Delhi District Court
State vs . Rajender Gupta on 1 June, 2010
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE-03, NORTH, DELHI.
FIR No.:33/2008
PS: Timarpur
U/s: 376/354 I.P.C
S.C. No.: 04/2008
In the matter of:
State Vs. Rajender Gupta
S/o Sh. Mahngu Ram
R/o House no. B-2544, Gali no. 66,
Sant Nagar, Delhi
Date of receiving in Sessions Court : 31.3.2008
Arguments Heard : 22.3.2010, 17.4.2010, 10.5.10
Date of Judgement : 01.06.2010
JUDGEMENT
Case Of Prosecution:
1. On 16.1.2008, the prosecutrix/complainant (name withheld to keep her identity confidential) aged about 20 years came to the Police Station Timar Pur and gave her statement that she is visually impaired and a resident of A-578, 579, Pankha Road, Uttam Nagar, Delhi. She is studying and residing in a Blind Hostel situated at Sant Nagar, Street no.66, Burari, Delhi since 2.5.2007. In the said blind hostel, accused Rajender Gupta who is also visually impaired teaches them. In the first week of December 2007, accused Rajender Gupta eve teased her and when she left studying from him then he told his wife Saroj about this fact S.C. No.: 04/2008 1/30 and his wife Saroj advised her to take classes from the accused. In the morning of 11.1.2008, she had gone to take classes from accused along with some other girls and after winding up of the class, when she was going to her room, her warden Neetu told her to put the vegetables lying outside in the store. When she was putting vegetables inside the store, accused Rajender Gupta came there and caught hold of her. She prayed him to let her go but accused told her that nothing would happen.
Thereafter accused Rajender Gupta made her lie on the bed and after opening the string of her Salwar, did wrong act with her. Accused also threatened her with dire consequences if she would disclose this incident to anyone and thereafter accused did not allow her to go outside. In the morning of 16.1.2008, when Saroj and Neetu were quarelling with each other, she got the opportunity and she rushed outside and rang her Sister (Didi) Uma. Her sister Uma came there and took her with her. Thereafter, she gave her abovesaid complainant to the police in police station and stated that she can identify the accused with his voice. On receipt of information, W/ASI Mithlesh Yadav reached at the Police Station and took the prosecutrix alongwith other police staff to Aruna Asaf Ali Hospital for her medical examination from where she received the MLC of prosecutrix and sealed parcels of blood sample and vaginal swab of the prosecutrix from the concerned doctor. On the basis of MLC and statement of prosecutrix, case U/s 376/354 IPC was registered against the accused. Exhibits were sent to FSL, Rohini for expert opinion and accused was arrested in this case. Statement of prosecutrix U/s 164 Cr.P.C. was got recorded and after completion of investigation, IO filed the challan in the court.
S.C. No.: 04/2008 2/302. Since the offence U/s 376 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:-
3. Prima facie case under section 376/506/342 IPC was made out against the accused. Charge was framed against him to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 15 witnesses in all.
5. The brief summary of deposition of the prosecution witnesses is as under:
Formal Witnesses:
6. PW3 is Constable Sunita who stated that on 15.1.2008 she was joined by the IO WASI Mithlesh Yadav for verification of the DD. They went to the Office of Mahila Jagriti Samiti, Tagore Garden, Delhi where the prosecutrix and her sister Uma were produced before them. SI Sanjeev Verma and Constable Rajender were also with them. They took the prosecutrix and her sister Uma to P.S. Timarpur. IO recorder her statement in this regard and she was discharged.
7. PW6 is ASI Dharampal who recorded the FIR and proved the same as Ex. PW6/A.
8. PW7 is Constable Rajender who took the exhibits of the case to FSL, Rohini and deposited the same there. He stated that so long the S.C. No.: 04/2008 3/30 exhibits remained in his possession, nobody tampered with the same and seals thereon remained intact.
9. PW9 is Sh. Sanjay Jindal, ACMM, Dwarka Courts who recorded the statement of prosecutrix U/s 164 Cr.P.C. and proved the same as Ex.PW9/B.
10. PW11 is Sh. Naresh Kumar, Sr. Scientific Assistant, Biology, FSL, Rohini who had examined the case property and proved the report as Ex. PW11/A.
11. PW12 is Constable Ramesh who was working as DD writer on 15.1.2008 and SI Sanjeev Verma had recorded the DD no. 40 in his presence. He proved the DD as Ex. PW8/A.
