Delhi District Court
State vs . Bhagwan Das @ Rahul @ Tunta Page No. 1/24 on 31 August, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0000732015
SC No. : 1712/16
FIR No. : 1107/14
U/s. : 376/506 IPC
PS : Kalkaji, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Bhagwan Das @ Rahul @ Tunta
S/o Shri Girdhari Lal
R/o House no. Prajapati Dharamshala,
Kalkaji mandir, New Delhi .........................Accused
Date of Institution : 09.01.2015
Judgment reserved for orders on : 30.08.2017
Date of pronouncement : 31.08.2017
J U D G M E N T
Facts:
1. This case vide FIR no. 1107/14 was registered at the police station Kalkaji, New Delhi on 26.11.2014 on the statement of the prosecutrix (name withheld to protect her identity). The facts that can be culled out from the assertions made in the complaint are as follows: "She has been living in a Jhuggi at Giri Nagar, Govindpuri for FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 1/24 two weeks with her two daughters since her husband Sonu is in jail. Earlier, they used to live near Bhairo mandir. She used to run her livelihood by running a shop near Bhairo Mandir every Saturday. Rahul @ Tunta used to live near Aggarwal Dharamshala, Kalkaji. He knew her husband for a long time. He had asked her why her husband was in jail. He told her that he would get her husband released from the jail on bail. On 20.11.2014 morning, he came to her at Shamshan Ghat and asked her to go with him to Saket Court. There, she came to know that her husband did not have date on that day. Rahul @ Tunta thereafter, asked her to go with him to meet with an Advocate. He took her in a vacant flat behind Apollo hospital. He had a key of room no.8. He opened the room and took her inside. Although, she refused but he told her that they would wait for the advocate there. He told her that he would get her husband released on bail. He then committed sexual intercourse with her against her wishes. He threatened her that he has strong links and he would get her husband killed in the jail. He then asked her not to tell it to anyone and dropped her near Bhairo mandir. He asked her to go with him on 24.11.2014, when her husband Sonu would be produced in the Court. Due to fear, she did not tell it to anyone. On 24.11.2014, he came to her and started taking her to the Court after giving her threats. He took her to the jail. He asked her to go to Apollo hospital but she realized his intention and got down at Modi Mill. She was afraid of him. She then mustered courage and went to the police station and made the complaint. "
Investigation:
2. The prosecutrix was got counseled. She was got medically examined. Her exhibits were collected. Search for the accused was made. On 27.11.2014, he was apprehended from near Prajapati Dharamshala, Kalkaji mandir on the identification of the prosecutrix, He disclosed his name Bhagwan Das. He pointed out the place where he had committed rape FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 2/24 upon the prosecutrix i.e. House no. 10/27, Gali no. 2, Chauhan Mohalla, Jasola Village, New Delhi. He got recovered a quilt, bedsheet and underwear from the room. The above articles were seized after making pullandas. Site plan was prepared. Landlord of the room was interrogated.
He handed over the Aadhar card and Voter ID card of the accused to the IO, which the accused had given at the time of taking the room on rent.The accused was got medically examined qua his potency. His exhibits were collected. The statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. The prosecutrix also gave her salwar to the IO which she was wearing at the time of incident. The exhibits were sent to the CFSL, CBI, CGO Complex, Lodhi Road. After the investigation, the accused was sent for trial for the offences punishable u/s 376/506 IPC. Charge:
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 22.01.2015, prima facie case was made out against the accused for the offence punishable u/s 376 IPC. The charge was framed. The accused pleaded not guilty and claimed trial.
Prosecution Evidence:
4. To substantiate its allegations against the accused, prosecution examined as many as twelve witnesses.
PW1 is the prosecutrix. For the sake of brevity, I will discuss her testimony in detail at the time of appreciation of evidence.
PW2 Dr. Rashmi Pilania did the medical examination FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 3/24 of the prosecutrix vide MLC Ex.PW1/B. She took her vaginal swab and vaginal smear, vulvul swab, vulvul smear, cutting of pubic haris, scalp hairs and nail clippings and handed over to the police alongwith sample seal.
