Delhi District Court
4.2009 But This Defence Was Not Put To Him ... vs . on 29 August, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.114/10
FIR NO. 316/08
U/S 376 IPC
PS Bawana
Unique Case ID No. : 02404R0016952008
State
Vs.
Pappu Kumar @ Chitranjan s/o Kulkit Rai
r/o Village Kalyan Pur, PS Shingeya Ghat,
District Samastipur, Bihar.
Date when committed to the court of Sessions :23.12.2008
Date when case reserved for judgment : 20.08.2011
Judgment pronounced on : 29.08.2011
JUDGMENT:
1. The case of the prosecution in brief is that on 03.09.2008, an information of a rape with the wife of the informant at a house at Sector 2, Bawana (address withheld for the secrecy reasons) was received at the PS which was recorded in DD No.10A and was handed over to ASI Samunder Singh who along with Ct. Shiv Ram reached at a house at Sector 2, Bawana (address withheld for the secrecy reasons and the said house number was different from that which was recorded in DD No.10A), where he met the prosecutrix SC No.114/10 Page 1/27 (name withheld for secrecy reasons) and her husband was also present and the said ASI recorded the statement of the prosecutrix.
2. As per statement of the prosecutrix, she was residing along with her husband at the address given in the statement and her husband was working in the factory where the said house was also situated and that on 02.09.2008, the accused, hailed from her matrimonial place, was also working in the said factory and was also residing in the said factory and that on 02.09.2008 at about 8.30 p.m, her husband and her brother had gone to fetch ration from the market when accused entered her room and took her to the bathroom and there committed rape with her and she raised alarm due to which he ran away and after sometime her husband returned to whom she narrated the incident, who, on the following morning, informed the police at number 100.
3. On the basis of the said statement, she was got medically examined and certain exhibits taken by the doctor were seized and accused was also got medically examined and exhibits with regard to accused were also taken by the doctor and were seized by the police and the FIR was got registered.
4. The further investigation was entrusted to SI Satpal Singh, who prepared the rough site plan, arrested the accused in the case and statement of the prosecutrix u/s 164 Cr.PC was got recorded by the concerned MM and the charge sheet was filed against the accused.
SC No.114/10 Page 2/27
5. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide her order dated 11.02.2009, framed charge against the accused u/s 376 IPC, to which he pleaded not guilty and claimed trial.
6. The prosecution, in order to prove its case, has produced as many as 15 witnesses, relevant of which have been discussed below.
7. The statement of the accused u/s 313 Cr.PC was recorded on 08.10.2010 wherein he pleaded his innocence and denied the incriminating evidence against him as false and examined Kuldeep Kumar as DW1 who deposed that on 02.09.2008, there was a quarrel between accused and husband of the prosecutrix with regard to money as the husband of the prosecutrix had given Rs.10,000/ as loan to the accused and accused was seeking time for repayment of loan and the husband of the prosecutrix threatened him to implicate the accused in some false case and that on 03.09.2008, accused was falsely implicated in the present case by prosecutrix and her husband and some friend of the accused came to him after the registration of the case with Rs.10,000/ for giving the same to the husband of the prosecutrix and that he had handed over the said money to the said husband. In his cross examination, he answered that he had not filed any written protest before any senior police official or the court of law against the false implication of the accused in the rape case and that he had not written any letter or application disclosing about the said false implication of the accused at the hands of the prosecutrix SC No.114/10 Page 3/27 to any of the senior police officer or to the court of law and that he was not a summoned witness and that he was asked by the Ld. Defence Counsel for the accused to appear as a witness in the court. Since the prosecution sought permission to prove some documents and to examine some witnesses u/s 311 Cr.PC which was granted and after the said evidence the supplementary statement of accused Pappu Kumar u/s 313 Cr.PC was recorded on 09.06.2011 wherein he denied the said incriminating evidence and pleaded his innocence.