12. PW14 is Head Constable Vijedner Kumar who was posted as MHC(M) on 16.1.2008. He stated that on that day, ASI Mithlesh had deposited with him four sealed parcels duly sealed with the seal of CMO, AAA Hospital, Delhi alongwith two sample seals and copy of their seizure memos. On 29.2.2008 the abovesaid sealed parcels alongwith sample seals were sent to FSL, Rohini for expert opinion vide RC no. 35/21 and result of the same was received on 8.5.2008 by the IO alongwith three sealed parcels from FSL, Rohini He made entry of the abovesaid facts in malkhana register and proved the same as Ex. PW14/A. He further proved the copy of RC as Ex. PW14/B. Material Witnesses:-
13. PW1 is the prosecutrix who stated that she is blind. On 2.5.2007, her sister had got her admitted in the hostel of blind in Sant Nagar, Burari which is being run by Rajender Gupta who is also blind. She was got admitted for studying there. After 3-4 months, accused S.C. No.: 04/2008 4/30 Rajender Gupta teased her and outraged her modesty. Accused used to teach her. After the abovesaid occurrence, she left studying from the accused but his wife Saroj advised her to take classes from accused. On 11.1.2008 in the morning, she went to take classes from accused in the hostel. After finishing the class, the accused teased her and he also confined her in a room and did not allow her to move even for making telephone call and accused raped her forcibly. She stated that the accused gave her threat to kill her and also tried to kill her. On 15.1.2008, when Neetu, the warden of hostel and wife of accused were quarelling, the main gate was opened and so she rushed outside. She went on the shop of one Raju and made telephone call to her sister from a landline phone of STD Booth. Her sister came there and took her to her house. She narrated the entire occurrence to her sister Uma on which her sister took her to Nirmal Sharma. She was produced before the police and she narrated the entire occurrence to the police. The police had taken her to the hospital where she was medically examined. She was also produced before a MM and she had narrated the entire occurrence to the MM.
14. PW4 is Uma, the sister of prosecutrix who stated that she know the accused present in the court as he is the teacher in Blind School, Vinayak Blind Women Hostel, Jharoda, Delhi. Her sister i.e. the prosecutrix is blind. Someone had told her that there is a hostel for blind students with the name and style of Vinayak Women Hostel (Blind) at Jharoda, Delhi. So she took her blind sister there and got her admitted there for her study. The accused was a teacher who used to teach the blind students. On 15.1.2008, her sister told her on telephone to save her life as her teacher Rajender Gupta has committed rape upon her. Thereafter she S.C. No.: 04/2008 5/30 alongwith her elder brother Bal Mukund went at the hostel of her sister. Her sister was sitting on the roof of the building of hostel and three/four persons were also present there while encircling her. Saroj, the wife of accused was also sitting there with her sister. The wife of accused requested her not to lodge report against the accused and settle the matter but she refused . Thereafter she and her brother took the prosecutrix down from roof of the building. The accused was sitting in his office. He tendered apology before them while saying that whatever they want, he will give them in writing and settle the matter but they refused. Thereafter she went to the office of Jagriti Mission Rajauri Garden, Delhi and narrated the entire occurrence to Nirmala Sharma who is running the institution Jagriti Mahila Samiti. Thereafter Nirmala Sharma contacted her sister on telephone and called her in her office and confirmed the matter of rape and informed the police on telephone. The police came there and took the prosecutrix to police station. From there, they took the prosecutrix to hospital for her medical examination. On the next morning, accused Rajender Gupta was arrested by the police and police took the prosecutrix to concerned MM for recording her statement. Thereafter she took her sister to the house and police had recorded her statement.
15. PW8 is SI Sanjeev Verma who stated that on 15.1.08, he was posted as SI at PP Jharoda of Police Station Timar Pur, Delhi and was the Incharge. On that day at about 8.45p.m. a telephone call was received from Nirmala Sharma, Jagriti Mahila Samiti that a blind lady has come to her residence cum office 1989, Tagore Garden, Rajouri Garden alongwith her sister and the prosecutrix is saying that she has been raped by her blind teacher Rajender Gupta in Street no. 66, Sant Nagar, in the blind S.C. No.: 04/2008 6/30 hostel. He informed the SHO Timapur through telephone and requested him to send a lady police officer for investigation. On his directions he alongwith Constable Rajender and lady Constable Sunita left for Tagore Garden. He made entry in the DD register in this regard vide DD no. 40 dated 15.1.08 and they all reached at 1989 Tagore Garden, Rajouri Garden where the blind prosecutrix and her sister Uma met them. After verifying the facts of the DD from prosecutrix, they took the prosecutrix alongwith her sister to police station-Timar pur and investigation of the case was taken over by ASI Mithlesh Yadav by the order of SHO. Thereafter he alongwith ASI Mithlesh, Lady Constable Sunita and the sister of prosecutrix took the prosecutrix to Aruna Asaf Ali Hospital for her medical examination. The concerned doctor had examined the prosecutrix and prepared her MLC and had also taken the vaginal swab and blood sample of the prosecutrix and handed over the same to ASI Mithlesh alongwith the sample seal. The prosecutrix was examined by lady ASI and on her direction and in her presence, he had recorded statement of the prosecutrix Ex. PW1/A. IO/ASI Mithlesh had dictated her endorsement to him and he recorded the endorsement on the statement of the prosecutrix Ex. PW1/A. The ASI had recorded his statement and he was discharged.
