Delhi District Court
State vs . Raju @ Vinod on 15 May, 2014
State Vs. Raju @ Vinod
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No.: 54/12
ID No. : 02401R0429552012
FIR No. : 146/12
Police Station : Prasad Nagar
Under Section : 376/377/354/509/506/
324/323 IPC
State
Versus
Raju @ Vinod
S/o Late Shri Chand,
R/o 16/870. H, Gali No. 5,
Pyare Lal Road,
Bapa Nagar, Karol Bagh,
New Delhi.
.........Accused
Date of Institution : 05.09.2012
Date of Committal : 15.09.2012
Date of judgment reserved on : 21.04.2014
Date of judgment : 09.05.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Dinesh Sharma, Advocate, Amicus curiae for the
accused
SC No. 54/12 Page 1 of 30
State Vs. Raju @ Vinod
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on July 7, 2012 at about 7.30 A.M., victim (PW5) along with her mausi (PW4) came to police station Prasad Nagar and lodged a complaint alleging that she was raped by her father Raju. Said information was recorded vide DD No. 7 B (Ex.PW2/A). (In order to withhold the identity of victim, name of victim and her mausi is withheld and hereinafter victim is referred to as victim or complainant and her mausi is referred to as PW4 or mausi of victim). Said DD was assigned to SI Beena Sharma, who took the victim to hospital for medical examination.
(i) Victim was medically examined by Dr. Nisha Sharma (PW14) vide MLC Ex. PW4/A. At that time victim alleged that she resided with her father and mausi. It was alleged that her father Raju asked her to remove all her clothes at about 1 AM last night. Then he forcefully did intercourse with her for 5 minutes. She further stated that her father kissed her, licked her internal organs and also told that there was history of ejaculation inside body. After medical examination, her biological samples were preserved and handed over the same to the police.
(ii) It was alleged that after medical examination, SI Beena Sharma came to the police station along with victim and her mausi. At that time, victim aged about 16 years got recorded her statement Ex. PW5/A.
(iii) In her statement Ex. PW5/A, victim alleged that since her biological mother (PW3) had deserted her father, she along with her brother started living with her father i.e. accused and mausi (PW4). It was further SC No. 54/12 Page 2 of 30 State Vs. Raju @ Vinod stated that she used to address her mausi as mummy. It was also alleged that her father i.e. accused was released from jail about two months ago.
(iv) It was further alleged that about 2½ years ago, when she was sleeping in her room in winter season, her father Raju @ Vinod (accused) came near to her and started caressing her body. Thereafter, he committed galat kam with her after gagging her mouth. It was alleged that at that time, her mausi and brother were sleeping but she did not tell the incident to anyone due to fear because her father had threatened her and asked her not to disclose the incident to anyone.
(v) It was further alleged that after about two months of the above incident, accused had again committed galat kam with her. Thereafter, after few days, she went to the house of her Bua, who was residing at Mangol Puri and thereafter returned to her house.
(vi) It was further alleged that her father was again arrested in some other case, thus he was sent to Tihar Jail.
(vii) It was further alleged that about two months prior to the present incident accused was released from jail. It was alleged that few days ago, accused had beaten her mausi (PW4) by his belt and also put hot knife on her body. After seeing this, she became scared.
(viii) It was further alleged that on July 1, 2012 in the afternoon accused sent her mausi (PW4) outside the house for some work. Even her brother was also not at home. It was alleged that at that time accused had put off all his clothes and also removed her all clothes and thereafter, he started kissing her body. It was alleged that when she asked not to do so, SC No. 54/12 Page 3 of 30 State Vs. Raju @ Vinod accused had scared her by putting hot knife on her chest. It was alleged that in the mean time someone had knocked the door, consequently accused asked her to wear her clothes and he also wore his clothes. It was further alleged that she did not tell the incident to anyone due to fear.