PW3 HC Narender Singh proved the recording of the FIR Ex.PW3/A. PW4 Pratap Singh was the landlord of the flat Chauhan Mohalla, Jasola Village, Delhi. He stated that on 27.11.2014, the accused came at his house with a lady for taking a room on rent. He introduced that lady as his wife. He took one room set on the third floor bearing no. B8 where he lived for 15 / 20 days. He stated that after this incident, he left the premises. He stated that the accused had given him the copy of the Aadhar card and voter I card Ex.PW4/B and Ex.PW4/C respectively.
PW5 Ct. Sajjan Singh stated that on 27.11.2014 at about 8 a.m., he with the prosecutrix, IO / SI Ekta, Lady Ct. Manisha and other staff reached at Prajapati Dharamshala near Kalkaji mandir from where they apprehended the accused at the instance of the prosecutrix vide arrest memo Ex.PW1/E. He stated that the accused led them to the house at Chauhan Mohalla, Gali no. 2, Jasola village and at his pointing out, one FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 4/24 quilt, one bedsheet and one underwear were recovered from the third floor vide memo Ex.PW5/B. He stated that he also took the accused to AIIMS for his medical examination, collected his exhibits and MLC and handed over to the IO vide memo Ex.PW5/C. He correctly identified the quilt (rajai) Ex.P2, bedsheet Ex.P1 and underwear Ex.P4.
PW6 Ct. Manisha stated that on the intervening night 26 / 27.11.2014 at about 12 mid night, on the directions of IO SI Ekta, she took the prosecutrix to AIIMS and got her medically examined. She collected her sealed exhibits and MLC and handed over to the IO vide memo Ex.PW6/A. She correctly identified the case property. PW7 HC Bhim Singh proved the entries in register no. 19 at serial no. 3250 Ex.PW7/A dated 27.11.2014 and at serial no. 3252 Ex.PW7/B dated 28.11.2014 regarding deposit of exhibits in the malkhana. He also proved the RC and acknowledgment Ex.PW7/C dated 15.12.2014 regarding sending of the exhibits to CFSL, Lodhi Colony. He stated that so long as the exhibits remained in his custody, the same were not tampered with. PW8 Ms. Shivani Chauhan, Ld. MM recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW1/C. PW9 Ms Sushma did the counseling of the prosecutrix and gave her report Ex.PW9/A. FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 5/24 PW10 Dr. Piyush Sharma did the medical examination of the accused vide MLC Ex.PW10/A. He found him capable of performing sexual intercourse under normal circumstances. He preserved his blood in gauze, sealed and handed over to PW5.
PW11 SI Ekta was the Investigating Officer of the case. She deposed on the lines of the investigation. On 26.11.2014, she recorded statement of the prosecutrix Ex.PW1/A. She got her counseled vide report Ex.PW9/A. She got the prosecutrix medically examined and seized her exhibits. On 27.11.2014, she with her staff went to Dharamshala at Kalkaji mandir and apprehended the accused at the instance of the prosecutrix. She arrested him vide memo Ex.PW1/F. She seized a razai (quilt), an underwear and bedsheet vide memo Ex.PW5/B from the spot at the instance of the accused. She got the accused medically examined qua his potency and seized his exhibits. She collected Aadhar card and the Voter I card from the landlord of the rented premises of the accused. She got recorded statement of the prosecutrix u/s 164 Cr.P.C. before the Magistrate. On 28.11.2014, she seized the salwar of the prosecutrix which she was wearing at the time of incident. She sent the exhibits to CFSL and collected CFSL result Ex.PW11/C. She correctly identified the FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 6/24 case property.
On being crossexamined, she stated that she does not know how many rooms were there in the house at Jasola Vihar. She can not say if a tuition center was being run on the ground floor of the premises. She denied that no underwear of the accused was seized from the spot. She denied that during investigation, it was revealed to her that the prosecutrix used to go to the room of the accused and they were in livein relationship.
