Delhi District Court
State vs . Raju on 29 October, 2014
1
FIR No. 184/12
PS - Mangol Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 147/13
Unique ID No. : 02404R0211542012
State Vs. Raju
S/o Sh. Ram Avtar
R/o T - 1183, Mangol Puri,
Delhi.
FIR No. : 184/12
Police Station : Mangol Puri
Under Sections : 376/313 IPC
Date of committal to session Court : 24/09/2012
Date on which judgment reserved : 17/10/2014
Date on which judgment announced : 29/10/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 125 2 FIR No. 184/12 PS - Mangol Puri That on 15/05/2012, on receipt of information, W/SI Rekha reached at PP SGM Hospital, where complainant (name withheld being a case u/s 376 IPC) D/o Sh. Jug Lal, age 24 years, R/o T1215, Mangol Puri, Delhi, permanent address, VPO Baran Gawri, PS Salwadi, Distt. Barpeta, Assam, was found present. On inquiry and verbal examination of the complainant, the matter was found to be of rape. She was got medically examined at SGM Hospital vide MLC No. E16962 and the Doctor had remarked ''Alleged H/o Sexual assault as told by patient herself, H/o physical assault on 05/05/2012 & two months pregnant, which got aborted due to physical assault on 05/05/2012.'' The complainant/prosecutrix made the statement which is to the effect that, she is the permanent resident of the above address and is presently residing at T1215, Mangol Puri, Delhi on rent. Her sister Bihuti @ Prabha also lives with her at the said address who works in SGM Hospital. About three months back, in search of work, she had come to her sister and started living with her. In her neighbourhood, one boy Raju S/o Ram Avtar R/o T 1183, Mangol Puri, Delhi, resides who used to keep on smiling on seeing her. About 2½ months back, in the noon she was alone at her house and her sister had gone for duty. The door 2 of 125 3 FIR No. 184/12 PS - Mangol Puri was not bolted. Raju came inside the house and started molesting (Cherkhani) her and she stopped him not to do so on which Raju told that "he loves her very much and cannot remain alive without her. He will perform the marriage with her only" (Mai Tumhe Bahut Pyar Karta Hu Aur Tumare Bina Jinda Nahi Reh Sakta Hu Aur Mai Tumse Hi Shaadi Karunga). She was taken in the sweet talks of Raju and Raju on the pretext of performing marriage with her made physical relations with her without her consent. She also kept silent as Raju had made promise to perform marriage with her. Thereafter, Raju a few times (Kai Baar) at her house and some times at his house on the pretext of performing marriage with her made physical relations with her without her consent. As and when she told Raju for performing marriage, he used to say " He by his heart has taken her as his wife and very soon they will perform the marriage with social customs and ceremonies" (Maine Tumhe Maan Se Patni Maan Liya Hai Aur Jaldi Hi Hum Samajik Riti Riwazo Se Shaadi Kar Lenge). Because of the said physical relations she became pregnant and on 05/05/2012 when she told Raju about of her being pregnant and told him to perform the marriage on which Raju got enraged (Raju Aag Babula Ho Gaya) and gave beatings to her due to which she suffered 3 of 125 4 FIR No. 184/12 PS - Mangol Puri abortion. But at that time Raju apologized to her and said that "They will soon perform the marriage" (Hum Jaldi Shaadi Kar Lenge) and she agreed to that and regarding abortion she did not get conduct her any medical examination. Now, when again she told Raju for performing the marriage on which Raju refused to perform the marriage. Raju on the false pretext of marriage had committed rape upon her and had given beatings to her due to which she has suffered abortion. Raju who refused to perform marriage with her and so she has come to Sanjay Gandhi Hospital Chowki from where she was taken to Sanjay Gandhi Hospital and her medical examination has been got conducted. Legal action be taken against Raju. Statement has been heard and is correct. On the basis of the statement, from inspection of the MLC and the circumstances, finding that the offences u/s 376/313 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Rekha. Accused Raju S/o Ram Avtar R/o House No. T 1183, Mangol Puri, Delhi was arrested and he was got medically examined and sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession. The sealed exhibits were sent to the FSL.
4 of 125 5 FIR No. 184/12 PS - Mangol Puri Upon completion of the necessary further investigation Challan for the offences punishable u/s 376/313 IPC was prepared against accused Raju and was sent to the Court for trial.
2. Since the offences under Section 376/313 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 376/313 IPC was made out against accused Raju. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 14 witnesses. PW1 - Constable Satender, PW2 - Dr. M. Das, CMO, SGMH, Mangol Puri, Delhi, PW3 - Dr. Bina, CMO, SGM 5 of 125 6 FIR No. 184/12 PS - Mangol Puri Hospital, Delhi, PW4 - HC Mahavir Prasad, PW5 - Constable Rakesh Kumar, PW6 - Prosecutrix (name withheld), PW7 - Dr. Supriya Prasher, SR (Obs. & Gynae), SGM Hospital, Delhi, PW8 - Constable Suman, PW9 - Sh. Lal Kunwar, PW10 - SI Amit, PW11 - SI Suman, PW12 - Ms. Rajni Ranga, Learned MM, Rohini Courts, Delhi, PW13 - Prabha and PW14 - W/SI Rekha.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Constable Satender, who deposed that on 22/05/2012, he was posted as Constable in PS - Mangol Puri. On the instructions of IO, he took seal pullinda alongwith sample seal from the MHC(M) for depositing in FSL Rohini vide RC No. 25/21/12. He deposited the same in FSL Rohini and thereafter, he deposited the receipt with MHC(M). The sealed pullindas remained intact during his custody.
PW2 - Dr. M. Das, CMO, SGMH, Mangol Puri, Delhi, who deposed that on 15/05/2012, one Raju S/o Ramavtar aged around 28 year was brought to Hospital for medical examination with alleged history of 6 of 125 7 FIR No. 184/12 PS - Mangol Puri committal of sexual assault 20 days back. After examination, he opined that there is nothing to suggest that he is incapable of performing sexual intercourse. He prepared the MLC and the same is Ex. PW2/A, which bears his signature at point 'A'.
PW3 - Dr. Bina, CMO, SGM Hospital, Delhi, who deposed that on 15/05/2012, prosecutrix (name withheld) D/o Jaglal aged 26 years, female was brought to Hospital with alleged history of physical assault on 05/05/2012. On local examination, no fresh external injury seen. Thereafter, she was referred to SR, Gynae and ENT for further examination. She (PW3) prepared the MLC, the same is Ex. PW3/A bearing her signature at point 'A'.
PW4 - HC Mahavir Prasad, who deposed that on 15/05/2012, he was posted as MHC(M) in PS - Mangol Puri. On that day, SI Rekha deposited two sealed pullindas alongwith sample seals in the Malkhana. He made entry at Serial No. 6042 in Register No. 19. On 22/05/2012, on the instructions of IO, two sealed pullindas alongwith sample seal were handed over to Constable Satender for depositing in the 7 of 125 8 FIR No. 184/12 PS - Mangol Puri FSL, Rohini vide RC No. 25/21/12. After depositing the same in FSL, he (Constable Satender) had deposited the acknowledgment receipt of the pullinda with him (PW4). He has brought the Register No. 19 and 21. The copy of the relevant entry of Register No. 19 is Ex. PW4/A. The copy of relevant entry of Register No. 21 is Ex. PW4/B. Copy of the acknowledgment receipt is Ex. PW4/C (OSR). Sealed pullindas remained intact during his custody.
PW5 - Constable Rakesh Kumar, who deposed that on 15/05/2012, he was posted as Constable in PP SGMH, PS - Mangol Puri. On that day, he alongwith Lady Constable Suman and W/SI Rekha took prosecutrix (name withheld) to SGM Hospital for medical examination. She was medically examined and after medical examination, Doctor handed over the sealed pullinda alongwith sample seal which were seized by the IO. IO recorded statement of prosecutrix (name withheld) and prepared rukka and handed over the same to him for registration of FIR. IO also handed over to him the sealed pullinda for depositing it in the Malkhana. He got the FIR registered in the PS and deposited the case property in the Malkhana. After registration of FIR, he reached at the 8 of 125 9 FIR No. 184/12 PS - Mangol Puri spot at T1215, Mangol Puri and handed over to IO, copy of FIR and original rukka. IO prepared the site plan. Thereafter, at the instance of the complainant, accused Raju, present in the Court was apprehended from his house at T 1183, Mangol Puri. Accused Raju was interrogated and arrested vide arrest memo Ex. PW5/A, his personal search was conducted vide memo Ex. PW5/B and he made disclosure statement Ex PW5/C, all bearing his (PW5) signature at point 'A'. Accused pointed out the place of occurrence vide pointing out memo Ex. PW5/D, bearing his (PW5) signature at point 'A'. Accused was medically examined in SGM Hospital and after medical examination, Doctor handed over sealed pullinda containing exhibits and same were seized vide memo Ex. PW5/E, bearing his (PW5) signature at point 'A'. Thereafter, they came back to PS and accused was sent to Police lockup.
PW6 - Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the Police Ex. PW6/A, her statement recorded u/s 164 Cr.P.C. Ex. PW6/B, arrest memo of accused Raju already Ex. PW5/A, personal search memo of accused Raju already Ex. PW5/B, disclosure statement of accused Raju already Ex. PW5/C, 9 of 125 10 FIR No. 184/12 PS - Mangol Puri pointing out memo of the place of occurrence, at the instance of the accused Raju, already Ex. PW5/D, all bearing her signature at points 'B' and deposed regarding the investigational aspects which she joined.
PW7 - Dr. Supriya Prasher, SR (Obs. & Gynae), SGM Hospital, Delhi, who deposed that on 15/05/2012 prosecutrix (name withheld) D/o Jag Lal was brought to Hospital for medical examination with the alleged history of sexual/physical assault. She was initially examined by CMO on duty and thereafter she was referred to S.R. Gynae. whereupon she (PW7) examined the patient. She (prosecutrix) also gave the history of two months pregnancy which got aborted due to physical assault on 05/05/2012. She (prosecutrix) also gave history of passage of clots after that. On examination her vitals were stable, on per vaginal examination : hymen was torn, OS closed, uterus mid position bulky. B/L fornices free non tender. There was no bleeding P/V Urine pregnancy test on 15/05/2012 was negative. Samples were taken, sealed and handed over to concerned Doctor (Police). Her (PW7) findings on the MLC Ex. PW3/A is at point 'X' to 'X' and bearing her signature at point 'Z'.
10 of 125 11 FIR No. 184/12 PS - Mangol Puri PW8 - Constable Suman, who deposed that on 15/05/2012, she was posted as Constable in PP Sanjay Gandhi and PS - Mangol Puri. On that day, she alongwith W/SI Rekha remained in the investigation of the present case. Complainant/prosecutrix (name withheld) was also present in the Chowki. IO made inquiries from complainant and thereafter she (PW8) alongwith IO W/SI Rekha and Constable Rakesh took prosecutrix (name withheld) in Sanjay Gandhi Hospital. She was medically examined and after medical examination, Doctor handed over the sealed pullinda containing exhibits and same were seized vide memo Ex. PW8/A, bearing her signature at point 'A'. IO prepared a Tehrir and handed over the same to Constable Rakesh alongwith sealed pullinda for registration of FIR and to deposit the exhibits in the Malkhana. Accused Raju, present in the Court was arrested at the instance of the complainant/prosecutrix (name withheld) from T 1183, Mangol Puri, Delhi.
PW9 - Sh. Lal Kunwar, who deposed that he is working in Shakti Bhog and previously, he was working in Delhi Home Guard. He 11 of 125 12 FIR No. 184/12 PS - Mangol Puri has given first floor of his house No. T 1215 on rent for Rs. 1,500/ per month to prosecutrix (name withheld) and her sister Prabha in March, 2012 and they remained as a tenant till August, 2012. He has not executed any rent agreement. Accused Raju S/o Ram Avtar, present in the Court was residing near their house. Accused Raju used to visit in the house of prosecutrix (name withheld) and Prabha and many times he (PW9) objected for this but Raju told him that he used to visit at the house of prosecutrix (name withheld) for some work.
PW10 - SI Amit, who deposed that on 15/05/2012, he was posted as DO, PS - Mangol Puri. On that day, he was on duty from 4:00 p.m. to 12:00 mid night. On that day, at about 8:15 p.m., he received a rukka from Constable Rakesh which was sent by SI Rekha, on the basis of which and on his instructions the present FIR No. 184/12 u/s 376/313 IPC was registered. After registration of FIR, he handed over the FIR and original rukka to Constable Rakesh for handing over to W/SI Rekha for further investigation. He has brought original FIR register. The copy of FIR is Ex. PW10/A bearing his signatures at point 'A'. He made endorsement on the rukka and the same is Ex. PW10/B bearing his 12 of 125 13 FIR No. 184/12 PS - Mangol Puri signatures at point 'A'.
PW11 - SI Suman, who deposed that on 25/07/2012, she was posted at PS - South Rohini as SI. On that day, the investigation of the present case was marked to her. She perused the file and found that accused had already been arrested and found that statement of the prosecutrix (name withheld) is yet to be recorded u/s 164 Cr.P.C. Since, the accused was in JC and period u/s 167(2) Cr.P.C. was going to be expired so challan was prepared and filed in the Court. On 09/08/2012, she moved an application u/s 164 Cr.P.C. for recording the statement of the prosecutrix and on 13/08/2012 statement of prosecutrix (name withheld) was recorded by Learned MM and the thereafter, she obtained the copy of the same vide her application Ex. PW11/A bearing her signature at point 'A'. thereafter, she filed the supplementary charge sheet. Accused Raju is present in the Court.
PW12 - Ms. Rajni Ranga, Learned MM, Rohini Courts, Delhi, who deposed that on 09/08/2012, she was posted as Metropolitan Magistrate in Rohini Courts. On that day an application u/s 164 Cr.P.C.
13 of 125 14 FIR No. 184/12 PS - Mangol Puri for recording the statement of prosecutrix (name withheld) D/o Jug Lal was marked to her by Sh. Vipin Kharb, Learned Link MM. She adjourned the application for recording the statement of the prosecutrix on 13/08/2012. Her order in this regard is Ex. PW12/A, bearing her signature at point 'A'. On 13/08/2012 prosecutrix (name withheld) was produced before her by IO W/SI Suman and identified by her. IO was asked to leave the Chamber. Thereafter, she recorded statement of prosecutrix (name withheld) which is already Ex. PW6/B, bearing her (PW12) signature at point 'B'. Her proceedings in this regard is Ex. PW12/B, bearing her signature at point 'A' on each page. After recording the statement, she issued the certificate regarding the correctness of the statement and the same is Ex. PW12/C, bearing her signature at point 'A'. IO was allowed to take the copy of the statement on her (IO) application vide her (PW12) order Ex. PW12/D, bearing her signature at point 'A'. Ahlmad was directed to send the proceedings in a sealed cover to the concerned Court and the same is Ex. PW12/E, bearing her signature at point 'A'.