16. PW13 is ASI Mithlesh Yadav who is the IO of the case. She took the prosecutrix alongwith other police staff to Aruna Asaf Ali Hostel for her medical examination, recorded the statement of prosecutrix, arrested the accused and after completion of investigation filed the challan in the court. She further proved all the memos in the court.
Medical Witnesses:-
S.C. No.: 04/2008 7/3017. PW2 is Dr. Anubha, Medical Officer from Aruna Asaf Ali Hospital who examined the prosecutrix and proved the MLC as Ex. PW2/A. She also referred the prosecutrix to Senior Resident Gynae for detailed examination and opinion.
18. PW10 is Dr. S. Lal, Specialist Forensic Medicine from Aruna Asaf Ali Hospital who had examined the accused for his potency and proved the MLC as EX. PW10/A.
19. PW15 is Dr. Vijay Khari, Medical Officer from Aruna Asaf Ali Hospital who had examined the accused on 16.1.2008 and referred the patient to Forensic Expert and Eye Department for further management and expert opinion regarding his potency. He proved the MLC as Ex. PW15/A.
20. Statement of accused U/s 313 Cr.P.C. was recorded wherein he denied the case of prosecution and stated that he is not a teacher in the hostel of blind. Rather he is the secretary who looks after the official and administration work of hostel. It is not an educational institute and only a hostel to stay of girls. He further stated that he was taken by the police officials submitting falsely that he had to sign some papers in Police Station and was falsely implicated in the present case there. He is innocent and he has not committed any offence.
21. Accused further chose to lead evidence in defence and examined five witnesses in his defence.
22. DW1 is Smt. Madhu Devi who stated that she is working as Care Taker of the blind girls in Vinayak Blind Women Welfare Society for the past three years. It is a hostel for the blind girls. The blind girls go outside to the schools and colleges for education. She know accused S.C. No.: 04/2008 8/30 Rajender Gupta as he is secretary of the society. His work is to collect donation for the children and he mostly does field work. The prosecutrix had got admission in the hostel two months back to the incident. The accused Rajender Gupta had good behaviour with her and he was a fatherly figure to the blind girls. She further stated that the brother in law of prosecutrix used to visit the hostel regularly and take her with him. She further stated that she stays in the hostel and accompany the girls for 24 hours. The prosecutrix has implicated the accused falsely. She does not remember the date of the incident. The prosecutrix told her that she had to give a call and left the hostel. After that she never returned to the hostel. Prior to this incident, none of the other blind girl hostelier has ever levelled any such allegation against the accused. Normally the hostel accommodates 23 to 24 blind girls and she is a cook in the hostel. The accused never ever abuses the blind girl hosteliers. The prosecutrix was not interested to stay in the hostel hence always used to leave the hostel. She stated that she keep the vegetables herself and never tells any blind girl to do any type of work in the hostel. The blind girls calls the accused as "Sir". The prosecutrix had come to the hostel to complete her 10th board exams. Sometimes, the elder sister of the prosecutrix used to visit her in the hostel. There is no education facility in the hostel. The blind girls go to the outside institution to procure studies. Typing is taught in the society for which a lady teacher is engaged.