PW12 Dr.D.K. Maharpatra, SSO1, Biology, CFSL, Lodhi Road, New Delhi proved the report Ex.PW11/C as per which blood was detected on the blood in gauze of the accused. Semen was detected on the rajai Ex.1a, and salwar of the prosecutrix Ex.2. DNA profile generated from the male fraction DNA from the source of exhibit 1a and exhibit 2 was found consistent with DNA profile of blood in gauze of the accused exhibit 10.
Statement of The Accused U/s 313 CR.P.C. :
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him and stated that the prosecutrix never married to Sonu. After she was left by Sunder Singh, she came in her mother's house at Bhairo mandir and started living. He knew the prosecutrix. Sonu used to run a shop at Bhairo mandir.
FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 7/24 He admitted that he had taken the prosecutrix to the Court at Saket for meeting with Sonu. He stated that prosecutrix had taken the room where she used to go with him. It was she who had paid the rent to the landlord. He stated that they knew each other from before and were physically involved. Their relations were consensual. He denied having threatened the prosecutrix. He stated that he has been falsely implicated. He stated that he never took the police party to Chand Mohalla nor was wearing the underwear Ex.P4. He, however, admitted that he had given his ID to his landlord. He stated that police knew him from before.When he refused to cooperate with the police in the investigation of a murder case, police falsely implicated him in this case. He stated that he had enmity with Sanjay Aggarwal.
Defence Evidence:
6. In defence, the accused examined himself as DW1.
DW1 stated that he knew the prosecutrix for about 15 years. She was earlier married in the colony at Palam. In 2014, she came to Kalkaji temple after leaving her husband. She called him at Bhairo mandir. She told him that she has left her husband after quarrel. She asked him to arrange a room for her. She told him that she wanted to live with him. She asked him to bear her expenses. For 2 - 3 months, he did not arrange the room. She then started living with Sonu. After sometime, he was arrested in a case. She again asked him to arrange a FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 8/24 room. On 25.10.2014, he arranged a room for her in Jasola with the help of Bhura where he and the prosecutrix started living. He stated that for some days, he did not go there. He used to go there oftenly and meet the landlord. They lived there as husband and wife. The landlord used to live in the same building. He stated that the prosecutrix had called him on his mobile phone nos. 9582074918 and 9873795548 on 23.11.2014 and 24.11.2014 in the night and in the morning hours as she wanted to meet Sonu in Tihar Jail. On 24.11.2014, he took the prosecutrix to Tihar jail to meet Sonu. He stated that he was having dispute with Aman and his father Sanjay Aggarwal and the prosecutrix has falsely implicated him at their instance. He stated that the prosecutrix had willingly gone with him and their physical relations were consensual. He stated that the prosecutrix could not meet Sonu in the jail for want of ID.
On being crossexamined, he denied that he had told the prosecutrix that he knows a good lawyer and would introduce her with that lawyer. He also denied that he induced the prosecutrix to go with him to the flat behind Apollo hospital, bolted the room from inside and committed rape upon her.
FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 9/24 Arguments & Contentions:
7. I have heard the arguments advanced by Ld. Counsel Sh. Ashok Kotnala for the accused and Ld. Addl. PP Sh. Mohd. Iqrar for the State.
8. Ld. counsel for the accused vehemently argued that the accused knew the prosecutrix from before. In 2014, she left her husband and started living with her mother near Bhairo mandir. She called him there to arrange a room for her. She then started living with Sonu. After the arrest of Sonu, she again asked him to arrange a room. On 25.10.2014, he arranged a room in Jasola village. Ld. Counsel stated that the prosecutrix lived with the accused in liveinrelationship and their physical relations were consensual. He never took the prosecutrix to get her introduced with some lawyer nor induced her to go to Jasola village. There was delay in lodging the report. Ld. Counsel stated that the accused has been falsely implicated at the instance of Aman and Sanjay Aggarwal with whom the accused had enmity. Ld. Counsel stated that the physical relations between the prosecutrix and the accused were consensual and it is a case of false implication of the accused.
