Delhi District Court
State vs Ashwani Kumar S/O Manohar Lal on 11 August, 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.02402R0365402004
SC No. 163/13 Date of assignment : 01.03.2013
FIR No. 355/04 Date on which case was
PS. Mandawali reserved for judgment : 08.08.2014
U/S. 376 (2)(g) IPC Date of judgment : 11.08.2014
& 506 (II) IPC
State Versus Ashwani Kumar S/o Manohar Lal
R/o C-14, Gali No.1, Mandawali,
Unchepar, Delhi.
JUDGMENT
1. The case of the prosecution as disclosed in the chargesheet is that on 01.07.2004 the prosecutrix aged about 14 years came to the police station Mandawali alongwith her mother and she lodged a complaint wherein she made following allegations:-
(i) Prosecutrix was residing at her maternal grandfather's house. She was a 6th standard student and she was taking private tuitions from one Madam Kusum who is resident of C-14, Gali No.1, Mandawali, Unchepar, Delhi. Younger brother of the prosecutrix was also taking tuition at that place. Due to vacations for the last one SC No.163/13 State vs. Ashwani Kumar Page 1 of 42 month, she had stopped taking tuitions. Ashwani Kumar (accused) brother of Madam Kusum and her family members were also residing in the same house i.e. C-14, Gali No.1, Mandawali, Unchepar, Delhi. Thus the prosecutrix knew the accused.
(ii) On 30.06.2004 at about 11.00 am, the prosecutrix went to the market for having a glass of juice.
When she reached in front of house no. C-45, Gali No.2, Mandawali, Unchepar, Delhi, she saw accused Ashwani Kumar and co-accused Rajiv Tyagi standing at the gate. The prosecutrix knew co-accused Rajiv Tyagi who was running a STD shop. Accused Ashwani Kumar called the prosecutrix and asked her whether she has stopped taking tuitions and told her that Madam Kusum is upstairs and asked the prosecutrix to meet her. Relying on the accused, the prosecutrix went to third floor of that house. Accused Rajiv Tyagi also reached there. Accused Rajiv Tyagi closed the door. Co-accused Ashwani Kumar removed the skirt and underwear of the prosecutrix. Accused Ashwani Kumar forced the prosecutrix to lie on the floor and then he raped her (bura kaam kar diya). When the prosecutrix raised alarm, accused Rajiv Tyagi gagged/pressed her mouth and threatened her that if she will speak anything, he will kill her and make the life of her family members difficult. Then co-accused Rajiv Tyagi committed rape on the prosecutrix.
SC No.163/13 State vs. Ashwani Kumar Page 2 of 42He also threatened to kill the prosecutrix. Thereafter both the accused persons allowed the prosecutrix to leave and she came back to her home. Due to fear she did not disclose the incident to her mother. When she was able to regain her composure, she narrated the incident to her maternal aunt (mami). Thereafter she alongwith her maternal aunt and maternal grandfather came to the police station and lodged the complaint against the accused persons.
2. On the basis of the complaint, an FIR u/s 376/ 506/34 IPC was got registered against the accused persons on 01.07.2004 at police station Mandawali. Efforts were made to arrest the accused persons. On 16.07.2004 accused Ashwani Kumar surrendered before the court. During investigation, accused Ashwani Kumar got recovered his underwear. Accused Ashwani Kumar was also got medically examined and his blood and semen samples were collected.
3. Process u/s 82 Cr.P.C was issued against accused Rajiv Tyagi and he was declared proclaimed offender vide order dated 13.9.2004 by the learned MM. Subsequently accused Rajiv Tyagi was got arrested and supplementary chargesheet was filed against him on SC No.163/13 State vs. Ashwani Kumar Page 3 of 42 06.09.2005.
4. Perusal of record would show that this trial has a chequered story. Initially a contention was raised on behalf of accused Ashwani Kumar that he is a juvenile and hence vide order dated 22.11.2004, the trial in respect of this accused got transferred to the Juvenile Justice Board. However, vide order dated 04.05.2006 the Juvenile Justice Board held that the date of birth of accused Ashwani Kumar is 17.05.1985 and thus the said accused was aged 19 years, 1 month and 13 days on the date of commission of offence and his trial is to be conducted by the concerned Sessions Court. The Juvenile Justice Board held that the photocopy of the birth certificate submitted by the accused was a forged document. The file of this accused was thus sent back to the court of learned District & Sessions Judge, Delhi.
5. After the case file was received back, the concerned MM issued summons to accused Ashwani Kumar which came back unserved. Vide order dated 13.07.2006, NBW against accused and notice to his surety were directed to be issued. However, accused Ashwani Kumar could not be traced out and thus proceedings u/s 82/83 Cr. P.C were initiated against him. Vide order dated 17.01.2008 SC No.163/13 State vs. Ashwani Kumar Page 4 of 42 passed by the learned MM, accused Ashwani Kumar was declared a proclaimed offender. Accused Rajiv Tyagi was granted interim bail but he jumped the bail and stopped appearing in the court. Accused Rajiv Tyagi was also declared proclaimed offender on 08.09.2009.
6. In the circumstances, the statements of the prosecutrix and her mother were got recorded u/s 299 Cr.P.C by the learned MM on 11.08.2011 and thereafter the file was consigned to record room as both the accused persons were absconding.
