Delhi District Court
State vs . Javed Page No. 1/21 on 22 September, 2016
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0081102014
SC No. : 106/14 and 1576/2016
FIR No. : 276/13
U/s. : 451/354B/376/511 IPC
PS : Govind Puri, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Javed
S/o Nizamuddin
R/o A65, Navjeevan Camp,
Govindpuri, New Delhi. .........................Accused
Date of Institution : 17.05.2014
Judgment reserved for orders on : 01.09.2016
Date of pronouncement : 19.09.2016
J U D G M E N T
Facts
1. On 02.05.2013, the prosecutrix ( name withheld to protect her identity) came at the police station Govind Puri, New Delhi and gave a complaint alleging therein that she and her brother do the private job. They leave the house at about 9.30 a.m and she comes at about 6/6.30 p.m. Her brother comes late. Till then, she remains alone in the house. She alleged that the accused lives in the back lane of her house. He is in habit of taking liqour. He quarrels with the people in the gali under the influence of liqour. She alleged that the accused Javed tried to talk to her many times finding her alone in the house and also stalked her. When she refused to talk to him, he abused her. Due to fear, she did not lodge the report.
FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 1/21 She alleged that on 02.05.2013, she returned from her office at about 7.30 p.m and was alone in the house. After sometime, the accused knocked at the door. She opened the door. The accused pushed and dragged her into the room where he gagged her mouth and threatened her to teach a lesson. He pinned her down on the bed. He then kissed her. He with an intention to commit rape, tried to remove her clothes. Somehow she pushed him and ran towards the door. The accused then ran away from the house. Due to shame, she did not tell the incident to her neighbours. When her brother returned, she told him the incident. He took her to the police station. She alleged that the accused forcibly entered her house with an intention to commit rape and he attempted to rape her. Investigation
2. On this complaint, the case was registered u/s 376/511/451/354B IPC. The accused was arrested at the instance of the prosecutrix. The accused and the prosecutrix were got medically examined at AIIMS. The statement of prosecutrix was got recorded u/s 164 CrPC. She was got counseled from the NGO. After the investigation, the accused was sent for trial for the offences punishable u/s 376/511/451/354B/354D IPC.
Charge
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 01.07.2014, prima facie case was made out against the accused u/s 451/354B and 376 r.w 511 IPC. Charge was framed. He pleaded not guilty and claimed trial. Prosecution Evidence
4. To substantiate its allegations against the accused, prosecution examined as many as ten witnesses.
FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 2/21 PW1 HC Satbir Singh recorded the FIR Ex. PW1/A. PW2 Dr.Latika Chawla did the medical examination of the prosecutrix vide MLC Ex. PW 2/A. She recorded the brief history of the incident narrated by the prosecutrix. She stated that the prosecutrix was not willing for her medical examination but was well oriented.
PW3 Ruksar was resident of the same locality. She stated that she knows the accused. He is a driver by profession. She stated that the accused used to take liqour and abuse the people in the locality. He however never misbehaved with her. She stated that she does not know if the accused committed any wrong with the prosecutrix. She stated that the prosecutrix never told her anything about the incident allegedly happened on 02.05.2013.
On being crossexamined by the Public Prosecutor, she denied that she had stated to the police that the accused used to harass the locality people. She denied that the prosecutrix had told her that the accused wanted to have friendship with her and had asked her to meet him on various occasions. She denied that on 02.05.2013, the prosecutrix had told her that the accused entered her house and tried to commit rape upon her.
PW4 Dr Deepak Prakash did the medical examination of the accused vide MLC Ex. PW 4/A. FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 3/21 He found him capable of performing sexual intercourse under normal circumstances. He also observed fresh external injuries on the person of the accused i.e pain and tenderness over left side of jaw, multiple reddish contusion clubbed together in the area of 3 X 1 cm behind and below left ear, three vertically placed reddish abrasions of 0.8 X 0.5 cms, 1.5 X 0.5 cms and 3.5 X .03 respectively intervening gap between first and second was 0.4 cm and second and third was 0.7 cm over the area of 3 X 3 cm over left shoulder, obliquely placed reddish abrasions of size 2.5 X 0.3 cm over left side of chest, 4 cm above and left to left nipple, tenderness over all the fingers of both the hands and around both the knees.