PW13 - Prabha, who deposed that from the month of 14 of 125 15 FIR No. 184/12 PS - Mangol Puri February, 2012, she was residing at T - 12/15 (1215), Mangol Puri, Delhi at tenanted accommodation alongwith her elder sister prosecutrix (name withheld) and she was working at Sanjay Gandhi Hospital Mangol Puri as casual worker. Accused Raju present in the Court (correctly identified) was residing in their lane and used to come at their house and met her sister/prosecutrix (name withheld) but on her asking he never gave any satisfactory reply. In the month of April, 2012, she went to her native village and her sister/prosecutrix (name withheld) told her that accused Raju in her absence came to her (prosecutrix) and when she (PW13) returned to Delhi she (prosecutrix) further told her (PW13) that accused Raju had forcibly committed rape upon her several times on the false pretext of marriage as a result of which she became pregnant and when she asked accused Raju to marry her he gave beatings to her as a result she suffered miscarriage and she could not initially told her (PW13) about the wrong acts of the accused as she was elder to her (PW13). Her statement was recorded by the Police.
PW14 W/SI Rekha, who is the Investigating Officer (IO) of the case and deposed that on 15/05/2012, she was posted at PS Vijay 15 of 125 16 FIR No. 184/12 PS - Mangol Puri Vihar. On that day, in the evening, she received a message from SHO Vijay Vihar that there is a rape call from PP SGM, PS Mangol Puri and she is required to go there. Accordingly, she went there, where complainant/prosecutrix (name withheld) was found present. She (IO) made inquiries from her (prosecutrix), on which, she told that one Raju has committed rape on her on the pretext of marrying her. She (IO) got her medically examined and at that time, Lady Constable Suman and Constable Rakesh were also with her. After the medical examination of the prosecutrix, she recorded her statement, which is already Ex. PW6/A, signed by her at point 'A' and she attested her signature at point 'B'. She made endorsement under the statement of prosecutrix. Same is Ex. PW14/A signed by her at point 'X' and the tehrir was handed over to Constable Rakesh for registration of the case. The sealed exhibits handed over by the Doctor after the medical examination of the prosecutrix were also seized vide seizure memo already Ex. PW8/A bearing her signature at point 'B'. These exhibits were also handed over to Constable Rakesh for depositing the same in the malkhana. He left the Hospital alongwith rukka and exhibits for the PS. Nazma Khan NGO had also reached at the Hospital. She had counselled the prosecutrix.
16 of 125 17 FIR No. 184/12 PS - Mangol Puri Thereafter, she alongwith prosecutrix and Lady Constable Suman went to the spot i.e. at T Block at House No. T 1215, Mangol Puri, where the rape was committed upon prosecutrix. Then, at the instance of the prosecutrix, the site plan was prepared. Same is Ex. PW14/B bearing her signature at point 'A' and also signed by the prosecutrix at point 'B'. In the meantime, Constable Rakesh arrived at the spot alongwith copy of FIR and original rukka and handed over the same to her. Thereafter, they went to the house of accused i.e. T 1183, Mangol Puri and on the identification of prosecutrix (name withheld), a boy present in that house was arrested and his name revealed as Raju. The arrest memo of accused is already Ex. PW5/A signed by her at point 'C'. His personal search was also conducted vide memo already Ex. PW5/B bearing her signature at point 'C'. His disclosure statement was recorded, which is already Ex. PW5/C signed by her at point 'C'. After that, accused pointed out the place of occurrence i.e. H. No. T 1215, Mangol Puri and H. No. T 1183, Mangol Puri and a pointing out memo was prepared, which is already Ex. PW5/D signed by her at point 'C'. She recorded supplementary statement of prosecutrix (name withheld) and she was relieved from there. She (IO) recorded the statement of Lady Constable 17 of 125 18 FIR No. 184/12 PS - Mangol Puri Suman u/s 161 Cr.P.C. Accused Raju was got medically examined from SGM Hospital Mangol Puri. After his medical examination, Doctor handed over the exhibits along with sample seal sealed with the seal of "SGMH Mangol Puri Delhi". Same were taken into possession vide memo already Ex. PW5/E signed by her at point 'C'. Accused was sent to lockup after returning to PS. Accused Raju is present in the Court. She had sent the exhibits of this case to FSL on 22/05/2012 through Constable Satender and recorded the statements of witnesses. She also recorded the statements of sister of prosecutrix and landlord during investigation. Then, she proceeded on long leave and the file was submitted with MHC(R). She tendered the DNA examination report. Same is Ex. PX.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Raju was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Raju opted to lead defence evidence and in his defence examined one witness 18 of 125 19 FIR No. 184/12 PS - Mangol Puri namely, DW1 - Ram Sajiwan Pandey, S/o Sh. Shesh Narain Pandey, Aged about - 52 years, R/o T - 1184, Mangol Puri, Delhi - 110083.
DW1 - Ram Sajivan Pandey, has deposed that he knows accused Raju for the last about 1718 Years as he is residing in his (DW1) neighbourhood. The behaviour and conduct of the accused Raju is quite good and he has never seen him quarreling with any person in the locality or he has never heard about any illegal or any offence whatsoever committed by him. He has never seen him misbehaving with any person. He has brought with him his original Election Identity Card. The photocopy of the same is Ex. DW1/A (OSR).
The testimonies of the defence witness shall be dealt with in detail during the course of appreciation of evidence.
7. Learned Counsel for the accused submitted that the prosecutrix is a major woman and as per FIR the allegations are of sex with consent. Sex was neither under force and she has voluntarily submitted herself for the intercourse several times according to her own statement. Learned Counsel further submitted that in Hindu customs and 19 of 125 20 FIR No. 184/12 PS - Mangol Puri ceremonies first roka ceremonies takes place, thereafter sagai and thereafter marriage and finally suhagrat. In the present case there is neither roka ceremony nor sagai nor marriage and suhagrat is coming at the first instance. It was the duty of the complainant, who is not less than 35 years in age and in the FIR she had falsely stated that she is aged 24 years, immediately after first sexual intercourse, to persuade him/accused for marriage instead of submitting her body again without taking steps/initiative for marriage. Learned Counsel further submitted that PW5 Constable Rakesh Kumar, in his crossexamination stated that at the time of recording of statement by the IO one NGO Counselor namely Najma was present at that time. The IO should have recorded the statement of prosecutrix not in the presence of any other persons. The arrest of Raju was not established from his house as none of the neighbors were joined as a witness at the time of arrest, and it is admitted by the PW5 that at the time of preparation of the pointing out memo Ex. PW5/D no public person was joined as a witness. It has been admitted to be correct by the aforesaid PW5 in his crossexamination that no public person nor the house owner of the house of the prosecutrix were joined at the time of preparation of pointing out memo Ex. PW5/D 20 of 125 21 FIR No. 184/12 PS - Mangol Puri at the house of prosecutrix. Learned Counsel further submitted that PW6 prosecutrix in her examinationinchief has stated that her sister was working in Sanjay Gandhi Hospital and she had stated that as the accused was residing in front their house there was talk between her and the accused and has admitted that both of them used to smile at each other. She has stated in her examinationinchief "About two months prior to the registration of the present case in after noon at about 2:00 p.m. when I was sleeping in my room without bolting the door accused Raju came into the room and started doing touching (cher chhar) with me which I objected to on which Raju said that he loves me and cannot live without me and that he has made me by heart his wife on such talks I became mum and thereafter he made physical relations with me. Thereafter, also by calling me (Bula Bula Kar) to his house he had taken me to his house and established physical relationship with me by treating me as his wife. Thereafter I told Raju to perform the marriage immediately". Learned Counsel further submitted that even the Learned Addl. PP has put leading questions as the prosecutrix was not speaking truth. Learned Counsel further submitted that in the crossexamination, the prosecutrix who had studied according to her up to 11th class 21 of 125 22 FIR No. 184/12 PS - Mangol Puri deliberately did not tell about her date of birth as she knew that she was not less than 35 years in age. The prosecutrix in her crossexamination did not tell the date and the year when physical relationship had developed between them for first time. In the crossexamination the prosecutrix had stated, "The physical relations were made with me by accused Raju forcibly when were made for the first time Vol. he caught me and established the physical relations with me". "It was in rented room of my sister where I was residing, the physical relations made with me by the accused Raju for the first time I was sleeping in the room when accused Raju caught me. My clothes were forcibly removed by accused Raju", she further said that she did not sustain any injury on her body when physical relation were forcibly established for the first time by accused Raju. There is material contradiction and improvement in the evidence of the prosecutrix as in the examinationinchief she had stated that the accused committed sex with her by telling her that from his heart he had taken her to be his wife, hence in view of that above mentioned clear cut contradiction and improvement the testimony of the prosecutrix/complainant does not inspire confidence and judicial conscious is not convinced and satisfied in the light of such testimony 22 of 125 23 FIR No. 184/12 PS - Mangol Puri She further stated in her crossexamination that she tried to raise alarm but in her examinationinchief she never stated so. The prosecutrix stated in her crossexamination that she did not tell about the incident to the landlord where she was residing with her sister and she also admitted that she never told about the incident to her sister with whom she was residing namely Prabha Rani. She further stated in her crossexamination that she did not recollect the date, physical relations were established with her by accused Raju. She further stated in her crossexamination that second time when physical relations were established with her by accused Raju, the same were made by him at his house where he had taken her after calling her. She further said that forcibly he had taken her to his house. She further said that the physical relations were established forcibly with her despite her refusal. She further said that she sustained injury upon her person when such act was committed on her forcibly and thereafter she said that she does not recollect on which part of the body she had sustained injury, she further said in her crossexamination that the physical relations were forcibly established with her by accused Raju for about ten times. She further said in her crossexamination that she did not make any call to the Police on No. 100 when such physical 23 of 125 24 FIR No. 184/12 PS - Mangol Puri relations were established with her by accused Raju. She further stated in her crossexamination that she had not disclosed about the making of physical relations forcibly with her for about ten time by Raju to her younger sister Behuti @ Prabha Rani. Learned Counsel further submitted that prosecutrix had told in the crossexamination that she had told in her statement u/s 164 Cr.P.C. Ex. PW6/B that she was sleeping in her room all alone and Raju came into the room from the opened door (Khule Darwaje Se) and started doing Chherkhani with her and her sister had gone for duty. (Confronted with statement Ex. PW6/B where it is not so recorded). In the crossexamination the prosecutrix said "I had told in my statement u/s 164 Cr.P.C. Ex. PW6/B that the physical relations were made with me with Raju without my consent (confronted with statement Ex. PW6/B where it is not so recorded in these words). She further stated in her crossexamination that she did not show herself to any doctor during the period when she had sustained injury during the making of the physical relations forcibly with me for ten times by accused Raju. She further stated in her crossexamination that lastly physical relations were forcibly established with her with accused Raju in her house but she did not remember the date, month and year. She 24 of 125 25 FIR No. 184/12 PS - Mangol Puri further stated in her crossexamination that she did not remember the date, month and year when she was given severe beatings by accused Raju due to which she had suffered abortion, she further stated in her crossexamination that she had not given any medical documentary proof of sufferance of abortion by her. She further stated that she did not recollect the date, month and year when she felt stomachache and went to the hospital. She further stated that she never told Raju that she loved him. Learned Counsel further submitted that PW7 Dr. Supriya Prasher, in her crossexamination has stated that her examination reveals that this women (woman) had history/evidence of vaginal penetration. Learned Counsel further submitted that in the brief history of the case, the prosecutrix has stated categorically and clearly that with regard to abortion she did not undergo any medical examination and this fact is also recorded in FIR. Learned Counsel further submitted that the testimony of PW6 prosecutrix and even her sister Behuti @ Prabha Rani/PW13 do not corroborate and do not inspire confidence and are contradictory, unreliable, untrustworthy and full of contradiction, manipulation and improvements and hence there is no legal, sustainable evidence on record on the basis of which the accused can be held guilty.
25 of 125 26 FIR No. 184/12 PS - Mangol Puri The defense evidence has also proved that the accused is not having any criminal record or any bad antecedent. Learned Counsel further submitted that it is a case of sexual intercourse with consent and both the complainant and the accused enjoyed sex and exchanged smiles. Learned Counsel prayed for the acquittal of the accused on all the charges leveled against him.
Learned Counsel referred to the cases and are reported as 'Vinod Mangilal Vs. State of M.P.', 2009 CRI.L.J. 1204; 'Goutam Mondal Vs. State of West Bengal & Ors.', 2011 CRI.L.J. 2037; 'Sunil Vishnu Salve and Anr. Vs. State of Maharashtra', 2006 CRI.L.J. 587; 'Mallesh Khemanna Vs. State of Karnataka', 2013 CRI.L.J. 3196; 'Prahalad Mohanlal Sahu Vs. State of Chhattisgarh', 2013 CRI.L.J. 1726; 'Deepak Gulati Vs. State of Haryana', II(2013) DLT (Crl.) 769 (SC); 'Sayaji Hanmant Bankar Vs. State of Maharashtra', (2011) 14 SCC 477; 'Aqnelo @ Robert Fernandes & Ors. Vs. State (Bombay)', 2002(4) RCR (Criminal) 345 (Bombay High Court); 'Kamal Saikia @ Kamal Sonowal Vs. State of Assam', III (2010) CCR 364 (Gauhati High Court) and 'K. P. Thimmappa Gowda Vs. State of Karnataka' (2011) 14 SCC 475.
26 of 125 27 FIR No. 184/12 PS - Mangol Puri
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. M. S. Yadav, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/313 IPC against the accused Raju is that before 2½ months prior to 15/05/2012, during noon time, exact time unknown at T - 1215, Mangol Puri, Delhi, within the jurisdiction of PS - Mangol Puri, and thereafter on many occasions he committed rape upon prosecutrix (name withheld), aged around 24 years on the pretext of marrying with her at her house at T - 1215, Mangol Puri, Delhi and also at his house at T - 1183, Mangol Puri, Delhi and that on 05/05/2012, at time unknown, at place unknown he 27 of 125 28 FIR No. 184/12 PS - Mangol Puri voluntarily caused hurt to prosecutrix (name withheld) aged around 24 years with intent to cause miscarriage to her and thus caused her miscarriage without her consent.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW6 - Prosecutrix in her statement recorded in the Court on 11/04/2013 while giving her particulars has stated her age as 24 years.
Since PW6 - prosecutrix has stated her age as 24 years on 11/04/2013 at the time of recording her evidence/statement in the Court and the date of alleged incident is about two months prior to 15/05/2012, on simple arithmetical calculation, the age of the prosecutrix comes to around 22 years, 11 months and 04 days as on the date of alleged incident, about two months prior to 15/05/2012.
