Delhi District Court
State vs . Sunil Tyagi on 5 October, 2010
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL
SESSIONS JUDGE01, NORTH, DELHI.
FIR No.: 313/2009
PS: Burari
U/s: 376/506/342 IPC
S.C. No.: 33/2010
Case ID No.: 02401R0590942009
In the matter of:
State Vs. Sunil Tyagi
S/o Sh. Pramod Tyagi
R/o House no.160,
Near Khandeshwar Shiv Mandir,
Village Burari, Delhi84.
Date of receiving in Sessions Court : 27.01.2010
Arguments Heard : 21.09.2010
Date of Judgement : 05.10.2010
JUDGEMENT
Case Of Prosecution:
1. On 30.9.2009, the prosecutrix (Name withheld to keep her identity confidential) alongwith her parents came to the police station Burari and gave her statement that she alongwith her family resides as tenant at house of Pramod Tyagi, Near Kandeshwar Shiv Mandir, Village Burari, Delhi - 84. She has studied upto fifth class. On 28.9.2009 on the eve of Dussehra at about 11/12 p.m., she was sleeping alone in her room.
Her father had gone to his workplace and her mother alongwith her sister S.C. No.: 33/2010 1/24 and brothers were watching Dussehra from the roof of their house. At that time, accused Sunil Tyagi @ Sheela who is the son of her landlord entered into her room and committed rape upon her on the point of knife. After the departure of accused, she told the entire incident to her mother who in turn informed her father about the incident. On the basis of statement of prosecutrix, case U/s 376/506 IPC was registered against the accused. During the course of investigation, IO recorded the statement of witnesses, prepared the site plan at the instance of prosecutrix, arrested the accused and got the medical examination of accused as well as prosecutrix done from Aruna Asaf Ali hospital. IO also got recorded the statement of prosecutrix U/s 164 Cr.P.C., exhibits of the case were sent to FSL, Rohini for expert opinion and after completion of investigation, challan U/s 376/506/342 IPC against the accused was filed in the court.
2. Since the offence U/s 376 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, the Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case under section 342/376/506 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. S.C. No.: 33/2010 2/24
The brief summary of deposition of prosecution witnesses are as under: Formal Witnesses:
5. PW4 is Head Constable Chhidda Singh, the MHC(M) who proved the entries regarding the deposition of case property in malkhana register.
6. PW5 is Head Constable Amar Nath, the duty officer who recorded and proved the FIR Ex. 5/A.
7. PW8 is Constable Sunil Kumar who was on duty in Aruna Asaf Ali Hospital on 30.9.2009 and stated that on that day, the prosecutrix was brought for her medical examination in the hospital and he handed over the sealed parcels given to him by the concerned doctor to the IO after the medical examination of prosecutrix.
8. PW9 is Smt. Geeta Devi, who is also a tenant in the house of the father of accused. She stated that she does not know anything about this case and she had not heard anything.
9. PW12 is Ms. Manisha Upadhyaya, SSO (Biology) from FSL who examined the exhibits of the case and proved the report as Ex. PW12/A.
10. PW15 is Sh. Tarun Yogesh, MM who recorded the statement of prosecutrix U/s 164 Cr.P.C. and proved the report as Ex. PW15/B. S.C. No.: 33/2010 3/24 Material Witnesses:
11. PW6 is Ram Chandra Singh, Father of the prosecutrix who stated that during the night of 29.09.2009, he was on night duty on the petrol pump near Khalsa College, Delhi and in the next morning when he reached in his rented house, he saw his children in depressed condition. He enquired about their depression but his children did not disclose anything to him. Thereafter on the next night he again went to his duty and in the next morning when he returned to his house, he asked his children and wife about the depression on which his wife told him that on the eve of dusshera on 28.09.2009, she alongwith their small sons were watching dusshera festival while sitting on the roof of the house and their daughter i.e. the prosecutrix was sleeping in the room. At that time, accused Sheela, present in the court came in her room and raped her on the point of knife. The witness further stated that thereafter he alongwith his wife and daughter went to P.S. Burari and lodged the report against accused. He further stated that he was not allowed to vacate his rented house by his landlord but later on he vacated the rented house and went somewhere else. He further stated that due to terror, he has sent his wife and children at his native village in Bihar.