9. Ld. Addl. PP on the contrary argued that the prosecutrix used to live with her mother after her husband left her. She then married to Sonu.
He was arrested in some case. The accused offered to help the prosecutrix. He took the prosecutrix to the Court at Saket for meeting with the accused. He told the prosecutrix that he has good contacts with some lawyers. On the pretext of introducing her to a lawyer, he took her in a flat behind Apollo hospital where he committed rape upon her. He also threatened her FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 10/24 not to tell it to anyone. She got scared and did not tell it to anyone. He took her to the jail for meeting with the accused. He wanted to take the prosecutrix to the flat but the prosecutrix got suspicious. She got down at Modi Mill flyover. She came in contact with Aman. She told him the incident. He took her to the police station where she made the complaint. Ld. Addl. PP stated that the FSL report corroborates the testimony of the prosecutrix. Ld. Addl. PP stated that the testimony of the prosecutrix is consistent and cogent. As regards delay, Ld. Addl. PP stated that since the accused had threatened to get the husband of the prosecutrix killed, she did not tell the incident to her mother. She thereafter mustered courage and told the incident to Aman who advised her to make the complaint. Findings :
10. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and have gone through the statements of the witnesses and the documents on record.
11. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 11/24 such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
CHARGE UNDER SECTION 375 :
Age of the prosecutrix
12. In an allegation of rape against an accused, age of the prosecutrix is a material aspect to analyze whether there was any element of free consent on the part of the prosecutrix such that it would negate the very basis of the charge of rape. In other words, if the prosecutrix has attained the age of majority, the Court is bound to assess, given the facts and FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 12/24 circumstances of each case, whether the Prosecutrix consented to the act of sexual intercourse with the accused or not.
13. The age of the prosecutrix in the present case was never in dispute. She stated her age to be 20 years on the day and date of alleged crime which at no point was disputed by the Ld. Counsel for the accused.
In any case, since the prosecutrix herself claims to be a major, there was no occasion for the defence counsel to dispute the same.
Whether the accused is guilty of the offence punishable u/s 376 IPC or not?
14. For deciding this question, it is relevant to appreciate the testimony of the prosecutrix and other witnesses with the relevant record.
15. PW1 / prosecutrix while appearing in the witness box has deposed completely in terms of her complaint Ex. PW1/A. She deposed on oath that she was married to Sunder Singh in 2010. She has two daughters. Sunder Singh left her on 14.08.2014. Thereafter, she married to Sonu. In November 2014, her husband went to jail in a case of theft. The accused, whom she knew from before used to live near the house of Sanjay Aggarwal whom they used to call 'papa'. They used to go to the shop of Sanjay Aggarwal at Kalkaji Dharamshala. The accused had met them there. She stated that on the next day of his arrest i.e. on Monday, between 8:30 - 9:00 a.m., she with a lady, whom she used to address as chachi was sitting outside Satyam cinema. Accused came to them and told her that her husband would be produced in Saket Court and he would take her there. He talked to some one on his mobile and also got her talked to her husband. He brought her at Saket Court at 11:00 a.m. but FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 13/24 by that time, her husband had been sent to lock up. She went there and spotted her husband. She talked to him for 2 - 3 minutes in the presence of the accused. The accused then dropped her at Bhairo mandir. She stated that when they were in auto, the accused told her that her husband would be produced in the Court on 20.11.2014. He told her that he knows some good lawyers and would get her husband released on bail. From Bhairo mandir, she went to the jhuggi of her mother at Chandiwala Metro station. She stated that on 20.11.2014, when she was sitting at Shamshan ghat, the accused came and asked her to go with him to Saket Court. She went to the Court with the accused but on inquiry, she came to know that her husband would not be produced on that day. The accused then told her that he would take her to a good lawyer. She believed on him and