereupon one of them caught hold of her hand and took her behind the bushes against her wishes but she could not say which of the three persons had caught hold of her. One of the accused i.e. Rajiv also gave her three cloves (long) in her hand and took her behind the bushes who was harassing and troubling her much and he committed rape upon her. PW1 testified that accused Rajiv had made her lay down on the garbage/ ashes and bhusa(kuda) lying there. Accused Rajiv had put his hands on her mouth and opened her salwar and committed rape with her. Brahamanand was present there. She denied that Brahamand left her alone there .8-10 persons were watching the incident from above the boundary wall. Brahamanand was cleaning the bushes. Rajiv was threatening her and committed rape upon her. She deposed that the third person was left by the police. She came to know about the names of culprits after they were arrested by the police in the police station at about 12/1p.m. She was medically examined at about 3/4p.m.She had gone to police station and the police 14 ID No.02402R0289082004 accompanied her in their vehicle to the place of occurrence and arrested the accused and other two persons who were seeing the incident. She deposed that accused Brahamanand was only assisting the accused Rajiv in cleaning the bushes. She deposed that at the place of occurrence ashes/ mud/ dried sticks and leaves of grass and garbage was lying which had stuck to her clothes and body. Pw1 deposed that her chunni and kurta were torned during the commission of offence by accused Rajiv who was threatening her . He was asking her that she should willingly agree to give consent to sexual intercourse, otherwise, she will bear the consequences. She had tried to rescue herself but could not succeed as she was alone. She had never seen the accused persons prior to the day of incident and accused Rajiv had slapped her when she was taken behind the bushes. She deposed that she slapped Rajiv in the police station only. She denied the suggestion that only a quarrel had taken place between her and the accused who were demanding Rs.500/- for solving her problem with her husband and she had offered only Rs.10/- whereupon Rajiv had slapped her .She stated that she was wearing two glass bangles which were were broken and her keys were left there during the incident at the spot which were seized by police later on from the spot .She had identified the same. She deposed that her sister earlier used to sell smack pudiyas to drug addicts. She was having four children and her sister used to keep 15 ID No.02402R0289082004 smack pudiyas in the pockets of her children and due to this reason her relation with sister were not good and there was a quarrel between them . She started residing at the separate place after this incident as her sister had started taunting her because of this incident and she had shifted to separate place four years back. She deposed that accused were not her enemies and there were no reasons for her to falsely implicate the accused. On re- examination, she stated that she was disturbed, therefore, she was not sure whether accused Brahmanand had caught hold of her hands or third person had caught hold of her hands but she was sure that accused Brahmanand and other accused person were cleaning the bushes and were witnessing the incident. Other persons were seeing the tamasha and no one came to her rescue.PW-2 const. Ravinder deposed that SI D.V.Gautam collected MLC of prosecutrix from LBS hospital.After medical examination , Doctor handed over sealed parcels which were seized by the IO. The prosecutrix had pointed out the spot of offence at Ghazipur cremation ground. On her identification the accused Rajiv and Brahmanand were arrested . On the pointing out by accused Rajiv one shirt hanging on the wall and having spot of sweat and one Agocha having while stripes having stains of blood and sweat taken into possession vide Ex.PW1/G and one key ring having a key and some pieces of broken bangles were also taken into possession vide seizure memo Ex.PW1/B 16 ID No.02402R0289082004 which were identified by her at the time of deposition in the court.