28 of 125 29 FIR No. 184/12 PS - Mangol Puri Moreover, the said factum of age of PW6 - prosecutrix has also not been disputed by accused Raju. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW6 - prosecutrix was aged around 22 years, 11 months and 04 days as on the date of incident, about two months prior to 15/05/2012. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW3 - Dr. Bina, CMO, SGM Hospital, Delhi has deposed that on 15/05/2012, prosecutrix (name withheld) D/o Jaglal aged 26 years, female was brought to Hospital with alleged history of physical assault on 05/05/2012. On local examination, no fresh external injury seen. Thereafter, she was referred to SR, Gynae and ENT for further examination. She (PW3) prepared the MLC, the same is Ex. PW3/A bearing her signature at point 'A'.
Despite grant of opportunity, PW3 - Dr. Bina was not cross examined on behalf of the accused.
29 of 125 30 FIR No. 184/12 PS - Mangol Puri PW7 - Dr. Supriya Prasher, SR (Obs. & Gynae), SGM Hospital, Delhi has deposed that on 15/05/2012 prosecutrix (name withheld) D/o Jag Lal was brought to Hospital for medical examination with the alleged history of sexual/physical assault. She was initially examined by CMO on duty and thereafter she was referred to S.R. Gynae. whereupon she (PW7) examined the patient. She (prosecutrix) also gave the history of two months pregnancy which got aborted due to physical assault on 05/05/2012. She (prosecutrix) also gave history of passage of clots after that. On examination her vitals were stable, on per vaginal examination : hymen was torn, OS closed, uterus mid position bulky. B/L fornices free non tender. There was no bleeding P/V Urine pregnancy test on 15/05/2012 was negative. Samples were taken, sealed and handed over to concerned Doctor (Police). Her (PW7) findings on the MLC Ex. PW3/A is at point 'X' to 'X' and bearing her signature at point 'Z'.
There is nothing in the crossexamination of PW7 - Dr. Supriya Prasher so as to impeach her creditworthiness.
30 of 125 31 FIR No. 184/12 PS - Mangol Puri In view of above and in the circumstances, the medical and the gynaecological examination vide MLC Ex. PW3/A and at point 'X' to 'X' on the MLC Ex. PW3/A of PW6 - prosecutrix stands proved on the record.
14. Learned Counsel for accused submitted that PW7 Dr. Supriya Prasher, in her crossexamination has stated that her examination reveals that this women (woman) had history/evidence of vaginal penetration.
I have carefully perused and analysed the evidence on record.
The testimony of PW7 Dr. Supriya Prasher has been discussed and analysed hereinabove.
PW7 Dr. Supriya Prasher during her crossexamination has deposed which is reproduced and reads as under : "Q. From your observation of vagina of the prosecutrix and test whether she was found to be used to sexual intercourse or not?
A. My examination reveals that this women (woman) had had 31 of 125 32 FIR No. 184/12 PS - Mangol Puri history/ evidence of vaginal penetration."
There is nothing in the crossexamination of PW7 Dr. Supriya Prasher so as to impeach her creditworthiness.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the said part of cross examination of PW7 Dr. Supriya Prasher. Does he intend to convey that PW6 - prosecutrix is a girl/woman of "easy virtues" or a girl/woman of "loose moral character".
If it is so, it is not permissible as every woman has a right to protect her dignity and cannot be subjected to rape only for that reason.
In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"
can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by 32 of 125 33 FIR No. 184/12 PS - Mangol Puri anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.
In the circumstances, there is no substance in the plea so raised by Learned Counsel for the accused.
VIRILITY OF THE ACCUSED RAJU
15. PW2 - Dr. M. Das, CMO, SGMH, Mangol Puri, Delhi has deposed that on 15/05/2012, one Raju S/o Ramavtar aged around 28 year was brought to Hospital for medical examination with alleged history of committal of sexual assault 20 days back. After examination, he opined 33 of 125 34 FIR No. 184/12 PS - Mangol Puri that there is nothing to suggest that he is incapable of performing sexual intercourse. He prepared the MLC and the same Ex. PW2/A, which bears his signature at point 'A'.
Despite grant of opportunity, PW2 - Dr. M. Das was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Raju was capable of performing sexual intercourse.
DNA FINGER PRINTING EVIDENCE
16. PW14 - W/SI Rekha, IO during the course of her examinationinchief tendered the DNA Report Ex. PX in the evidence.
As per DNA Report Ex. PX, the description of the articles contained in parcel, DNA examination, results of examination and conclusion reads as under : DESCRIPTION OF THE ARTICLES CONTAINED IN PARCEL Parcel 1 : One envelope sealed with the seal of 'SGMH GNCT DELHI' containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h' & '1i' 34 of 125 35 FIR No. 184/12 PS - Mangol Puri each again sealed with the above mentioned seal Exhibit 1a : Cotton wool swab on a plastic stick, kept in a tube described as 'Rt. vulval swab'.
Exhibit 1b : Cotton wool swab on a plastic stick, kept in a tube described as 'Lt. vulval swab'.
Exhibit 1c : Cotton wool swab on a plastic stick, kept in a tube described as 'Lt. Lateral vulval swab'.
Exhibit 1d : Cotton wool swab on a plastic stick, kept in a tube described as 'Rt. Lat. Vaginal swab'.
Exhibit 1e : Cotton wool swab on a plastic stick, kept in a tube described as 'Ant. Vaginal Swab'.
Exhibit 1f : Cotton wool swab on a plastic stick, kept in a tube described as 'Post. Vaginal Swab'.
Exhibit 1g : Few nail clippings described as 'Rt. Hand nail cutting'.
Exhibit 1h : Few nail clippings described as 'Lt. Hand nail cutting'.
Exhibit 1i : Few strands of hair described as 'Pubic hair cutting'.
Parcel 2 : One cloth parcel sealed with the seal of "SGMH MANGOL PURI DELHI" containing exhibit '2' kept in a tube.
35 of 125 36 FIR No. 184/12 PS - Mangol Puri Exhibit 2 : Gauze cloth piece having brown stains described as 'Blood sample of accused".
DNA EXAMINATION The source of exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i' & '2' were subjected to DNA isolation. DNA was isolated from the source of exhibits '1d', '1e', '1f' & '2' and DNA profiles were generated by using Amp Fl Identifiler plus PCR Amplification Kit. However, DNA could not be isolated from the source of exhibits '1a', '1b', '1c', '1g', '1h' & '1i'. STR analysis was used for each of the samples. Data was analyzed by using Gene Mapper IDX software.
RESULTS OF EXAMINATION The alleles from the source of exhibit '2' (Blood sample of accused) are not accounted in alleles from the source of exhibit '1d' (cotton wool swab), '1e' (cotton wool swab) & '1f' (cotton wool swab). CONCLUSION The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that DNA Profile generated from the source of exhibits '1d' (cotton wool swab), '1e' (cotton wool swab) & '1f' (cotton wool swab) is not similar with the DNA Profile from the source of exhibit '2' (Blood sample of accused).
36 of 125 37 FIR No. 184/12 PS - Mangol Puri ENCLOSURE : Annexure - I : Genotype data of exhibits '1d', '1e', '1f' & '2'.
Note :
The remnants of the exhibits have been sealed with seal of "P.Sh. FSL DELHI.
Genotype analysis for establishing identity of accused using Microsatellites reads as under :
i) D8S1179 ii) D21S11 iii) D7S820 iv) CSF1P0 v) D3S1358 vi) TH01
vii) D13S317 viii) D16S539 ix) D2S1338 x) D19S433 xi) vWA xii) TP0X xiii) D18S51 xiv) D5S818 xv) FGA AND AMELOGENIN Loci Exhibit 1d, 1e, 1f Exhibit 2 Cotton wool swab of Blood in Gauze of victim accused Allele data Allele data D8S1179 13 15 13 15 D21S11 30 32.2 31.2 32.2 D7S820 7 10 8 10 CSF1P0 11 12 D3S1358 13 16 14 16
37 of 125 38 FIR No. 184/12 PS - Mangol Puri TH01 6 6 7 9.3 D13S317 9 10 9 11 D16S539 8 12 11 11 D2S1338 19 20 D19S433 11 12 12.2 16 vWA 13 15 17 19 TP0X 7 10 11 11 D18S51 12 12 13 14 D5S818 12 13 10 12 FGA 23 25 25 26 AMELOGENIN X Y X Y As per the DNA Report Ex. PX, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW8/A dated 15/05/2012 and parcel no. 2 belongs to accused Raju which was seized vide seizure memo Ex. PW5/E dated 15/05/2012.
On careful perusal and analysis of the DNA Report Ex. PX, it shows that the alleles from the source of exhibit '2' (Blood sample of 38 of 125 39 FIR No. 184/12 PS - Mangol Puri accused Raju) are not accounted in alleles from the source of exhibit '1d' (cotton wool swab of the prosecutrix), '1e' (cotton wool swab of the prosecutrix) & '1f' (cotton wool swab of the prosecutrix) and the DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that DNA Profile generated from the source of exhibits '1d' (cotton wool swab of the prosecutrix), '1e' (cotton wool swab of the prosecutrix) & '1f' (cotton wool swab of the prosecutrix) is not similar with the DNA Profile from the source of exhibit '2' (Blood sample of accused Raju).
The perusal of the gynaecological examination of PW6 - prosecutrix from point 'X' to 'X' on the MLC Ex. PW3/A, interalia shows that it is mentioned therein, "Alleged H/o Sexual/Physical assault. Was 2 months pregnant. Which got aborted due to physical assault on 05th May. H/o Passage of clots after that. Has changed clothes and taken bath after that".
It is also to be noticed that the period of alleged incident is from about 2 months prior to the registration of the case on 15/05/2012, till 15/05/2012, when the case was registered and the medical 39 of 125 40 FIR No. 184/12 PS - Mangol Puri examination vide MLC Ex. PW3/A and gynaecological examination from point 'X' to 'X' on MLC Ex. PW3/A of the prosecutrix was conducted on 15/05/2012 and the sealed exhibits of the prosecutrix were seized vide seizure memo Ex. PW8/A dated 15/05/2012. Coupled with this and as per the gynaecological examination from point 'X' to 'X' on MLC Ex. PW3/A, of the prosecutrix, as detailed hereinabove, wherein, it is mentioned that she has changed clothes and taken bath after the abortion on 05/05/2012 (Mark PW6/DX1), during the said period from about 2 months prior to 15/05/2012 and after her abortion on 05/05/2012 till 15/05/2012, when the case was registered, it cannot be ruled out that prosecutrix must have answered the call of nature a number of times, must have urinated a number of times, must have washed her hands and taken bath a number of times and this, not being a case of recent sexual intercourse activity and for the said reasons, it appears that DNA could not be isolated from the source of exhibit '1a' (Rt. Vulval swab of the prosecutrix), exhibit '1b' (Lt. Vulval swab of the prosecutrix), exhibit '1c' (Lt. Lateral Vulval swab of the prosecutrix), exhibit '1g' (Rt. Hand nail cutting of the prosecutrix), exhibit '1h' (Lt. Hand nail cutting of the prosecutrix) & exhibit '1i' (Pubic hair cutting of the prosecutrix) and the 40 of 125 41 FIR No. 184/12 PS - Mangol Puri DNA Profile generated from the source of exhibits '1d' (cotton wool swab of the prosecutrix), '1e' (cotton wool swab of the prosecutrix) & '1f' (cotton wool swab of the prosecutrix) is not matching with the DNA Profile generated from the source of exhibit '2' (Blood sample of accused Raju).
17. Now let the testimony of PW6 - Prosecutrix be perused and analysed.
PW6 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I was residing at T 1215, Mangol Puri, Delhi at the house of my sister Behuti @ Prabha Rani who was residing in rented accommodation. My sister was working in Sanjay Gandhi Hospital. I had came to Delhi in search of work. Accused Raju was residing in T 1183, Mangol Puri in front of our house. As he was residing in front of our house there was talk between me and him and sometimes my sister also used to take medicine for the mother of Raju and due to this there was talk between me and him. Raju used to see me and used to smile after seeing me. About two months prior to the registration of the present case in afternoon at about 2:00 p.m. when I was sleeping in my room without bolting the door accused Raju came into the room and started doing touching (Cher Char) with me which I objected to on which Raju said that he loves me and cannot live without me (Mai Tujhse Pyar Karta Hu Aur Tere Bina Jinda Nahi Reh Sakta) and that he has 41 of 125 42 FIR No. 184/12 PS - Mangol Puri made me by heart his wife (Maine Man Se Tume Patni Bana Liya Hai). On such talks I became mum and thereafter he made physical relations with me. Thereafter also by calling me (Bula Bula Kar) to his house he had taken me to his house and established physical relationship with me by treating me as his wife (Patni Bana Bana Kar Mere Sath Sambandh Banai). Thereafter, I told Raju to perform the marriage immediately (Uske Baad Mai Raju Se Bola Jaldi Se Shaddi Bana Lo) as I had missed my one month menses (monthly mensural cycle) on which Raju told that he will perform the marriage but will perform later on and he had made me as wife by his heart (Shadi Karunga, Der Mei Shadi Karunga, Maine Tumhe Man Se Patni Bana Liya Hai) and I kept on repeating to him to perform the marriage immediately on which he became enraged and his eyes became red and he gave lot of beatings to me and due (to) such lot of beatings, I had lost the ear drum (Kaan Ki Jali) and I had suffered abortion (garbhpat) in the Hospital. Raju refused to marry me and had told me, "look at your face, you have grown old and you have come after marrying in the village, I do not love you and I will not marry with you" (Shakal To Dekle, Tu Budiya Ho Gai Hai, Tu Gaon Me Shaddi Kar Ke Aayi Hai, Mai Tere Se Payar Nahi Karta Aur Tere Se Shaadi Nahi Karuga) thereafter, I went to Police Chowki and from there I was taken to the Hospital for medical examination by the Police and I was medically examined. My statement was recorded by the Police and the same is Ex. PW6/A bearing my signature at point 'A'. Accused Raju was arrested on my identification vide arrest memo already Ex. PW5/A, bearing my signature at point 'B', his personal search was conducted vide memo already Ex. PW5/B, bearing my signature at point 'B'. Accused Raju made disclosure statement already Ex. PW5/C, bearing my signature at point 'B'. Accused Raju made the pointing out memo already Ex. PW5/D, bearing my signature at point 'B'.
42 of 125 43 FIR No. 184/12 PS - Mangol Puri At this stage, Ld. Addl. PP for the State prayed for permission for putting a leading question with regard to the fact relating to the abortion.
Heard and perused. Permission granted.
Q. Is it correct that when you had suffered abortion (Garbhpat) accused Raju had apologized to you and stated that he will marry with you and on his this assurance, you did not report to the Police regarding the sufferance of abortion?
A. It is correct.
I can identify accused Raju, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Raju and identified him correctly.
At this stage the wooden partition is restored to its original position.