8. I have heard Ld. APP for the state, Sh. B.B. Dhingra, Advocate for the accused and perused the record.
9. PW1 is the lady doctor who examined the prosecutrix and proved her MLC as Ex.PW1/A and she deposed that blouse of the patient was also torn. PW1 was not cross examined on behalf of the accused. PW5 L/HC Bala Rani recorded the FIR as duty officer which is Ex.PW5/A and she deposed that further investigation was handed over to SI Satpal Singh. PW6 HC Suresh Kumar was the MHC(M) who deposed regarding deposit of the exhibits of the case with the Malkhana and sending the same to the FSL. PW7 HC Shiv Ram accompanied ASI Samunder Singh along with DD no.10A to the spot and deposed about recording of the statement of the prosecutrix by the said ASI, the medical examination of the prosecutrix as well as accused and thereafter he took the complaint to the PS for getting the case registered and thereafter he returned with SI Satpal to the hospital and with regard to seizure of the SC No.114/10 Page 4/27 exhibits at the hospital, preparation of the site plan at the spot, arrest of the accused. In his cross examination, PW7 replied that they reached the spot on two wheeler scooter of the ASI and at the spot the said factory was having three story building and that 34 persons were found residing in the said premises but IO did not make inquiries from them. He further answered that they remained at the spot up to 5.30 or 6 p.m on 03.09.2008 and that they reached the hospital at about 12 noon in a TSR and that he along with the ASI went to the hospital on two wheeler scooter whereas prosecutrix, her husband and the lady constable reached the hospital in TSR and that the rukka (original complaint) was prepared in the hospital by the IO. He further replied that ASI Samunder Singh was relieved from the hospital by SI Satpal. PW8 Dr. Jai Kumar, prepared the MLC of the prosecutrix Ex.PW1/A and referred her to Gynecologist and he also prepared the MLC of the accused as Ex.PW8/A and gave his opinion that there was nothing to suggest that the accused was incapable of committing sexual intercourse. PW9 L/Ct. Shashi Bala deposed regarding taking the prosecutrix for her medical examination to the said hospital along with the said police officials. PW10 Ct. Ayub Khan also deposed regarding medical examination of the prosecutrix and the accused and regarding seizure of the exhibits given by the doctor vide memo Ex.PW9/A and Ex.PW7/A. PW11 Inspr. Satpal Singh deposed regarding the said investigation conducted by him and sending of the exhibits to the FSL Rohini and SC No.114/10 Page 5/27 he tendered the result of the same as Ex.PX and Ex.PY. In his cross examination, PW11 answered that ASI Samunder Singh had handed over two memos to him and that he had not taken the photographs of the bathroom and the factory. He could not tell the colour of the blouse but volunteered that it was torn from the right hand side. He further replied that the factory consisted of ground, first, second and third floor and the prosecutrix was residing at third floor. He did not remember the name of the owner of the factory nor he recorded his statement. He replied that many labours were residing from ground to third floor and they were asked to join the investigation but none agreed. PW12 is the concerned Magistrate who proved the proceedings of recording the statement of the prosecutrix u/s 164 Cr.PC as Ex.PW12/A, the statement as Ex.PW12/B, certification below the said statement as Ex.PW12/C and supply of copy of the statement to the IO as Ex.PW12/D and request of the IO for recording the statement vide application Ex.PW12/E. PW13 HC Satya Pal deposited the said exhibits with the FSL Rohini.
10. PW14 ASI Samunder Singh deposed regarding reaching at the spot, recording the statement of the prosecutrix and making his endorsement below the same as Ex.PW14/A, getting the case registered, SI Satpal being the second IO. However, in his cross examination, he answered that the factory was constructed up to three story and that the family of the prosecutrix was the only family residing in the said factory and that there was only one bathroom at SC No.114/10 Page 6/27 the top floor but he could not tell about the number of rooms. He further answered that from the hospital they went to the spot on foot. He further replied that he did not make any inquiry regarding ownership of the factory. He further answered that spot was having house No.289 and he was confronted with DD No.10A Ex.PW14/DA where the house number was mentioned as 279 and he volunteered that house number was 289 which he came to know on inquiry from premises no.279. He further replied that as soon as he entered the said premises, husband of the prosecutrix came to him after seeing him in the police uniform who directed him towards premises no.289 as the premises in question. He further answered that as he was the initial IO, it was for him to trace out the correct spot of the incident but he did not mention the same in his statement to the subsequent IO. PW15 HC Vijay Singh, who was summoned to prove DD No.10A on a request of the Ld. Addl. PP u/s 311 Cr.PC, proved the said DD which was already Ex.PW14/DA.
