Delhi District Court
State vs Pramod @ Raju on 8 October, 2013
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 50/2013
Unique ID No. : 02401R0103542013
State versus Pramod @ Raju
S/o Sh.Nageshwar
R/o Vill. Marania PS Lagania,
Distt. Madhubani, Bihar.
Case arising out of:
FIR No. : 219/2010
Police Station : Paharganj
Under Section : 376/174A IPC
Judgment reserved on : 28.09.2013
Judgment pronounced on : 08.10.2013
JUDGMENT
Case of the Prosecution It is the case of the Prosecution that on 17.10.2010, Prosecutrix 'P' (name withheld in order to protect the identity of the Prosecutrix) made a complainant to the SHO PS Paharganj alleging that she belongs to village Jharkhand and used to work as maid servant at the house of Smt.Vandana Jain at H.No.1/12, Rani Jhansi Road, New Delhi for the last one month. Accused Pramod @ Raju also used to work at her house. She also alleged that passed Tuesday and Friday accused Pramod did 'Galat Kaam' with her forcibly, which fact she had brought to the notice of her sister Thermela telephonically, who later on communicated this to her cousin sister Marium, with whom the Prosecutrix approached the PS Paharganj for lodging the complaint.
On the basis of the aforesaid complaint a case under Section 376 IPC was registered vide DD No.29A on 17.10.2010. It is pertinent to note that on being found that the accused was deliberately concealing himself, NBWs were directed to be issued against him by the court of ld. MM vide order dated 06.02.2012. Further, vide order dated 31.08.2012 passed by the ld. MM, process under Section 82 Cr.PC was initiated against the accused Pramod @ Raju on the application made by the IO. However, ld. MM, vide order dated 30.11.2012, consequent upon the surrender application of the accused, took the accused into custody on the same day i.e. 30.11.2012 while the Proclaimed Offender proceedings qua him were already in process.
During the course of further investigation, the prosecutrix was medically examined and was also produced before the ld. MM for recording of her statement under Section 164 Cr.PC. Accused was also got medically examined and upon completion of investigation in all respects, charge sheet was submitted before the court for trial. Charges Upon committal of the case and on the basis of material on record, vide order dated 03.04.13, accused Pramod @ Raju was charged for the offence punishable under Sections 363/174A IPC. The accused pleaded not guilty and claimed trial when the charge was read over to him. Prosecution Evidence In order to bring home guilt of the Accused, Prosecution examined 14 witnesses on record.
Prosecutrix 'P' being the star witness was examined as PW3, who deposed that she belongs to Jharkhand and had came to Delhi about 23 years ago and was working as a maid in a house at Rani Jhansi Road. One boy namely Raju also used to work in that house as a servant. She further deposed that one day she went to the bathroom and the way to the bathroom was through the room of accused Raju. When she came out from the bathroom, accused put a cloth in her mouth and caught her both hands from the back and pushed her on the bed and forcibly committed rape upon her. She could not raise noise as accused had put cloth in her mouth. She also deposed that again after two days, when she was coming from the bathroom, accused closed the door of the room and committed rape upon her. She could not raise any alarm as he covered her face with towel like he had done on earlier occasion. She started crying. She further deposed that Madam contacted Jeevan and Marium and told them about what had happened to her. Jeevan had got her employed as a house maid in that house and Marium is his wife. On the next day, both of them came to that house and brought her to PS Paharganj where her statement was recorded, which is Ex.PW3/A. The witness correctly identified her thumb impression on the statement under Section 164 Cr.PC recorded before the ld. MM, which is Ex.PW3/B. The witness also identified her underwear in the court when showed to her at the time of her examination, which was seized vide seizure memo Ex.PW3/C and was exhibited as Ex.P1.
Ms.Vandana Jain, who was the owner of the house where the Prosecutrix used to work as a maid servant, was examined as PW6. She correctly identified the accused present in the court and deposed that she knew the accused as he was working in her house as domestic servant as he was placed in her house through their servant Shamu who went on leave and substituted the accused in his place at their house and it is for this reason, they did not get any police verification of the accused Pramod. She further deposed that she employed the Prosecutrix 'P' as a maid servant in her house @ Rs.2000/ per month through a placement agency w.e.f. 12.09.2010. Both the servants were having common bathroom which was attached with the room given to accused Pramod. There was a separate room for Prosecutrix. The way to the bathroom was through the room of accused Pramod.