My statement was recorded u/s 164 Cr.P.C.
At this stage, one sealed envelop sealed with the seal of RR is opened and the proceedings are taken out. The envelop is Ex. PX1. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing my signature at points 'A'."
From the aforesaid narration of PW6 - prosecutrix, it is clear that she was residing at T 1215, Mangol Puri, Delhi at the house of her sister Behuti @ Prabha Rani who was residing in rented 43 of 125 44 FIR No. 184/12 PS - Mangol Puri accommodation. Her sister was working in Sanjay Gandhi Hospital. She had came to Delhi in search of work. Accused Raju was residing in T 1183, Mangol Puri in front of their house. As he was residing in front of their house there was talk between her and him and sometimes her sister also used to take medicine for the mother of Raju and due to this there was talk between her (prosecutrix) and him. Raju used to see her and used to smile after seeing her. About two months prior to the registration of the present case in afternoon at about 2:00 p.m. when she was sleeping in her room without bolting the door accused Raju came into the room and started doing touching (Cher Char) with her which she objected to on which Raju said that he loves her and cannot live without her (Mai Tujhse Pyar Karta Hu Aur Tere Bina Jinda Nahi Reh Sakta) and that he has made her by heart his wife (Maine Man Se Tume Patni Bana Liya Hai). On such talks she became mum and thereafter he made physical relations with her. Thereafter also by calling her (Bula Bula Kar) to his house he had taken her to his house and established physical relationship with her by treating her as his wife (Patni Bana Bana Kar Mere Sath Sambandh Banai). Thereafter, she told Raju to perform the marriage immediately (Uske Baad Mai Raju Se Bola Jaldi Se Shaddi 44 of 125 45 FIR No. 184/12 PS - Mangol Puri Bana Lo) as she had missed her one month menses (monthly mensural cycle) on which Raju told that he will perform the marriage but will perform later on and he had made her as wife by his heart (Shadi Karunga, Der Mei Shadi Karunga, Maine Tumhe Man Se Patni Bana Liya Hai) and she kept on repeating to him to perform the marriage immediately on which he became enraged and his eyes became red and he gave lot of beatings to her and due such lot of beatings, she had lost the ear drum (Kaan Ki Jali) and she had suffered abortion (Garbhpat) in the Hospital. Raju refused to marry her and had told her, "look at your face, you have grown old and you have come after marrying in the village, I do not love you and I will not marry with you" (Shakal To Dekle, Tu Budiya Ho Gai Hai, Tu Gaon Me Shaddi Kar Ke Aayi Hai, Mai Tere Se Payar Nahi Karta Aur Tere Se Shaadi Nahi Karuga) thereafter, she went to Police Chowki and from there she was taken to the Hospital for medical examination by the Police and she was medically examined. Her statement was recorded by the Police and the same is Ex. PW6/A bearing her signature at point 'A'. Accused Raju was arrested on her identification vide arrest memo already Ex. PW5/A, bearing her signature at point 'B', his personal search was conducted 45 of 125 46 FIR No. 184/12 PS - Mangol Puri vide memo already Ex. PW5/B, bearing her signature at point 'B'. Accused Raju made disclosure statement already Ex. PW5/C, bearing her signature at point 'B'. Accused Raju made the pointing out memo already Ex. PW5/D, bearing her signature at point 'B'. She correctly identified the accused Raju present in the Court. Her statement was recorded u/s 164 Cr.P.C. Ex. PW6/B bearing her signature at points 'A'.
PW6 - Prosecutrix during her crossexamination has negated the suggestions that she is 35 years of age or that she was of 35 years of age at the time of lodging report with the Police or that the arrest memo, personal search memo and the disclosure statement of the accused were not prepared in her presence or that the same were prepared in the Police Station and later on her signatures were obtained on them or that she was not beaten up by accused Raju at any point of time or that accused Raju did not make physical relations with her forcibly or that she did not suffer abortion (Garbhpat) due to the beatings given by accused Raju or that accused Raju did not give any assurance of performing marriage with her or that accused Raju did not say to her that he loves her by heart or that she is deposing falsely.
46 of 125 47 FIR No. 184/12 PS - Mangol Puri Inspite of incisive crossexamination of PW6 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW6 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW6 - Prosecutrix is also found to be corroborated by the medical evidence as well as the DNA Finger Printing Evidence, as discussed hereinabove.
The testimony of PW6 - Prosecutrix is also found to be in consonance with her statement made to the Police Ex. PW6/A as well as her statement recorded u/s 164 Cr.P.C. Ex. PW6/B. It is also to be noticed that the factum of making physical 47 of 125 48 FIR No. 184/12 PS - Mangol Puri relations with the prosecutrix has not been disputed by the accused, when he suggested to her during her crossexamination that, accused did not make physical relations with her forcibly, which she negated. The relevant part of crossexamination of PW6 - prosecutrix is reproduced and reads as under : "It is wrong to suggest that accused Raju did not make physical relations with me forcibly."
Moreover, the theory so propounded by the accused by way of suggestion to PW6 - prosecutrix during her crossexamination that, "Accused Raju did not make physical relations with her (prosecutrix) forcibly" which though she negated has not at all been made probable much established by any cogent evidence. In the circumstances, the theory so propounded by accused falls flat on the ground.
It is also evident from the record that the factum of the performance of the sexual intercourse activity by the accused Raju with PW6 - prosecutrix, a number of times, has not been disputed by accused Raju in his statement recorded u/s 313 Cr.P.C., wherein, 48 of 125 49 FIR No. 184/12 PS - Mangol Puri he has stated that, "No rape was committed. Both are Major and both enjoyed sexual activity out of free will and desire several times. She never shouted or protested. Sex was enjoyed in his residence and also her residence many times. Present case is a false case".
The relevant part of the statement of accused Raju recorded u/s 313 Cr.P.C. is reproduced and reads as under : "Q28. Do you want to say anything else ?
Ans. No rape was committed. Both are major and both enjoyed sexual activity out of free will and desire several times. She never shouted or protested. Sex was enjoyed in my residence and also her residence many times. Present case is a false case."
Moreover, the theory, so propounded by the accused Raju, during his statement recorded u/s 313 Cr.P.C. that, "No rape was committed. Both the prosecutrix and accused enjoyed sexual activity out of free will and desire several times. She never shouted or protested. Sex was enjoyed in his residence and also at her residence many times.", has not at all been made probable much established by any cogent evidence. Nor even a single suggestion regarding the said 49 of 125 50 FIR No. 184/12 PS - Mangol Puri theory so propounded by the accused was put to PW6 - prosecutrix during her entire incisive and lengthy crossexamination. In the circumstances, the said theory, so propounded by the accused, is merely an afterthought and falls flat on the ground.
The testimony of PW6 - Prosecutrix is also found to be corroborated by PW13 - Prabha, her sister in material particulars.
PW13 - Prabha in her examinationinchief has deposed that : "From the month of February 2012 I was residing at T - 12/15 (1215) Mangol Puri, Delhi at tenanted accommodation alongwith my elder sister/prosecutrix (name withheld) and I was working at Sanjay Gandhi Hospital Mangol Puri as casual worker. Accused Raju present in the Court today (correctly identified) was residing in our lane and used to come at our house and met my sister/prosecutrix (name withheld) but on my asking he never gave any satisfactory reply. In the month of April, 2012 I went to my native village and my sister/prosecutrix (name withheld) told me that accused Raju in my absence came to her and when I returned to Delhi she further told me that accused Raju had forcibly committed rape upon her several times on the false pretext of marriage as a result of which she became pregnant and when she asked accused Raju to marry her he gave beatings to her as a result she suffered miscarriage 50 of 125 51 FIR No. 184/12 PS - Mangol Puri and she could not initially told me about the wrong acts of the accused as she was elder to me. My statement was recorded by the Police."
From the aforesaid narration of PW13 - Prabha it is clear that from the month of February, 2012 she was residing at T - 12/15 (1215) Mangol Puri, Delhi at tenanted accommodation alongwith her elder sister/prosecutrix (name withheld) and she (PW13) was working at Sanjay Gandhi Hospital Mangol Puri as casual worker. Accused Raju present in the Court (correctly identified) was residing in their lane and used to come at their house and met her sister/prosecutrix (name withheld) but on her asking he never gave any satisfactory reply. In the month of April, 2012 she went to her native village and her sister/prosecutrix (name withheld) told her that accused Raju in her absence came to her and when she (PW13) returned to Delhi she (prosecutrix) further told her (PW13) that accused Raju had forcibly committed rape upon her several times on the false pretext of marriage as a result of which she became pregnant and when she asked accused Raju to marry her he gave beatings to her as a result she suffered miscarriage and she (prosecutrix) could not initially told her (PW13) about the wrong acts of the accused as she (prosecutrix) was elder to me (PW13). Her 51 of 125 52 FIR No. 184/12 PS - Mangol Puri statement was recorded by the Police.
During her crossexamination PW13 - Prabha has negated the suggestions that Raju did not have any forcible intercourse with prosecutrix (name withheld) or that Raju did not have any forcible intercourse with prosecutrix (name withheld) on the pretext of marriage or that accused Raju and prosecutrix (name withheld) used to meet very often with each other and were enjoying the sex with their own consent or that prosecutrix (name withheld) had undergone any abortion of any child of Raju from any hospital or that she is deposing falsely.
Inspite of incisive crossexamination of PW13 - Prabha, nothing material has been brought out so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1]. The testimony of PW13
- Prabha is found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that 52 of 125 53 FIR No. 184/12 PS - Mangol Puri she had any animus against the accused Raju to falsely implicate him in the case.
The testimony of PW6 - Prosecutrix is also found to be corroborated by PW9 - Sh. Lal Kunwar, her landlord in material particulars.
PW9 - Sh. Lal Kunwar in his examinationinchief has deposed that : "I am working in Shakti Bhog and previously I was working in Delhi Home Guard. I have given first floor of my house no. T 1215 on rent for Rs. 1,500/ per month to prosecutrix (name withheld) and her sister Prabha in March, 2012 and they remained as a tenant till August, 2012. I have not executed any rent agreement. Accused Raju S/o Ram Avtar, present in the Court today was residing near our house. Accused Raju used to visit in the house of prosecutrix (name withheld) and Prabha and many times I objected for this but Raju told me that he used to visit at the house of prosecutrix (name withheld) for some work."
From the aforesaid narration of PW9 - Sh. Lal Kunwar it is clear that he is working in Shakti Bhog and previously, he was working in Delhi Home Guard. He has given first floor of his house No. T 1215 53 of 125 54 FIR No. 184/12 PS - Mangol Puri on rent for Rs. 1,500/ per month to prosecutrix (name withheld) and her sister Prabha in March, 2012 and they remained as a tenant till August, 2012. He has not executed any rent agreement. Accused Raju S/o Ram Avtar, present in the Court was residing near their house. Accused Raju used to visit in the house of prosecutrix (name withheld) and Prabha and many times he (PW9) objected for this but Raju told him that he used to visit at the house of prosecutrix (name withheld) for some work.
During his crossexamination PW9 - Sh. Lal Kunwar has negated the suggestion that he is deposing falsely.
There is nothing in the crossexamination of PW9 - Sh. Lal Kunwar, so as to impeach his creditworthiness.
18. While analysing the testimonies of PW6 - Prosecutrix, PW9
- Sh. Lal Kunwar, her landlord and PW13 - Prabha, her sister as discussed hereinabove, inspite of incisive crossexamination of PW6 - Prosecutrix, PW9 - Sh. Lal Kunwar and PW13 - Prabha nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by the 54 of 125 55 FIR No. 184/12 PS - Mangol Puri defence to PW6 Prosecutrix that she is 35 years of age or that she was of 35 years of age at the time of lodging report with the Police or that the arrest memo, personal search memo and the disclosure statement of the accused were not prepared in her presence or that the same were prepared in the Police Station and later on her signatures were obtained on them or that she was not beaten up by accused Raju at any point of time or that accused Raju did not make physical relations with her forcibly or that she did not suffer abortion (Garbhpat) due to the beatings given by accused Raju or that accused Raju did not give any assurance of performing marriage with her or that accused Raju did not say to her that he loves her by heart or that she is deposing falsely, the suggestions to PW9 Lal Kunwar that he is deposing falsely and the suggestions to PW13 - Prabha that Raju did not have any forcible intercourse with prosecutrix (name withheld) or that Raju did not have any forcible intercourse with prosecutrix (name withheld) on the pretext of marriage or that accused Raju and prosecutrix (name withheld) used to meet very often with each other and were enjoying the sex with their own consent or that prosecutrix (name withheld) had undergone any abortion of any child of Raju from any hospital or that she is deposing falsely, were put, 55 of 125 56 FIR No. 184/12 PS - Mangol Puri which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examination of defence witness namely DW1 - Ram Sajiwan Pandey, S/o Sh. Shesh Narain Pandey, Aged about - 52 years, R/o T - 1184, Mangol Puri, Delhi - 110083, his neighbour.
DW1 - Ram Sajiwan Pandey, who is the neighbour of the accused in his examinationinchief has deposed that : "I know accused Raju for the last about 1718 Years as he is residing in my neighbourhood. The behaviour and conduct of the accused Raju is quite good and I have never seen him quarreling with any person in the locality or I have never heard about any illegal or any offence whatsoever committed by him. I have never seen him misbehaving with any person. I have brought with me my original Election Identity Card. The photocopy of the same is Ex. DW1/A (OSR)."
From the aforesaid narration of DW1 - Ram Sajiwan 56 of 125 57 FIR No. 184/12 PS - Mangol Puri Pandey, it is indicated that he knows accused Raju for the last about 1718 Years as he (accused Raju) is residing in his (DW1) neighbourhood. The behaviour and conduct of the accused Raju is quite good and he (DW1) has never seen him (accused Raju) quarreling with any person in the locality or he has never heard about any illegal or any offence whatsoever committed by him (accused Raju). He (DW1) has never seen him (accused Raju) misbehaving with any person. He has brought with him his original Election Identity Card. The photocopy of the same is Ex. DW1/A (OSR).
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the testimony of DW1 - Ram Sajiwan Pandey.
During his crossexamination DW1 - Ram Sajiwan Pandey has deposed that : "Raju was doing his graduation but I do not know from which college he was doing the graduation. I also do not know as to whether he has completed his graduation or not. As far I know in the Year, 2012 he was working as Home Guard. I am not aware as to where he was working. I am also not aware about the time period for which he 57 of 125 58 FIR No. 184/12 PS - Mangol Puri remained working at the post of Home Guard. I also do not know as to what was his working hours. Accused Raju used to reside at the first floor of his house with his mother. Bhabhi of accused Raju used to reside at the ground floor. She is working and so she used to leave her house in the morning and returned in the evening. Her bhabhi has two children. His mother used to take care of the children in the absence of his bhabhi.