23. DW2 is Sh. Durgesh Kumar Gupta who is working as Guard in Vinayak Blind Women Welfare society for the last five and half years. He stated that he accompany the accused Rajender Gupta when he goes outside and he stay in a room adjacent to the hostel. The hostel is only for S.C. No.: 04/2008 9/30 visually impaired girls. The behaviour of accused with him and other girls has always been good. Two months prior to the incident, prosecutrix had come to the hostel. The allegations against the accused is totally false and no other girl hostelier has ever alleged any allegations against the accused before or after the incident. On the day of incident, he went alongwith the accused for donation at about 8.00 a.m. The accused Rajender Gupta stays nearby with his wife in a rented accommodation. The accused Rajender Gupta cannot see and therefore he always accompany him wherever he goes. The visually impaired girls go for computer training, school, college to different institutions outside the hostel. Early in the morning, the girls leave for their educational training outside the hostel and come back late afternoon to the hostel. For cooking and cleaning of the hostel, two sighted ladies are engaged. The accused was called by the police without telling the reason, he and accused Rajender Gupta went to police station Jharoda and were detained there by the police. He further stated that the girls stay in the first floor of the office. The prosecutrix was always pressing upon to get her 10th board forms filled up and the same was done by him but later on when he came to know that prosecutrix does not know brail (written form for visually impaired) then her forms were cancelled. There is no facility of teaching the girls inside the hostel campus. The strength of the hostel is 22 to 23 girls. The prosecutrix was frustrated towards her forms of board which were cancelled and often used to go out and listen to others saying hence has initiated a false complaint against the accused Rajender Gupta.
24. DW3 is Basanti Topo who stated that she stay in a hostel named Vinayak Blind Womens Hostel and go out for procuring her S.C. No.: 04/2008 10/30 studies. She is a student of 12th standard. Rajender Gupta is the Secretary of the above named hostel. She is not aware of any incident in the hostel. The prosecutrix was residing with them in the hostel and she was their friend. Rajender Gupta performs official work and they call him as Sir and his behaviour towards the hostelier girls is good. She is residing in the hostel for the past four years and now also she is residing there. The hostel provides them the facility of boarding and food. There is no facilities of any type of education. They used to leave for school at 7.00 am. Rajender Gupta comes to the office, situated in the ground floor of the hostel, after 8.00 am. Rajender Gupta resides at his own home and does not reside in the hostel. There are two ladies who are sighted in the hostel as caretaker and cook. There is a lady warden who is also visually impaired who takes care of all their problems. She further stated that all the rooms in their hostel are connected by intercom. There are 22 girl hosteliers residing in the hostel. None has ever alleged any allegation against Rajender Gupta. Prosecutrix has alleged falsely against him. She further stated that she had gone to the police chowki and she does not remember how many of them had gone to the police chowki. Police did not enquire anything from them. Prosecutrix had gone to her house for two three days but did not return back thereafter.
25. DW4 is Lata Kumari and DW5 is Noor Jahan. They both are also the hostlers of Vinayak Blind Women's Hostel and have deposed on the lines of DW3.
26. I have heard the Ld. counsel for accused as well as Ld. APP for the state and have carefully perused the record.
Section 375 of IPC defines 'Rape' as under:
S.C. No.: 04/2008 11/30Sec. 375. Rape:"A man is said to commit 'rape' who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
First : Against her will, secondly : without her consent, Thirdly : with her consent, when her consent has been obtained by putting her or any person in whim she is interested in fear of death or of hurt, Fourthly : with her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whim she is or believes herself to be lawfully married, Fifthly : with her consent, when at the time of giving such consent, by reason or unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent, Sixthly : with or without her consent, when she is under sixteen years of age. Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape".
Section 376 of IPC deals with the punishment of rape which reads as under :
Section 376 IPC: Punishment for Rape:- "(1) whoever, except in the cases provided for by sub section (2) commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which many be for the life S.C. No.: 04/2008 12/30 or for a term which may be extended to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment or either description for a term which may extend to two years or with fine or with both".
27. "Rape" is the act of physically forcing a woman to have sexual intercourse : an act of sexual intercourse that is forced upon a woman against her will. The offence of rape in its simplest term is 'the ravishment of a woman without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will'.
28. Rape or raptus is when a man hath carnal knowledge of a woman by force and against her will; or as expressed more fully, 'rape is the carnal knowledge of any woman above the age of particular years, against her will; or of a woman child, under that age , with or against her will'.
29. In the definition of rape, the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; the second where it is done without her consent; the third, fourth and fifth, when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her or any person in whom she is interested in fear of death or of hurt (third clause); or when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married (fourth clause); or when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through S.C. No.: 04/2008 13/30 another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent (fifth clause); or where the intercourse is with a girl so young that consent is immaterial (sixth clause).
The section requires two essentials :
1. Sexual intercourse by a man with a woman
2. The sexual intercourse must be under circumstances falling under any of the six clauses in the section.
30. To have sexual intercourse with a woman against her will is rape. The expression "against her will" means that the act must have been done inspite of the opposition of the woman. Non-resistance on the part of the woman does not amount to consent. An inference as to consent can be drawn if only based on evidence or probabilities of the case.