went with him. He took her on the third floor in a vacant flat behind Apollo Hospital on which number 8 was written. He opened the flat with the help of the key with him and asked her to sit there comfortably saying that advocate would come there in a short while. After sometime, he bolted the door from inside. When she objected, he told her that he would open it when the lawyer would come. He then committed sexual intercourse with her forcibly. She told him "tum meri majburi ka fayda kyun utha rahe ho", but he did not stop. Her daughter was with her. He thereafter threatened her that he would get her husband killed in jail as he knows many persons in the jail. He then dropped her at Bhairo mandir. From there, she went to her mother's house. Since she was frightened, she did not tell to anyone. She stated that after 2 - 3 days, he again met her at Bhairo Mandir and asked her to go with him to Tihar jail to meet her husband. When she FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 14/24 refused, he threatened to teach lesson to her mother. She accompanied him to Tihar jail but could not meet her husband for want of ID proof. The accused took an auto from Tihar jail and asked her to go with him to Nehru Place. When she reached Modi flyover, she became suspect that the accused was taking her to the same place. She then pretended that she has to meet a peer baba at Okhla mandi. She got down from the auto. The accused also left the auto and followed her. She told the accused that her elder daughter is not well. He then dropped her at Bhairo mandir and went away. Since she was scared, she did not tell the incident to anyone. Thereafter, she mustered courage and thought that if she would not make complaint against him, he would do it again. Finally after two days i.e. on 26.11.2014, she went to the police station and made the complaint Ex.PW1/A. She deposed that after the registration of the FIR, she was taken for medical examination (Ex.PW1/B is the MLC) and thereafter, taken to the place of occurrence. This witness also deposed about recording of her statement Ex.PW1/C u/s 164 Cr.P.C. She stated that before she went to the police station to lodge the complaint, Aman (her muhn bola devar) had come in her jhuggi with whom, she shared the incident. He advised her to immediately lodge the complaint. He also went with her to the police station but he remained outside the police station. She stated that she handed over her salwar which she was wearing at the time of incident vide memo Ex.PW1/D and on the next day of her complaint, accused was arrested vide arrest memo Ex.PW1/E. She identified the quilt Ex.P2, bedsheet Ex.P1, which were there on the bed when the incident took place. He also identified her FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 15/24 salwar Ex.P3. She also produced a copy of letter mark A and stated that it was given to the accused by her husband for giving it to her, original of which got damaged during rain.
In her cross examination, she denied that she knew the accused for 10 15 years and wanted to marry him or that Sonu is not her husband. She stated that she married to Sonu at Kalkaji mandir in the presence of his parents. She denied that she had illicit relations with the accused. She also denied that one month prior to the incident, she had gone with the accused in a room behind Apollo hospital, taken the room on rent at Rs. 4,000/ p.m., paid Rs. 3,000/ as advance and did shopping of the household articles. She denied that she had made physical relations with the accused of her own free will. She admitted that there was dispute between Aman and the accused but she denied that she falsely implicated the accused at the instance of Aman. She denied that the accused established physical relations with her with her consent.
16. The prosecutrix is undoubtedly the pivot of the prosecution case. In order to reach out at the truth of her statements and evidence, her evidence needs be assessed under the following parameters :
(I) Consistency - The Prosecutrix has undoubtedly been very consistent in her version of the alleged crime. Her complaint Ex.PW1/A, categorically states that she used to live near Bhairo mandir. The accused used to live near Aggarwal Dharamshala, Kalkaji. He knew her husband Sonu for a long time. He was in jail in a case. He told her that he would get him released on bail. He asked her to go with him to meet an FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 16/24 Advocate. He took her in a vacant flat near Apollo hospital. He had the key of room no. 8. He took her inside the room where he committed sexual intercourse with her against her wishes.