PW6 deposed that there being holiday on account of Common Wealth Games, she along with her children went to her parental home on 10.10.2010 and returned on 16.10.2010. She returned in the late hours of the night of 16.10.2010 so she did not had any talk with the Prosecutrix. She further deposed that in the morning of 17.10.2010, Prosecutrix with a hesitation told her that accused Pramod had done 'Cherchar and Zabardasti' with her. She enquired from her as to why she did not disclose these facts to her at night and the Prosecutrix replied that she was hesitant due to embarrassment. She further deposed that she along with her husband went to the room of accused Pramod but he was not found there. They tried to contact him telephonically, but he did not pick up his mobile. On the same day, the lady from the placement agency came to their house along with 45 other persons and informed her that the Prosecutrix was being subjected to rape by accused Pramod in their house. They reported the matter to the police. This witness further deposed that the police visited their house during the investigation of this case and had also checked the room of accused Pramod and had taken underwear of the Prosecutrix, which was handed over to the police by her.
Ms.Marium, sister of the Prosecutrix stepped into the witness box as PW4, who deposed that in the year 2010, she got her employed as house maid at Delhi. She also deposed that the Prosecutrix came to Delhi about one month ago and was working in a house at Delhi, where one Raju was also working as servant in that house. She further deposed that Raju committed rape upon Prosecutrix 'P' twice perhaps on 10.10.2010 and 15.10.2010. They went to the Kothi after receiving the telephone call. Raju was missing from the house. They returned back to their house on that day and on 17.10.2010, they went to the PS with the Prosecutrix where her complaint was written. The Prosecutrix was also taken for her medical examination. She also deposed that after about two days, Prosecutrix was produced for recording of her statement under Section 164 Cr.PC and she also pointed out the room where rape was committed upon her and produced her underwear before the IO.
PW5 Jeevan being the distinct relative of Prosecutrix 'P' deposed that in the year 2010 she came to Delhi and within 1½ months, she got employed at a house as house maid at Delhi through Sushena and his wife Marium had requested Sushena to get Prosecutrix 'P' employed. He further deposed that the rape was committed upon her twice in the said house on 12.10.2010 and 15.10.2010 by one Raju, who was working as servant in that house. He also deposed that on 15.10.2010 they went to the house where Prosecutrix was working with Sushena and on 17.10.2010, present complaint was lodged in the PS and Prosecutrix was sent to LHMC for her medical examination and his wife also accompanied her. He also deposed that the house where the incident occurred is situated at Rani Jhansi Road.
PW1 is Dr.Shipra Rani who deposed that while working as CMO as LHMC hospital on 30.11.12, she medically examined the accused vide MLC No.76777 and proved the same as Ex.PW1/A. Whereas, PW2 is Dr.Manisha deposed regarding having conducted the medical examination of the Prosecutrix vide MLC No.886 and proved the same as Ex.PW2/A. Remaining witnesses pertain to the investigation which include PW7 Ct.Pramod Kumar, who deposed regarding the collection of the exhibits from the MHC(M) vide RC No.123/21/11 for depositing the same at FSL, Rohini on 04.02.2011 and handing over the receipt in respect thereof. PW10 is MHC(M)/HC Akhilesh, who brought registers Nos.19 and 21 and proved the relevant entries and exhibited the same from Ex.PW10/A to Ex.PW10/D respectively. PW11 is Ct.Rajinder, who deposed regarding taking of the sealed exhibits with FSL Forms for Malkhana on the directions of the IO on 04.12.2012 and depositing of the same in FSL, Rohini vide RC No.176/21. HC Mahipal was examined as PW12, who deposed that while he was working as MHC(M) at PS Paharganj on 04.02.2011, he handed over two exhibits and sample seal for onward submission to FSL, Rohini through Ct.Pramod vide RC No. 123/21/11 and proved the copy of that RC as Ex.PW12/A. He also proved the relevant entry in the register No.19 as Ex.PW12/B. PW8 is Ct.Anil Kumar who deposed that on 30.11.2012, he joined the investigation of this case along with IO ASI Sushila and came to Tis Hazari Courts Complex. He correctly identified the accused in the court and deposed that the Accused had surrendered in the court of ld. ACMM. ASI Sushila moved an application for his interrogation and after his interrogation, accused was formally arrested in this case vide arrest memo Ex.PW8/A. This witness further deposed about the preparation of personal search memo of the accused vide memo Ex.PW8/B and recording of disclosure statements and exhibited the same as Ex.PW8/C and Ex.PW8/D. He also prepared pointing out memo at the instance of the accused, where he was working as a domestic servant. This witness also got accused medically examined at LHMC hospital and collected the five sealed pulandas along with sample seal and produced the same to the IO which were taken into possession by the IO vide memo Ex.PW8/F. PW9 W/SI Sushila deposed that on 17.10.10 while she was posted as PS Pahar Ganj, case was assigned to her for investigation and she got the Prosecutrix 'P' medically examined at LHMC with the help of Ct.Suman. This witness further deposed regarding recording of statements of public witnesses viz., Mariam, Jeewan, Sushana, L/Ct.Suman and supplementary statement of Prosecutrix 'P', recording of the statement under Section 164 Cr.PC of the Prosecutrix before the ld. MM, seizure of the case property i.e. the underwear produced by the Prosecutrix at the time of investigation vide memo Ex.PW3/C and preparation of site plan Ex.PW9/B. PW9 further deposed that she searched for the accused and got NBWs issued against the accused. SI Ajay Dalal also went to native village of accused twice for his search, but in vain. Thereafter, proceedings under Section 82 Cr.PC were initiated against him and on 17.11.2012 permission for execution of process under Section 83 Cr.PC was obtained from the court.