11. Coming to the deposition of the prosecutrix PW2, who was examined in chief in part on 01.04.2009 and her further examination in chief and cross examination was completed on 07.08.2010. She deposed that on 02.09.2008, she was present at her house at the above said address and her husband was working in the factory and that at about 7 p.m on that day, her husband and her brother (names withheld for secrecy reasons) had gone to the market for buying ration and she was present at the roof of her house and that accused SC No.114/10 Page 7/27 present in court came to the roof and took her to the bathroom situated on the roof and that he caught hold of her both hands and closed her mouth with his hands and thereafter accused committed rape upon her forcibly without her consent and that she raised noise but no one heard her noise and accused ran away after committing rape upon her and thereafter she explained the meaning of the word rape and further deposed that her husband and brother returned to the house and at that time she was weeping and her husband asked her as to why she was weeping in response to which she told the entire incident and in the morning her husband called the police on phone no.100 and the police came at her house and recorded her statement Ex.PW2/A and thereafter she was taken for medical examination and that her petticoat was kept in the hospital by the doctor which was the same petticoat which she was wearing at the time of incident and that she gave her blouse which was torn to the police also which was seized vide memo Ex.PW2/B and that the accused was arrested from the same house in which he was living as he was working in the factory wherein the said house was built in which the accused was residing and that arrest memo is Ex.PW2/C and personal search memo of the accused is Ex.PW2/D. She further testified that her statement was recorded by the Ld. Magistrate and photocopy of the same is Mark A and before recording of her statement u/s 164 Cr.PC, the accused had threatened her husband that if she did not make statement in favour of the accused, he would SC No.114/10 Page 8/27 kill her husband and thereafter she identified her petticoat Ex.P1 and the blouse as Ex.P2.
12. In her cross examination on behalf of the accused, she replied that she did not know the accused as such but he was working in the factory in which her husband was also working and that she was residing for about one year prior to the incident at the factory in which her husband was working and that her husband was working in the factory since last 20 years and that she did not know as to from when the accused was working in the said factory. She further replied that she did not know if her husband had advanced a loan of Rs.10,000/ to the accused. She denied the suggestion that as the accused failed to return the said amount of Rs.10,000/ to her husband, she got implicated the accused in the present false case of her rape. She further answered that her husband took leave from the factory on the day of incident at about 6 p.m and had gone to purchase ration and her brother, who was working in another factory, also took leave from his factory on the said day at the said time and accompanied her husband to the market for said purpose. She further answered that both of them returned back at about 9.30 p.m. She further answered that her residence was situated at the second floor of the said factory and the factory was having three stories and that other workers of the factory were residing at the ground floor and nobody was residing at the first floor. She answered that there were one or two workers who were residing at SC No.114/10 Page 9/27 that time on the ground floor. She further replied that accused was residing at the ground floor within the factory premises and that accused never visited her residence prior to the day of incident. She denied the suggestion that accused had come to meet her husband.
13. PW3, the husband of the prosecutrix, whose examination in chief and cross examination in part was recorded on 01.04.2009, deposed on the said day before the court that on 02.09.2008, he was working in the above said factory and was also living at the address (given in his deposition and withheld for secrecy reasons) along with his wife and children and that his brother in law was also living with them and that accused present in court also belonged to his village and was also working in the same factory and was also living there and that on 02.09.2008, at about 7.30 p.m, he along with his brother in law left the house for the market for purchasing ration and when he returned to his house at about 9.15 p.m, he found his wife crying and that he asked her the reason for crying and that she informed him that accused had taken her to bathroom and forcibly committed rape upon her and that in the following morning he informed the police on phone no.100 and that police came and recorded his statement and that prosecutrix was also got medically examined and that the accused was arrested at the instance of his wife, the prosecutrix vide memo Ex.PW2/C and his personal search was conducted vide memo Ex.PW2/D and that the site plan was prepared at the instance of his wife, the prosecutrix.