He also threatened her that he has strong links and would get her husband killed in the jail. He asked her not to tell it to anyone. Due to fear, she did not tell the incident to anyone. On 24.11.2014, he took her to jail. From there, he wanted to take her to the same place. When she realized his intention, she got down at Modi Mill flyover. She was afraid of him. She then mustered courage and made the complaint. The contents of the complaint found verbatim reproduction in the FIR and the same factual narration is repeated in her testimony. The version of the prosecutrix appearing in the complaint is also repeated in her statement recorded u/s 164 Cr.P.C. Ex.PW1/C. There is no material inconsistency which is either apparent or which the Ld. Counsel for accused could point out. This consistency in the various statements of the prosecutrix is most relevant for attaching the presumption of truth as laid down in Section 114A of the Evidence Act. There is no attempt on her part to misrepresent the fact.
(II) Delay in lodging the FIR - Delay in reporting a crime to the Police has the inherent risk of fabrication and that is precisely why the Courts are extra cautious whenever there is delay in lodging of an FIR. Unexplained delay can be fatal to prosecution case. However, not all delays are looked upon with FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 17/24 suspicion by the Courts, especially the one related to a crime against women, like the alleged rape in the present case. The Courts are alive to the social realities of Indian society where the women find it very difficult to come out of the closet and report such matters to Police for fear of humiliation. If the delay is well explained, Court will accept the same and not attach any significance to the same.
In this case, the prosecutrix has stated in her complaint itself that she was threatened by the accused against reporting the matter to anyone or else he would harm her. She maintained this stand throughout. It is not hard to imagine the pitiable plight of a woman who is burdened with responsibility of running the household with two minor daughters. When such a woman is raped, she will take more than usual time to come to terms with the mental and physical trauma before gathering courage to fight out the accused. It is quite difficult for a woman to broach such a topic with anyone, be it her husband or her parents.
More importantly, the accused had threatened the prosecutrix that he has contacts with the lawyers and that he would get her husband killed in the jail if she would tell it to anyone. She was scared of him. Poor economic condition is a great anathema and bane to to the quest for justice in any system. Same holds true for the prosecutrix in the present case. It took her a couple of days to discuss with Aman and then to FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 18/24 report the matter to the police.
The delay in lodging the FIR is thus of no consequence. (III) Corroborating Evidence - The evidence of the prosecutrix gets substantial credence and credibility from the CFSL report Ex.PW11/C. In the instant case, as appearing the testimony of PW11, on 27.11.2014, the accused was apprehended from the Kalkaji mandir Dharamshala. He disclosed of his involvement in this case. He took them to Jasola village where from the third floor of the house at Chauhan Mohalla, Gali no.2, room no.8, he got recovered the quilt Ex.P2, underwear Ex.P4 and a bedsheet Ex.P1. PW11 has stated that the room of the key was near the window with the help of which, the room was opened. Facts and circumstances show that the key was not accessible to the general public. It was in the exclusive knowledge of the accused where the key was kept. It has come in the testimony of PW11 that on 28.11.2014, she produced her salwar Ex.P3 which she was wearing at the time of incident. Testimony of PW2 reveals that on 26.11.2014, the prosecutrix was medically examined. Her vaginal swab, vaginal smear, vulvul smear and swab, cutting of pubic hair, scalp hair and nail clippings were collected. Her hymen was found ruptured. PW2 has stated that the prosecutrix had given the history of incident. In the history recorded in the MLC Ex.PW1/B, she had revealed that she was raped by Rahul on 20.11.2014 at about 2:00 p.m. He took her there saying that FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 19/24 he would help her getting her husband out of jail and got her meet with a lawyer in that house but there, he raped her. PW10 has stated that he had examined the accused for his potency vide MLC Ex.PW10/A and found him capable of performing sexual intercourse under normal circumstances. He took his blood in gauze and handed over to the police. PW10 has stated that she collected the exhibits vide memos Ex.PW6/A, Ex.PW5/B and Ex.PW5/C. In the instant case, the prosecution has examined all the link witnesses i.e. PW2 who had taken the accused for his medical examination and collected his sample from the doctor, PW6 who had taken the prosecutrix to the hospital for her medical examination and collected her samples, IO / PW11 who had seized the case property from the spot at the instance of the accused, MHC(M) / PW7 and PW5 who had taken the samples to the lab. All the witnesses correctly identified the case property and stated that the case property in their possession was not tampered with. PW12 proved the FSL report Ex.PW11/C as per which DNA profile generated from the blood in gauze of the accused was found consistent with the DNA profile generated from the semen generated from the salwar and quilt.