She further deposed regarding the arrest of the accused on 30.11.2012 consequent upon his surrender before the court on that day vide arrest memo Ex.PW8/A and deposit of the exhibits on 04.12.2012 through Ct.Rajender at FSL Rohini and obtaining the FSL results thereof vide Ex.PW9/C & Ex.PW9/D respectively, preparation of the charge sheet after completion of the investigation and its filing in the court through SHO.
HC Hare Ram was examined as PW13, who deposed regarding execution of process under Section 82 Cr.PC against the accused Pramod Kumar @ Raju. He deposed that on 30.09.2012, he along with W/SI R.P.Minj reached at PS Ladania, District Mahhubani, Bihar and made their arrival entry in Roznamcha Register vide entry Ex.PW13/A. They took assistance of police and chowkidar of the village and reached at the house of accused. Mother of the accused was found present there and she told them that accused was absconding from the village. This witness also deposed that the process was pasted at the house of the accused at village Marnaya and he also got beating of drums. After that they came back to Delhi.
Insp.R.P.Minj was examined as PW14, who deposed that after the case was assigned to her for further investigation, she moved an application on 24.09.2012 for getting ossification test of the Prosecutrix conducted vide application Ex.PW14/A and got her ossification done at LHMC. She further deposed that on 29.09.2012, she along with HC Hare Ram left Delhi for Village Marnayya PS Ladania District Madhubani, Bihar for execution of process under Section 82 Cr.PC issued against accused Pramod Kumar @ Raju and on 30.09.2012 they reached at PS Ladania and made their arrival entry in Roznamcha Register vide entry Ex.PW13/A. They took the assistance of local police and chowkidar of the village and reached at the house of the accused. Mother of the accused was found present there and she told them that accused was absconding from the village. She also deposed that one copy of the process was pasted at the house of the accused at village Marnayya. They also got beating of drums and after that they came back to Delhi and pasted one copy of process at the notice board of the court. This witness proved her report in this regard as Ex.PW14/B. Plea of the Accused and Defence Evidence The incriminating evidence was put to the accused in his statement recorded under Section 313 CrPC. He pleaded innocence stating that he has been falsely implicated in this case.
Arguments, Analysis & Findings On the basis of evidence led on record, it was argued by ld. APP that the allegations against all the accused stand duly proved on record. On the other hand, learned defence counsel vehemently opposed the case of the Prosecution.
Learned defence counsel argued that the Prosecution has failed to establish the date of the alleged incident. It was pointed out that no date was mentioned by the complainant in her complaint Ex.PW3/A. When she stepped into the witness box also as PW3, she did not mention any date when the accused allegedly committed rape upon her. It was further contended that the different dates of incidents were mentioned by PW4 & PW5 in their examinationinchief and the said contradictions are also fatal to the case of Prosecution.
The abovesaid argument, to my mind, cannot be accepted upon complete reading of the testimony of PW3. It may be noted that while responding to a leading question put to her by the learned APP, she admitted that the accused had raped her for the first time on 12.10.2010. She also admitted that she had gone to the PS on 17.10.2010 for lodging her complaint. Insofar as, the depositions of PW4 & PW5 are concerned, I am of the opinion that the dates as mentioned by them in their testimonies cannot be said to be fatal to the case of the Prosecution, as argued by the learned defence counsel.