PW5 is the prosecutrix. She has testified on oath that after the death of her parents, she has been living with her younger brother. They work in a private company. She and her brother used to leave the house at about 9/9.30 a.m. She used to return at about 6/6.30 p.m. Her brother used to return late at about 7.00/8.00 p.m. She stated that the accused was her neighbour. She had seen him several times outside her house in drunken condition fighting and abusing the people of the locality.
She stated that about 10/12 days before, when she was going to her office, the accused met her on the way and tried to talk to her but she refused. He FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 4/21 also tried to meet her on the way several times but she avoided and ignored him. She stated that she had complained to her brother about the accused but did not file complaint against the accused because of his quarrelsome nature.
She stated that on 02.05.2013 at about 7/7.30 p.m, she returned from her office and was alone in the house. The accused knocked at the door of the house. She opened the gate and saw him there. She tried to shut the door but the accused pushed her inside and forcibly entered the house. He gagged her mouth, dragged her and started kissing her. He tried to disrobe her by pulling her kurta. She then applied force and pushed the accused aside. She ran out of the house to save her. The accused then fled away from the house. She stood on the road and started waiting for her brother who came after sometime. She narrated him the incident and then she alongwith her brother went to the police station where she gave her complaint Ex. PW 5/A. She was medically examined. On being crossexamined, she stated that she had family relations with her neighbour Ruksar. She admitted that the gali where she has been living is congested and crowded. She was using the mobile phone at that point of time. She admitted that there was water problem in their area; 10/12 families together used to call the water tanker; the family FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 5/21 which had not called the water tanker was not allowed to take water from the tanker; the tanker comes upto the main road where their street starts and her house comes first in the street; the house of the accused is after her house. She admitted that on 01.05.2013, Javed and some of the families had called the water tanker which stood on the main road near her house; from the tanker, she had taken water as a result, heated arguments took place between her, accused and his grand mother. She denied that she had threatened the accused to face dire consequences and said 'kal tak natija bhugtane ke liye tyaar rahiyo' and then she filed the complaint to take revenge from him after concocting a false story. She stated that her brother came after 1015 minutes of the incident. She stated that she did not call her brother when she was standing on the road nor informed anyone including her neighbour Ruksar about the incident. She stated that her real sister lives in the same locality and she did not inform her about the incident.
She denied that the accused never quarreled with the locality people nor chased her nor tried to contact her and for that reason, she did not make any complaint against him. She denied that she did not inform the police, her neighbours and her real sister since no such incident took place and the alleged complaint was the outcome of the heated arguments FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 6/21 which took place between her and the accused over taking of water from the water tanker on 01.05.2013. PW6 Hitesh is the brother of the prosecutrix. He stated that his sister/prosecutrix had told him that the accused used to harass her by stalking her on the way to her office and abuse her in drunken state. He stated that on 02.05.2013 when he was returning from his office and had reached the lane outside his house, he saw his sister/prosecutrix standing there. She was scared and frightened. He took her to the house where she narrated him the incident. He took her to the police station and lodged the complaint Ex. PW 5/A. He alongwith his elder sister also went to the hospital for the medical examination of the prosecutrix. On being crossexamined, he admitted that there was water problem in their area and 1015 families used to call the water tanker. He denied that the families who call the tanker used not to allow others to take water from the tanker. He stated that he does not know if his sister had heated arguments with the accused over taking of water from the tanker called by the accused.
PW7 SI Seema took the prosecutrix to AIIMS and got her medically examined.
PW8 SI Shrikrishan Singh was the investigating officer of the case. He deposed on the lines of investigation. He arrested the accused, got the FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 7/21 prosecutrix and the accused medically examined. He also got the statement of the prosecutrix recorded u/s 164 CrPC vide application Ex. PW 8/F. PW9 Ct. Aziz Ahmed was present with the IO at the time of arrest of the accused.
PW10 Ms Monika Saroha, Ld. MM recorded the statement of prosecutrix u/s 164 CrPC Ex. PW 5/C on 22.02.2014 and appended the certificate on the statement.