31. The Indian Penal Code does not define 'consent' in positive terms, but what can not be regarded as 'consent' under the Code is explained by section 90. Consent given first under fear of injury and secondly under a misconception of the fact is not 'consent' at all. That is what is enjoined by the first part of section 90. These two grounds specified in section 90 are analogous to coercion and mistake of the fact which are familiar grounds that can vitiate a transaction. The factors set out in the first part enacts the corresponding provision from the point of view of the accused. It lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied.
32. In the case in hand, the prosecutrix has been examined as PW1 by the prosecution. She stated her age as 21 years. She stated that on S.C. No.: 04/2008 14/30 2.5.2007, her sister got her admitted in the hostel of blind in Sant Nagar, Burari which is being run by accused Rajender Gupta who is also blind. She was got admitted for studying there. After 3-4 months, accused Rajender Gupta teased her and outraged her modesty. Accused used to teach her and after the abovesaid occurrence, she left studying from the accused but his wife Saroj advised her to learn teaching from accused. On 11.1.2008 in the morning, she went for study from accused in the hostel. After finishing the class, the accused had teased her and he also confined her in a room and did not allow her to move even for making telephone call and he also raped her forcibly. Thereafter accused kept her confined in a room . On 15.1.2008, Neetu, warden of the hostel and wife of accused were quarelling, the main gate was open. Therefore she rushed outside and went to the shop of one Raju and made telephone call to her sister from a landline phone of his STD Booth. Thereafter her sister came there and took her to her house. She narrated the entire occurrence to her sister Uma on which her sister took her to Nirmal Sharma and also produced her before the police. She narrated the whole occurrence to the police also. (The witness being visually handicapped, her statement was read over in the court and she stated that she made the same statement Ex. PW1/A before the police). She further stated that police had taken her to hospital where she was medically examined and thereafter she again said that on 16.1.2008 the police had produced her before a MM and she had narrated the entire occurrence before the MM. The prosecutrix has been cross examined at length by the Ld. Defence counsel. She stated that she alongwith her parents, sister and brothers is living in Uttam Nagar. She stated that her sister Uma with another blind person got her admitted S.C. No.: 04/2008 15/30 in the hostel for her further studies. She studied upto third class and thereafter became visually handicap and thereafter left her studies. She knows to put her signatures in Hindi. She stated that in her room there were 9 other blind girl students and about 15 girl students were living in the hostel. She gave the name of her roommates as Noorjahan, Pushpa Chaurasiya, Sheela, Manju and Basanti. She stated that accused used to teach the blind students and Manju, Basanti, Lalita, Phool Kumar and some other blind students were studying from the accused. He used to teach grammar in English and Hindi orally. She further stated that she is not aware about the teaching of Brail. In her cross examination, she stated that she was alone and was coming out from the bathroom after taking bath when the accused outraged her modesty in the staircase of the hostel.
33. Ld. Counsel for the accused argued that in the chief examination, prosecutrix has stated that she was confined in a room and raped there but now she has stated that accused outraged her modesty in the staircase. It may be mentioned that in her examination in chief, prosecutrix has stated that three/four months after her admission the accused teased her and outraged her modesty and from the cross examination it is clear that the incident took place on the staircase of the hostel and not the incident of rape which as per the prosecutrix took place on 11.1.2008. She stated that on 11.1.2008 her class started at about 6 a.m. and ended at 7 a.m. and thereafter Neetu, the warden asked her to place the bucket of vegetables in the outer room. She took the vegetables bucket there and accused also followed her . He forcibly put her on a bed and forcibly raped her. Accused also threatened her that he will kill her if S.C. No.: 04/2008 16/30 she will raise alarm or disclose the occurrence to anyone. In her cross she has further stated that she was not doing the work of placing vegetables in the outer room as daily routine. She stated that she used to remain in the hostel when remaining blind girl students used to go to their schools for studying at about 7 a.m. and some other at 9.00 a.m. as daily routine. In her cross examination she has also admitted that accused and his wife were not living in the hostel rather they were living in a rented accommodation. This fact that the prosecutrix is not telling lie has been corroborated by the defence witnesses examined by the accused where DW2 Durgesh Kumar Gupta examined by the accused in his defence has also stated in his chief that accused Rajender Gupta stayed nearby the hostel with his wife in a rented accommodation. PW1 has also stated that wife of the accused is a government employee in a hospital. In her cross she has stated that wife of the accused used to come at the hostel at about 2.00 p.m. and used to stay in the hostel upto evening and accused used to come to the hostel alone at about 6 a.m. and used to leave the hostel with his wife at about 7.30 p.m. She has further stated that no male person was allowed to visit the hostel. She denied the suggestion that one boy used to come to meet her in the hostel. She has stated that she went to the police station on 15.1.2008.