12. PW7 is the Prosecutrix who stated that she alongwith her family members were staying as tenant in the house of Sh. Pramod Tyagi. On 28.09.2009 she was sleeping alone in her room. Her father had gone to his duty and her mother alongwith her brothers and sisters S.C. No.: 33/2010 4/24 were watching Ram Laxman upstairs as it was the Dusshera day. She further stated that while she was sleeping, the son of her land lord who is accused present in the court entered into her room. She raised alarm but the accused showed her knife and said that if she will shout, he would kill her. After that he removed her clothes and committed sexual intercourse with her against her wishes and thereafter he left the room. After the departure of accused, she immediately told the entire incident to her mother and she raised alarm and also told the incident to her father when he came back home. She further stated that their landlady also intimidated them not to reveal the incident to anybody. One of her uncle asked her father to go to the police station and thereafter they went to the police station where the police recorded her statement. The witness further identified the clothes worn by her at the time of incident.
13. PW11 is Chandra Kala, Mother of the Prosecutrix who stated that she does not remember the date, however it was the Dushhera day. She alongwith her children were watching Ram Leela at the roof of their house and her husband had gone to attend his duty. She stated that her daughter i.e. the prosecutrix had come down stairs for sleeping and when she also came downstairs after watching the Ram Leela, she saw that the accused present in the court had put his hand on the mouth of her daughter and her daughter was trying to remove the hand of the accused and the accused was without any clothes. Thereafter the accused ran away from the room. She further stated that when her husband came S.C. No.: 33/2010 5/24 from the duty in the morning, she told him about the incident. She further stated that the accused had also showed the knife to her daughter and while running accused had threatened them that if they will tell the incident to anybody, he would kill them.
14. PW13 is Constable Bikker Singh who was with the IO during the investigation of the case. In his presence, accused was arrested and his disclosure statement was recorded. He also took the accused to hospital for his medical examination and handed over the sealed pullandas given to him by the concerned doctor after the examination of accused to the IO of the case.
15. PW14 is ASI Alma Minz who is the IO of the case. She recorded the statement of witnesses, prepared site plan, arrested the accused, got the medical examination of prosecutrix as well as accused done from concerned hospital and also got recorded the statement of prosecutrix U/s 164 Cr.P.C. She also got conducted the bony age XRay of the prosecutrix from concerned hospital and after completion of investigation, filed the challan in the court.
Medical Witnesses:
16. PW1 is Dr. Ruby, CMO from Aruna Asaf Ali Hospital who examined the prosecutrix and proved the MLC as Ex. PW1/A.
17. PW2 is Dr. S. Lal, Specialist Forensic Medicine from Aruna Asaf Ali Hospital who examined the accused for his potency and proved the MLC as Ex. PW2/A. S.C. No.: 33/2010 6/24
18. PW3 is Dr. Ved Prakash Verma, Surgeon from Aruna Asaf Ali Hospital who examined the accused from surgical point of view and proved the examination notes as Ex. PW3/A.
19. PW10 is Dr. Archna Aggarwal, Senior Resident Gynae from Aruna Asaf Ali Hospital who examined the prosecutrix in Gynaecological Section and proved the report as Ex. PW1/A.
20. Statement of accused U/s 313 Cr.P.C. was recorded wherein accused denied the case of prosecution and stated that he is innocent and have been falsely implicated in this case.
21. Accused further chose to lead evidence in defence and examined two witnesses in his defence.
22. DW1 is Smt. Kusum Lata Tyagi, mother of the accused who stated that from April 2009, father of the prosecutrix had not paid any rent. She stated that she also used to supply two liter milk per day to the family of prosecutrix and the father of prosecutrix had not made any payment for the same for the period between April 2009 to September 2009 . She stated that whenever she went to ask for money then wife of Ram Chander started quarreling with her. She asked them to vacate the house but Ram Chander replied that he will vacate the house only if she will pay Rs. 2 Lakh to him. She further stated that on 28.9.2009 on the eve of Dusshera she asked the mother of prosecutrix for remaining rent but she replied that she will pay the rent in court and on 30.9.2009 she was informed that police had arrested her son Sunil Tyagi in the present S.C. No.: 33/2010 7/24 case.
23. DW2 is Sh. Rajender Tyagi who stated that his house is situated near the house of accused Sunil Tyagi. Some of the ventilators of the house of accused open towards his house and many times, he had heard about the quarrel between Kusum Tyagi and family of tenant Ram Chander on the issue of rent. He stated that he had heard that Ram Chander is demanding money and a piece of land from Kusum Tyagi for vacating the tenanted premises. It had also come to his notice that Ram Chander is neither paying any rent nor vacating the rented accommodation. After Dussehra he came to know that accused Sunil Tyagi has been falsely implicated in a case.