Statement of Accused
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him and stated that he used to live in the gali behind the house of the prosecutrix. He never abused the people of the locality in drunken state. He stated that he never stopped the prosecutrix on the way. He stated that at the time of alleged incident, he was in his office at 55, 2nd Floor, Greater KailashI, Hemkund, Delhi. He was called at the police station where he was given beatings by the police due to which he sustained injuries. He stated that on 01.05.2013, he had a fight with the prosecutrix as he had objected her from taking water from the tanker which was called by him and other neighbourers. She got furious and abused him and his family. She also threatened him to face dire consequences. Defence Evidence
6. In defence, the accused examined Sone Lal Rai as DW1.
DW1 has deposed that he has been working as cook in the house of Rajesh Kalra for eight years. The accused was the driver of Rajesh Kalra. On FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 8/21 02.05.2013, the accused was on duty from 9 a.m to 9 p.m as there was a party in the house. He stated that the accused did not come on duty for 34 days. Later, his brother informed them about this case. He stated that an attendance register was maintained there but it was seized by the police in a case of dacoity.
Arguments and Findings
7. I have heard the arguments advanced by Ld. Counsel Sh. Tarun Khowal for the accused and Ld. Addl. PP for the State.
8. Ld counsel for the accused contended that there are material improvements and contradictions in the testimony of the prosecutrix. In the statement recorded u/s 164 CrPC, the prosecutrix did not say that the accused used to do stalking. Ld counsel stated that the MLC of the accused shows number of injuries on his person which was never explained by the prosecution. Ld counsel stated that the accused was beaten by the police at the instance of the prosecutrix. Ld counsel stated that some heated arguments took place between the accused and the prosecutrix one day prior to the alleged incident over taking of water which enraged the prosecutrix and she made the false complaint against the accused. Ld counsel stated that at the time of alleged incident, the accused was on duty in the house of Rajesh Kalra at Hemkund colony which fact is proved by DW1. It is strange that the prosecutrix did not inform her sister who lives in the same colony and waited for her brother to come. Ld counsel stated that no such incident took place and the accused was falsely implicated.
9. Ld Addl. PP on the contrary argued that the accused used to take liqour and quarrel with the locality people which fact is proved by PW3, an independent witness. He wanted to have friendship with the FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 9/21 prosecutrix. He used to stalk her. When the prosecutrix refused, on 02.05.2013, at about 7.30 p.m, finding the prosecutrix alone, he committed house trespass in the house of the prosecutrix, gagged her mouth and attempted to rape her. He fled away when the prosecutrix came out after pushing the accused. Ld Addl. PP stated that the matter was reported immediately after the incident. The testimony of the prosecutrix is cogent and consistent which is corroborated by her brother whom the whole incident was narrated before the complaint was lodged. Since the brother of the prosecutrix used to live with the prosecutrix and he was expected anytime, the prosecutrix waited for her brother to come and for that reason she did not inform her sister who later went with the prosecutrix for her medical examination. Ld Addl. PP stated that admittedly prior to the incident, a quarrel had taken place over taking of water but nothing can be inferred that she made the false complaint against the accused. As to the injuries, Ld Addl. PP stated that accused used to take liqour and possibility of the accused sustaining injuries under the influence of liqour cannot be ruled out. Ld Addl. PP stated that the attendance register was not produced by the defence nor the employer of the accused was called to prove that there was a party in the house of the employer of the accused and the accused was on duty on that day from 9.00 a.m to 9.00 p.m.
10. I have considered the arguments and gone through the entire material placed on record.
11. 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 her to do so with him or any other persons; or FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 10/21
(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 ..................
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 .............."
12. Section 354 IPC reads "whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he thereby outrage her modesty shall be punished for the offence under section 354 IPC". Any person who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 11/21 to be naked shall be punished for an offence punishable under section 354B IPC. Any person who commits housetrespass in order to commit any offence,then he shall be held liable for the offence punishable under section 451 IPC.