34. So far as the FIR is concerned, then same is dated 16.1.2008. The prosecutrix has duly explained the delay in lodging the FIR. She has stated that after the rape being committed upon her on 11.1.2008, she was confined in the room till 15.1.2008. From the testimony of prosecutrix, it seems that she is not telling lie. She has given the date of 15.1.2008. She has also stated in her chief examination that on 16.1.2008 on Wednesday S.C. No.: 04/2008 17/30 she was produced before the Ld. MM . On checking the calender of year 2008, it transpired that on 16.1.2008, it was Wednesday. Moreover the statement of prosecutrix has been recorded on 16.1.2008 as is clear from her statement Ex. PW9/B. Thus, the incident of rape took place with the prosecutrix is clear from the fact that she is able to remember each and every date and not only the date but the day falling on that date. Prosecutrix has also admitted that accused is married and having no children. She has further stated that she does not know the reason of quarrel between Neetu and Saroj but she has stated that it was Tuesday on 15.1.2008. This fact of the prosecutrix that 15.1.2008 was Tuesday is clear from the Calender of year 2008 and from this testimony of the prosecutrix, it seems that since the incident happened with her, therefore she is not able to forget the same and is able to remember each and every details like the day falling on that date. A suggestion has been put to PW1 that she has tried to falsely implicate the accused but no reason has been put forth why the prosecutrix would falsely implicate him.
35. In his defence the accused has examined 5 witnesses. DW2 has stated that the prosecutrix was frustrated towards her board forms which were cancelled and often used to go out and listen to others saying and therefore she made a false case against the accused Rajender Gupta. Prosecutrix in her cross examination has stated that accused had filled up her form for the admission in 10th class despite her protest. The testimony of PW1 inspires confidence. There is no reason to disbelieve the same.
36. It has been held by our own Hon'ble High Court in Arshad Vs. State 2009 VI AD (Delhi) 37 that "statement of prosecutrix alone is S.C. No.: 04/2008 18/30 sufficient in case U/s 376 IPC". It has been further held that :
"In a rape case conviction of the offender can be based on the sole testimony of the rape victim may be a child provided it inspires confidence of the court. In a rape case, the testimony of the victim is vital and seeking corroboration of her statement relying upon the same as a rule would amount to adding insult to injury unless the court finds compelling reasons requiring corroboration of her statement".
37. Prosecutrix has further admitted her statement given to the MM. She has stated that she was taken before the Ld. MM on 16.1.2008 and her statement had been recorded on 16.1.2008. Thus, her statement inspires confidence. From the report U/s 173 Cr.P.C. , also it is clear that the prosecutrix gave the informtion regarding the incident of rape to the Police Station on 15.1.2008 and it seems that after the medical checkup and further investigation, the FIR had been lodged on 16.1.2008 at about 1.10 hours in the night. Since recording of the statement of prosecutrix by the IO and also her medical examination by the doctors would have taken so much time that the FIR was registered late in the night on 16.1.2008. Thus, the delay in lodging the FIR has been duly explained by the prosecution.
38. Ld. counsel for accused further argued that accused was not teaching in the hostel and this fact is clear from the statement of other defence witnesses and it makes the case of prosecutrix a false one. Prosecutrix has stated that accused was taking classes of Hindi and English Grammar orally. Though none of the defence witnesses examined by the accused have stated that accused ever used to teach in the hostel but in her cross, the prosecutrix has given the name of her roommates as S.C. No.: 04/2008 19/30 Pushpa, Sheela, Manju, Basanti and Noorjahan. Accused has also examined DW3 Basanti and DW5 Noor Jahan and both of these witnesses have also stated that the prosecutrix was residing with them in the hostel. This fact goes to prove the case of the prosecution that the prosecutrix is not lying.
39. Prosecutrix further has taken the name of one Neetu, the warden and Madhu, the cook. Smt. Madhu has been examined as DW1 by the accused and she has also stated that she is working as Care Taker in the Vinayak Blind Women Welfare Society for the past three years. DW1 who is the cook and DW2 who is the Guard in the hostel have stated that brother in law of the prosecutrix used to visit the hostel regularly for which accused had raised objections. The prosecutrix in her cross has stated that the male visitors were not allowed in the hostel. DW2 was posted as Guard in the hostel. There must be some register maintained by him for regulating the entry and exit of the visitors and hostel inmates in the hostel. DW2 has not produced on record any register to fortify the case of the accused that brother in law of the prosecutrix used to regularly visit her. Merely because the other residents of the hostel who are still living in the hostel have stated that they were not taught by accused in the hostel is no ground to disbelieve the testimony of prosecutrix. The prosecutrix herself has stated that some of the girl inmates used to go for their studies at around 7 a.m. and some other at around 9 a.m.