9. PW-3 const. Narender Kumar deposed that on 13.05.2004 he was on picket duty near Kondli Nallah from 8 am to 8 pm along with const. Vinod. Around 1.00 pm the prosecutrix came there who was having leaves of kiker tagged on her neck and there were mark of scratches on her body and her clothes were torn. She informed that she was raped by some persons behind Shamshan Ghat at Ghazipur.Prosecutrix was taken to the police station by PW-3 in a rickshaw . PW-4 lady const. Reena took the prosecutrix to LBS hospital for her medical examination. Pw4 deposed that the prosecutrix took the police party at Shamshan Ghat, Ghazipur and identified the accused persons namely Rajiv and Brahmanand who were arrested. Doctor handed over her one sealed parcel containing clothes of the prosecutrix and two slides and one sample seals which were seized by IO vide memo Ex.PW1/H. PW4-A const. Ajab Singh deposed that on 13.05.2004 he recorded the FIR of this case vide Ex.PW4/A on the basis of rukka given to her by SI D.V. Gautam. PW-5 Dr. Chandra Kanta deposed that on 13.05.2004 she was working as senior resident at LBS hospital. She examined the prosecutrix Mehtab brought by one lady const. from police station with history of sexual assault by some unknown person. On general examination ,she found having fresh marks of abrasions 17 ID No.02402R0289082004 present on both elbows and on lateral side of legs . Pieces of grass and leaves were present on both breasts. She collected the clothes including salwar, dupatta, bra, vaginal swab and cervical swab. MLC Ex.Pw5/A of prosecutrix was proved by her .PW-6 Abdul Wahid deposed that on 13.05.2004 at about 10 or 10.30 am, he was present at Kalyan Puri, main road,near school wall. He deposed that one unknown lady came to him and told him that she was not happy, her husband had deserted her and started weeping. PW-6 asked her to arrange some soil from cremation ground. She left and did not come back. This witness was cross examined by the Ld. Addl. Public Prosecutor. He admitted that the name of that lady was stated by him in his statement as Mehtab. PW -7 const. Shiv Kumar deposed that on 13.05.2004 he took accused Rajiv for his medical examination at LBS hospital. He collected three parcels and one sample seal from hospital which were handed over to IO in the police station where same were seized by the IO. PW-8 IO/SI Dharamveer Gautam has deposed that on 13.05.2004 he was posted at PS Kalyan Puri. On that day prosecutrix came to the PS at about 1.15 pm along with const. Narender from Police post Kondli and gave her statement vide Ex.PW1/A. PW-8 prepared the rukka on the statement of prosecutrix vide Ex.PW8/A and produced the same before the duty officer who recorded the FIR vide Ex.PW4/A. He along with const. Ravinder went to LBS hospital and collected the MLC 18 ID No.02402R0289082004 of prosecutrix Ex.PW5/A and other sealed parcels containing clothes of prosecutrix, vaginal swab, slides and sample seal with the seal of LBSH, Khichripur. PW8 took the same into possession vide memo Ex.PW1/H. Thereafter he along with const. Ravinder, const. Reena and prosecutrix reached at cremation ground Ghazipur where the prosecutrix pointed out towards accused Rajiv as rapist and Brahamanand as his associate. Both were arrested in this case vide memos Ex.PW1C and PW1/D respectively and personally searched vide memo Ex.PW1/E and PW1/F respectively. One shirt of accused Rajiv was found hanging on a hook in the verandah in the cremation ground and one `Agocha' of accused Rajiv was also found lying on the ground on which there were stains of blood and sweat which were sealed by him and taken into possession vide seizure memo Ex.PW1/G.Thereafter, the prosecutrix led them to the back side of cremation ground i.e. in jungle adjacent to the wall of cremation ground and informed that accused Rajiv with the help of Brahamanand had committed rape upon her there. She lifted two pieces of bangles of black colour and one key of her house from the ground which were seized by the IO vide memo Ex.PW1/B. PW8 prepared the site plan on the instance of Mehtab vide Ex.PW8/B. PW-8 recorded the statements of other witnesses. The accused Rajiv was also sent for medical examination to LBS hospital in the custody of const. Shiv Kumar. He was medically 19 ID No.02402R0289082004 examined vide MLC No.3603. const. Shiv Kumar took 4 sealed parcels from the hospital containing underwear, slide of blood sample, semen sample of accused Rajiv and sample seal of LBS hospital. PW-8 took the entire parcels into possession vide seizure memo Ex.PW8/C. This witness also identified the aforesaid articles/clothes as Ex.P1 to P4. PW-9 Smt. Anita