24. I have heard the Ld. Counsel for accused as well as Ld. APP for the state and have carefully perused the record.
25. Section 375 of IPC defines 'Rape' as under:
Sec. 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 S.C. No.: 33/2010 8/24 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 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 ".
26. "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'.
27. Rape or raptus is when a man hath carnal knowledge of a S.C. No.: 33/2010 9/24 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'.
28. 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 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.
S.C. No.: 33/2010 10/24
29. 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. Nonresistance 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.
30. 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.
31. In the present case, the prosecutrix was taken to Aruna Asaf Ali Government Hospital where she was examined by Doctor Ruby, CMO on 30.9.2009 at about 7.50 p.m.. At that time, when the prosecutrix was first produced before the doctor, she gave her age to the doctor as 15 years. PW6 is the father of prosecutrix. He has stated that his daughter has not studied anywhere in Delhi. IO of the case had demanded the S.C. No.: 33/2010 11/24 school leaving certificate of his daughter but he could not produce the same from Delhi as his daughter has not studied in Delhi. He further stated that the age of his daughter was around 13 years at the time of incident. Thereafter, he also produced the school leaving certificate of his daughter in the court issued from Govt. Primary School, Madhubani, Bihar Ex. PW6/C. PW7 is the prosecutrix. First time she was examined in the court on 20.5.2010 and at that time, she gave her age as about 11 12 years. Subsequently her examination in chief was deferred for want of case property and FSL result and she thereafter appeared in the court on 28.8.2010. On the date when after about three months the prosecutrix appeared in the court, she gave her age as 14 years. This fact was clearly mentioned in the order sheet that previously the prosecutrix had given her age as between 1112 years and therefore she was examined without oath but subsequently she gave her age as 14 years after three months. In her cross examination she has stated that she never studied in any school and cannot read or write Hindi but she can only write her name in Hindi. This statement of the prosecutrix is in contradiction to the statement of her father who has stated that the prosecutrix had studied in Government school in Madhubani, Bihar and has also produced her school leaving certificate Ex. PW6/C as per which the prosecutrix passed fifth class from the Government School at Bihar, District Madhubani. The prosecutrix in her cross has stated that she had never gone to any school and has not studied any where.
S.C. No.: 33/2010 12/24
32. Thus, so far as this certificate is concerned then, this school leaving certificate also becomes doubtful. Moreover this school leaving certificate has not been filed by the prosecution during the filing of challan and it has been produced by the prosecution only during the examination of PW6 i.e. father of the prosecutrix. This school leaving certificate is also not proved by the issuing authority i.e. the Principal of the School and same has been proved by the father of prosecutrix who stated that his daughter i.e. the prosecutrix had studied in their village at Bihar. But the prosecutrix herself has stated that she did not go to any school and did not study anywhere. PW11 who is the mother of prosecutrix has not stated anything about the age of prosecutrix. The prosecutrix who is the best person to give her age, her testimony in this regard becomes doubtful. Testimony of the father of prosecutrix also becomes doubtful as he is not able to tell his own date of birth or any of his children. Further the school leaving certificate becomes doubtful, therefore, in such circumstances now only the bony age report of the prosecutrix remains which can be relied upon by the court for ascertaining the age of prosecutrix . As per the bony age report of the prosecutrix, the age of the prosecutrix was between 18 to 19 years . The bony age report is dated 25.11.2009 and in this report which has been proved on record by the prosecution as Ex. PW14/F by the IO and has also not been disputed by the counsel for accused, it is clearly mentioned that the upper end of humerus is fused with shaft and therefore the age of S.C. No.: 33/2010 13/24 prosecutrix is more than 18 years. The elbow joints centers are all fused with shaft and lower end of radius and ulna also fused with shaft and therefore age is more than 18 years. Similarly upper end of femur is fused with shaft and knee joint and ankle joint are also fused with shaft. As such, the age of person examined has been opined as between 18 to 19 years by the doctors. Even after giving margin of two years on both the sides, the age of prosecutrix can be between 17 to 20 years and therefore her age could not be less than 16 years on the date of alleged commission of offence.