SC No.114/10 Page 10/27
14. In his cross examination dated 01.04.2009, PW3 replied that other workers were working on the ground floor and they resided at the top floor which was the second floor and that he also worked on the ground floor of the premises during this time and that accused was known to him as he belonged to the village to which he belonged and that accused was not on visiting terms with them. He further answered that when they returned at about 9 p.m, none of the neighbours were present there. He replied that his children were of the age of 3 years and 1½ years respectively and that his children were not crying as they were quiet young. He admitted it as correct that after his wife told him about the incident on that night, he did not go anywhere and he volunteered that because it was night time.
15. In his further cross examination dated 24.05.2010, he admitted it as correct that he had given Rs.10,000/ to accused Pappu which he had borrowed from him and that at the time of registration of this case, accused had not returned the said amount to him. He admitted it as correct that since the accused had not returned the said amount to him, that was why he was implicated in the present case. He admitted it as correct that his wife was never raped by the accused. He further admitted it as correct that on 02.09.2008, he did not go along with his brother in law to take ration at the relevant time and that on that day he and his brother in law remained present at the house throughout the day. He further admitted that his wife did not disclose about the rape upon her. He answered that he called the SC No.114/10 Page 11/27 police by dialing no.100. He admitted it as correct that he called the police as a quarrel took place between him and accused for non returning of the amount of Rs.10,000/ and that his statement was not recorded by the police. He admitted it as correct that he had falsely implicated the accused in this case as he was not returning his money amounting to Rs.10,000/. He further admitted that his statement recorded on 01.04.2009, before the court, was made at the instance of the IO of this case.
16. He was declared hostile and was cross examined on behalf of the State by the Ld. APP wherein he answered that he was not aware about the false implication of any person in any criminal case and that he did not remember date, month and year when he gave Rs.10,000/ to the accused but the same were given prior to the year 2008. He was confronted with his previous statement Ex.PW3/A which he denied to have made to the police. However, he admitted it as correct that his wife was got medically examined in the hospital by the police. He further replied that he had received Rs.10,000/ from the employer of the accused.
17. PW4, the brother of the prosecutrix although appeared for his examination in chief on 01.04.2009, when it was recorded and his cross examination was deferred but thereafter it was reported that he was in JC in some criminal case at Bihar as per submission of the Ld. Counsel for the complainant and it was directed to supply the particulars of the case so that the production warrant may be issued SC No.114/10 Page 12/27 against the said PW but the same were not supplied and in the said circumstances, the PE was closed and as PW4 did not appear for his cross examination, his deposition is not being read in evidence in the present case.
18. Ld. Defence Counsel, with this evidence on record, contended that the prosecutrix did not resist nor try to escape and the arrest of the accused from the factory itself go to show the consent of the prosecutrix. It has been further contended on behalf of the accused that PW3, the husband and the brother of the prosecutrix did not go to beat the accused on the night of the incident and PW3 answered that he did not go anywhere after knowing the incident on the said night, again creates a doubt in the story of the prosecution with regard to the alleged rape.
19. It has been further contended that the doctor who examined the prosecutrix PW1 deposed that there was no fresh injury on the body of the prosecutrix. It was further argued that in DD No.10A, the premises number was mentioned as 279 which was the wrong address and it was further contended that the prosecutrix replied that her husband was working for 20 years in the said factory whereas the husband as PW2 deposed his age as 27 years and claimed that he was working for last 6 or 7 years in the factory. It was further contended that place of occurrence i.e Second Floor or Third Floor has not been proved beyond reasonable doubt and there are material contradictions in the depositions of IOs. It has been further SC No.114/10 Page 13/27 contended that false implication of the accused has been duly corroborated by the deposition of DW1.