I am working as Lab. Assistant in the Sarvodaya School, Tilak Nagar. My duty hours are from 8.00 AM to 2.00 PM so I have to leave my house at about 6.45 PM and I returned at about 3.30 PM. It is correct that I am not aware about the conduct of accused Raju during my absence."
"I came to know about the present case after about 6/7 days of the arrest of accused Raju. I didn't go or appear before any forum to make the complaint about the false implication of accused in this case. It is wrong to suggest that I did not file any complaint as this is a true case and accused Raju has been rightly arrested in the present case. I am not a summoned witness. Today I have appeared before the Court for deposing at the request of brother of accused Raju. I have good relations with the mother and other family members of accused. It is wrong to suggest that I am deposing falsely in order to save the accused who used to reside (prior to this case) in my neighbourhood (at present he is in JC)."
From above, it is clearly indicated that during his cross examination, DW1 - Ram Sajiwan Pandey has specifically deposed that 58 of 125 59 FIR No. 184/12 PS - Mangol Puri he is not aware of the conduct of accused Raju during his (DW1) absence while he (DW1) was on duty. He has also specifically deposed that he did not go to or appear before any Forum to make the complaint about false implication of accused in this case and denied the suggestion that he did not file any complaint as this is a true case and accused Raju has been rightly arrested in the present case. If in the estimation of DW1 - Ram Sajiwan Pandey, accused Raju was falsely implicated in this case, why DW1 - Ram Sajiwan Pandey neighbour and a well known of accused Raju did not make any complaint against the alleged false implication of accused Raju to Police/Senior Police officer or to any Court. The reasons for the same must be known to him. It clearly indicates that, Had accused Raju been falsely implicated in this case, DW1 - Ram Sajiwan Pandey, his neighbour and a well known of accused must have made the complaint to the Police/Senior Police officials or to any Court against his false implication.
It is also indicated from the crossexamination of DW1 - Ram Sajiwan Pandey as reproduced hereinabove that he is not a summoned witness and has appeared before the Court for deposing at the 59 of 125 60 FIR No. 184/12 PS - Mangol Puri request of Brother of accused Raju and he is also having good relations with the Mother and other family members of the accused.
In view of above and in the circumstances, the testimony of the defence witness DW1 - Ram Sajiwan Pandey does not inspire confidence and he is a procured witness. His testimony is of no worth to fortify the defence of the accused.
19. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the 60 of 125 61 FIR No. 184/12 PS - Mangol Puri offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW6 - Prosecutrix in the 61 of 125 62 FIR No. 184/12 PS - Mangol Puri light of medical examination vide MLC Ex. PW3/A, the gynaecological examination from portion 'X' to 'X' on MLC Ex. PW3/A of the prosecutrix, DNA Report Ex. PX together with the MLC of accused Raju Ex. PW2/A, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Raju with PW6 - Prosecutrix without her consent whereupon, PW6 - prosecutrix became pregnant and suffered abortion (garbhpat) due to beatings given to her by accused Raju.
20. Learned Counsel for the accused submitted that the prosecutrix is a major woman and as per FIR the allegations are of sex with consent. Sex was neither under force and she has voluntarily submitted herself for the intercourse several times according to her own statement. Learned Counsel further submitted that in Hindu customs and ceremonies first roka ceremonies takes place, thereafter sagai and 62 of 125 63 FIR No. 184/12 PS - Mangol Puri thereafter marriage and finally suhagrat. In the present case there is neither roka ceremony nor sagai nor marriage and suhagrat is coming at the first instance. It was the duty of the complainant, who is not less than 35 years in age and in the FIR she had falsely stated that she is aged 24 years, immediately after first sexual intercourse, to persuade him/accused for marriage instead of submitting her body again without taking steps/initiative for marriage. Learned Counsel further submitted that PW6 prosecutrix in her examinationinchief has stated that her sister was working in Sanjay Gandhi Hospital and she had stated that as the accused was residing in front their house there was talk between her and the accused and has admitted that both of them used to smile at each other. She has stated in her examinationinchief "About two months prior to the registration of the present case in after noon at about 2:00 p.m. when I was sleeping in my room without bolting the door accused Raju came into the room and started doing touching (Cher Chhar) with me which I objected to on which Raju said that he loves me and cannot live without me and that he has made me by heart his wife on such talks I became mum and thereafter he made physical relations with me. Thereafter, also by calling me (Bula Bula Kar) to his house he had taken 63 of 125 64 FIR No. 184/12 PS - Mangol Puri me to his house and established physical relationship with me by treating me as his wife. Thereafter I told Raju to perform the marriage immediately". Learned Counsel further submitted that even the Learned Addl. PP has put leading questions as the prosecutrix was not speaking truth. Learned Counsel further submitted that in the crossexamination, the prosecutrix who had studied according to her up to 11th class deliberately did not tell about her date of birth as she knew that she was not less than 35 years in age. The prosecutrix in her crossexamination did not tell the date and the year when physical relationship had developed between them for first time. In the crossexamination the prosecutrix had stated, "The physical relations were made with me by accused Raju forcibly when were made for the first time Vol. he caught me and established the physical relations with me". "It was in rented room of my sister where I was residing, the physical relations made with me by the accused Raju for the first time I was sleeping in the room when accused Raju caught me. My clothes were forcibly removed by accused Raju", she further said that she did not sustain any injury on her body when physical relation were forcibly established for the first time by accused Raju. There is material contradiction and improvement in the 64 of 125 65 FIR No. 184/12 PS - Mangol Puri evidence of the prosecutrix as in the examinationinchief she had stated that the accused committed sex with her by telling her that from his heart he had taken her to be his wife, hence in view of the above mentioned clear cut contradiction and improvement the testimony of the prosecutrix/complainant does not inspire confidence and judicial conscious is not convinced and satisfied in the light of such testimony. She further stated in her crossexamination that she tried to raise alarm but in her examinationinchief she never stated so. The prosecutrix stated in her crossexamination that she did not tell about the incident to the landlord where she was residing with her sister and she also admitted that she never told about the incident to her sister with whom she was residing namely Prabha Rani. She further stated in her crossexamination that she did not recollect the date, physical relations were established with her by accused Raju. She further stated in her crossexamination that second time when physical relations were established with her by accused Raju, the same were made by him at his house where he had taken her after calling her. She further said that forcibly he had taken her to his house. She further said that the physical relations were established forcibly with her despite her refusal. She further said that she sustained 65 of 125 66 FIR No. 184/12 PS - Mangol Puri injury upon her person when such act was committed on her forcibly and thereafter she said that she does not recollect on which part of the body she had sustained injury, she further said in her crossexamination that the physical relations were forcibly established with her by accused Raju for about ten times. She further said in her crossexamination that she did not make any call to the Police on No. 100 when such physical relations were established with her by accused Raju. She further stated in her crossexamination that she had not disclosed about the making of physical relations forcibly with her for about ten time by Raju to her younger sister Behuti @ Prabha Rani. Learned Counsel further submitted that prosecutrix had told in the crossexamination that she had told in her statement u/s 164 Cr.P.C. Ex. PW6/B that she was sleeping in her room all alone and Raju came into the room from the opened door (Khule Darwaje Se) and started doing Chherkhani with her and her sister had gone for duty. (Confronted with statement Ex. PW6/B where it is not so recorded). In the crossexamination the prosecutrix said "I had told in my statement u/s 164 Cr.P.C. Ex. PW6/B that the physical relations were made with me with Raju without my consent (confronted with statement Ex. PW6/B where it is not so recorded in these words).
66 of 125 67 FIR No. 184/12 PS - Mangol Puri She further stated in her crossexamination that she did not show herself to any doctor during the period when she had sustained injury during the making of the physical relations forcibly with me for ten times by accused Raju. She further stated in her crossexamination that lastly physical relations were forcibly established with her with accused Raju in her house but she did not remember the date, month and year. She further stated in her crossexamination that she did not remember the date, month and year when she was given severe beatings by accused Raju due to which she had suffered abortion, she further stated in her crossexamination that she had not given any medical documentary proof of sufferance of abortion by her. She further stated that she did not recollect the date, month and year when she felt stomachache and went to the hospital. She further stated that she never told Raju that she loved him.
I have carefully perused and analysed the evidence on record.
The testimony of PW6 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the 67 of 125 68 FIR No. 184/12 PS - Mangol Puri testimony of PW6 - prosecutrix has been found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. The version of PW6 - prosecutrix on core spectrum of crime has remained intact.
At the cost of repetition, PW6 - prosecutrix in her examinationinchief has specifically deposed that : "I was residing at T 1215, Mangol Puri, Delhi at the house of my sister Behuti @ Prabha Rani who was residing in rented accommodation. My sister was working in Sanjay Gandhi Hospital. I had came to Delhi in search of work. Accused Raju was residing in T 1183, Mangol Puri in front of our house. As he was residing in front of our house there was talk between me and him and sometimes my sister also used to take medicine for the mother of Raju and due to this there was talk between me and him. Raju used to see me and used to smile after seeing me. About two months prior to the registration of the present case in afternoon at about 2:00 p.m. when I was sleeping in my room without bolting the door accused Raju came into the room and started doing touching (Cher Char) with me which I objected to on which Raju said that he loves me and cannot live without me (Mai Tujhse Pyar Karta Hu Aur Tere Bina Jinda Nahi Reh Sakta) and that he has made me by heart his wife (Maine Man Se Tume Patni Bana Liya Hai). On such talks I became mum and thereafter he made physical relations with me. Thereafter also by calling me (Bula Bula Kar) to his house he 68 of 125 69 FIR No. 184/12 PS - Mangol Puri had taken me to his house and established physical relationship with me by treating me as his wife (Patni Bana Bana Kar Mere Sath Sambandh Banai). Thereafter, I told Raju to perform the marriage immediately (Uske Baad Mai Raju Se Bola Jaldi Se Shaddi Bana Lo) as I had missed my one month menses (monthly mensural cycle) on which Raju told that he will perform the marriage but will perform later on and he had made me as wife by his heart (Shadi Karunga, Der Mei Shadi Karunga, Maine Tumhe Man Se Patni Bana Liya Hai) and I kept on repeating to him to perform the marriage immediately on which he became enraged and his eyes became red and he gave lot of beatings to me and due such lot of beatings, I had lost the ear drum (Kaan Ki Jali) and I had suffered abortion (Garbhpat) in the Hospital. Raju refused to marry me and had told me, "look at your face, you have grown old and you have come after marrying in the village, I do not love you and I will not marry with you"
(Shakal To Dekle, Tu Budiya Ho Gai Hai, Tu Gaon Me Shaddi Kar Ke Aayi Hai, Mai Tere Se Payar Nahi Karta Aur Tere Se Shaadi Nahi Karuga) thereafter, I went to Police Chowki and from there I was taken to the Hospital for medical examination by the Police and I was medically examined. My statement was recorded by the Police and the same is Ex. PW6/A bearing my signature at point 'A'."
"My statement was recorded u/s 164 Cr.P.C. At this stage, one sealed envelop sealed with the seal of RR is opened and the proceedings are taken out. The envelop is Ex. PX1. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing my signature at points 'A'."
69 of 125 70 FIR No. 184/12 PS - Mangol Puri It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
On analysing the entire testimony of PW6 - prosecutrix it transpires that she has described the scenario implicating the accused Raju to be the author of the crime, of the committal of the sexual assault upon her. Accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The core facts about the committal of the crime by accused has remained intact.
So far as the plea raised by the Learned Counsel for the accused that, "in Hindu customs and ceremonies first roka ceremonies takes place, thereafter sagai and thereafter marriage and finally suhagrat. In the present case there is neither roka ceremony nor sagai nor marriage and suhagrat is coming at the first instance", is concerned, it is not made clear by the Learned Counsel for the accused as to what 70 of 125 71 FIR No. 184/12 PS - Mangol Puri benefit he intends to reap from the said plea so raised especially in view of the categorical deposition made by PW6 - prosecutrix in her examinationinchief, wherein no scope for Rokka ceremony nor for Sagai nor for marriage was left by the accused and he committed sexual assault upon her in the first instance.
At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW6 - prosecutrix which reads as under : "About two months prior to the registration of the present case in afternoon at about 2:00 p.m. when I was sleeping in my room without bolting the door accused Raju came into the room and started doing touching (Cher Char) with me which I objected to on which Raju said that he loves me and cannot live without me (Mai Tujhse Pyar Karta Hu Aur Tere Bina Jinda Nahi Reh Sakta) and that he has made me by heart his wife (Maine Man Se Tume Patni Bana Liya Hai). On such talks I became mum and thereafter he made physical relations with me. Thereafter also by calling me (Bula Bula Kar) to his house he had taken me to his house and established physical relationship with me by treating me as his wife (Patni Bana Bana Kar Mere Sath Sambandh Banai). Thereafter, I told Raju to perform the marriage immediately (Uske Baad Mai Raju Se Bola Jaldi Se Shaddi Bana Lo) as I had missed my one month menses (monthly mensural cycle) on which Raju told that he will perform the marriage but will perform later on and he had made me as 71 of 125 72 FIR No. 184/12 PS - Mangol Puri wife by his heart (Shadi Karunga, Der Mei Shadi Karunga, Maine Tumhe Man Se Patni Bana Liya Hai) and I kept on repeating to him to perform the marriage immediately on which he became enraged and his eyes became red and he gave lot of beatings to me and due such lot of beatings, I had lost the ear drum (Kaan Ki Jali) and I had suffered abortion (Garbhpat) in the Hospital. Raju refused to marry me and had told me, "look at your face, you have grown old and you have come after marrying in the village, I do not love you and I will not marry with you"
(Shakal To Dekle, Tu Budiya Ho Gai Hai, Tu Gaon Me Shaddi Kar Ke Aayi Hai, Mai Tere Se Payar Nahi Karta Aur Tere Se Shaadi Nahi Karuga)."
At the cost of repetition, on careful perusal and analysis the testimony of PW6 - prosecutrix has been found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. In the witness box, she has withstood the rigors of crossexamination without being shaken. The version of PW6 - prosecutrix on the core spectrum of crime has remained intact.
As far as the plea raised by the Learned Counsel for the accused that, "immediately after first sexual intercourse it was the duty of the complainant/prosecutrix to persuade him/accused for marriage instead of submitting her body again without taking steps/initiative for 72 of 125 73 FIR No. 184/12 PS - Mangol Puri marriage", is concerned, it is evident from the record that during the crossexamination of PW6 - prosecutrix, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.