33. PW11 is Smt. Chandra Kala who is the mother of prosecutrix. She has stated that her elder daughter is married and having two sons but she cannot tell the age of her elder daughter or her second daughter or of the prosecutrix. This witness has not stated anything about the age of prosecutrix. So far as the statement of prosecutrix or her father regarding her age is concerned then, both the versions of prosecutrix as well as of her father become doubtful regarding the age of prosecutrix in view of the reasons mentioned above. The prosecutrix herself has given different versions about her age in the court and before the doctors. The father of prosecutrix also has stated the age of prosecutrix in contradiction to what has been stated by the prosecutrix. Moreover, it is hard to believe the testimony of father of proseuctrix regarding the age of prosecutrix as he is neither able to tell his age or the date of his marriage or the age of his other children. So far as the school leaving S.C. No.: 33/2010 14/24 certificate is concerned then, the prosecutrix herself has stated that she never went to any school. The writer of the school leaving certificate has not been produced in witness box by the prosecution. In such circumstances, the school leaving certificate becomes doubtful and cannot be relied upon. Now the only evidence on record regarding the age of prosecutrix that remains with the court is the bony age report of the prosecutrix as per which her age was around 1819 years and therefore the prosecutrix under no circumstances can be less than 16 years on the date of alleged commission of offence.
34. PW7 in the present case is prosecutrix . She stated that on On 28.09.2009 she was sleeping alone in her room. Her father had gone to his duty and her mother alongwith her brothers and sisters were watching Ram Laxman upstairs as it was the Dusshera day. She further stated that while she was sleeping, the son of her land lord who is accused present in the court entered into her room. She raised alarm but the accused showed her knife and said that if she will shout, he would kill her. After that he removed her clothes and committed sexual intercourse with her against her wishes and thereafter he left the room. After the departure of accused, she immediately told the entire incident to her mother and she raised alarm and also told the incident to her father when he came back home. She further stated that their landlady also intimidated them not to reveal the incident to anybody. One of her uncle asked her father to go to the police station and thereafter they went to the police station where the S.C. No.: 33/2010 15/24 police recorded her statement. She has also identified her clothes i.e. shameez and underwear which she was wearing at the time of incident. In her cross this witness has stated that she never studied in any school. They are three sisters and two brothers and she cannot tell their age. She stated that nobody told her about her age and she herself is telling her age but she does not know her date of birth, month and year. This witness has also admitted that in the adjoining room of their room, one Geeta resides and in front of their room, there are other rooms wherein other tenants namely Babloo, Heera Lal and Jamna reside. She has also admitted that there are other houses adjoining and in front of the house of accused. She has stated that she came down stairs in her room at about 12 in the night and slept. She has admitted that the Kundi of her door was in working condition but she had not bolted the same. She has further stated that accused put the shawl on her mouth due to which she could not cry for help. In her chief she has stated that she cried for help and she also raised alarm but the accused showed her knife but in her cross she has stated that as the accused had put shawl on her mouth, therefore she could not cry for help. She has further stated that she tried to resist the accused but he told her not to make noise otherwise he will stab her with a knife. She has further stated that after the filing of the complaint in the police station, the police officials did not come to their house. She has stated that she raised noise soon after the accused left her room and after hearing her noise, her mother came downstairs but her neighbours did not S.C. No.: 33/2010 16/24 turn up. She further stated that she was not having any mobile phone at that time but his father was having one mobile phone. She stated that when she told the entire incident to her mother, her mother asked her to wait till her father turns up from his job. She further stated that her mother also made noise but none of the neighbour came there after hearing their noise. She further stated that her mother told the incident to her father immediately when he returned home and on the same day her father took her to the police station. PW11 is the mother of prosecutrix. This witness has stated that when she came downstairs after watching Ram leela, she saw the accused present in the court who had put his hand on the mouth of her daughter and her daughter was trying to remove the hand of accused and the accused was without any clothes. Thereafter accused ran away from the room and when her husband came from the duty in the morning, she told him about the incident. She further stated that accused had also showed the knife to her daughter and while running accused had told that he will kill them if they will tell the incident to anybody. This witness has stated that she did not raise any noise when her daughter told her about the incident but PW7 i.e. the prosecutrix has stated that her mother raised noise when she told the incident to her . Prosecutrix has also stated that her mother come downstairs only after hearing her noise. On the other hand PW11 has stated that she came downstairs after watching Dussehra at about 12 in the night for the purpose of attending call of nature. She has also stated that her daughter S.C. No.: 33/2010 17/24 i.e. the prosecutrix raised noise and when she was coming downstairs, she heard the noise. She has also stated that she did not gather her neighbour Geeta or any other neighbours.