13. PW5/prosecutrix has deposed that the accused was their neighbour. He used to live in the back lane of her house. He used to take liqour, abuse and quarrel with the locality people in drunken state. PW3 who also lived in the same locality corroborated this fact and stated that the accused used to take liqour and abuse the people in the locality. PW6 had also deposed on the lines of PW5 and stated that his sister had complained to him that the accused used to harass and abuse her in drunken state when she goes to her office.
14. PW5/prosecutrix has stated that about 10/12 days before the incident, when she was going to her office, the accused met her on the way and tried to talk to her but she refused. He thereafter tried to meet her on the way several times but she avoided and ignored him. She stated that she had told it to her brother but they did not make the complaint because of the quarrelsome nature of the accused. She was also afraid and could not muster courage to lodge complaint against him. PW6 corroborated this fact and stated that her sister had told him that accused used to harass her by stalking her on her way to the office. In the complaint Ex PW 5/A, she has alleged that the accused after taking liqour used to abuse in the gali and the people were scared of him. He used to stalk her and wanted to have friendship with her. He under the influence of liqour many a times abused her and due to fear she did not lodge the report.
15. As regards the incident, PW5/prosecutrix has stated that on 02.05.2013 at about 7/7.30 p.m, she returned from her office and was alone FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 12/21 in the house. Someone knocked the door of the house. When she answered the call and opened the door, she found the accused at the door. She tried to shut the door but the accused pushed her aside and forcibly entered her house. He gagged her mouth, dragged her to the bed, pinned her down on the bed, bounced upon her and started kissing her. He tried to disrobe her by pulling off her kurta. During that course, she applied force and pushed him aside. She ran out of the house to save her. The accused thereafter fled away from the house. She stood on the road and started waiting for her brother since he had not returned from his office. She stated that after a little while, her brother came. They both went to the house and she narrated him the incident. They immediately went to the police station and she made the complaint Ex. PW 5/A. Testimony of PW6 shows that when he reached the lane outside the house, he found his sister standing. She was quite scared and frightened. She clung him in that state. He took her to the house where she narrated him the incident. They went to the police station where his sister made the complaint Ex. PW 5/A. I find the testimony of the prosecutrix/PW5 consistent and cogent with the complaint Ex. PW 5/A and the statement recorded u/s 164 CrPC Ex. PW 5/C. The prosecutrix was medically examined on the same day. She had narrated the history of incident to the doctor vide MLC Ex. PW 5/B inter alia that her neighbour i.e accused entered her house at around 7.30 p.m, put his hand on her mouth, forced her on to the bed and attempted to sexually molest her. When she screamed, he ran out of the house.
16. It was observed in the case of Tarkeshwar Sahu Vs. State of Bihar, (2006) 8 SCC 566, that the point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 13/21 he is just going to have sexual connection with the prosecutrix. To constitute the offence of rape, there must be penetration. No offence under section 376 IPC can be made out unless there was penetration to some extent. The basis ingredients for an offence of rape is the accomplishment of the act with force. So far as the offence under section 354 IPC is concerned, intention to outrage the modesty of a woman or knowledge that the act of the accused would result in outraging her modesty, is the gravemen of the offence. The essence of a women modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of a women is very relevant but its absence is not always decisive.
17. In the case supra, the prosecutrix aged 12 years had come out of her house to answer the call of nature. The accused at that time had forcibly taken her to his gumti for committing illicit sexual intercourse with her. She raised alarm and immediately several persons came and caught the accused before he could even make any attempt to ravish her. The Apex court held that no case under section 376/511 is made out. The Apex court referred the provisions of section 354 IPC and held that the ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman. A person slapping on the posterior of a woman in full public glare would amount to outraging her modesty for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady. The appellant was accordingly held guilty of the offence 354 IPC. The case of Ahmed Asaalt Mirkant, Crl. A. No. 161/1930, decided on 12.08.1930 by Bombay High Court, was referred. In that case the complainant, a milkmaid, aged 12 or 13 years, who was FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 14/21 hawking milk, entered the accused house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over 'her mouth to prevent her crying and placed his private part against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused is not guilty of attempt to commit rape but of indecent assault. In the case of Bhurji Vs. State, 2007 Crl. L J, 2645 MP, it was held that act of pulling prosecutrix and trying to remove her dress for sexual intercourse would amount to outraging the modesty of the prosecutrix.