7. The present accused Ashwani Kumar was subsequently arrested and produced before the court on 22.01.2013. After the arrest of the accused Ashwani Kumar, trial against him started. Accused Rajiv Tyagi is stated to be still not traceable.
8. Since the major offence in this case was triable by the Court of Sessions, vide order dated 20.02.2013, learned M.M. committed the case to the Court of Sessions. Thereafter this case was assigned to this curt for trial.
9. Vide order dated 16.03.2013, a charge u/s 376 (2)(g) IPC and u/s 506(II) IPC was framed against the SC No.163/13 State vs. Ashwani Kumar Page 5 of 42 accused Ashwani Kumar to which he pleaded not guilty and claimed trial.
10. In support of its case, prosecution examined eleven witnesses i.e. prosecutrix as PW1, HC Jagmohan as PW2, Sh. Pawan Kumar (Sub Registrar Birth and Death) as PW3, mother of the prosecutrix as PW4, Dr. Parmesh Sharma (CMO from LBS Hospital) as PW5, Retd. ASI Jai Pal Singh as PW6, HC Om Prakash Singh as PW7, WCt. Savitri as PW8, WASI Anita Rani as PW9, SI Manvender Singh as PW10 and Dr. Tapasi Chatterjee (CMO LBS Hospital) as PW11.
11. PW2 HC Jagmohan is the duty officer who deposed that on 01.07.2004 he recorded the present FIR Ex. PW2/A and he also made endorsement on the rukka Ex. PW2/B.
12. PW11 Dr. Tapasi Chatterjee, CMO from LBS Hospital deposed that on 01.07.2004, the prosecutrix aged 13 years was brought in the hospital by police for medical examination. She was medically examined by Dr. Uma Maurya, Senior Resident who had left the services of the hospital and her present whereabouts are not known. She proved the MLC of the prosecutrix as Ex.PW11/A and SC No.163/13 State vs. Ashwani Kumar Page 6 of 42 deposed that she can identify the handwriting and signatures of Dr. Uma Maurya as she had seen her writing and signing during the course of her duties. During cross examination this witness admitted that she had not examined the patient and stated that she cannot say whether hymen was freshly ruptured or it was an old rupture. She also admitted that the hymen can be ruptured due to various reasons.
13. PW8 Woman Constable Savitri deposed that 01.07.2014 she took the prosecutrix to LBS Hospital for her medical examination. After her medical examination the sealed exhibits received from the hospital were seized by the IO vide memo Ex. PW6/B.
14. PW6 Retd. ASI Jaipal Singh deposed that on 01.07.2014 he was posted at police station Mandawali and on that day the prosecutrix alongwith her mother came to the police station and made statement Ex. PW1/A on which he made endorsement Ex.PW6/A and the case u/s 376/506/ 34 IPC was got registered. The prosecutrix was got medically examined through Ct. Savitri at LBS Hospital and after her medical examination, two sealed parcels alongwith one sample seal of LBS, HKP were received and were seized vide seizure memo Ex.PW6/B. Site plan SC No.163/13 State vs. Ashwani Kumar Page 7 of 42 Ex.PW6/C was got prepared at the instance of the prosecutrix.
15. PW7 HC Om Prakash Singh deposed that on 16.7.2004 he alongwith SI Manwinder Singh and ASI Anita came to the court where accused Ashwani Kumar surrendered himself in the court and he was arrested vide memo Ex.PW4/A and his personal search was conducted vide memo Ex.PW7/A. Disclosure statement of accused Ex.PW4/D was recorded. He deposed that thereafter the accused was taken to LBS Hospital where he was medically examined. Doctor had handed over two sealed pulinda sealed with the seal of LBS which were taken into possession vide memo Ex.PW4/B. He further deposed that the accused took the police in a gali no.1, Mandawali and there from an iron almirah he took out a brown colour underwear which was worn by him at the time of incident and the same was was taken into possession vide seizure memo Ex. PW4/C.
16. PW5 Dr. Parmesh Sharma, CMO from LBS Hospital deposed that on 16.7.2004 Ashwani was brought in the hospital by SI Manvinder Singh for his medical examination with the alleged history of rape and the patient was examined by him. He proved the his MLC as SC No.163/13 State vs. Ashwani Kumar Page 8 of 42 Ex. PW5/A.
17. PW3 Sh. Pawan Kumar Sub Registrar, Birth and Death deposed that he has brought the original birth register in which at registration no.6326 dated 31.07.1991 mother of the prosecutrix gave birth to a female child on 15.07.1991 at Sucheta Kriplani Hospital. This witness has proved the photocopy of abovesaid registration number as Ex.PW3/A. During cross examination, he stated that this register is filled up by the hospital staff and all the entries in the register are complete and sent to their office. He also deposed that the name of the child is not mentioned in the register.