(ix) It was alleged that on July 6, 2012 at about 11 PM accused had given some medicine to PW4, consequently, she slept. Her three brothers were sleeping on the roof of room. She was also sleeping along with her parent i.e. accused and PW4 on the floor of the house. It was alleged that at about 1 AM, accused started pulling the victim towards his side and thereafter, pulled her forcibly and removed her salwar and rolled up her shirt (suit). It was alleged that thereafter, accused had put his penis in her mouth and thereafter, he committed galat kam with her. It was further alleged that after committing galat kam accused forcibly inserted his penis in her mouth. Thereafter, accused asked her to wear her clothes and then he slept after embracing her.
(x) It was alleged that in the morning she got up and told the incident to her mausi (PW4).
2. On her statement, an endorsement was made and an FIR for the offence punishable under Section 376/377/354/509/506/324/323 IPC was got registered.
(i) During investigation, accused was arrested. Knife was recovered at the pointing out of accused. He was got medically examined.
PW4 was also got medically examined.
(ii) Exhibits were got sent to FSL. Documents relating to her age SC No. 54/12 Page 4 of 30 State Vs. Raju @ Vinod were collected. Statement of victim was got recorded under Section 164 Code of Criminal Procedure (Cr.P.C. in short).
3. After completing investigation, challan was filed against the accused for the offences punishable under Section 376/377/354/509/506/324/323 IPC before the Court of learned Metropolitan Magistrate.
4. After complying with the provisions of Section 207 Cr. P.C., case was committed to the Court of Sessions on September 12, 2012. Thereafter, case was assigned to this Court on September 15, 2012. Accordingly, case was registered as Sessions Case No. 54/2012.
5. Vide order dated November 19, 2012, a charge for the offence punishable under Sections 376/377/506/509/324/323 of Indian Panel Code was framed against the accused to which he pleaded not guilty and claimed trial.
6. In order to bring home the guilt of accused, prosecution has examined as many as following 18 witnesses:-
PW1 HC Pratap Singh, duty officer, proved the
FIR
PW2 HC Dharam Pal, duty officer, proved DD No.
7B
PW3 Biological mother of victim (hereinafter she is
referred to as mother of the victim)
PW4 Mausi of the victim
PW5 Victim
SC No. 54/12 Page 5 of 30
State Vs. Raju @ Vinod
PW6 SI Dhan Singh, in-charge of Crime-Team,
formal witness
PW7 HC Devender, MHC(M)
PW8 Const. Bhoor Singh, formal witness, deposited
the exhibits at FSL, Rohini.
PW9 Dr. Abhiseikh, proved the MLC of accused and
PW4
PW10 Sh. D.S. Paliwal, Sr. Scientific officer (Biology),
proved the FSL report
PW11 SI Prabha, formal witness
PW12 Const. Asha, formal witness, accompanied with
victim at the time of her medical examination
PW13 Ms. Manju, teacher of primary school, proved
the birth document of victim
PW14 Dr. Nisha Sharma, proved the MLC of victim
PW15 Const. Jitender, joined the investigation with IO
PW16 Sh. Pawan Kumar, Sub-Registrar, NDMC
proved the birth certificate of victim
PW17 Const. Ramesh, photographer, formal witness
PW18 SI Beena Sharma, investigating officer
7. Accused was examined under Section 313 Cr. P. C. wherein he admitted that victim is his daughter and her date of birth is December 8, 1992 and also admitted that in school record her date of birth was got recorded as August 12, 1997. It was further submitted that PW3 (biological) mother of victim liked him and she wanted to marry with him but he refused as she did not belong to his caste. Thereafter, PW3 had consumed hydrogen to pressurize him, consequently, police apprehended him. But PW3 appeared before the police and told the police that she SC No. 54/12 Page 6 of 30 State Vs. Raju @ Vinod wanted to marry with him. Accordingly, police did not arrest him. It was submitted that in this manner his marriage with PW3 was solemnized in the year 1992. Thereafter, victim was born in December 1992 in Lady Harding Hospital and then he was blessed with a son. It was further submitted that in 1992 at the time of marriage, PW4 was just 7 years old and she was just 11 years old in 1996 when PW3 deserted him without giving divorce and started living with Bablu, BC of PS Anand Parbat. It was stated that PW3 was under the impression that Bablu had lot of money. He further submitted that when PW4 attained the majority, she started living with him as his wife. It was further stated that now PW3 wanted to re-join him but he refused and in order to take revenge, she had levelled false charges of rape with the aid of her daughter i.e. victim. It was further stated that on September 24, 2013, PW4 visited the jail and told him that PW3 told her that she would take the case back if she be given half of the property. He further submitted that mobile number 9711737835 belongs to him and his real name is Ajay and Raju is his nick name. In order to prove his innocence accused examined his son Raja as DW1. .