40. Ld. defence counsel argued that due to the adamant and strong nature of the prosecutrix, she could not reside with her family and was compelled to stay in the hostel for procuring her studies in which she personally did not have any interest. Written arguments of the accused are self contradictory as at one place Ld. defence counsel argued that there was S.C. No.: 04/2008 20/30 no facility of studies in the hostel whereas in para 6 of the written arguments, accused himself has taken the plea that prosecutrix was compelled to stay in the hostel for procuring her studies. Furthermore the prosecutrix started living in the hostel 5/6 months prior to the incident. This is admitted case of the accused also. Prior to that she was living with her parents. Her age is about 21 years and thus during the last 20 years, the prosecutrix was living with her parents and this belies the defence of the accused that she was adamant in nature and could not reside with her family.
41. So far as the plea of the counsel for accused that FIR has been lodged after 6 long days of the incident of rape is concerned, then as already discussed above, the delay in lodging the FIR has been sufficiently explained by the prosecution. Prosecutrix has clearly stated that she was confined in the room till 15.1.2008 by the accused and it was only thereafter that she was able to make telephone call to her sister who came to the hostel and took her back and thereafter lodged the report with police.
42. So far as the other girl students or the maid servant or the lady cook in the hostel are concerned, then three girl students alongwith the cook Madhu and Guard Durgesh Kumar Gupta has been examined by the accused in his defence. DW1 in her cross examination has admitted that she cannot tell what is happening in another room if she is sitting in another room. All the other defence witnesses have also stated that they did not make any complaint against the prosecutrix or against the officers of the concerned police station regarding the fact that accused has been falsely implicated in this case. DW2 has also admitted that he was posted as guard and his duty was on the gate of the hostel. He is working under the management and control of the accused. Therefore it is but natural for him to depose in favour S.C. No.: 04/2008 21/30 of accused. He has also admitted that he never made any complaint to any higher police officer or to any other higher authority that the accused has been falsely implicated in this case. He has further admitted that accused used to remain inside the hostel and he used to remain on the gate of the hostel. DW3 Basanti Topo has also admitted that they came to the court alongwith the accused Rajender Gupta and other hostel inmates and she stated that she used to go outside the hostel and in her absence she does not know what happened in the hostel. She has also admitted that the prosecutrix had no quarrel with accused Rajender Gupta. If that is so then why the prosecutrix would falsely implicate the accused has not been explained by any of the defence witnesses.
43. DW4 is Lata Kumari who is not aware about the incident as she used to move outside the hostel in the morning. She had been to the police chowki and they used to treat accused as fatherly figure. She has admitted that accused Rajender Gupta is the incharge of their hostel and on the date of hearing in the court, accused also came with her. DW5 is Noor Jahan. In her cross this witness has also stated that accused is their incharge and on the date of hearing in the court, she came with the other visually impaired girls and accused. She has also admitted that she is living in the same room in which the prosecutrix was living.
44. It is an admitted fact that there is one lady cook and one warden in the hostel. Neetu was the Warden of the hostel whereas Madhu used to cook food in the hostel. All the girl inmates in the hostel used to tell their problems to Neetu, the Warden. It may be mentioned that in his defence though the accused has examined so many witnesses and has given a list of witnesses to be examined but he has not examined Neetu, S.C. No.: 04/2008 22/30 the Warden. Even Neetu, the Warden has not been made a witness in the list of witnesses given by the accused.
45. In the arguments filed by the accused one more plea has been taken by the accused that in addition to the brother in law of the prosecutrix, one more boy who was the boy friend of the prosecutrix used to visit the hostel and accused was targeted by the prosecutrix to achieve her vengeance and mint money to elope with her boy friend. For the sake of repetition, it may be mentioned that neither the hostel register has been proved on record by the accused to prove the fact that brother in law or one more boy friend of the prosecutrix used to visit her nor at the time of statement U/s 313 Cr.P.C. accused has taken any such plea.
46. PW2 is Dr. Anubha, Medical Officer from Aruna Asaf Ali Hospital. She examined the prosecutrix and proved her report as Ex. PW2/A.