18. PW9 WASI Anita Rani deposed that on 02.07.2004 she was posted at police station Mandawali. On that day the investigation of the present case was handed over to her. She tried to trace out the accused persons but they could not be found. On 05.07.2004 NBWs of accused Ashwani Kumar were obtained. On 16.07.2004 accused had surrendered before the court and he was formally arrested in the present case vide memo Ex. PW9/A and his personal search was conducted by SI Manvinder Singh vide memo Ex.PW7/A. Two days police custody of the accused was granted and accused was got medically examined and the SC No.163/13 State vs. Ashwani Kumar Page 9 of 42 exhibits received from the hospital were seized vide memo Ex.PW9/B. He deposed that the accused led the police party to the place of occurrence and pointing out memo Ex.PW9/C was prepared. Disclosure statement of accused Ex.PW9/D was recorded. Thereafter accused led the police party to his house and got recovered his underwear which he was wearing at the time of incident. The underwear was converted into sealed parcel and sealed with the seal of RP and was seized vide memo Ex.PW9/E. He deposed that the seal after use was handed over to SI Manvinder Singh. Thereafter the accused was brought to the police station. Regarding co-accused Rajiv Tyagi, accused Ahswani Kumar told the police that he had left him at Nainital.
19. PW10 SI Manvinder Singh deposed that accused Ashwani Kumar surrendered before the court and he was formally arrested vide arrest memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW7/A. Two days police custody of the accused was obtained. Accused was got medically examined and exhibits received from the hospital were seized vide seizure memo Ex.PW9/B. Accused also led the police party to the place of occurrence and pointing out memo Ex.PW9/C was prepared. Disclosure statement Ex.PW9/D of accused was SC No.163/13 State vs. Ashwani Kumar Page 10 of 42 recorded. Thereafter accused led the police party to his house and he got recovered his underwear lying in almirah which he was wearing at the time of incident. That underwear was converted into a sealed parcel and sealed with the seal of RP and seized vide seizure memo Ex.PW9/E. He deposed that process u/s 82 Cr.P.C were initiated against accused Rajiv Tyagi but he could be arrested. This witness has identified the underwear of accused as Ex. P1 which he was wearing at the time of incident.
20. The prosecutrix is the material witness of this case. For the reasons noted above, testimony of this witness was recorded on 11.8.2011 (u/s 299 Cr. PC), 29.01.2008, 05.04.2008 (during the trial of accused Rajiv Tyagi who was declared proclaimed offender subsequently on 08.9.2009) and before this court in the trial of accused Ashwani Kumar on 08.04.2013 and 09.04.2013. For the purpose of the present trial against accused Ashwani Kumar, the relevant testimonies of the prosecutrix are which were recorded on 11.8.2011 u/s 299 Cr.PC and 08.04.2013 and 09.04.2013 before this court. The prosecutrix in her deposition has also referred to her statements recorded on 29.01.2008 and 05.04.2008 during the trial against co-accused Rajiv Tyagi. However, as the SC No.163/13 State vs. Ashwani Kumar Page 11 of 42 learned counsel for the accused person in his submission and written arguments extensively referred to all the statements of the prosecutrix, all her statements are being taken note of by this court.
21. The prosecutrix in her statement dated 08.04.2013 and 09.04.2013 recorded before this court deposed that her date of birth is 15.07.1991. She adopted the statements recorded on 29.01.2008 and 05.04.2008. She further deposed that she has two younger brothers. She deposed that she knew the accused Ashwani Kumar who was the brother of Kusum from whom she used to take tuitions. Accused Ashwani Kumar was residing in their back lane. She further deposed that accused Ashwani Kumar and Rajiv Tyagi met her in a gali when she was going to market. Accused Ashwani Kumar told her that her teacher Kusum was calling her on the third floor of the house. She went upstairs and found that no one was present there. Both the accused persons also reached there and closed the door and started beating her. Prosecutrix started crying but her mouth was shut by the accused Ashwani Kumar. Accused persons removed her dress i.e. skirt and top. Thereafter both the accused persons committed rape (dushkarm) on her and threatened her that she will not be spared if she will disclose the incident to her family SC No.163/13 State vs. Ashwani Kumar Page 12 of 42 members. Prosecutrix deposed that she went to her house and slept as she was afraid. Thereafter her maternal aunt reached and on her asking she disclosed the incident to her. She further deposed that thereafter her mother came to know regarding the incident. On that night her maternal uncle and maternal grand father reached there and then she alongwith her mother and maternal grandfather went to the police station Mandawali and made her statement Ex.PW1/A. Thereafter she was taken to LBS Hospital where she was medically examined and her under garments were seized. The prosecutrix identified her underwear as Ex.P1.
22. The prosecutrix was cross examined on behalf of accused. During her cross examination she maintained that both the accused persons committed rape on her and beat her. She denied that her mother threatened Kusum that she (Kusum) and her family members will be falsely implicated in some case if she will demand tuition fees from her. She also denied that tuition fees for three moths was due on her family members. Prosecutrix also denied that on 14.06.2004, Kusum came to their house for taking tuition fees and her mother became annoyed with her due to demand of tuition fees.
23. PW4 mother of the prosecutrix was also got SC No.163/13 State vs. Ashwani Kumar Page 13 of 42 examined on 28.05.2008, 11.08.2011 and 22.05.2013 in the court for the reasons noted above. In her statement recorded on 22.5.2013 before this court, she deposed that she has one daughter and two sons. The prosecutrix is the eldest child who was born on 15.07.1991 at Lady Harding Hospital. She stated that her daughter has studied upto 10th standard. The prosecutrix disclosed that her sister in law (bhabhi of this witness) told her that she was surrounded by boys and was raped. She further deposed that the prosecutrix was taken to LBS Hospital where she was medically examined. This witness was cross examined by learned Addl. PP for the State as she was unable to recollect certain aspects. During cross examination, she admitted that she had made a complaint to the police on 01.07.2004 wherein she stated that on the night of 30.06.2004, her daughter told her that she was raped by their neighbour Rajiv Tyagi and Ashwani Kumar and she was taken to police station alongwith her father and the statement of prosecutrix was recorded. She further stated that due to lapse of time she did not recollect the above facts.