8. Learned counsel appearing for the accused vehemently contended that no reliance can be placed on the testimony of PW4 & PW5 as they have falsely implicated the accused in this case. It was submitted that PW3 to PW5 were indulging in prostitution and when accused insisted them to refrain themselves from such activities, PW3 & PW4 with the aid of PW5 falsely implicated the accused in this case. It was further contended that the room where the alleged incident had taken place is a quite small room and it is admitted case of prosecution that all family members (6 in numbers) used to sleep in the said room on floor, thus, it was urged that it was otherwise not feasible to commit such type of offence. It was further contended that if any person would make any attempt to commit such type SC No. 54/12 Page 7 of 30 State Vs. Raju @ Vinod of activities, other family members would be got up immediately, this further shows that the accused has been framed falsely in this case. It was further contended that the testimony of PW5 is not trustworthy as her testimony is self contradicted on certain points which further shows that she has falsely implicated the accused. It was further contended that prosecution case is that the sexual intercourse had continued for about five minutes whereas PW5 in her deposition deposed that the activities continued for about two hours from 1 AM to 3 AM, which further shows that she was not sure about the incident and made false allegations against the accused. It was further contended that the victim was more than 20 years old at the time of incident and in the school record, she has been shown younger by 5 years and this fact is proved from her birth certificate wherein her date of birth is mentioned as December 8, 1992 whereas in school record, her date of birth is shown as August 12, 1997. It was further contended that no incident had taken place at any point of time and due to said reason, she had not made any complaint to any person including her mother despite the fact that accused used to be remained behind bar for long period. Thus, it cannot be said that victim had any threat from the accused. It was argued that when accused did not permit them to indulge in prostitution activities, they falsely implicated the accused in this case. It was further submitted that no knife was recovered from the accused. Moreover, prosecution failed to connect the knife with the injury. At last it was argued that there is inordinate delay in lodging the FIR, which shows that FIR was registered after due deliberation and consultation and this further cast a doubt over the prosecution case.
9. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing sagaciously that there are overwhelming evidence on record to prove that accused had committed rape upon the SC No. 54/12 Page 8 of 30 State Vs. Raju @ Vinod victim. It was contended that beside the testimony of victim, there is DNA report to establish that rape was committed upon the victim. It was thus argued that there is no reason to disbelieve the testimony of victim. It was further contended that the contradictions pointed out by learned defence counsel are insignificant and the same are not fatal to the prosecution case in any manner. Learned Additional Public Prosecutor fairly conceded that there is inconsistency in the date of birth of the victim as in the school record her date of birth is mentioned as August 12, 1997 whereas in birth certificate her date of birth is mentioned as December 8, 1992. It was further contended that there is no delay in lodging the FIR. It was further contended that accused had behaved in a very cruel manner while committing rape upon the victim as he had also caused injury to the victim by hot knife. Similarly, he had also caused injury to PW4 by hot knife. It was thus contended that prosecution has succeeded to prove the guilt of accused beyond reasonable doubt.
10. I have heard rival submissions advanced by counsel for both the parties at length, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to point out that no case law was cited by either of the parties.
11. Before dealing with the contentions raised by counsel for both the parties, I deem it appropriate to refer the relevant provisions of law. Admittedly, provisions of Section 375 IPC have been amended by way of Act 13 of 2013 w.e.f February 3, 2013. Since, in the instant case, incident had taken place on July 6, 2012 and prior to that, thus the pre-amended provisions shall be applicable to the present case. Pre-amended Section 375 IPC reads as under:-
SC No. 54/12 Page 9 of 30State Vs. Raju @ Vinod
375.Rape- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances failing under any of the six following descriptions:-
First- Against her will Secondly.- Without her consent.
Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or though another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape"
Contentions relating to the age of the victim:-
12. As per charge-sheet filed by the prosecution, date of birth of SC No. 54/12 Page 10 of 30 State Vs. Raju @ Vinod the victim is August 12, 1997. In order to prove the same, prosecution has examined PW13 Ms. Manju, school teacher. She deposed that victim was got admitted in the school on July 27, 2005 and at that time her date of birth was disclosed as August 12, 1997. In her cross-examination she admitted that at the time of admission, her parents did not furnish any documentary evidence regarding her date of birth. This shows that no birth certificate was produced at the time of getting the victim admitted in the school. But simultaneously, prosecution has also examined PW16 Pawan Kumar, Sub-
Registrar Birth & Death, NDMC, Mandir Marg, New Delhi. He deposed that on December 17, 1992 an intimation was received from LHMC and SSK Hospital that a female child was born to PW3 and accused on December 8, 1992. Accordingly, birth of said female child was registered at serial number 12387 and birth certificate Ex.PW6/A was issued.
13. PW3 is biological mother of victim and she also corroborated the testimony of PW16 by testifying that victim was born on December 8, 1992 at Lady Harding Hospital. This fact was also admitted by PW5 in her examination-in-chief. Even accused also admitted in his statement under Section 313 Cr.P.C that victim was born on December 8, 1992. Thus, it is proved beyond all reasonable doubts that victim was born on December 8, 1992 and not on August 12, 1997 as mentioned in her school record. Since, the last incident had taken place on July 6, 2012, thus victim was 19 years 6 months and 29 days old at the time of last incident. In other words, victim was major at the time of alleged incident.
Consent:-
14. Though no contention was raised about the consent, yet I deem it appropriate to deal with same because the victim was above 18 SC No. 54/12 Page 11 of 30 State Vs. Raju @ Vinod years old at the time of alleged incident.
15. PW5 in her examination-in-chief deposed that on July 6, 2012 at the time of committing rape upon her, accused had gagged her mouth by her chunni and he had also tied her legs with his shoe-laces. This fact remained unchallenged during the cross-examination of the witness. Similarly, PW5 in her examination-in-chief deposed that on July 1, 2012 when she refused to put off her clothes at the behest of accused, he had put hot knife on her cheeks and chest. This fact also remained unchallenged during the cross-examination. Thus, it is established beyond all reasonable doubts that PW5 was neither a consenting nor a willing party.
Contentions relating to Defence version:-
16. Before dealing with the prosecution case, I prefer to deal with the defence version. During the cross-examination of PW3, PW4 and PW5, accused took the plea that he has been falsely implicated because they were indulging in prostitution activities and when he asked them to refrain themselves from such activities, PW3 & PW4 with the help of PW5 implicated him in this false case. But during his statement under Section 313 Cr.P.C, accused took an inconsistent plea by stating that PW3 wanted to re-join him but when he refused, in order to take revenge, PW3 levelled false charges of rape against him with the aid of PW5. Thus, it becomes clear that there is no consistency in the defence version.
17. No doubt, PW4 and PW5 in their testimony failed to disclose their source of livelihood satisfactorily and there is some inconsistency in their testimony in this regard. But the said inconsistency is not sufficient to SC No. 54/12 Page 12 of 30 State Vs. Raju @ Vinod arrive at the conclusion that the said witnesses were indulging in the activities of prostitution. Moreover, both the witnesses categorically denied the suggestions put to them in this regard. In the absence of any cogent evidence, defence versions does not inspire any confidence. .
18. Though accused has examined DW1 in his defence, yet I am of the view that his testimony is not helpful to the accused in any manner as DW1 in his deposition did not depose any thing which may help the accused to prove that PW4 and PW5 were indulging in the activities of prostitution. Rather, DW1 in his cross-examination admitted that on the day of incident, he was sleeping on the roof of the house and came inside the room at about 4 AM since, the incident had taken place during 1 AM to 3 AM, thus he had no opportunity to notice the activities going on inside the room between 1 AM to 3 AM.
19 In light of above discussion, I am of the considered opinion that there is no substance in the defence version.
Contentions relating to the incident that allegedly had taken place in 2010:-
20. Prosecution has set up a case that accused had committed rape upon the victim first time about 2- 2½ years ago and second time two months thereafter, prior to lodging the present FIR. It was contended by learned defence counsel that no reliance can be placed on the testimony of victim as the same is not trustworthy.