17. The prosecutrix has also examined the landlord / PW4 of her house where the alleged incident took place. He belied the defence of the accused that it was the prosecutrix who had taken him to the aforesaid flat as she FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 20/24 wanted a room on rent. He has stated that on 27.11.2014, the accused had come in his house with a lady. He introduced that lady as his wife. He took the room on rent and gave his Aadhar card Ex.PW4/B and Voter I card Ex.PW4/C. He lived there for 15 20 days. After this incident, he left the premises. Nothing can be inferred from his testimony that the prosecutrix had ever asked him to give the room on rent. PW1 / prosecutrix has stated that the accused had taken her there on the pretext of meeting with a lawyer where he committed rape upon her. He wanted to take her there again but she got down at Modi mill flyover. There is nothing on record to indicate that the prosecutrix had ever lived there with the accused or she was in livein relationship with the accused as claimed by the accused. The prosecutrix has also denied that their physical relations were consensual. The crux of the above discussion is that the evidence of the prosecutrix is reliable, and inspires confidence. It is supported by corroborative evidence.
18. In State of Punjab Vs. Gurmit Singh & Ors., 1996 AIR SC 1393, the Apex Court made the following observations:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her".
19. Ld. counsel for the accused has contended that the MLC of the prosecutrix does not show any injury on her person. Had there been any resistance on the part of the prosecutrix, it would have resulted into injury on her person. I do not find force in this contention. It is not necessary that every incident of rape would result into injury. So no much emphasis can FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 21/24 be attached on this aspect.
20. The Apex Court in the pronouncement reported at 2007 Crl.L.J. 4704 Radhu vs. State of Madhya Pradesh succinctly laid down the principles thus: "It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent."
21. In Ranjit Hazarika vs State Of Assam, (1998) 8 SCC 635 the Apex Court observed thus : "The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 22/24 about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the crossexamination. Neither the nonrupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the crossexamination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake.
22. In Vijay @ Chinee v. State of Madhya Pradesh, Crl. Appeal No. 660/2008, the Apex court referred to the decisions in Chandraprakash Kewalchand Jain AIR 1990 SC 658 and Gurmit Singh supra and also few other decisions and observed that the important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix, the court must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of woman's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the leveling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape FIR No. : 1107/14 PS : Kalkaji State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 23/24 for the purpose of blackmail, hatred, spite or revenge.
23. In the instant case, the testimony of the prosecutrix is consistent and cogent which is corroborated by PW2 and PW8 and material documents. She was subjected to medical examination, she had given the history of incident to the doctor, and her statement under section 164 Cr.P.C was recorded. She was cross examined at length but Ld. Defence counsel failed to impeach her testimony on any material aspect. I do not find any material to doubt on her veracity, which rules out the possibility of false implication of the accused. She has denied that she has falsely implicated the accused at the instance of Aman or Sanjay Aggarwal. I am of the view that prosecution has been able to prove its case against the accused for his having been committed the offence punishable u/s 376 IPC. Conclusion
24. In the light of what has been stated above and case laws supra, I am of the view that the prosecution has proved its case against the accused beyond reasonable doubt. I, therefore, hold the accused guilty for the offences punishable under section 376 IPC and convict him thereunder.
Announced in the open
court today i.e. 31.08.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 1107/14
PS : Kalkaji
State Vs. Bhagwan Das @ Rahul @ Tunta Page No. 24/24