24. This witness (PW4) was cross examined on behalf of the a ccused Ashwani Kumar. She admitted that the prosecutrix used to take tuitions from Kusum, the elder SC No.163/13 State vs. Ashwani Kumar Page 14 of 42 sister of Ashwani Kumar. However, she denied that the tuition fees for about three months was due which was not paid by this witness. She denied that on 14.06.2004 Kusum came to their house for taking tuition fees of prosecutrix. She also denied that when Kusum demanded tuition fees, she became angry and threatened to implicate her and her family members in a false case. She also denied that on the same evening she went to house of Ashwani Kumar and demanded money. This witness also deposed that she was residing at the relevant time with her father and not with her husband and her financial position was normal. On the day of incident this witness left the home in the evening for Darya Ganj to meet her uncle who was not well. She also deposed that on the day of incident, the prosecutrix was not well and she was perplexed and also having stomach pain. She also deposed that when she came back, the prosecutrix was lying on bed. There was no mobile and landline connection at her home. She denied that she and her uncle demanded Rs. 5 lacs from the father of the accused and when this demand could not be met by them, present FIR was got registered. It was also denied that the accused Ahswani Kumar was not present in Delhi on the day of alleged incident.
25. After completion of prosecution evidence, SC No.163/13 State vs. Ashwani Kumar Page 15 of 42 statement of accused u/s 313 Cr. P.C was recorded in which he denied the case of the prosecution and claimed that he is innocent. He stated that the PW1 and her family members did not pay tuition fees to his sister. His sister went to the house of PW1 where the family of prosecutrix misbehaved with her and his sister was threatened of false implication in a case. He also stated that a further demand of Rs. 5 lacs was made from his father and when he refused to pay the same, this accused was got falsely implicated in this case. He also stated that co-accused Rajiv Tyagi was not his friend.
26. Accused preferred to lead defence evidence and examined three witnesses i.e. Dr. Bikas Kumar Mishra, Surgeon, Community Health Centre, Ujhani, District Badayun, UP as DW1, Kusum Lata (sister of accused) as DW2 and his relative Sh.Shailender Kumar as DW3.
27. DW1 Dr. Bikas Kumar Mishra deposed that on 30.06.2004 he was posted at Dori Lal Community Health Centre, Amirpur Baldev, District Mathura as Surgeon and his duty hours in OPD were from 8.00 am to 2.00 pm. He stated that on that day he treated Ashwani Kumar who was suffering from diarrhea with moderate dehydration with clinical finding which is mentioned in OPD slip mark DW1/A. SC No.163/13 State vs. Ashwani Kumar Page 16 of 42 He deposed that he gave treatment to Ashwani Kumar in the form of IV fluid with oral antibiotics and he was discharged on the same with satisfactory condition. His medical certificate is mark DW1/B. He deposed that treatment was given to him approximately 11.00 am/12.00 noon to 3.00 pm/4.00 pm.
28. DW1 was cross examined by learned Addl. PP for the State and during his cross examination he stated that Dori Lal Community Health Centre is a Govt. hospital. He deposed that he worked in the above said hospital from February 2000 to February 2007 as a Surgeon. He deposed that he had not brought the register maintained in the hospital in which the entry of OPD patients is made. He said that he had identified the patient with his memory and stated that on an average 25 to 30 patients are examined by him. He stated that he cannot identify all the patients which are examined him. The patients which are kept indoor are remain in his memory. He deposed that on that day the accused was the only indoor patient. He stated that he did not take any ID proof of the patient. He denied that he is deposing falsely at the instance of accused.
29. DW2 Kusum Lata, sister of the accused deposed that she used to give tuitions to prosecutrix and her SC No.163/13 State vs. Ashwani Kumar Page 17 of 42 brother at her home i.e. C-14, Mandawali Unchepar, Delhi since January 2004 to May 2004. She further deposed that the prosecutrix only gave her two months tuition fees and three months tuition fees was due on her. She deposed that in the month of March, she demanded due tuition fee from the mother of the prosecutrix and she did not pay the fees by saying that she has financial problem as her husband left her for the last 14 years and she will give fees after some time and she requested not to stop the tuitions due to this reasons. She further deposed that in the month of May, 2004 prosecutrix and her brother stopped taking tuitions from her. She further deposed that on 14.06.2004 in the evening she visited the house of the prosecutrix to demand remaining tuition fees. Mother of the prosecutrix met her and she (DW2) demanded the remaining tuition fees from her. Then the mother of the prosecutrix became angry and threatened her that if she will demand tuition fees she will implicate her and her family members in a false case. This witness further deposed that she lodged a complaint Ex. DW2/A to the police. She deposed that on 30.06.2004 the mother of prosecutrix came to her house and demanded Rs. 5 lacs from her mother and threatened that if she will not pay Rs. 5 lacs then she will implicate the accused in a false case. This witness was cross examined on behalf of the State.