18. In the case of Hari Mohapatra and anr. Vs. State of Orrisa, 1996 Crl. L. J. 2952, the accused after entering into the room, molested the prosecutrix by squeezing her breast and also tried to open her pant. It was held that offence will fall under section 354 IPC.
19. In the case of Satnam Singh and ors. Vs. State of Punjab, Crl. A. No. 31SB of 2003, decided by Punjab and Haryana Court on 26.04.2011, the accused had taken the prosecutrix inside the room, broken the string of the salwar, thrown her on the cot and made an attempt to commit rape. It was held that the case falls under section 354 IPC and not under section 376 r/w section 511 IPC.
20. In the instant case, as evident from the testimony of the prosecutrix, the accused on 02.05.2013 at 7/7.30 p.m when the prosecutrix/PW5 was alone in the house, knocked at the door of the house, PW5 answered the call and opened the door. On seeing the accused at the door, when she tried to shut the door, the accused pushed her aside and forcibly entered the house. He gagged her mouth, dragged her on to the FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 15/21 bed, pinned her down on the bed, bounced upon her and started kissing her. He tried to pull off her kurta. During that course, PW5 pushed him aside and ran out of the house to save herself. The accused then fled away from the house. In her testimony, she did not say that the accused removed his clothes, attempted to penetrate his penis into her vagina, insert an object into her vagina or manipulate her body so as to cause penetration into her vagina or apply his mouth into her vagina which are the sine qua non for the offence of rape as defined under Section 375 IPC punishable under Section 376/511 IPC. In the instant case, he after committing trespass, gagged her mouth, pinned her down on the bed, kissed her and tried to pull off her kurta intending to outrage her modesty. Keeping in view the above preposition of law, the very act of the accused would come within the offence punishable under Section 451 and 354 IPC. Nothing can be inferred from her testimony that the accused assaulted or used criminal force on the prosecutrix with the intention of disrobing her or compelling her to be naked punishable under section 354B IPC.
21. It was contended by Ld. defence counsel that there are material improvements and contradictions in the testimony of the prosecutrix vis a vis her complaint Ex. PW 5/A and her statement u/s 164 CrPC Ex. PW 5/C. She did not allege in her complaint Ex. PW 5/A and the statement Ex. PW 5/C that about 10/12 days before the incident the accused tried to talk to her on the way to her house and she refused; she tried to shut the door or she stood on the road and waited for her brother to come. Ld counsel stated that PW5 has deposed that there had been heated arguments between her and the accused over taking of water from the water tanker on 01.05.2013 which fact the prosecutrix did not allege in her complaint and the statement. PW6 her brother has shown his ignorance FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 16/21 about the incident dated 01.05.2013.
22. In my view, these improvements/contradictions are not material and do not create doubt on the veracity of the prosecution case. In the complaint Ex. PW 5/A, the prosecutrix has alleged that the accused used to abuse her in the gali under the influence of liqour. The people were afraid of him. He tried to talk and meet her number of times but she avoided. He also followed her. Her testimony shows that the accused had an evil eye on her and on 02.05.2013 he finding her alone in the house tried to grab the opportunity. He committed house trespass and assaulted her to outrage her modesty. In the instant case, the prosecutrix remained consistent and cogent although she was crossexamined at length. She has denied that because of the incident happened on 01.05.2013, she falsely implicated the accused to take revenge. PW6 did not say that no such incident took place on 01.05.2013. He has stated that he does not know if on 01.05.2013, PW5 had heated arguments with the accused over taking of water.
23. In the case reported in Bhargavan and others Vs. State of Kerala (9) ADSC 403 it was held, "normal discrepancy is expected, however, honest and truthful a witness may be. This does not corrode the credibility of the witness". The human memory is vicissitudinous. In Appabhai vs. State of Gujarat AIR 1988 SC 696, it was held that the errors due to the lapse of memory may be given due allowance. It is well settled law that a woman's complaint that she has been molested must be taken at face value in a conservative society like India where indelible stigma is attached to the victim unless of course there appears to be a blatant flaw in the case. It is relevant to quote the observations of the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat AIR 1983 SC FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 17/21 753:
(1) A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had every occurred. (2) 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.