It is also noteworthy that PW4 stated that accused Pramod committed rape upon the Prosecutrix twice 'perhaps' on 10.10.2010 and 15.10.2010. Apparently, the witness was not certain about the dates particularly, even otherwise, the date of incident stands duly established on record from the deposition of the Prosecutrix.
Learned defence counsel further contended that the police has failed to establish the place of occurrence. My attention was drawn to the crossexamination of PW3, wherein she stated that she was taken to the hospital by the lady police and that the police did not take her anywhere else. To my mind, the said statement of the Prosecutrix cannot be said to imply that the place of incident has not been established on record by the Prosecution. Upon a careful reading of testimony of PW3, it is apparent that she clearly deposed that she was raped by the accused in the house of PW6 Ms.Vandana Jain, where she was working as maid servant. She deposed that the way to the bathroom was through the room of accused Raju and the accused raped her upon her in his room when she came out of the bathroom. Hence, the argument of the defence that the place of occurrence has not been established on record is completely devoid of merits.
Learned defence counsel also argued that nothing incriminating was opined by the FSL as per report exhibited as Ex.PW9/C & Ex.PW9/D. It was contended that the testimony of the Prosecutrix cannot be believed without being corroboration as no semen was detected on the exhibits sent for analysis to the FSL. To my mind, this argument of the defence is clearly contrary to the well established law with regard to the offence under Section 376 IPC. In a catena of judgments the Hon'ble Superior Courts have time and again laid down that the testimony of the Prosecutrix does not require any corroboration if the same is found credible. In this regard, reliance is placed upon the judgment titled as Moti Lal vs. State of M.P., 2008 Crl.L.J. 3543, wherein it was held as under :
"In the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound nonpermissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.
She would be conscious of the danger of being ostracized by the society and when the face of these factors the crime the crime is brought to light, there is in built assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be selfinflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A oman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case."
The aforesaid view of the Hon'ble Supreme Court has been followed in various judicial pronouncements. On going through the statement of the Prosecutrix PW3, I find that she has clearly deposed before the court that she was raped by the accused firstly on 12.10.2010 and again after two days when she was coming from the bathroom in the house of the PW6 Vandana Jain, where she was working as a maid and where the accused was also employed as a maid servant. She correctly identified the accused before the court. The testimonies of PW4 & PW5 also lends support to the statement of PW3 to whom she told about the incident of rape committed upon her by accused Raju, who was employed as a servant at that house.
PW6 Vandana Jain, the employer of the Prosecutrix and the accused also deposed before the court that she was away from her house from 10.10.2010 and when she returned back, the Prosecutrix told her on 17.10.2010 about the act of the accused. I may add, at this juncture, that though PW6 deposed that she was told by the Prosecutrix that accused had done 'Cherchar and Zabardasti' with her, the defence cannot take the benefit of the statement of PW6, inasmuch as the Prosecutrix has clearly deposed regarding the rape committed upon her by the accused.
Moreover, the hymen of the Prosecutrix was found torn upon her medical examination as per MLC Ex.PW2/A. The Prosecutrix who was medically examined by PW2 Dr.Manisha also stated the alleged history of commission of rape upon her by accused which was duly recorded in the MLC by the examining doctor. Pertinently, PW2 Dr.Manisha was not crossexamined by the defence.
Before parting, I may also add that the conduct of the accused of running away from the house as brought out from the testimony of PW4 & PW6 after the commission of incident in question also lends support to the case of the Prosecution with regard to charge under Section 376 IPC.
Hence, on the basis of evidence on record and the aforesaid discussion, I am thus of the opinion that the Prosecution has been able to establish beyond reasonable doubt that accused Pramod @ Raju committed rape upon the Prosecutrix as alleged and is thus found guilty of the offence under Section 376 IPC.
Insofar as, the offence under Section 174A IPC is concerned, it is the case of the Prosecution that the accused failed to appear before the court on 17.11.2012 despite issuance of the Proclamation under Section 82 Cr.PC directing the accused to appear before the concerned court on 17.11.2012. In order to establish the said charge, the Prosecution relied upon the statements of PW13 HC Hare Ram and PW14 Insp.R.P.Minj. Both the said witnesses deposed that the accused was not found residing at his native village when the copy of the process under Section 82 Cr.PC was pasted outside his house and was also executed by beatings of drums. Learned defence counsel contended that admittedly no photographs of pasting of the said process was taken by the Process Server and the Investigation Officer. It was further argued that the Investigation Agency did not record the statement of the Pradhan of the area with regard to the accused at the time of the alleged execution of the said process.