SC No.163/13 State vs. Ashwani Kumar Page 18 of 4230. DW3 Sh. Shailder Kumar deposed that on 29.06.2004 he alongwith accused Ashwani Kumar went to Mathura for Govardhan Parikrama. On the next day i.e. 30.06.2004 after Parikrama accused fell ill and he was admitted in the hospital where he was kept for three hours and then discharged from the hospital. Thereafter he went to his village. This witness was cross examined by the learned Addl. PP for the State. During cross examination, he deposed that accused is his brother in law. He also stated that he does not remember the name of the hospital where accused was got admitted. This witness also deposed that they went to Mathura by bus but he has not brought the bus ticket.
31. I have heard arguments addressed by learned Additional Public Prosecutor for the State and learned defence counsel and perused the record. Learned defence counsel has also submitted detailed note of written submissions which has been placed on record.
32. In the present case only the accused Ashwani Kumar is facing trial. Thus this judgment is confined to this accused only.
SC No.163/13 State vs. Ashwani Kumar Page 19 of 4233. From the statement of the prosecutrix (PW1), it would be seen that there is direct evidence of the commission of offence punishable u/s 376 (2)(g) IPC and 506/34 IPC by the accused Ashwani Kumar. The statement of prosecutrix has been noted above.
34. It is contended on behalf of the accused that the testimony of PW1(prosecutrix) is not reliable and cannot constitute basis of the conviction of the accused. It is contended that there are contradictions in the various statements of the prosecutrix recorded by the police during investigation and in the statements made in the court. It is also contended that evidence on record clearly shows that the sister of the accused was giving private tuitions to the prosecutrix and her brother for about 4-5 months. The tuitions fees for three months was not paid by the mother of the prosecutrix and when the sister of the accused asked for due amount, present false FIR was got registered to extort money from the accused and his family members. It is further contended that there was a delay in registration of FIR. It is submitted that the case of the prosecution is that the incident had occurred on 30.06.2004 at about 11.00 AM while the FIR was got registered on 01.07.2004 at about 5.25 AM. It is also contended that the medical evidence on record does not SC No.163/13 State vs. Ashwani Kumar Page 20 of 42 support the case of prosecution. It is also submitted that evidence on record would show that this accused was even not present in Delhi on the day of incident but was at Govardhan, Mathura, UP. For this purpose reference is made to the statement of DW1 Dr. Bikas Kumar Mishra who is stated to have treated the accused on the day of incident from 11.00 am/12.00 noon to 3.00 pm/4.00 pm at Mathura, UP and DW3 who is alleged to have accompanied the accused to Mathure on that day.
35. Learned defence counsel has submitted a long compilation/chart showing alleged variations in the depositions of the prosecutrix recorded by the court in the year 2008, 2011 and 2013 and in the FIR. The chart has been placed on record. Some of the alleged contradictions as per the chart be taken note of. It is pointed out that in the FIR, the prosecutrix had stated that the accused Ashwani Kumar removed her skirt and underwear while in the statement recorded on 29.01.2008 and 05.04.2008, the prosecutrix stated that her wearing clothes were removed by both the accused persons. Moreover, in her statement recorded on 08.04.2013 and 09.04.2013, the prosecutrix stated that accused persons removed her skirt and top. It is further pointed out that in her statement dated 11.08.2011, the prosecutrix had stated that she had SC No.163/13 State vs. Ashwani Kumar Page 21 of 42 informed the incident to her mother whereas in the statement recorded in the year 2008 and 2013, the prosecutrix stated that she informed about the incident to her maternal aunt (mami). It is also pointed out that in the statement dated 11.08.2011, the prosecutrix stated that she went to the police station on the next day whereas in the statement dated 29.01.2008 and 05.04.2008, the prosecutrix stated that in the evening of the day of incident she alongwith her mother and maternal grandfather went to the police station and lodged a report. However, in the statement dated 08.04.2013, the prosecutrix had stated that on that night her maternal uncle and maternal grandfather reached at home and she alongwith her mother, maternal grandfather went to the police station Mandawali where police recorded her statement. He also submitted that in her statements dated 08.04.2013 and 09.04.2013, the prosecutrix had stated that she remained in the room for half an hour while in the statement dated 29.01.2008 and 05.04.2008, she stated that she remained in the room for 1-2 hours. He also pointed out that in the statement recorded on 08.04.2013 and 09.04.2013, the prosecutrix stated that when her grandfather and maternal uncle reached her home, she was sleeping and got up at about 12 O' clock in the night while in the statement dated 29.01.2008 and 05.04.2008, SC No.163/13 State vs. Ashwani Kumar Page 22 of 42 she deposed that her maternal grandfather came back in the evening at about 7-8 p.m.
36. After going through the record, I am unable to find any substantial variations in the statements of the prosecutrix which would invite rejection of her testimony. The incident is dated 30.06.2004. FIR is dated 01.07.2004 and the statement of the prosecutrix was got recorded in the year 2008 thereafter in the year 2011 and then in the year 2013 for the reasons that both the accused persons were absconding. The statements of the prosecutrix, to my mind, have remained consistent in all material particulars despite long passage of time between the year 2004 to 2013.