At the cost of repetition, moreover PW6 - prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : "About two months prior to the registration of the present case in afternoon at about 2:00 p.m. when I was sleeping in my room without bolting the door accused Raju came into the room and started doing touching (Cher Char) with me which I objected to on which Raju said that he loves me and cannot live without me (Mai Tujhse Pyar Karta Hu Aur Tere Bina Jinda Nahi Reh Sakta) and that he has made me by heart his wife (Maine Man Se Tume Patni Bana Liya Hai). On such talks I became mum and thereafter he made physical relations with me. Thereafter also by calling me (Bula Bula Kar) to his house he had taken me to his house and established physical relationship with me by treating me as his wife (Patni Bana Bana Kar Mere Sath Sambandh Banai). Thereafter, I told Raju to perform the marriage immediately (Uske Baad Mai Raju Se Bola Jaldi Se Shaddi Bana Lo) as I had missed my one month menses (monthly mensural cycle) on which Raju told that he will 73 of 125 74 FIR No. 184/12 PS - Mangol Puri perform the marriage but will perform later on and he had made me as wife by his heart (Shadi Karunga, Der Mei Shadi Karunga, Maine Tumhe Man Se Patni Bana Liya Hai) and I kept on repeating to him to perform the marriage immediately on which he became enraged and his eyes became red and he gave lot of beatings to me and due (to) such lot of beatings, I had lost the ear drum (kaan ki jali) and I had suffered abortion (garbhpat) in the Hospital."
(Underlined by me) As far as the plea raised by the Learned Counsel for the accused that, "in the crossexamination the prosecutrix had stated "The physical relations were made with me by accused Raju forcibly when were made for the first time Vol. he caught me and established the physical relations with me". "It was in rented room of my sister when I was residing, the physical relations made with me by the accused Raju for the first time I was sleeping in the room when accused Raju caught me. My clothes were forcibly removed by accused Raju," she further said that she did not sustain any injury on her body when physical relation were forcibly established for the first time by accused Raju. There is material contradiction and improvement in the evidence of the prosecutrix as in the examinationinchief she had stated that the accused committed sex with her by telling her that from his heart he had taken 74 of 125 75 FIR No. 184/12 PS - Mangol Puri her to be his wife" is concerned, on careful perusal and analysis of the testimony of PW6 - prosecutrix, it has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence and there is no material contradiction and improvement in her evidence regarding which the plea has been raised by the Learned Counsel for the accused. It is a settled principle of law that the statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference. She has described the scenario, implicating the accused Raju to be the author of crime, of the committal of the sexual assault upon her. She has withstood the test of crossexamination without being shaken. Her version on the core spectrum of crime has remained intact.
As regards the plea raised by the Learned Counsel for the accused that, "the prosecutrix stated in her crossexamination that she did not tell about the incident to the landlord where she was residing with her sister and she also admitted that she never told about the incident to her sister with whom she was residing namely Prabha Rani", is concerned, it is evident from the record that during the cross 75 of 125 76 FIR No. 184/12 PS - Mangol Puri examination of PW6 - prosecutrix, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. Learned Counsel for the accused did not cross examine PW6 - prosecutrix as to why she did not disclose about the incidents of committal of sexual assault upon her to the landlord and to her younger sister Behuti @ Prabha Rani. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
Non disclosure by PW6 - prosecutrix about the incidents of committal of sexual assault upon her by accused Raju either to the landlord of the house or to her younger sister Behuti @ Prabha Rani (PW13) does not falsify the case of the prosecution which is otherwise 76 of 125 77 FIR No. 184/12 PS - Mangol Puri proved on record by clear, cogent and convincing evidence. It is well settled that different persons act and react differently in a given situation.
As regards the plea raised by the Learned Counsel for the accused that, "the prosecutrix stated in her crossexamination that she did not make any call to the Police on No. 100 when such physical relations were established by accused Raju", is concerned, it is evident from the record that during the crossexamination of PW6 - prosecutrix, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. Learned Counsel for the accused did not crossexamine PW6 - prosecutrix as to why she did not make any call to the Police on No. 100. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else. Non making of the call to Police on No. 100 does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. It is well settled that different persons act and react differently in a given situation.
77 of 125 78 FIR No. 184/12 PS - Mangol Puri So far as the plea raised by the Learned Counsel for the accused that, the prosecutrix in her crossexamination has stated that second time when physical relations were established with her by accused Raju, the same were made by him at his house where he had taken her after calling her. She has further stated that forcibly he had taken her to his house. Why she did not raise hue and cry when she was forcibly taken by the accused to his house, is concerned, it is evident from the record that during the crossexamination of PW6 - prosecutrix, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. Learned Counsel for the accused did not crossexamine PW6 - prosecutrix as to why she did not raise hue and cry when she was forcibly taken by the accused to his house. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else. Non raising of the hue and cry at the time when the prosecutrix was forcibly taken by the accused, for making the physical relations with her second time, does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
78 of 125 79 FIR No. 184/12 PS - Mangol Puri At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness of legality of the said fact or issue could not be raised.
So far as the plea raised by the Learned Counsel for the accused that, "the prosecutrix does not remember the date, month and year when lastly physical relations were forcibly established with her by the accused in her house", is concerned, non disclosure about the date, month and year by PW6 - prosecutrix of establishing lastly the forcible physical relations with her by the accused in her house does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. It also indicates that she is not a tutored 79 of 125 80 FIR No. 184/12 PS - Mangol Puri witness. Had she been a tutored witness then she could have improved upon and might have disclosed about the date, month and year of establishing lastly the forcible physical relations with her by the accused in her house. It is well settled that the powers of observation, retention and reproduction differ with individuals.
At the cost of repetition, it is also evident from the record that the factum of the performance of the sexual intercourse activity by the accused Raju with PW6 - prosecutrix, a number of times, has not been disputed by accused Raju in his statement recorded u/s 313 Cr.P.C., wherein, he has stated that, "No rape was committed. Both are Major and both enjoyed sexual activity out of free will and desire several times. She never shouted or protested. Sex was enjoyed in his residence and also her residence many times. Present case is a false case".
The relevant part of the statement of accused Raju recorded u/s 313 Cr.P.C. is reproduced and reads as under : 80 of 125 81 FIR No. 184/12 PS - Mangol Puri "Q28. Do you want to say anything else ?
Ans. No rape was committed. Both are major and both enjoyed sexual activity out of free will and desire several times. She never shouted or protested. Sex was enjoyed in my residence and also her residence many times. Present case is a false case."
Moreover, the theory, so propounded by the accused Raju, during his statement recorded u/s 313 Cr.P.C. that, "No rape was committed. Both the prosecutrix and accused enjoyed sexual activity out of free will and desire several times. She never shouted or protested. Sex was enjoyed in his residence and also at her residence many times.", has not at all been made probable much established by any cogent evidence. Nor even a single suggestion regarding the said theory so propounded by the accused was put to PW6 - prosecutrix during her entire incisive and lengthy crossexamination. In the circumstances, the said theory, so propounded by the accused, is merely an afterthought and falls flat on the ground.
So far as the plea raised by the Learned Counsel for the accused that, "prosecutrix does not remember the date, month and year 81 of 125 82 FIR No. 184/12 PS - Mangol Puri when she was given severe beatings by accused Raju due to which she suffered abortion", is concerned, at the cost of repetition, PW6 - prosecutrix in her examinationinchief has specifically deposed which is reproduced and reads as under : "Thereafter, I told Raju to perform the marriage immediately (uske baad mai raju se bola jaldi se shaddi bana lo) as I had missed my one month menses (monthly mensural cycle) on which Raju told that he will perform the marriage but will perform later on and he had made me as wife by his heart (shadi karunga, der mei shadi karunga, maine tumhe man se patni bana liya hai) and I kept on repeating to him to perform the marriage immediately on which he became enraged and his eyes became red and he gave lot of beatings to me and due such lot of beatings, I had lost the ear drum (kaan ki jali) and I had suffered abortion (garbhpat) in the Hospital.
Raju refused to marry me and had told me, "look at your face, you have grown old and you have come after marrying in the village, I do not love you and I will not marry with you" (Shakal to dekle, tu budiya ho gai hai, tu gaon me shaddi kar ke aayi hai, mai tere se payar nahi karta aur tere se shaadi nahi karuga) thereafter, I went to Police Chowki and from there I was taken to the Hospital for medical examination by the Police and I was medically examined. My statement was recorded by the Police and the same is Ex. PW6/A bearing my signature at point 'A'."
(Underlined by me) PW6 - prosecutrix during her crossexamination has specifically deposed that : 82 of 125 83 FIR No. 184/12 PS - Mangol Puri "I do not recollect the date of May month of 2012 when accused had given beating to me".
"I do not remember the date, month and year when I was given severe beatings by accused Raju due to which I had suffered abortion. I had not given any medical documentary proof of sufferance of abortion by me. Vol. Feeling stomachache (Pait Ka Dard), after going to Sanjay Gandhi Hospital and after examining there and I took the medicine . I have such medical treatment papers which I have brought the photocopy of which is Mark PW6/DX1 (OSR), copy thereof also supplied to the Ld. Defence counsel."
"I do not recollect the date, month and year when I felt stomachache and I went to the Hospital. I had gone to the Doctor after 45 days of the severe beatings given to me by accused Raju."
(Underlined by me) On careful perusal of the photocopy of medical treatment paper Mark PW6/DX1, it is found to be the copy of the OPD Card of Sanjay Gandhi Memorial (SGM) Hospital, Mangol Puri, Delhi, dated 15/05/2012, in the name of prosecutrix (name withheld) with endorsement "LMP - 2 month back, POA1 - H/o complete abortion 10 days back".
83 of 125 84 FIR No. 184/12 PS - Mangol Puri On careful perusal and analysis of the OPD Card Mark PW6/DX1, it clearly indicates that prosecutrix had undergone complete abortion 10 days prior to her medical examination in SGM Hospital, Mangol Puri vide OPD Card Mark PW6/DX1 dated 15/05/2012.
On analysing the testimony of PW6 - prosecutrix in the light of the OPD Card Mark PW6/DX1 dated 15/05/2012, of PW6 - prosecutrix of the SGM Hospital, it clearly gives an indication and reflection about the date, month and year when she was given severe beatings by accused Raju due to which when, on which date, month and year she suffered abortion.
It is also to be noticed that the genuineness of the OPD Card Mark PW6/DX1, dated 15/05/2012 of PW6 - prosecutrix of SGM Hospital has not been challenged/disputed during the entire incisive and lengthy crossexamination of PW6 - prosecutrix on behalf of accused. Non disclosure about the date, month and year by PW6 - prosecutrix when she was given beatings by accused Raju due to which she suffered abortion does not falsify the case of the prosecution which is otherwise 84 of 125 85 FIR No. 184/12 PS - Mangol Puri proved on record by clear, cogent and convincing evidence. It also indicates that she is not a tutored witness. Had she been a tutored witness then she could have improved upon and might have disclosed about the date, month and year when she was given beatings by accused Raju due to which she suffered abortion. It is well settled that the powers of observation, retention and reproduction differ with individuals.
So far as the plea raised by the Learned Counsel for the accused that, "the prosecutrix in her crossexamination has stated that she tried to raise alarm, but in her examinationinchief she never stated so", is concerned, on careful perusal and analysis of the testimony of PW6 - posecutrix, it is found that it is not an improvement but in fact it is an 'elaboration' of facts in response to the question put to her during the course of her crossexamination by the Learned Counsel for the accused.
It is pertinent to reproduce the relevant part of cross examination of PW6 - prosecutrix which reads as under : "Q. Did you raise any alarm at the time when forcibly physical relations established by accused Raju?
85 of 125 86 FIR No. 184/12 PS - Mangol Puri A. When I tried to raise alarm on which accused Raju told to me that he loves me from heart (Wo Bola Mai Tujhe Dil Se Pyar Karta Hu). On hearing these words I prevented myself for raising any alarm."
So far as the plea raised by the Learned Counsel for the accused that, "the prosecutrix in her crossexamination has stated that she did not sustain any injury on her body when physical relation were forcibly established for the first time by accused Raju and has further deposed that she sustained injury upon her person when such act was committed on her forcibly and she does not recollect on which part of the body she had sustained injury", is concerned, non finding of any injury on the body of the prosecutrix when physical relation were forcibly established for the first time by the accused and of her non disclosure as to on which body part she sustained injury when such act was committed on her forcibly does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is pertinent to reproduce the relevant part of cross examination of PW6 - prosecutrix which reads as under : "Q. Did you sustain any injury on your body when the physical relation were forcibly established for the first time by accused Raju?
A. No."
86 of 125 87 FIR No. 184/12 PS - Mangol Puri "Q. Did you sustain any injury when the physical relations were established forcibly with you by accused Raju?
A. When such act was committed one has to have injury . I had sustained injury (Mujhe Chot Lagi Thi).
I do not recollect on which part of the body I had sustained injury."
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
87 of 125 88 FIR No. 184/12 PS - Mangol Puri It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
So far as the plea raised by the Learned Counsel for the accused that, "prosecutrix had told in the crossexamination that she had told in her statement u/s 164 Cr.P.C. Ex. PW6/B that she was sleeping in her room all alone and Raju came into the room from the opened door (Khule Darwaje Se) and started doing Chherkhani with her and her sister had gone for duty. (Confronted with statement Ex. PW6/B where it is not so recorded). In the crossexamination the prosecutrix said "I had 88 of 125 89 FIR No. 184/12 PS - Mangol Puri told in my statement u/s 164 Cr.P.C. Ex. PW6/B that the physical relations were made with me with Raju without my consent (confronted with statement Ex. PW6/B where it is not so recorded in these words)", is concerned, on careful perusal and analysis of the testimony of PW6 - prosecutrix, it is found that in fact so called improvements are the 'clarifications' of 'elaboration' of facts in response to the questions put to her. The core facts about the committal of crime by the accused remained intact. It is pertinent to reproduce the relevant part of the crossexamination of PW6 - prosecutrix which reads as under : "I had told in my statement U/s 164 Cr.P.C. Ex. PW6/B that I was sleeping in my room all alone and Raju came into the room from the opened door (Khule Darwaze Se) and had started doing Chherkhani with me and my sister had gone for duty. (confronted with statement Ex. PW6/B where it is no so recorded. Vol. I had told such fact in my statement and at the time of recording my statement there was lot of coming and going (AwaJawi) at that time). I had told in my statement u/s 164 Cr.P.C. Ex. PW6/B that the physical relations were made with me with Raju without my consent (Bina Meri Marji Ke). (confronted with statement Ex. PW6/B where it is not so recorded in these words, however, it is mentioned that when I refused Raju he gave beatings to me) (Jab Maine Mana Kiya, To Raju Ne Meri Pitai Ki)."
(Underlined by me) 89 of 125 90 FIR No. 184/12 PS - Mangol Puri From the aforesaid narration of PW6 - prosecutrix, it is clearly indicated that she had stated the facts in her statement u/s 164 Cr.P.C. Ex. PW6/B as to what she deposed before the Court on oath during the course of her examinationinchief, with which she has been confronted with.