Chhari, Sr. Scientific Asstt., FSL, Rohini deposed that on 30.06.2005 the laboratory received 5 sealed parcels from SHO, PS Kalyan Puri vide letter no. 745/SHO/K Puri dated 28.06.2005 in connection with case FIR No. 266/04.She carried out blood examination and semen examination and prepared her biological report no.i.e. 2005/B-2522 and serology report Bio No. 545/05 and prepared detailed report vide Ex.PW9/A. PW-10 Dr. Parmesh Sharma deposed that on 13.05.2004 he was working as Senior Medical Officer. On that day he examined the patient/accused Brahamanand brought by const. Pramod Kumar. He found no visible fresh external injuries on naked eye examination vide MLC Ex.PE10/A. On the same day he examined the patient Rajiv brought by const. Shiv Kumar for medical examination with alleged history of rape. He found no fresh external injuries. On genital examination, pubic hairs were present, testis bilaterally descended and normal in size. Penis normal in size and prebuce were present, smagma absent. Cremestic reflex bilaterally present. He also deposed that there was nothing to suggest that 20 ID No.02402R0289082004 accused Rajiv was not capable of performing sexual intercourse. The MLC prepared by him was proved as Ex.PW10/B.
10. The law is well settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars conviction for an offence of rape can be based on the sole testimony of the prosecutrix, if the same is found to be natural, trustworthy and worth being relied on. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reasons the court finds it difficult to place implicit reliance on her testimony, if 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 has to be appreciated in the background of the entire case and the trial court have to be alive to its responsibility and the sensitivity while dealing with cases involving sexual molestations.'' In Shivaji Sahebro Bobade v.State of Maharashtra, AIR 1973 SC 2622 it was observed by their lordships of hon'ble Supreme Court that '' Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are 21 ID No.02402R0289082004 always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that '' a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent...''In short our jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.'' In Bharwada Bhoginibhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753,it was observed by their lordships of hon'ble Supreme Court that '' corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony 22 ID No.02402R0289082004 of a victim of sexual assualt in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is, to justify the charge of male chauvinism in a male dominated society. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated.On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assualt cases, such evidence cannot be expected in sex offences, having regard to the very nature of offence. It would , therefore, be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World. If the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no reason to 23 ID No.02402R0289082004 insist on corroboration except from the medical evidence, where having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is likelihood of her having levelled such an accusation on account of the instinct of self-preservation . Or when the 'probabilities factor' is found to be out of tune.''
11. This court finds no merits in the contentions of Sh.Abdul Sattar , ld.defence counsel which are rejected . This contention that prosecutrix is 45 years of age and did not know the name of her first husband or got divorced from her husband has no merits and is not relevant and will not help the accused in any way in this case. Similarly, if the prosecutrix could not give the date or month of the incident , it will not make any dent in the case of prosecution and it stands proved by overwhelming evidence on record that the offence was committed on 13.5.04. It will also not make any dent in the case of prosecution as far as these two accused are concerned , if there was third culprit also who has not been apprehended. There is no merits in the contention of ld.defence counsel that it is not humanly possible that a person would caught hold of the mouth of prosecutrix with one hand and commits rape. As per the medical evidence, there are injuries on the body of the prosecutrix. Therefore, this contention that there was no abrasion or injuries on the body of prosecutrix is against the record. Non-joining of any public witness in this type of a case will not make any dent in the case of 24 ID No.02402R0289082004 prosecution when the testimony of prosecutrix has remained unimpeached and has been