35. Both PW7 and PW11 have stated that police did not come to their room at the place of incident. If no police official visited the room of the prosecutrix where the alleged incident took place, in such circumstances the preparation of site plant by the IO at the instance of accused also become doubtful. Moreover, if the prosecutrix had raised noise and her mother also heard the noise then it is very strange that the persons who were living in the adjoining rooms did not gather or did not raise any noise or did not come for the help of prosecutrix.
36. PW Geeta is one of the neighbours who has been examined by the prosecution as PW9. This witness has not supported the case of prosecution and has stated that she did not hear anything and the father of prosecutrix is also a tenant in the house of Pramod Tyagi was. She further has stated that in the statement given to the police, she had told that she had heard that the middle son namely Sunil @ Sheela of her landlord had committed wrong act with the daughter of Sh. Ram Chander Singh on the intervening night of 28/29.9.2009. In her cross she further stated that at the time of incident she did not hear anything but after three days she came to know from one Supervisor that accused Sunil Tyagi has been implicated in this case. PW9 has stated that in front room opposite to their room tenants namely Babloo, Heera lal and Jamna are S.C. No.: 33/2010 18/24 also residing. But at the time of incident she did not hear any noise. She further stated that she had not heard any hue and cry either of prosecutrix or her mother as she was sitting outside her room during the night time as her child was not feeling well.
37. Not only it seems that neither the prosecutrix nor her mother shouted for any help or raised any hue and cry after the incident, but their testimony is also in contradiction to the testimony of the father of prosecutrix who has been examined by the prosecution as PW6. Both PW7 and PW11 have stated that when from the duty, father of the prosecutrix returned, then they told the incident to him but PW6 has stated that neither the prosecutrix nor his wife told the incident to him till the next day. He has stated that when in the morning he returned from his duty , his wife and children were in depressed condition but nobody told him anything. Subsequently again on the night of the next day, he went for his duty and when he came back in the morning of 30.9.2009 then he was told about the incident. He has further stated that thereafter he alongwith his daughter and wife went to police station Burari and lodged the report against the accused. In his cross this witness is not able to tell either his date of birth or the class upto which his daughter i.e. the prosecutrix has studied in the government school in Bihar. He has further stated that at the time of incident he was on his duty at Petrol Pump. He has stated that he was not having the mobile phone at that time. His this testimony is in contradiction to the testimony of PW7 who has stated that S.C. No.: 33/2010 19/24 her father was having a mobile phone at that time of incident. PW6 has stated that for complete one day his wife and children did not tell him anything whereas as per PW7 i.e. the prosecutrix and her mother i.e. PW11, when PW6 returned from his duty in the morning hours, they immediately told the whole incident to him. But it seems that PW6 has different story in this regard to tell.
38. PW6 has also stated that the police did not come to his room and therefore how and under what circumstances the site plan had been prepared by the IO has not been explained by the prosecution. Moreover there are contradictions also regarding the telling of incident to PW6 by PW7 and PW11. According to PW6, he was not immediately informed about the incident by his wife and daughter whereas both PW7 and PW11 have stated that they immediately told the incident to PW6.
39. The FIR in the present case had been recorded on 30.9.2009 at about 17:17 hours. Even if the incident was told to the father of prosecutrix on 30.9.2009 in the morning hours, there was no reason for him to wait till evening i.e. 5.00 p.m. to report the matter to the police. Ld. APP for the state argued that in such type of cases, PW6 being the father of prosecutrix must have agitated and thought the consequences before lodging the FIR and therefore the delay in lodging of the FIR has been duly explained by the prosecution. But as stated above it seems that not only there is delay of few hours but there is delay of about 36 hours in the registration of FIR. As per PW7 and PW11 when in the morning S.C. No.: 33/2010 20/24 hours of 29.9.2009, PW6 returned home from his duty they reported the incident to him. But PW6 has given an entirely different version in this regard only to makeup a story for explaining the delay in lodging of FIR.