21. PW5 in her examination-in-chief deposed that about 3 years ago in the winter, while she was sleeping, accused came to her and started SC No. 54/12 Page 13 of 30 State Vs. Raju @ Vinod caressing/rubbing her body. Thereafter, accused gagged her mouth and then he removed her clothes and rubbed her whole body. She further deposed that she did not raise any alarm at that time because accused had gagged her mouth. She further testified that she did not tell the incident to her mausi (PW4) as accused had threatened her and asked her not to disclose the incident to anyone. But in her next breath, she deposed that while she was sleeping, accused came to her and awoke her and thereafter he started massaging her head with oil. She further deposed that when she asked what was he doing, accused told her that he was doing massage. She further deposed that thereafter, accused put his hand in her chest and when she tried to raise alarm, accused gagged her mouth. Thus, it becomes crystal clear that there is inconsistency in her statement as initially she deposed that accused caressed/rubbed her body after removing her clothes but in the next breath, she deposed that accused only did oil massage on her head and put his hand in her chest. It is also pertinent to point out that she did not depose that at that time accused had committed rape upon her.
22. Similarly, PW5 further deposed that after two months of the above said incident, accused had removed her clothes and put his penis in her mouth and thereafter, he had put his tongue at her vagina. Even this time also PW5 did not depose that accused had raped her. She further deposed that at the time of alleged incident, neither her mother/mausi (PW4) nor her brother was at home and after the incident, she went to the house of her bua at Mangol Puri. Admittedly, neither investigating officer nor prosecution deemed it appropriate to examine her bua to corroborate the version of PW5 that she came to her house after the said incident.
SC No. 54/12 Page 14 of 30State Vs. Raju @ Vinod
23. PW5 in her cross-examination deposed that she did not tell the above two incidents to anyone despite the fact that after the first incident accused was arrested in some other case and even after the second incident accused was re-arrested in some other case. Thus, as per the testimony of PW5, accused was arrested in some other case after the first incident, thereafter, he was released on bail and then committed second incident and again he was arrested. Since, accused was in custody in other cases, victim had no threat from the accused. Thus, victim had ample opportunity to narrate the incident to her well-wishers including PW3 & PW4 but she did not narrate the same to anyone.
24. Though PW5 in her cross-examination admitted that at one occasion accused remained in jail continuously for five years, yet she failed to tell the period. Since the examination-in-chief of PW5 was recorded in May 2013 and she deposed that first incident had taken place about 3 years ago in the winter. It means that the first incident had taken place either at the end of 2009 or in January 2010 whereas second incident had taken place after two months of the said incident. In this regard, the testimony of PW4 is also relevant. She in her cross-examination admitted that accused remained in custody for five years during the period 2005- 2009 and further admitted that after some time, he was again arrested and remained in jail for about one year. However, she avoided the question by saying that she did not remember whether accused was in jail in the year 2010 or not and further stated that she also did not remember whether accused was in jail in year 2011. However, she admitted that prior to the present incident accused was in jail for about 12 months. As per the testimony of PW4 accused had beaten her on June 30, 2012. It means that accused was in custody just prior to June 2012 for about one year. Similarly, it also becomes clear that after 2009 but before June 2011 SC No. 54/12 Page 15 of 30 State Vs. Raju @ Vinod accused remained in jail for about 1 year. From the testimony of PW4, it appears that the said period was in one go whereas as per the testimony of PW5, same was in two phases. During investigation, no attempt was made to verify the period of custody of accused in other cases. Similarly, during trial also no such attempt was made by the prosecution. Thus, from the testimony of PW4 & PW5 it is not clear whether accused was in jail or not during the said period when PW5 was allegedly sexually assaulted. There may be possibility that during the said period accused might be inside the jail.
.