47. PW4 is Uma, sister of the prosecutrix. She has also fully supported the case of the prosecution. She has stated that on 15.1.2008, her sister (the prosecutrix) told her on telephone to save her life as her teacher Rajender Gupta has committed rape upon her. Thereafter she alongwith her elder brother Bal Mukund went at the hostel where Saroj, the wife of accused was also sitting there with her sister. The wife of accused requested her not to lodge report against the accused and settle the matter but she refused . Thereafter she alongwith her brother took the prosecutrix. The accused was sitting in his office. He tendered apology before them and pressed them to compromise the matter. Nothing material has come out of the cross examination of this witness. Statement of the prosecutrix that in the morning of 15.1.2008, she ran away from the S.C. No.: 04/2008 23/30 hostel and made call from the nearby shop is fortified by the cross of PW4, her sister as PW4 in her cross has stated that she received telephone call of her sister at about 8 a.m.in the morning. So far as PW4 is concerned then, no such suggestion has been given to her that brother in law of the prosecutrix used to visit the prosecutrix. Only suggestion given to PW4 is that the prosecutrix had an affair with a boy. Neither the name of that boy has been given by the accused nor any such fact has been cited by the accused either in his statement U/s 313 Cr.P.C. or in his defence.
48. PW5 is Ms. Anjali from Aruna Asaf Ali Hospital who identified the signatures and handwriting of Dr. Malvika Kumud on MLC Ex. PW5/A.
49. PW8 is SI Sanjeev Verma and PW13 is ASI Mithlesh Yadav. Both of them are the IOs of the case and nothing material has come out of their cross examination.
50. PW10 is Dr.S.Lal, Specialist Forensic Medicine from Aruna Asaf Ali Hospital who examined the accused for his potency and has proved the MLC as Ex. PW10/A. He further deposed that as per the report, there was nothing to suggest that accused/patient was not capable of performing sexual intercourse. Counsel for the accused argued that the accused is impotent. He does not have his own children till today due to this medical problem. It may be mentioned that potency and infertility are two different things altogether. Report of PW10 fully proves that accused/patient is capable of performing sexual intercourse. There can be 100 reasons for infertility and if accused or his wife are not able to bear a child, then no presumption can be raised that accused is impotent also.
51. So far as the FSL report Ex. PW11/A is concerned, then it S.C. No.: 04/2008 24/30 shows that semen could not be detected on exhibits '1a' and '1b' i.e. two micro slides having faint whitish smear. It may be mentioned that these slides were prepared after 6 days of the incident. Both the doctors have stated that the accused as well as the prosecutrix both had changed their clothes and had taken bath also during that period. Therefore if on the vaginal smeared slides, no semen could be detected , then no presumption can be raised that no such incident of rape took place with the prosecutrix. No reason has been shown by the accused as to why the prosecutrix would falsely implicate him when she herself had come to the hostel to live and stay there. Why she would falsely implicate the accused in such circumstances has not been explained by the accused.
52. Counsel for the accused further argued that there was no injury mark either on the accused or on the prosecutrix which belies the case of the prosecution. It may be mentioned that both the prosecutrix as well as the accused were examined after 5/6 days of the incident and if no fresh injuries marks were seen by the doctor at that time, then for this no adverse presumption can be drawn.
53. It has been held in 2007 Cri LJ 2302 by the Hon'ble Apex Court that " Criminal - Cogent and credible evidence - section 376 of the Indian Penal Code, 1860 - Trial court found that evidence of the prosecutrix to be cogent and credible and found the accused guilty - in appeal, the conclusions of the trial court were affirmed by the High Court
- Held, ultimate test for ascertaining, whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman - when the S.C. No.: 04/2008 25/30 evidence of the prosecutrix is considered in the proper perspective,it is clear that the commission of actual rape has been established - appeal dismissed".
54. Similar view has been taken in AIR 2009 SC 885 titled as S. Ramakrishna Vs. State.
55. Ld. counsel for the accused has placed reliance upon 2010 (2) Scale page 308 titled as Abbas Ahmad Choudhary Vs. State of Assam. No doubt it is not always the case that the prosecutrix will tell the entire story truthfully before the court but every case is to be judged on its own facts and circumstances. In the present case, the prosecutrix is not a minor. Though she is visually impaired but by way of sound and other factum that she was residing in the hostel where the accused was also working as Secretary for the last 5/7 years, clearly establish the fact that she is fully able to identify the accused.
56. In view of the abovesaid discussion, prosecution has been fully able to prove its case against the accused beyond the shadow of doubt that he committed rape upon the prosecutrix and also threatened the prosecutrix with her life and wrongfully confined her in the hostel so that she may not tell the factum of rape to anybody else. As such, accused Rajender Gupta is held guilty and convicted for the offence U/s 376/506/342 IPC.
(MADHU JAIN) Additional Sessions Judge-3 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. 01.06.2010 S.C. No.: 04/2008 26/30 S.C. No.: 04/2008 27/30