20. It has been vehemently argued on behalf of the accused that in her statement u/s 164 Cr.PC, there was no allegation of rape with her and Ld. Defence Counsel in this regard has relied upon a judgment of the Hon'ble Supreme Court in the case titled Abbas Ahmad Choudhary Vs. State of Assam reported as 2010 Crl. Law Journal 2060.
21. On the other hand, Ld. Addl. PP has submitted that prosecutrix has clarified in her deposition that she was under threat while making her statement u/s 164 Cr.PC and there was no cross examination of the prosecutrix on this point and thus, her clarification goes unchallenged. It has been further submitted by the Ld. Addl. PP that violence while committing rape may not have caused any injury to the prosecutrix but has become evident by the torn blouse of the prosecutrix which was handed over to the doctor and was identified by the prosecutrix as Ex.P2 and against this torn blouse there was no cross examination of the prosecutrix whose testimony to that effect has remained unrebutted.
22. Ld. Addl. PP has further contended that so far as deposition of PW3 is concerned, only his examination in chief is to be read in the evidence in the circumstances because he has completely wiped out his deposition and previous cross examination dated 01.04.2009 in his further cross examination dated 24.05.2010 for which he has SC No.114/10 Page 14/27 appeared almost after more than one year and in this regard Ld. Addl. PP has relied upon the judgment of the Hon'ble Apex Court in the case titled Khuji @ Surendra Tiwari Vs. State of MP reported as 1991 Criminal Law Journal 2653.
23. The defence of the accused that husband of the prosecutrix had advanced a loan of Rs.10,000/ to him which he failed to repay and this was the reason of his false implication in the present case, is to be first scrutinized by me.
24. In point of time, this defence for the first time was put to the prosecutrix PW2 in the form of a suggestion and she denied the suggestion that as the accused failed to return the said amount of Rs.10,000/ to her husband, she got implicated the accused in false case of her rape. It is interesting to note that a substantial cross examination of PW3, the husband of the prosecutrix, was done on 01.04.2009 but this defence was not put to him at that time. However, in his cross examination after about more than one year, PW3, the husband of the prosecutrix, admitted to have given a loan of Rs.10,000/ to the accused which was not returned by the accused and PW3 had gone to the extent of saying that accused was falsely implicated in the present case as he was not returning his money amounting to Rs.10,000/ in his cross examination dated 24.05.2010. It is worth noting that this defence was not put to PW7 HC Shiv Lal, who accompanied the IO at the spot, before whom not only the statement of the prosecutrix was recorded but she pointed out the SC No.114/10 Page 15/27 accused who was arrested then and there. Further, this defence was also not put to PW11 Inspr. Satpal Singh who was the subsequent IO. However, a suggestion was thrown to PW14 ASI Samunder Singh, the initial IO, to the effect that husband of the prosecutrix and the accused had a quarrel over money regarding which the husband of the prosecutrix made a call to the police which the witness denied as wrong and he further denied the suggestion that the said information of quarrel given by the husband of the prosecutrix was also not placed on the record. PW14 further denied the suggestion as wrong that a false case was planted upon the accused or that the real quarrel with regard to demand of loan from the accused by the husband of the prosecutrix was wiped out. He further denied the suggestion that DD no.10A was false and fabricated. The same suggestions were given to HC Vijay Singh, PW15, who got recorded the DD no.10A Ex.PW14/DA, who denied the same as wrong.