In view of above, it is an explainable variation and does not in any way adversely affect the case of the prosecution, for the reason that PW6 - prosecutrix has categorically stated that she had informed the Learned MM of what she stated under oath before the Court but why it was not so recorded in her statement u/s 164 Cr.P.C. Ex. PW6/B recorded by PW12 - Ms. Rajni Ranga, Learned MM would be a reason best known to the Learned MM. Strangely, despite grant of opportunity, PW12 - Ms. Rajni Ranga, Learned MM was not crossexamined as to why she did not completely record the statement of the witness/PW6 - prosecutrix or whether this witness has made such aforementioned statement. For failure to do so, accused is to blame himself and none else.
90 of 125 91 FIR No. 184/12 PS - Mangol Puri In case titled as 'Kuria & Anr. Vs. State of Rajasthan', 2012 XI AD (S.C) 376, while dealing with a similar situation, where witness stated under oath before the Court that he had informed the Police of what he stated under oath before the Court but it was not so recorded in his statement under Section 161 Cr.P.C. recorded by the Investigating Officer (IO) the Hon'ble Supreme Court has held the reason for the same would be best known to the Investigating Officer (IO). (Para 20 & 21).
Para 20 and 21 of Kuria's Case (Supra) reads as under :
20. These cannot be termed as contradictions between the statements of the witnesses. They are explainable variations which are likely to occur in the normal course and do not, in any way, adversely affect the case of the prosecution. Thus, there are no material contradictions in the statement of the witnesses or the documents, nor can the presence of PW15 be doubted at the place of occurrence.
21. For instance PW15, in his crossexamination, had stated before the Court that Laleng had twisted the neck of the deceased. According to the accused, it was not so recorded in his statement under Section 161, Exhibit D/2 upon which he explained that he had stated before the Police the same thing, but he does not know why the Police did not take note of the same. Similarly, he also said that he had informed the Police that the four named accused had dragged the body of the deceased and thrown it near the hand pump outside their house, but he does not know why it was not so noted in Exhibit D/2. There are 91 of 125 92 FIR No. 184/12 PS - Mangol Puri some variations or insignificant improvements in the statements of PW3 and PW7. According to the learned counsel appearing for the appellants, these improvements are of such nature that they make the statement of these witnesses unbelievable and unreliable. We are again not impressed with this contention. The witnesses have stated that they had informed the Police of what they stated under oath before the court, but why it was not so recorded in their statements under Section 161 recorded by the Investigating Officer would be a reason best known to the Investigating Officer, PW16, was being crossexamined, no such question was put to him as to why he did not completely record the statements of the witnesses or whether these witnesses had made such aforementioned statements. Improvements or variations of the statements of the witnesses should be of such nature that it would create a definite doubt in the mind of the Court that the witnesses are trying to state something which is not true and which is not duly corroborated by the statements of the other witnesses. That is not the situation here. These improvements do not create any legal impediment in accepting the statements of PW3, PW4, PW7 and PW15 made under oath."
Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. The power of observation, 92 of 125 93 FIR No. 184/12 PS - Mangol Puri retention and reproduction differs with individuals.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
93 of 125 94 FIR No. 184/12 PS - Mangol Puri The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details;
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of 94 of 125 95 FIR No. 184/12 PS - Mangol Puri another.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions.
95 of 125 96 FIR No. 184/12 PS - Mangol Puri The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the pleas so raised by the Learned Counsel for the accused.
21. Learned Counsel for the accused submitted that PW5 Constable Rakesh Kumar, in his crossexamination stated that at the time of recording of statement by the IO one NGO Counselor namely Najma was present at that time. The IO should have recorded the statement of prosecutrix not in the presence of any other persons. The arrest of Raju was not established from his house as none of the neighbors were joined 96 of 125 97 FIR No. 184/12 PS - Mangol Puri as a witness at the time of arrest, and it is admitted by the PW5 that at the time of preparation of the pointing out memo Ex. PW5/D no public person was joined as a witness. It has been admitted to be correct by the aforesaid PW5 in his crossexamination that no public person nor the house owner of the house of the prosecutrix were joined at the time of preparation of pointing out memo Ex. PW5/D at the house of prosecutrix.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what he intends to convey and what benefit he intends to reap by raising the plea that, PW5 Constable Rakesh Kumar, in his cross examination stated that at the time of recording of statement by the IO one NGO Counselor namely Najma was present at that time. The IO should have recorded the statement of prosecutrix not in the presence of any other persons.
PW14 - SI Rekha during her examinationinchief has specifically deposed that, "Nazma Khan NGO had also reached at the 97 of 125 98 FIR No. 184/12 PS - Mangol Puri Hospital. She had counselled the prosecutrix." As far as the plea raised by the Learned Counsel for the accused that, "the IO should have recorded the statement of prosecutrix not in the presence of any other persons", is concerned, it is evident from the record that during the crossexamination of PW14 - SI Rekha IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
The testimony of PW5 - Constable Rakesh Kumar has been detailed hereinbefore. On careful perusal and analysis, the same is found to be clear, cogent and inspiring confidence. He has deposed regarding the facets of the investigation which he joined.
At the cost of repetition, PW5 - Constable Rakesh Kumar in his examinationinchief has deposed that on 15/05/2012, he was posted as Constable in PP SGMH, PS - Mangol Puri. On that day, he alongwith Lady Constable Suman and W/SI Rekha took prosecutrix (name 98 of 125 99 FIR No. 184/12 PS - Mangol Puri withheld) to SGM Hospital for medical examination. She was medically examined and after medical examination, Doctor handed over the sealed pullinda alongwith sample seal which were seized by the IO. IO recorded statement of prosecutrix (name withheld) and prepared rukka and handed over the same to him for registration of FIR. IO also handed over to him the sealed pullinda for depositing it in the Malkhana. He got the FIR registered in the PS and deposited the case property in the Malkhana. After registration of FIR, he reached at the spot at T1215, Mangol Puri and handed over to IO, copy of FIR and original rukka. IO prepared the site plan. Thereafter, at the instance of the complainant, accused Raju, present in the Court was apprehended from his house at T 1183, Mangol Puri. Accused Raju was interrogated and arrested vide arrest memo Ex. PW5/A, his personal search was conducted vide memo Ex. PW5/B and he made disclosure statement Ex PW5/C, all bearing his (PW5) signature at point 'A'. Accused pointed out the place of occurrence vide pointing out memo Ex. PW5/D, bearing his (PW5) signature at point 'A'. Accused was medically examined in SGM Hospital and after medical examination, Doctor handed over sealed pullinda containing exhibits and same were seized vide memo Ex.
99 of 125 100 FIR No. 184/12 PS - Mangol Puri PW5/E, bearing his (PW5) signature at point 'A'. Thereafter, they came back to PS and accused was sent to Police lockup.
Inspite of incisive crossexamination of PW5 - Rakesh Kumar, nothing material has been brought out on the record so as to impeach his creditworthiness. He has deposed regarding the facts as to what he acted, perceived and observed. There is nothing in his statement to suggest that he had any animus against the accused Raju to falsely implicate him in the case.
The testimony of PW14 - SI Rekha IO has been detailed hereinbefore.
On careful perusal and analysis, the testimony of PW14 - SI Rekha IO is found to be clear, cogent and a graphic details of the steps which she took during the course of investigation. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
PW14 - SI Rekha IO during her examinationinchief has 100 of 125 101 FIR No. 184/12 PS - Mangol Puri specifically deposed that : "Thereafter, we went to the house of accused i.e. T 1183, Mangol Puri and on the identification of prosecutrix (name withheld), a boy present in that house was arrested and his name revealed as Raju. The arrest memo of accused is already Ex. PW5/A signed by me at point 'C'. His personal search was also conducted vide memo already Ex. PW5/B bearing my signature at point 'C'. His disclosure statement was recorded, which is already Ex. PW5/C signed by me at point 'C'. After that, accused pointed out the place of occurrence i.e. H. No. T 1215, Mangol Puri and H. No. T 1183, Mangol Puri and a pointing out memo was prepared, which is already Ex. PW5/D signed by me at point 'C'."
During her crossexamination, PW14 SI Rekha IO has categorically deposed which is reproduced and reads as under : "Q. Did you record the statements of the landlord of the house, where Prabha was tenant and the landlord of the house of accused Raju?
Ans. Statement of the landlord of the house where Prabha was tenant had been recorded. No statement of the landlord of the house of accused Raju was recorded as accused Raju is the owner himself.
Q. Did you record the statements of immediate neighbours of both the houses i.e. the house where Prabha was living on rent and the house, where accused Raju was living?
Ans. No one came forward to give the statement and they had refused to give the statements.
Q. Did you mention the fact in the case diary regarding the refusal of giving the statements by the neighbours of the prosecutrix and 101 of 125 102 FIR No. 184/12 PS - Mangol Puri that of accused Raju?
Ans. Yes. I mentioned it in the case diary."
Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it, though, the neighbourhood may be replete with other residents also.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
102 of 125 103 FIR No. 184/12 PS - Mangol Puri Nonjoining of a public witness does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a matter of common experience that public persons are reluctant to assist the Police in the investigation.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).
In the circumstances, there is no substance in the plea so 103 of 125 104 FIR No. 184/12 PS - Mangol Puri raised by the Learned Counsel for the accused.
22. Learned Counsel for accused submitted that in the brief history of the case the prosecutrix has stated categorically and clearly that with regard to abortion she did not undergo any medical examination and this fact is also recorded in FIR.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, "in the brief history of the case the prosecutrix has stated categorically and clearly that with regard to abortion she did not undergo any medical examination and this fact is also recorded in FIR", is concerned, it is not made clear by the Learned Counsel for the accused as to what intends to convey from the plea so raised. Does he intend to convey that PW6 - prosecutrix did not suffer any abortion. If it is so, it is not sustainable in view of as to what PW6 - prosecutrix during her crossexamination has specifically deposed which is reproduced and reads as under : 104 of 125 105 FIR No. 184/12 PS - Mangol Puri "I do not recollect the date of May month of 2012 when accused Raju had given beatings to me."
"I do not remember the date, month and year when I was given severe beatings by accused Raju due to which I had suffered abortion. I had not given any medical documentary proof of sufferance of abortion by me. Vol. Feeling stomachache (Pait Ka Dard), after going to Sanjay Gandhi Hospital and after examining there and I took the medicine . I have such medical treatment papers which I have brought the photocopy of which is Mark PW6/DX1 (OSR), copy thereof also supplied to the Ld. Defence counsel."
"I do not recollect the date, month and year when I felt stomachache and I went to the Hospital. I had gone to the Doctor after 45 days of the severe beatings given to me by accused Raju."
(Underlined by me) On careful perusal of the photocopy of medical treatment paper Mark PW6/DX1, it is found to be the copy of the OPD Card of Sanjay Gandhi Memorial (SGM) Hospital, Mangol Puri, Delhi, dated 15/05/2012, in the name of prosecutrix (name withheld) with endorsement "LMP - 2 month back, POA1 - H/o complete abortion 10 days back".
105 of 125 106 FIR No. 184/12 PS - Mangol Puri On careful perusal and analysis of the OPD Card Mark PW6/DX1, it clearly indicates that prosecutrix had undergone complete abortion 10 days prior to her medical examination in SGM Hospital, Mangol Puri vide OPD Card Mark PW6/DX1 dated 15/05/2012.
On analysing the testimony of PW6 - prosecutrix in the light of the OPD Card Mark PW6/DX1 dated 15/05/2012, of PW6 - prosecutrix of the SGM Hospital, it clearly gives an indication and reflection about the date, month and year when she was given severe beatings by accused Raju due to which when, on which date, month and year she suffered abortion.
It is also to be noticed that the genuineness of the OPD Card Mark PW6/DX1, dated 15/05/2012 of PW6 - prosecutrix of SGM Hospital has not been challenged/disputed during the entire incisive and lengthy crossexamination of PW6 - prosecutrix on behalf of accused. Nor any evidence to the contrary has been produced or proved on record on behalf of the accused.
106 of 125 107 FIR No. 184/12 PS - Mangol Puri It is also to be noticed that on a leading question put by the Learned Addl. PP with regard to the fact relating to the abortion, PW6 - prosecutrix has specifically deposed that she did not report to the Police regarding the sufferance of abortion as accused Raju had apologized to her and had stated that he will marry with her and on this assurance, she did not report to the Police regarding the sufferance of abortion. The relevant part of the crossexamination, as conducted by Learned Addl. PP for the State, is reproduced and reads as under : "Q. Is it correct that when you had suffered abortion (Garbhpat) accused Raju had apologized to you and stated that he will marry with you and on his this assurance, you did not report to the police regarding the sufferance of abortion?
A. It is correct."
It is evident from the record that on the aspect of the facts so elicited by Learned Addl. PP for the State reproduced hereinabove, PW6 - prosecutrix was not crossexamined on behalf of the accused. For such failure accused is to blame himself and none else.
At the cost of repetition, it is settled law that if there is no 107 of 125 108 FIR No. 184/12 PS - Mangol Puri crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for accused submitted that the testimony of PW6 prosecutrix and even her sister Behuti @ Prabha Rani/PW13 do not corroborate and do not inspire confidence and are contradictory, unreliable, untrustworthy and full of contradiction, manipulation and improvements and hence there is no legal, sustainable evidence on record on the basis of which the accused can be held guilty. Learned Counsel further submitted that PW6 prosecutrix during her crossexamination has deposed that she had not told about the incident committed upon her by accused Raju to her younger sister Behuti @ Prabha Rani while PW13
- Prabha during her crossexamination deposed that her sister/prosecutrix had told her for the first time that accused had sexual relationship with her forcibly or on the false pretext of marriage, in the 108 of 125 109 FIR No. 184/12 PS - Mangol Puri month of May and she does not recollect the year of the month of May as since then much time has elapsed. Learned Counsel further submitted that the defence evidence has also proved that the accused is not having any criminal record or any bad antecedent.
I have carefully perused and analysed the evidence on record.
The testimony of PW6 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW6 - prosecutrix has been found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. She has withstood the rigours of crossexamination without being shaken. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. Her version on the core spectrum of the crime has remained intact.