(3) She would have to brave the whole world.
(4) It would almost inevitably and almost
invariably result in mental torture and suffering to herself.
(5) The fear of being taunted by others will
always haunt her.
(6) She would feel extremely embarrassed in
relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is a taboo.
(7) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy and disrepute.
(8) The reluctance to face interrogation by the investigating agency, to face the court, to face the crossexamination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent.
24. As regards the contention that the accused was at Hemkund Colony and was on duty at the time of alleged incident, although DW1 has stated that accused was on duty on 02.05.2013 at 9 a.m to 9 p.m since there was a party in the house but in his testimony, he has admitted that an attendance register used to be maintained in the house which the police had seized in a case of dacoity. Had it been so, what had prevented the accused from calling that register to prove that he had marked his FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 18/21 attendance on that day and remained there till 9.00 p.m. Further the accused did not call his employer Rajesh Kalra to substantiate this fact. DW 1 is the old friend of the accused and in the absence of the attendance register and the testimony of Rajesh Kalra, no much credence can be given to the testimony of DW1 considering the cogent testimony of the prosecutrix/PW5.
25. In the instant case, the accused was arrested on 03.05.2013. He was medically examined at 2.10 p.m. He was found to have sustained number of injuries. Although the accused has stated that in the police station, the police had beaten him at the instance of PW5 but on perusal of testimony of PW5, PW6 and the IO PW8, I find that no suggestions were given that the accused sustained injuries due to beatings given by the police. Even during his medical examination vide MLC Ex. PW 4/A, he did not allege that he sustained injuries because he was beaten by the police.
26. It was further contended by ld counsel that the prosecutrix instead of calling her sister waited for her brother to come though her sister lived in the same locality. Perusal of the testimony of PW5 shows that after the incident, she came out of the house and waited for her brother to come who was expected at any time. Her testimony shows that the sister of the prosecutrix had also come and she had accompanied the prosecutrix to the hospital when she was medically examined. A lady, a victim of sexual assault, cannot be expected to raise hue and cry in a public place. In the instant case, when her brother came after 10/15 minutes, she told him the entire incident who immediately took her to the police station where she made the complaint Ex. PW 5/A. Nothing can be perceived from the complaint that it was an after thought. Testimony of PW6 shows that when FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 19/21 he reached the gali, he found his sister scared and frightened. She clung him in that state. He took her to the house where she narrated him the whole incident. He denied that his sister made a false complaint to take revenge from the accused because of the incident dated 01.05.2013.
27. In State of Punjab v. 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 selfrespecting woman would come forward in a court just to make a humiliating statement against her honour".
28. 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 crime..................................................................... ..............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."
29. 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 the sexual assault. 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 than not, treated as a sinner and shunned. It must therefore be realized that a woman who is subjected to sex violence would always be slow and hesitant about disclosing her FIR No. : 276/13 PS : Govind Puri State Vs. Javed Page No. 20/21 plight.
CONCLUSION
30. Facts and circumstances of the present case show that the accused used to take liqour. He under the influence of liqour used to abuse and quarrel with the persons of the locality. He used to follow the prosecutrix and wanted to have friendship with her. The prosecutrix did not like him. He, on 02.05.2013 finding the prosecutrix alone in the house, entered her house and assaulted her with an intention to outrage her modesty. He tried to remove her kurta. The prosecutrix somehow managed to come out from the house. She then reported the matter to her brother who took her to the police station where she made the complaint. I am of the view that the necessary ingredients of the offences punishable under Section 451 and 354 IPC are proved against the accused Javed beyond reasonable doubt.
31. In the light of above discussions and in view of the above legal pronouncements, I hold the accused Javed guilty of the offences punishable under Section 451 and 354 IPC and convict him thereunder.
32. Let the convict be heard on the point of sentence on the date as fixed by this court.
Announced in the open
court today i.e. 19.09.2016 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts/ND.
FIR No. : 276/13
PS : Govind Puri
State Vs. Javed Page No. 21/21