25. Even PW3, the husband of the prosecutrix, in his cross examination on behalf of the State after declaring him hostile, dated 24.05.2010, could not tell the date, month and year when he allegedly gave Rs.10,000/ to the accused. Even, the DW1 could not substantiate the said defence of the accused as his deposition was without any specification such as, "some friend" of accused Pappu came to him along with Rs.10,000/ after registration of the case for giving the same to the husband of the prosecutrix. Surprisingly, he caught Rs.10,000/ without even knowing the identity of the person SC No.114/10 Page 16/27 who gave him the said amount and this fact is very difficult to be swallowed. Admittedly, DW1 was a silent spectator as he did not report the alleged reality of the case to any senior officer of the police or to a court of law nor filed any protest petition before any senior police officer or before any court of law against alleged false implication of the accused in a rape case and when the accused was about to loose the game, one fine day DW1 suddenly jumped into the arena and started playing the game. In the said circumstances, I find a considerable force in the argument of the Ld. Addl. PP that only the examination in chief of PW3 is not only to be read in evidence but may be relied also for the purposes of this case and the said examination in chief dated 01.04.2009 of the PW3 is also corroborated by many facts established on the record, such as, DD no.10A Ex.PW14/DA was got recorded by PW3 regarding the rape of his wife and he further admitted in his cross examination on behalf of the State after he was declared hostile that his wife was got medically examined in the hospital by the police to that effect and the MLC Ex.PW1/A sufficiently corroborates the examination in chief of PW3. In the circumstances, the ratio laid down by the Hon'ble Supreme Court in the said case Khuji @ Surendra Tiwari Vs. State of MP (Supra) is fully applicable so far as deposition of PW3 is concerned. The stand taken by PW3 in his cross examination dated 24.05.2010, after a gap of more than one year after his examination in chief, was nothing but a futile attempt on his SC No.114/10 Page 17/27 part to wriggle out of his previous deposition dated 01.04.2009.
26. Here a safe inference can be drawn from the record that during the said time of more than one year PW3, may be under threat or some allurement, was won over and it is a sorry state of affairs that a husband, who was expected to stand by with his wife at such a crises of rape, deserted her and even deposed to the extent that not only he, as a witness, but the victim of the rape of the present case may be prosecuted under the law for his false deposition or the false implication of the accused by her. Hence, I am ignoring the cross examination on behalf of the accused of PW3 dated 24.05.2010 altogether not worth of any credence in the present case. Needless to repeat the law that even the deposition of a hostile witness can be relied so far as it is relevant for the decision of a case.
27. Let me take the next contention which was vehemently argued on behalf of the Ld. Defence Counsel before me, that the prosecutrix in her statement u/s 164 Cr.PC before the concerned Magistrate Ex.PW12/B did not disclose about any rape with her and he relied on the said judgment of the Hon'ble Supreme Court in Abbas Ahmad Choudhary's case (Supra).
28. In the Abbas Ahmad Choudhary's case (Supra) the Hon'ble Supreme Court was dealing with a case where the prosecutrix in her statement before the Magistrate did not attribute any rape to Abbas Ahmad Choudhary and stated that he was not one of those who kidnapped her and taken to the Tea Estate but in her statement SC No.114/10 Page 18/27 before the court she attributed rape to Abbas Ahmad Choudhary as well and the Hon'ble Supreme Court held as under:
"It is true that in her statement in court she has attributed rape to Abbas Ahmad Choudhary as well, but in the light of the aforesaid contradictions some doubt is created with regard to his involvement. Some corroboration of rape could have been found if Abbas Ahmad Choudhary too had been apprehended and taken to the police station by PW5 - Ranjit Dutta the Constable. The Constable, however, made a statement which was corroborated by the Investigating Officer that only two of the appellants Ranju Das and Md. Mizalul Haq along with the prosecutrix had been brought to the police station as Abbas Ahmad Choudhary had run away while en route to the police station. Resultantly, an inference can be rightly drawn that Abbas Ahmad Choudhary was perhaps not in the car when the complainant and two of the appellants had been apprehended by Constable Ranjit Dutta. We are, therefore, of the opinion that the involvement of Abbas Ahmad Choudhary is doubtful. We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
29. The facts before the Hon'ble Supreme Court were quiet SC No.114/10 Page 19/27 different from the facts of the present case as the prosecutrix in the case before the Hon'ble Supreme Court did not name the appellant at all in her statement before the Magistrate whereas in the present case, she has sufficiently named the accused and if only her statement u/s 164 Cr.PC is taken as it is, the said statement has exposed the accused to a charge u/s 354 IPC. The question is as to whether the explanation given by PW2 in her deposition that there was a threat to her husband and that was why she did not make her statement regarding rape committed by the accused, is reliable or not. However, the Hon'ble Supreme Court was certainly not dealing with such a situation and as such, the said judgment does not come to the help of the accused.