40. PW7 has stated that her father was having a mobile phone at that time but PW6 has denied having the mobile phone at that time. Both PW7 and PW11 have stated that they raised hue and cry and also asked for help but it seems that it is only a story made up by them as neither their neighbour Geeta who has been examined by the prosecution as PW9 have supported their version nor there is anything on record to suggest that the prosecutrix resisted the accused or gave any resistance to him. The MLC of both the prosecutrix and accused are silent in this regard.
41. So far as the FSL report is concerned then, same is also in contradiction to the MLC. In the MLC of prosecutrix proved on record as Ex. PW1/A, it is clearly written by the doctor that the patient had taken bath and had changed her clothes after the incident according to the patient. The prosecutrix had been examined on 30.9.2009 at about 7.50 p.m. and as per the prosecutrix, the incident took place on the night of 28.9.2009. But in the FSL report proved on record by the prosecution as Ex. PW12/A human semen has been detected on 4a1 and 4a2 i.e. one dirty shameez and one dirty underwear. If the prosecutrix had changed her clothes after the incident and had taken bath and also there is nothing on record to suggest that the undergarments which the prosecutrix was wearing at the time of incident was seized by the doctor, then the S.C. No.: 33/2010 21/24 detection of human semen on these undergarments becomes doubtful. Though the prosecutrix as well as her mother has identified the clothes worn by the prosecutrix at the time of incident but as per the MLC of prosecutrix, the patient had changed her clothes and had taken bath and therefore the clothes which had been seized by the doctor at the time of her medical examination and were given to the IO were not the same which the prosecutrix was wearing at the time of incident. In such circumstances, the identification of clothes of the prosecutrix by the prosecutrix and her mother also becomes doubtful. In the house where the incident is stated to have taken place is situated in a residential area. Besides the room of the prosecutrix there were rooms of other neighbours, not only in adjacent to the room of the prosecutrix but also in front of the room of prosecutrix but it seems that none of the neighbours heard cries of the prosecutrix when she shouted for help. According to the prosecutrix immediately after the incident she shouted for help but it is hard to believe that none of the neighbours collected at the spot after hearing the cries of the prosecutrix. The prosecutrix has further stated that she was showed the knife by the accused but that knife has not been recovered by the IO and it seems that no efforts were made by the prosecution to recover the knife as the statement of PW7 and PW11 reveals that even the police officials did not visit the place of incident after the matter was reported to them. Though the IO and constable who accompanied the IO to the place of incident has stated that they reached S.C. No.: 33/2010 22/24 at the house of Pramod Tyagi, Near Khandeshwar Mandir, Burari alongwith the prosecutrix, her father and mother but all the three witnesses i.e. the prosecutrix, her father and mother have denied that police officials visited their room after the incident. According to the father of prosecutrix the accused was arrested from the place of his work.
42. In her cross IO has stated that the prosecutrix alongwith her parents came to make complaint at about 3.00 p.m. in the police station. Even if we believe the version of the father of prosecutrix that he came to know about the incident in the morning of 30.9.2009, still it seems that he waited till 3 p.m. to report the matter to police. According to the IO after recording the statement, she went to the place of incident at about 5.30 p.m. but as per the prosecutrix and her parents, police officials did not visit the place of incident.
43. The prosecutrix was a girl of around more than 16 years at the time of incident. She is also living in city like Delhi and knows the consequences of her actions. It is very strange that despite the accused committing rape upon her in her own room, she did not raise any voice or did not cry for help. The only inference that can be drawn is that she was a consenting party to the whole incident. Reliance is placed upon AIR 1998 Supreme Court 2694 wherein it has been held that: "Penal Code (45 of 1860), S. 375 - Rape - Proof - Accused alleged to have kidnapped prosecutrix and committed rape on her - Concurrent finding that prosecutrix was below 18 years of age - Medical evidence S.C. No.: 33/2010 23/24 showing no injuries on person of prosecutrix including her private parts
- Conduct of prosecutrix showing that she was a consenting party to sexual intercourse - Not a case of prosecutrix that she was put in physical restraint -Conviction of accused for offence of rape, not proper . "
44. In view of the above said discussion, it cannot be said that the prosecution has been able to prove its case against the accused beyond shadow of doubt. As such, accused is given benefit of doubt. He is, therefore, acquitted of the offence. He is in J/C. He be released forthwith, if not required in any other case. Case property be confiscated to the state after the expiry of period of revision/appeal, if any. File be consigned to Record Room.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. On 5.10.2010 S.C. No.: 33/2010 24/24