37. The prosecutrix has consistently stated that on the day of incident at about 11.00 am, she was called at upper floor of the house No. C-45, 3rd Floor, Gali no.2, Mandawali, Unchepar, Delhi by the accused persons on the pretext of her being called by the sister of accused Ashwani Kumar. On reaching there, she found that sister of the accused was not present and she was raped, beaten and threatened by the accused persons. Thereafter she came back to her house. After some time she informed this fact to her family members. Thereafter prosecutrix and her SC No.163/13 State vs. Ashwani Kumar Page 23 of 42 mother with her maternal grandfather went to police station and got the FIR registered against the accused persons. The prosecutrix, her mother, maternal grandfather and maternal aunt were staying in the same house. The variations pointed out by the learned counsel for accused, to my mind are minor variations due to use of different words for stating the same incident.
38. The prosecutrix was not required to state in detail about the order of removal of her clothes. The alleged variations of telling the incident to her maternal aunt and mother is also of no consequence. At that time, the family of the prosecutrix was staying with her maternal aunt. Both would have come to know about the incident in the natural course of events. As the FIR is recorded at 5.25 am in the morning on 01.07.2004, the family of the prosecutrix would have gone to the police station in the night of the incident and it makes no difference if the time of going to the place station was mentioned as evening at one place and the night or the next day at the other place. These variations, in fact, to my mind lead further credence to the evidence of the prosecutrix.
39. The other alleged contradictions pointed out by the learned defence counsel are also of no consequence. It SC No.163/13 State vs. Ashwani Kumar Page 24 of 42 is not the contention of the accused person that the prosecutrix has improved upon her earlier statements and has made new allegations against the accused persons. The prosecutrix was just about 14 years of age at the time of incident and the incident would have been a shattering experience for her. She was made to recite the incident repeatedly on account of the acts of accused persons of absconding from trial. In such circumstances some minor variations in the statements made at different points of time are bound to occur.
40. Under section 145 of The Indian Evidence Act, it is permissible for a witness to be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved. However, that provision further stipulates that if it is intended to contradict that witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. In this case the attention of the witness (prosecutrix) was not drawn to her earlier statements.
41. Insofar as the contention that the FIR is outcome of vendetta to demand of pending tuition fees by SC No.163/13 State vs. Ashwani Kumar Page 25 of 42 sister of accused from the mother of prosecutrix is concerned, learned counsel for accused has referred to the testimony of DW2 i.e. sister of accused Ashwani Kumar. He also referred to the contents of complaint Ex.DW2/A of the sister of the accused dated 14.06.2004 which is stated to have been received at police station Mandawali on the same day i.e. 14.06.2004.
42. DW2 Kusum in her statement has stated that she used to give tuitions to the prosecutrix and her brother at her home since January, 2004 to May, 2004. The mother of the prosecutrix only gave two months tuition fees and three months tuition fees was due from her. The witness has further stated that in the month of March, she demanded the due tuition fees from mother of the prosecutrix but she did not pay the fees by saying that she has financial problems as her husband deserted her 14 years ago. She has further deposed that in the month of May, 2004, the prosecutrix and her brother stopped paying tuition fees and they did not clear her dues. She further stated that on 14.06.2004 in the evening, she went to the house of prosecutrix to demand the remaining tuition fees on which the mother of the prosecutrix got annoyed and told DW2 that how dare she came to their house for demanding tuition fees and the mother of the prosecutrix SC No.163/13 State vs. Ashwani Kumar Page 26 of 42 refused to pay the remaining tuition fees. Mother of the prosecutrix also threatened DW2 that if she will demand the tuition fees from her then she will implicate her family members in a false case. Thereafter DW2 lodged a police complaint Ex.DW2/A. She also deposed that on 30.06.2004, the mother of the prosecutrix demanded Rs.5 lacs from the mother of DW2 and threatened that if this amount is not paid then she will implicate the accused in a false case. In Ex. DW2/A also, the DW2 (Ms. Kusum) has stated that the prosecutrix and her brother were taking tuitions from her. After five months, the prosecutrix and her brother stopped taking tuitions from DW2. On 14.06.2004 when DW2 went to take her tuition fees, mother of the prosecutrix quarrelled with her for demanding tuition fees. Mother of the prosecutrix also threatened that they will realise only when they will be implicated in some case. Learned counsel for the accused has pointed out that Ex.DW2/A is having some signature to show receipt of the complaint at police station Mandawali on 14.06.2004 and is also bearing the stamp of police station.
43. Having considered the submissions on behalf of the accused person, I am of the opinion that a trivial dispute of alleged non payment of tuition fees to the sister of the accused for three months could not have been a SC No.163/13 State vs. Ashwani Kumar Page 27 of 42 reason to implicate the accused Ashwani Kumar in such a serious case which may cause stigma on the reputation of the prosecutrix for whole life.
44. Moreover, though the document Ex.DW2/A has been proved by DW2 Kusum, no official from police station Mandawali was summoned to prove this document on behalf of accused. Initial IO of the case ASI Jaipal appeared as PW6 and subsequent IOs ASI Anita appeared as PW9 and SI Manvinder Singh appeared as PW10. This document was neither confronted to any of the IOs. It was not even orally suggested to any of these police officials or any other police official that such a complaint had been made by the sister of the accused in the police station Mandawali. In the circumstances, I am of the opinion that Ex. DW2/A cannot be relied upon. The name of the official who had signed the document is not disclosed. This document at best appears to have been obtained by the accused or on his behalf by someone in connivance with some official at police station Mandawali.