30. The explanation given by the prosecutrix that she was under
threat at the time she was making the statement u/s 164 Cr.PC, is assailed by the Ld. Defence Counsel that on the day the statement was recorded the accused was in JC and as such, there can be no question of threat extended by him. The argument prima faciely seems to be attractive but on a closer scrutiny the same is devoid of any merit. It is a matter of common knowledge and even otherwise the court can take judicial notice of the fact that witnesses had gone hostile under the threat extended by the accused who was in judicial custody. There is no presumption of law or presumption of fact that a person in judicial custody cannot or cannot be deemed to have extended the threat and as such, I am of the considered opinion that SC No.114/10 Page 20/27 the possibility of the prosecutrix remaining under threat cannot be ruled out because of the fact that a victim of rape, in general, remains only for some time with the Magistrate when her statement is being recorded or the victims of the rape are provided with police protection only during the investigation and the trauma under which she had gone while was being raped and subsequent apprehension of ill consequences such as, safety of herself as well as other members of her family, socio economic stability, stigma on the character or reputation and so on and so forth, necessarily and naturally continue just after the incident. I am fortified in my view by the very facts of this case that ultimately PW3, the husband of the prosecutrix, has gone hostile and added himself in the list of those relatives who were expected to help the victim but did not support her for the reasons best known to them. The list of such relatives is not necessarily consisting of only husbands but it may consist of brother, sister, father, son and even the mother, who, for various reasons, do not support the victims especially the victims of rape cases.
31. The deposition of PW2 is coherent and consistent and is corroborated by her own previous statement Ex.PW2/A, the information given by her husband to the police after the incident vide DD no.10A Ex.PW14/DA, arrest of the accused vide memos Ex.PW2/C and Ex.PW2/D and her MLC Ex.PW1/A. No explanation has come forth as to why a lady shall carry the stigma of falsely SC No.114/10 Page 21/27 implicating an accused, that too in a charge of her own rape, just for the stake of Rs.10,000/ even if, for the sake of argument, the defence of the accused is taken to be true. If this allegation, that accused has been falsely implicated, would have been correct, probably the prosecutrix would have taken a stigma throughout her life making her vulnerable to her further exploitation. Hence, I see no reason of falsely implicating the accused by a married lady having children.
32. The contention that in the MLC, as per deposition of the doctor, no fresh injury was observed on the body of the prosecutrix does not hold much water because a grown up woman can still be raped without causing any injury on her body or on her sexual organs. No ill will against the accused or tainting in recording of her statement for the otherwise benefit of the prosecutrix was imputed to PW14 ASI Samunder Singh who was the first police official to reach the spot after the incident and not only recorded her statement but arrested the accused also and this fact also corroborates the said deposition of the prosecutrix.
33. The other contentions that the prosecutrix did not resist or try to escape or did not raise alarm are not borne out of the record because PW2 specifically deposed that she raised noise but no one heard her noise and her torn blouse Ex.P2 was speaking in itself for the resistance offered by her. The contention that husband and the brother of the prosecutrix did not go to beat the accused on the night SC No.114/10 Page 22/27 of incident is nothing but suggesting the husband and brother of the prosecutrix to take the law into their own hands and such submissions must not be answered but condemned. PW3 has repelled another contention that he did not go anywhere after knowing the incident on the said night by voluntarily explaining that it was night time and that was why he did not go out of his house even after knowing the incident but make the telephone call to the police in the morning. This is natural conduct of a person who was situated in his own circumstances at the relevant time.