corroborated by medical evidence as well as by the expert evidence of FSL. Other minor discrepancies pointed out by Sh.Sattar , ld.defence counsel only tend to show that the witnesses are deposing truly, when considered in the light of evidence in totality. Dilip and another vs State of MP AIR 2001,SC 3049 referred by Sh.Sattar, ld.amicus curie is not of any help to the accused . In that case the presence of blood stains was not confirmed by FSL or by the doctor who examined the prosecutrix and the maternal aunt of prosecutrix had given a different version whereas in this case the testimony of prosecutrix has remained unimpeached. Whereas defence evidence produced by the accused is of no help to them. Dw1 admitted that he had not seen accused after 10a.m. and he was not present in the bushes behind Gazipur Shamshan Ghat and he did not know what happened in the bushes as he was not there . On consideration of the evidence on record , this court finds that the prosecution has established the guilt of accused persons . The testimony of Pw1, the prosecutrix that the accused Rajeev had committed rape upon her remains unimpeached . Pw1 has testified that her clothes were torn ,bangles were broken .PW3 ct.Narender with whom prosecutrix met immediately after the incident at about 1p.m. has supported the version of PW1 that her clothes were torn, leaves of kiker found tagged on her neck, there were marks of scratches 25 ID No.02402R0289082004 on her body and was weeping. At the place of occurrence there were ashes, grass,garbage etc. She was wearing glass bangles , which were broken and got recovered. Pw5 Doctor who prepared MLC Ex.Pw5/A specified the history of 'sexual assault' by some unknown person thereon. On general examination, fresh marks of abrasion were present on both elbows and on lateral side of legs, pieces of grass and leaves were present on both breasts. In the cross examination Doctor deposed that injury marks were fresh. Pw9 Scientific Expert proved report Ex.Pw9/A. This report corroborates the testimony of prosecutrix. As per FSL report , human semen were detected on Exhibits 1A,1B 2A,2B,3 and 5. Vaginal swab was having human seman. Blood group A is found on the stains on underwear and cloth pieces. Accused Brahamanand accompanied Rajiv behind the bushes, cleaned the bushes . Thus, Brahamanand was instrumental in commission of act of rape by accused Rajiv upon prosecutrix . He provided physical as well as psychological support to Rajiv due to which prosecutrix could not muster the courage to resist the commission of offence or rescue herself from the clutches of accused Rajiv. Explanation 1 attached to section 376(2) IPC says that ''where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this section.'' The legal position is well settled that in a case of 26 ID No.02402R0289082004 gang rape, the proof of completed act of rape by each accused on a victim is not required. What is to be seen is, whether the accused persons had acted in concert . The conduct of the accused in this case shows a criminal sharing showing a certain measure of jointness in the commission of offence. Evidence shows that both the accused dragged prosecutrix behind the bushes. Both the accused took her near mazaar outside the cremation ground and Brahamanand caught hold of her hands. Pw1-prosecutrix denied that Brahamanand had left her alone. Pw1 stated that three persons were near her . Brahamanand was cleaning the bushes and Rajiv was threatening her .Brahamanand was assisting the accused in cleaning the bushes. In her further testimony , prosecutrix maintained that one of the accused caught hold of her and dragged her behind the bushes against her wishes. Prosecutrix explained that she was disturbed but she was very sure about the presence of accused Brahamanand and the fact that he was cleaning the bushes and thus playing a positive role in assisting the accused Rajiv in commission of offence. They acted in concert and in furtherance of common intention in committing this ghastly act of sexual assault on the prosecutrix. In view of his role, accused Brahamanand is squarely covered within the Explanation 1 of '' gang rape'' u/s 376(2) IPC.
12. In view of the foregoing reasons and considering the totality of material on record, this court is satisfied that 27 ID No.02402R0289082004 prosecution has succeeded in bringing home the guilt of both the accused namely Rajiv and Brahamanand u/s 376 (2) (g) IPC beyond the shadow of reasonable doubts. Consequently , both these accused are hereby convicted u/s 376 (2)(g) IPC .
Announced in the open court VINAY KUMAR KHANNA
on 29.05.2009 Additional Sessions Judge
04-East/Karkardooma : Delhi