At the cost of repetition, PW6 - prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : 109 of 125 110 FIR No. 184/12 PS - Mangol Puri "I was residing at T 1215, Mangol Puri, Delhi at the house of my sister Behuti @ Prabha Rani who was residing in rented accommodation. My sister was working in Sanjay Gandhi Hospital. I had came to Delhi in search of work. Accused Raju was residing in T 1183, Mangol Puri in front of our house. As he was residing in front of our house there was talk between me and him and sometimes my sister also used to take medicine for the mother of Raju and due to this there was talk between me and him. Raju used to see me and used to smile after seeing me. About two months prior to the registration of the present case in afternoon at about 2:00 p.m. when I was sleeping in my room without bolting the door accused Raju came into the room and started doing touching (Cher Char) with me which I objected to on which Raju said that he loves me and cannot live without me (Mai Tujhse Pyar Karta Hu Aur Tere Bina Jinda Nahi Reh Sakta) and that he has made me by heart his wife (Maine Man Se Tume Patni Bana Liya Hai). On such talks I became mum and thereafter he made physical relations with me. Thereafter also by calling me (Bula Bula Kar) to his house he had taken me to his house and established physical relationship with me by treating me as his wife (Patni Bana Bana Kar Mere Sath Sambandh Banai). Thereafter, I told Raju to perform the marriage immediately (Uske Baad Mai Raju Se Bola Jaldi Se Shaddi Bana Lo) as I had missed my one month menses (monthly mensural cycle) on which Raju told that he will perform the marriage but will perform later on and he had made me as wife by his heart (Shadi Karunga, Der Mei Shadi Karunga, Maine Tumhe Man Se Patni Bana Liya Hai) and I kept on repeating to him to perform the marriage immediately on which he became enraged and his eyes became red and he gave lot of beatings to me and due (to) such lot of beatings, I had lost the ear drum (Kaan Ki Jali) and I had suffered abortion (Garbhpat) in the Hospital. Raju refused to marry me and had 110 of 125 111 FIR No. 184/12 PS - Mangol Puri told me, "look at your face, you have grown old and you have come after marrying in the village, I do not love you and I will not marry with you"
(Shakal To Dekle, Tu Budiya Ho Gai Hai, Tu Gaon Me Shaddi Kar Ke Aayi Hai, Mai Tere Se Payar Nahi Karta Aur Tere Se Shaadi Nahi Karuga) thereafter, I went to Police Chowki and from there I was taken to the Hospital for medical examination by the Police and I was medically examined. My statement was recorded by the Police and the same is Ex. PW6/A bearing my signature at point 'A'. Accused Raju was arrested on my identification vide arrest memo already Ex. PW5/A, bearing my signature at point 'B', his personal search was conducted vide memo already Ex. PW5/B, bearing my signature at point 'B'. Accused Raju made disclosure statement already Ex. PW5/C, bearing my signature at point 'B'. Accused Raju made the pointing out memo already Ex. PW5/D, bearing my signature at point 'B'.
At this stage, Ld. Addl. PP for the State prayed for permission for putting a leading question with regard to the fact relating to the abortion.
Heard and perused. Permission granted.
Q. Is it correct that when you had suffered abortion (Garbhpat) accused Raju had apologized to you and stated that he will marry with you and on his this assurance, you did not report to the Police regarding the sufferance of abortion?
A. It is correct.
I can identify accused Raju, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Raju and identified him correctly.
111 of 125 112 FIR No. 184/12 PS - Mangol Puri At this stage the wooden partition is restored to its original position.
My statement was recorded u/s 164 Cr.P.C.
At this stage, one sealed envelop sealed with the seal of RR is opened and the proceedings are taken out. The envelop is Ex. PX1. The statement u/s 164 Cr.P.C. is Ex. PW6/B, bearing my signature at points 'A'."
The testimony of PW13 - Prabha, sister of the prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW13 - Prabha has been found to be clear, cogent, convincing and having a ring of truth. There is nothing in her crossexamination so as to impeach her creditworthiness. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
At the cost of repetition, PW13 - Prabha in her examination inchief has deposed that from the month of February, 2012, she was residing at T - 12/15 (1215), Mangol Puri, Delhi at tenanted accommodation alongwith her elder sister prosecutrix (name withheld) and she was working at Sanjay Gandhi Hospital Mangol Puri as casual 112 of 125 113 FIR No. 184/12 PS - Mangol Puri worker. Accused Raju present in the Court (correctly identified) was residing in their lane and used to come at their house and met her sister/prosecutrix (name withheld) but on her asking he never gave any satisfactory reply. In the month of April, 2012, she went to her native village and her sister/prosecutrix (name withheld) told her that accused Raju in her absence came to her (prosecutrix) and when she (PW13) returned to Delhi she (prosecutrix) further told her (PW13) that accused Raju had forcibly committed rape upon her several times on the false pretext of marriage as a result of which she became pregnant and when she asked accused Raju to marry her he gave beatings to her as a result she suffered miscarriage and she could not initially told her (PW13) about the wrong acts of the accused as she was elder to her (PW13). Her statement was recorded by the Police.
So far as the plea raised by the Learned Counsel for the accused that, "the testimony of PW6 prosecutrix and her sister Behuti @ Prabha Rani/PW13 do not corroborate that PW6 prosecutrix during her crossexamination has deposed that she had not told about the incident committed upon her by accused Raju to her younger sister 113 of 125 114 FIR No. 184/12 PS - Mangol Puri Behuti @ Prabha Rani while PW13 - Prabha during her cross examination deposed that her sister/prosecutrix had told her for the first time that accused had sexual relationship with her forcibly or on the false pretext of marriage, in the month of May and she does not recollect the year of the month of May as since then much time has elapsed, is concerned, the said lapse or discrepancy in the testimonies of PW6 - prosecutrix and PW13 - Prabha does not reflect upon the substantive evidence and the probative value of the statement made by PW6 - prosecutrix on the material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor does it dislodge the substratum of the prosecution case and despite its existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on record bears out the case of the prosecution. The version of the PW6 - prosecutrix on the core spectrum of the crime has remained intact.
At the cost of repetition, the Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration 114 of 125 115 FIR No. 184/12 PS - Mangol Puri of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
So far as the plea raised by the Learned Counsel for the accused that, "the defence evidence has also proved that the accused is not having any criminal record or any bad antecedent", is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap from the defence evidence led by way of examination of DW1 - Ram Sajivan Pandey and in what mode and manner it advances the defence of the accused.
115 of 125 116 FIR No. 184/12 PS - Mangol Puri The testimony of DW1 - Ram Sajiwan Pandey, has been reproduced, discussed and analysed hereinbefore.
At the cost of repetition, DW1 - Ram Sajivan Pandey in his examinationinchief has deposed that he knows accused Raju for the last about 1718 Years as he is residing in his (DW1) neighbourhood. The behaviour and conduct of the accused Raju is quite good and he has never seen him quarreling with any person in the locality or he has never heard about any illegal or any offence whatsoever committed by him. He has never seen him misbehaving with any person. He has brought with him his original Election Identity Card. The photocopy of the same is Ex. DW1/A (OSR).
During his crossexamination DW1 - Ram Sajiwan Pandey has deposed that : "Raju was doing his graduation but I do not know from which college he was doing the graduation. I also do not know as to whether he has completed his graduation or not. As far I know in the Year, 2012 he was working as Home Guard. I am not aware as to where he was working. I am also not aware about the time period for which he 116 of 125 117 FIR No. 184/12 PS - Mangol Puri remained working at the post of Home Guard. I also do not know as to what was his working hours. Accused Raju used to reside at the first floor of his house with his mother. Bhabhi of accused Raju used to reside at the ground floor. She is working and so she used to leave her house in the morning and returned in the evening. Her bhabhi has two children. His mother used to take care of the children in the absence of his bhabhi.
I am working as Lab. Assistant in the Sarvodaya School, Tilak Nagar. My duty hours are from 8.00 AM to 2.00 PM so I have to leave my house at about 6.45 PM and I returned at about 3.30 PM. It is correct that I am not aware about the conduct of accused Raju during my absence."
"I came to know about the present case after about 6/7 days of the arrest of accused Raju. I didn't go or appear before any forum to make the complaint about the false implication of accused in this case. It is wrong to suggest that I did not file any complaint as this is a true case and accused Raju has been rightly arrested in the present case. I am not a summoned witness. Today I have appeared before the Court for deposing at the request of brother of accused Raju. I have good relations with the mother and other family members of accused. It is wrong to suggest that I am deposing falsely in order to save the accused who used to reside (prior to this case) in my neighbourhood (at present he is in JC)."
From above, it is clearly indicated that during his cross examination, DW1 - Ram Sajiwan Pandey has specifically deposed that 117 of 125 118 FIR No. 184/12 PS - Mangol Puri he is not aware of the conduct of accused Raju during his (DW1) absence while he (DW1) was on duty. He has also specifically deposed that he did not go to or appear before any Forum to make the complaint about false implication of accused in this case and denied the suggestion that he did not file any complaint as this is a true case and accused Raju has been rightly arrested in the present case. If in the estimation of DW1 - Ram Sajiwan Pandey, accused Raju was falsely implicated in this case, why DW1 - Ram Sajiwan Pandey neighbour and a well known of accused Raju did not make any complaint against the alleged false implication of accused Raju to Police/Senior Police officer or to any Court. The reasons for the same must be known to him. It clearly indicates that, Had accused Raju been falsely implicated in this case, DW1 - Ram Sajiwan Pandey, his neighbour and a well known of accused must have made the complaint to the Police/Senior Police officials or to any Court against his false implication.
It is also indicated from the crossexamination of DW1 - Ram Sajiwan Pandey as reproduced hereinabove that he is not a summoned witness and has appeared before the Court for deposing at the 118 of 125 119 FIR No. 184/12 PS - Mangol Puri request of Brother of accused Raju and he is also having good relations with the Mother and other family members of the accused.
In view of above and in the circumstances, the testimony of the defence witness DW1 - Ram Sajiwan Pandey does not inspire confidence and he is a procured witness. His testimony is of no worth to advance the defence of the accused. A futile attempt appears to have been made by the accused by way of examination of the said defence witness in order to save his skin from the clutches of law.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for accused submitted that it is a case of sexual intercourse with consent and both the complainant and the accused enjoyed sex and exchanged smiles.
I have carefully perused and analysed the evidence on 119 of 125 120 FIR No. 184/12 PS - Mangol Puri record.
Although, the related plea raised by the Learned Counsel for the accused has been analysed and discussed herein before, yet in the interest of justice, I shall deal with the plea so raised by the Learned Counsel for the accused.
The testimony of PW6 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW6 - prosecutrix has been found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. The version of PW6 - prosecutrix on core spectrum of crime has remained intact.
At the cost of repetition, on analysing the entire testimony of PW6 - prosecutrix it transpires that she has described the scenario implicating the accused Raju to be the author of the crime, of the committal of the sexual assault upon her. Accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her 120 of 125 121 FIR No. 184/12 PS - Mangol Puri searching crossexamination. The core facts about the committal of the crime by accused has remained intact.
So far as the theory propounded by the Learned Counsel for the accused that, "it is a case of sexual intercourse with consent and both the complainant and the accused enjoyed sex and exchanged smiles", is concerned, the same has not at all been made probable much established by any cogent evidence. Nor even a single suggestion regarding the said theory so propounded by the Learned Counsel for the accused was put to PW6 - prosecutrix during her entire incisive and lengthy crossexamination. In the circumstances, the said theory so propounded by the Learned Counsel for the accused is merely an afterthought and falls flat on the ground.
25. Learned Counsel for the accused referred to the cases and are reported as 'Vinod Mangilal Vs. State of M.P.', 2009 CRI.L.J. 1204; 'Goutam Mondal Vs. State of West Bengal & Ors.', 2011 CRI.L.J. 2037; 'Sunil Vishnu Salve and Anr. Vs. State of Maharashtra', 2006 CRI.L.J. 587; 'Mallesh Khemanna Vs. State of Karnataka', 2013 CRI.L.J. 3196;
121 of 125 122 FIR No. 184/12 PS - Mangol Puri 'Prahalad Mohanlal Sahu Vs. State of Chhattisgarh', 2013 CRI.L.J. 1726; 'Deepak Gulati Vs. State of Haryana', II(2013) DLT (Crl.) 769 (SC); 'Sayaji Hanmant Bankar Vs. State of Maharashtra', (2011) 14 SCC 477; 'Aqnelo @ Robert Fernandes & Ors. Vs. State (Bombay)', 2002(4) RCR (Criminal) 345 (Bombay High Court); 'Kamal Saikia @ Kamal Sonowal Vs. State of Assam', III (2010) CCR 364 (Gauhati High Court) and 'K. P. Thimmappa Gowda Vs. State of Karnataka' (2011) 14 SCC 475.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
122 of 125 123 FIR No. 184/12 PS - Mangol Puri
26. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that about 2 months prior to 15/05/2012, in the afternoon, at about 2:00 p.m. at T - 1215, Mangol Puri, Delhi, when PW6 - prosecutrix, aged around 23 years, was sleeping in her room, without bolting the room, accused Raju came into the room and started doing touching (cherchar) with her, to which she objected, on which he, on the assurance of marrying her by representing that he loves her and cannot live without her (Mai Tujhse Pyar Karta Hu Aur Tere Bina Jinda Nahi Reh Sakta) and that he made her by heart his wife (Maine Man Se Tume Patni Bana Liya Hai) committed rape upon the prosecutrix and thereafter, by calling her (Bula Bula Kar) at his house at T - 1183, Mangol Puri, Delhi, he also committed rape upon her by representing and treating her as his wife (Patni bana bana kar mere sath sambandh banai), due to which she missed her one month menses (monthly menstrual cycle) and thereupon she asked him to perform the marriage immediately (Uske Baad Mai Raju Se Bola Jaldi Se Shaddi Bana Lo), but he kept on assuring her that he will perform the marriage but will perform later on as he had made her as wife by his heart (Shadi Karunga, Der Mei Shadi Karunga, Maine 123 of 125 124 FIR No. 184/12 PS - Mangol Puri Tumhe Man Se Patni Bana Liya Hai) despite accused Raju knowing it well that he will not marry PW6 - prosecutrix whereby the promise of marriage was merely a hoax and being conscious of the fact that, Had he not promised to marry the victim/PW6 prosecutrix, she would have never allowed him the physical intimacy with her and further the consent of PW6 prosecutrix for cohabitation/sexual intercourse was obtained by the accused Raju under a misconception of fact by deceitfully causing her to believe that she will be married to him while the accused committing the sexual intercourse upon the prosecutrix knew that the consent was given by PW6 prosecutrix in consequence of such misconception. On repeatedly being asked by PW6 prosecutrix to perform the marriage, accused Raju refused to marry her and told her "look at your face, you have grown old and you have come after marrying in the village, I do not love you and I will not marry with you"
(Shakal To Dekle, Tu Budiya Ho Gai Hai, Tu Gaon Me Shaddi Kar Ke Aayi Hai, Mai Tere Se Payar Nahi Karta Aur Tere Se Shaadi Nahi Karuga) and he became enraged (Raju Aag Babula Ho Gya) and his eyes became red and he gave lot of beatings to her due to which she lost the ear drum (Kaan Ki Jaali) and suffered abortion (Garbhpat).
124 of 125 125 FIR No. 184/12 PS - Mangol Puri I accordingly hold accused Raju guilty for the offences punishable u/s 376/313 IPC and convict him thereunder.
27. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Raju in the commission of the offences u/s 376/313 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Raju beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Raju guilty for the offences punishable u/s 376/313 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 29th Day of October, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 125 of 125