34. The next contention that house number was mentioned in DD no.10A as 279 whereas the actual alleged spot of incident was H.No.289, is not very material because that mistake may occur in pronouncing and hearing the said two numbers in vernacular as the number 79 is pronounced as "Unhasi" and the number 89 is pronounced as "Nawasi" and in yet some dialects the number 89 is pronounced as "Unanwe" and PW14 has explained as to how he reached the premises no.289 where the rape was committed and he has also deposed that as an initial IO it was his duty to find out the correct spot of the incident. Similarly, as to whether the premises was two storied or three storied, as suggested on behalf of the accused in the contentions, is of no importance particularly in a case of rape like the present one, where PW2 has specifically deposed that accused caught hold of her both hands and closed her mouth and took her to the bathroom situated on the roof and committed rape SC No.114/10 Page 23/27 upon her and even a suggestion that she was not raped in the bathroom was not thrown to the prosecutrix as PW2, who already denied the suggestion as wrong that accused did not lift her saree above in order to commit rape. Similarly, the deposition recorded of the prosecutrix wherein she answered that her husband was working for 20 years in the factory again seems to be a typographical mistake or hearing mistake if we read the deposition in reference to context.
35. In view of my said discussion, I am of the considered opinion that prosecution has been successful in bringing home the guilt of the accused beyond reasonable doubt. Hence, the accused is held guilty and convicted for the offence u/s 376 IPC. (Announced in the open court on 29.08.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.114/10 Page 24/27 IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER), ROHINI COURTS, DELHI SC NO.114/10 FIR NO. 316/08 U/S 376 IPC PS Bawana Unique Case ID No. : 02404R0016952008 State Vs. Pappu Kumar @ Chitranjan s/o Kulkit Rai r/o Village Kalyan Pur, PS Shingeya Ghat, District Samastipur, Bihar.
ORDER ON THE POINT OF SENTENCE Present: Addl. PP for the State.
Sh. B.B. Dhingra, Ld. Counsel for the convict.
1. Heard on the point of sentence. It has been submitted on behalf of the convict that he is married having two young children and the wife to be looked after and he is the only earning member of his family. It has been further submitted that in the said circumstances, the accused may be awarded less than the minimum mandatory punishment as provided for the offence u/s 376 IPC and the convict is in JC for the last more than three years.
2. On the other hand, Ld. Addl. PP for the State has submitted SC No.114/10 Page 25/27 that there are no grounds for adequate and special reasons to be recorded so as to reduce the punishment below the minimum mandatory punishment and that stringent punishment may be awarded to the convict so as to give a message to the society against such kind of offences. It has been further submitted by the Ld. Addl. PP that PW3, who is the husband of the prosecutrix, has turned hostile in his cross examination after about more than one year and that may be either under some allurement or some threat on behalf of the accused, this is a fit case where harshest punishment is warranted under the law.
3. Although vide my separate order of the day, the initiation of proceedings u/s 340 Cr.PC against PW3 have been dispensed with on the grounds stated in the order and particularly on the ground that even if the convict would have been acquitted, the result on the life of the victim would have been the same as there would be a rift in the relationship of husband and wife and disruption of the family life, but that is a circumstance which, in my considered opinion, must be read against the accused as a reason for not considering the ground of adequate and special reasons for awarding a punishment below the minimum mandatory punishment. I am also fortified in my said view by the judgment of the Hon'ble Supreme Court titled State of Punjab Vs. Prem Sagar and others reported as (2008) 7 SCC 550, although cited on behalf of the convict.
4. Even otherwise, the circumstances of the case, as have been SC No.114/10 Page 26/27 established on record through evidence, do not justify to provide less than the minimum mandatory punishment.
5. Hence, the convict is sentenced to undergo RI for seven years and a fine of Rs.5,000/ is also imposed upon him and in default of payment of fine, he is further sentenced to undergo SI for a period of six months. The convict is awarded benefit of Section 428 Cr.PC. A copy of both the orders be given free of cost to the convict forthwith. The file be consigned to the Record Room. (Announced in the open court on 29.08.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.114/10 Page 27/27