45. It is also the case of the accused that on the day of alleged incident i.e. 30.06.2004 the accused was not in Delhi but at Mathura, UP. For this purpose, learned counsel for accused has placed reliance on the testimony of DW2- SC No.163/13 State vs. Ashwani Kumar Page 28 of 42 Dr. Bikas Mishra who at the relevant time was posted at Dori Lal Community Health Centre, Amirpur Baldev, District Mathura. In his statement this witness stated on 30.06.2004 he treated accused Ashwani Kumar who was suffering from diarrhea with moderate dehydration with clinical finding recorded in OPD slip mark DW1/A. He further deposed that he gave treatment in the form of IV fluid with oral antibiotics. Accused was discharged on the same day with satisfactory condition while issuing a medical certificate mark DW1/B. DW2 deposed that the treatment to the accused was given from 11.00 am/12.00 noon to 3.00 pm/4.00 pm. Learned counsel for accused also referred to the statement of DW3 Sh. Shailender Kumar, brother in law of this accused who deposed that on 29.06.2004 he alongwith accused Ashwani Kumar went to Mathura for Govardhan Prikrama. Next day i.e. on 30.06.2004 after parikrama of Govardhan accused fell ill and he was admitted in the hospital for three hours.
46. This defence of the accused is in nature of "plea of alibi". In Subhash vs. State of Rajasthan [(2002) 1 Supreme Court Cases 702], the Hon'ble Supreme Court has defined the plea of alibi as under:
"21. literal meaning of alibi is "elsewhere". In law this term is used to express SC No.163/13 State vs. Ashwani Kumar Page 29 of 42 that defence in a criminal prosecution, where the party-accused, in order to prove that he could not have committed the crime charged against him, offers evidence that he was in a different place at that time. The plea taken should be capable of meaning that having regard to the time and place when and where he is alleged to have committed the offence, he could not have been present. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place.
47. It is well settled that in view of illustration (b) to Section 103 of Indian Evidence Act, the burden of proof of plea of alibi is on the accused. [State of Haryana vs. Sher Singh and Others, [(1981) 2 SCC 300]. Reference can also be made to Section 106 of the Indian Evidence Act. The plea of alibi must be proved with absolute certainty so as to completely exclude the presence of the person concerned at the time and place where the incident took place. [Rajesh Kumar vs. Dharamvir & Others, (1997) 4 SCC 496 (para -23)]. I am of the opinion that the accused has not been able to show that he was not in Delhi on the day of alleged incident.
SC No.163/13 State vs. Ashwani Kumar Page 30 of 4248. In order to show that DW1 had indeed treated the accused on 30.06.2004 at Mathura, the accused has produced the photocopies of the documents which are stated to be an OPD slip and a medical certificate. The originals of these documents were never produced and thus the same were not got exhibited and cannot be taken to be a part of judicial record. Even if these documents are taken to be as part of judicial record, I am of the opinion that the same are not reliable pieces of evidence. During his cross examination, DW2 was asked whether he had brought the register maintained in the hospital in which entry of OPD patients are made to which this witness replied in negative. This witness denied the suggestion that he has not brought the said register deliberately as the patient Ashwani Kumar did not come to the hospital. No steps were taken by the defence to summon and produce the relevant OPD register in the court. He identified the patient before the court with his memory. He also stated that on an average 25 to 30 patients are examined by him.
49. There is nothing on record to show that during investigation of this case, police officials were informed about the alleged treatment of the accused at Dori Lal Community Health Centre, Amirpur Baldev, District SC No.163/13 State vs. Ashwani Kumar Page 31 of 42 Mathura, UP. As noted above, investigating officers of this case appeared as PW6, PW9 and PW10. Again no specific suggestion was given to any of them during their cross examination. It is also strange that DW1 was able to identify the accused in the court after about 9 years to whom he had met only for couple of hours in discharge of his duties. As per this witness, he used to treat, on an average, 25 to 30 patients daily. DW3 is admittedly the brother in law of this accused. It is not the case of the defence that during investigation this witness came forward to state that he had accompanied accused to Mathura. In these circumstances, I am of the opinion that statements of these two defence witnesses are not trust worthy. The defence of the accused that he was not present in Delhi on the day of incident is of no help to the accused.
50. It is next contended that there has been a delay in registration of FIR. It is stated that FIR was registered after delay of 17.30 hours though the house of the prosecutrix was just 1.5 kilometers away from the police station. It is further submitted that this delay has not been explained in the statements of PW1 and PW4 which would indicate fabrication on the part of the prosecutrix and the same is an afterthought.
SC No.163/13 State vs. Ashwani Kumar Page 32 of 4251. In the facts of this case, I am of the opinion that time interval of about 17 hours cannot be considered as an inordinate delay in registration of FIR. During evidence the prosecutrix has explained that after the incident, both the accused persons threatened her that they will not spare her if she will disclose the incident to her family members. The prosecutrix has also deposed that she went to her house and slept as she was afraid and she did not disclose the incident to anyone for some time. Thereafter on asking of her maternal aunt, she disclosed the incident to her. Subsequently, her mother came to know about the incident. In night, maternal uncle and maternal grandfather reached home and then she alongwith her mother, maternal uncle and grandfather went to the police station.