On the other hand, ld. APP drew my attention to the statement of the accused recorded under Section 313 Cr.PC, wherein he admitted that he had gone to Nepal when the police visited his house. He also stated that after returning, he came to know about the case and he surrendered before the court within one week of his return.
I have considered the aforesaid arguments and gone through the evidence on record. On going through the report of Insp.R.P.Minj Ex.PW14/B that as per the said report, one copy of the process was pasted on the notice board of the court and one copy was pasted on the door of the house of the accused. However, admittedly no photograph of such pasting at the house of the accused was taken by the IO PW14 and PW13 HC Hare Ram. It is also noteworthy that as per the statements of both these witnesses, the mother of accused was found present at the house of the accused who told them that the accused was absconding from the village. Despite this, the statement of the mother of the accused was not recorded. No efforts were also made to record the statement of any other person from the village regarding the accused.
In these circumstances and considering the aforesaid evidence, I find that the proper execution of the process under Section 82 Cr.PC by way of pasting at the house of accused has not been proved on record so as to hold that accused guilty of offence under Section 174A IPC. Despite the fact that the accused admittedly was not found at his house when the police had visited his house, I am of the opinion that the Prosecution was bound to prove beyond reasonable doubt that the process under Section 82 Cr.PC was duly executed in accordance with law. The mere absence of the accused from his house on the day when PW13 HC Hare Ram and PW14 Insp.R.P.Minj allegedly visited his house cannot be held sufficient for convicting him for the offence under Section 174A IPC, particularly in view of his plea that he was not aware that of the registration of the case at that time and upon returning he himself surrendered before the court. The accused, in my view, is entitled to benefit of doubt in respect of charge under Section 174A IPC and is acquitted for the same accordingly.
In view of the above discussion as the accused has been held guilty for the offence under Section 376 IPC, let him be heard on the point of sentence.
Announced in the Open Court on 08.10.13 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions Judge Special FTC - 2 (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 50/2013
Unique ID No. : 02401R0103542013
State versus Pramod @ Raju
S/o Sh.Nageshwar
R/o Vill. Marania PS Lagania,
Distt. Madhubani, Bihar.
Case arising out of:
FIR No. : 219/2010
Police Station : Paharganj
Under Section : 376/174A IPC
Judgment pronounced on : 08.10.2013
ORDER ON SENTENCE
Vide judgment dated 08.10.2013, Accused Pramod @ Raju S/o Sh.Nageshwar has been convicted for the offence punishable under Section 376 IPC.
I have heard the submissions of convict and Ld. APP on the point of sentence.
The convict prays for lenient view on the ground that he is about 23 years of age and is a sole bread earner of his family comprising of parents, wife and children. He also states that he is not a previous convict and had already remained in custody for a period of 11 months during investigation, inquiry and trial of this case.
The prayer for lenient view is opposed, however, by Ld. APP on account of gravity of the offence proved to have been committed by above named convict.
I have considered the submissions made before me on the point of sentence. It has been proved beyond reasonable doubt that the above named convict committed rape upon prosecutrix who was working as a maid servant in the same house where he was also employed as servant. The offence proved to have been committed by convict is certainly grave in nature.
In my opinion, interest of justice would met, if the above named convict is sentenced to Rigorous Imprisonment for a period of 07 years for the offence punishable u/s 376 IPC. In addition thereto, he is directed to deposit a fine of Rs. 3,000/, in default whereof, he shall undergo Simple Imprisonment for one year. Convict shall be entitled to benefit of Section 428 Cr.PC.
Considering the financial status of the convict, it is obvious that he would not be able to pay adequate compensation to prosecutrix in this case for the offence committed by the convict against her. I, therefore, recommend payment of adequate compensation to the victim in the present case as per provisions of Section 357A Cr.PC. The quantum of compensation to be awarded under Victim Compensation Scheme shall be decided by Delhi Legal Aid Services in terms of provision under Section 357A Cr.PC. Accordingly, it is directed that copy of this judgment and order be sent to Secretary DLSA, Central District for necessary action. Copy of this judgment and order of sentence be also supplied to above named convict free of cost.
File be consigned to record room.
Announced in the Open Court on 11.10.13 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.