52. The prosecutrix was just 13-14 yeas of age. There is no reason to disbelieve the testimony of this witness on this aspect. The statement of prosecutrix on this aspect also finds support from the statement of her mother. The fact that maternal aunt has not been produced as witness is of no consequence. In the circumstances, I am of the opinion that the delay of 17 ½ hours has been properly explained.
SC No.163/13 State vs. Ashwani Kumar Page 33 of 4253. In the case reported as Om Prakash vs. State of Haryana (AIR 2011 SC 2682), the Hon'ble Supreme Court has observed that a young girl who has undergone the trauma of rape is likely to be reluctant in describing those events to anybody including her family members. In that case, the moment the victim informed the fact of rape to her family members, FIR was got registered. Same is the position in this case. Moreover, 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 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.
54. In view of above discussion, the plea of defence that there is a delay in lodging the FIR is of no help to the accused.
55. It is also submitted on behalf of the accused SC No.163/13 State vs. Ashwani Kumar Page 34 of 42 persons that medical and forensic evidence led by the prosecution also does not support its case. Learned counsel has referred to the MLC of the prosecutrix Ex.PW11/A and FSL report Ex.PY. It is pointed out that through in Ex. PW11/A the hymen is shown ruptured but no injury is shown on the person of the prosecutrix. He also referred to FSL report which records that no semen was detected on the glass slides which has some whitish smear and on the underwear of the prosecutrix. He also referred to the statement of the prosecutrix dated 9.4.2013 in which she has deposed that she did not take bath after the incident and before going to the hospital for medical examination. He also placed reliance to the statement of PW11 Dr. Tapasi Chatterjee, CMO LBS hospital who during her cross examination deposed that hymen can be ruptured due to various reasons.
56. Absence of injury on private part of the body of the victim is not conclusive of the fact that there was no sexual penetration. In a recent judgment titled as Beeru vs. State [judgment dated 11.12.2013 in CRL.A. 1079/2010], 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) Cri. LJ 580 (Delhi) dealing with similar medical SC No.163/13 State vs. Ashwani Kumar Page 35 of 42 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 on the labia and such blows lead to SC No.163/13 State vs. Ashwani Kumar Page 36 of 42 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 same principle equally applies to the evidence SC No.163/13 State vs. Ashwani Kumar Page 37 of 42 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)
57. 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. Her testimony can be acted upon by the court SC No.163/13 State vs. Ashwani Kumar Page 38 of 42 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 an offence of rape, it is not necessary for the SC No.163/13 State vs. Ashwani Kumar Page 39 of 42 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)
58. In this case, the incident of the rape allegedly happened on 30.06.2004 at about 11.00 am. As per MLC, the prosecutrix was got medically examined on 01.07.2004 at about 12.05 pm. Thus more than 24 hours had lapsed after the alleged incident. The prosecutrix was just 14 years of age at the relevant time. The accused Ashwani Kumar and his accomplice were adult males who beat and threatened the prosecutrix in a coercive manner. The prosecutrix would have been hardly in a position to offer any resistance to the acts of the accused persons. The hymen of the prosecutrix was found ruptured.
59. In view of above discussion, I am unable to concur with the submission on behalf of the accused that the statement of the prosecutrix does not inspire confidence and is liable to be rejected. It is held that the statement of the prosecutrix is wholly reliable. She has made consistent statements on the material aspects on all SC No.163/13 State vs. Ashwani Kumar Page 40 of 42 the occasions. The statement of the prosecutrix shows the act of sexual intercourse by the accused Ashwani Kumar by force on the prosecutrix. The prosecutrix was even otherwise less than 16 years of age on the date of incident. The facts proved on record show obvious common intention on the part of the present accused Ashwani Kumar and the other person who committed the offence of gang rape. It is also proved from the testimony of the prosecutrix that at the time of incident, the accused persons threatened to kill her. The facts proved on record clearly show the commission of offences punishable u/s 376 (2)(g) IPC and u/s 506 (II) IPC by accused Ahswani Kumar.
60. The prosecutrix was raped by two persons who acted in furtherance of their common intention. One of which was accused Ashwani Kumar. As per the case of prosecution, other accused was Rajiv Tyagi. As noted above, accused Rajiv Tyagi is absconding.
61. The prosecution has been able to establish that prosecutrix was raped by more than one person in furtherance of their common intention. A person can be convicted of an offence of "gang rape" even if the other persons who had participated in that offence could not be SC No.163/13 State vs. Ashwani Kumar Page 41 of 42 brought before the court to face trial for one reason or the other. Inability of the State to produce other accused person would not mitigate the gravity of offence committed by the accused Ashwani Kumar. Whether the other person who participated in the offence of gang rape in this case was accused Rajiv Tyagi or not will be determined during the course of his trial as and when accused Rajiv Tyagi is apprehended and produced in the court.
62. The incident pertains to the year 2004 thus the present case would be governed by the provisions of law as existed at that time.
63. In view of above discussion, it is held that the prosecution has been able to prove its case beyond reasonable doubt against accused Ashwani Kumar that he has committed offences punishable u/s 376 (2)(g) IPC and u/s 506 (II) IPC. Thus, the accused Ashwani Kumar is convicted of the offences punishable u/s 376(2)(g) IPC and 506 (II) IPC.
Announced in the open court on 11.08.2014 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
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