25. PW5 in her complaint Ex. PW5/A alleged that prior to July 6, 2012 accused had committed rape upon her twice but in her examination- in-chief she failed to depose about the said two incidents. As already discussed, the two incidents which PW2 vividly described in her examination-in-chief do not pertain to the allegations of rape. In her examination-in-chief, PW5 is silent about the alleged incidents of rape. Though in her cross-examination, PW5 deposed that her father had committed rape upon her 2-3 times but she did not depose anything about the said incidents.
26. It is admitted case of prosecution that after lodging the FIR victim was taken to the hospital for medical examination and during medical examination, it was found that her hymen was torn but it is nowhere mentioned that it was an old torn. PW5 was medically examined by Dr. Nisha Sharma (PW14). Even during her deposition no attempt was made to seek any clarification whether it was old or fresh. In other words, there is no medical evidence to corroborate the allegations of previous rape.
27. Further, PW5 in her cross-examination admitted that she did SC No. 54/12 Page 16 of 30 State Vs. Raju @ Vinod not tell the said incidents to anyone including PW3 & PW4 and her tai who is also residing in the same premises. She also admitted in her cross- examination that after both the incidents accused was arrested in some other case and remained in jail. It means that victim had no threat or fear from the accused. Despite that she preferred to keep mum and did not tell the incidents to anyone. As already discussed that investigating officer even did not deem it appropriate to examine the bua of the victim to corroborate her testimony that after the second incident she visited her house. Even no such attempt was made during trial.
28. In these circumstances, I am of the view that it will not be safe to rely upon the testimony of PW5 to the extent of above said two incidents.
Contentions relating to the corroborative evidence pertaining to incident that had taken place on July 6, 2012:-
29. Pivotal question arises as to whether there is any corroborative piece of evidence to corroborate the testimony of PW5 relating to the said incident.
30. Prosecution version is that after lodging the FIR, PW5 was taken to the hospital for medical examination. PW5 was firstly examined by PW14 Dr. Nisha Sharma, who in her examination-in-chief deposed that victim was brought to the hospital with the alleged history of rape by her father and victim told her that her father had asked her to remove all her clothes at about 1 AM last night and then he forcibly did intercourse with her for five minutes. He kissed her and licked her internal organs and there was history of ejaculation inside the body. Victim was examined vide MLC Ex. PW14/A. With the consent of mother of the victim, she was also SC No. 54/12 Page 17 of 30 State Vs. Raju @ Vinod internally examined and it was found that her hymen was torn. Thereafter, her 15 biological samples were taken and same were sealed in the parcel with the seal of LHMC and Smt. SSK Hospital, Gynae casualty signature SR. Inner and outer clothes of victim were also seized. Both the pullandas were handed over to the police along with sample seal. The testimony of PW14 remained unchallenged during the trial.
31. PW12 Const. Asha deposed that after medical examination doctor handed over two sealed pullandas duly sealed with the seal of hospital and one sample seal and she handed over the same to the investigating officer who seized the same vide memo Ex. PW12/A. Her testimony also remained unchallenged during the trial.
32. PW7 HC Devender deposed that on July 7, 2012 he had received one sealed box and one sealed envelope duly sealed with the seal of LHMC and Smt. SSK hospital, Gynae casualty signature SR and deposited the same being the MHC(M) vide Ex. PW7/A. He further deposed that the said parcels were sent to FSL, Rohini on July 10, 2012 through constable Bhoor Singh vide Ex. PW7/D. PW8 constable Bhoor Singh deposed that the said parcels were deposited by him with the FSL, Rohini. Both deposed that the parcels remained intact till remained in their custody. Though a suggestion was given to both the witnesses that the parcels were tempered while remained in their custody but the same was denied. Thus, this suggestion has no evidentiary value in the eyes of law.
33. After the arrest, accused was taken to the hospital for medical examination and he was examined by PW9 Dr. Abhiseikh who deposed that after medical examination, his underwear and biological samples including blood sample were seized and same were given to constable Jitender who SC No. 54/12 Page 18 of 30 State Vs. Raju @ Vinod handed over two sealed pullandas with one sample seal to the investigating officer and investigating officer seized the same vide Ex. PW15/E. MHC(M) deposed that he had received the same vide Ex. PW7/A. Even accused in his examination under Section 313 Cr.P.C admitted that after arrest he was taken to the hospital and he was examined by PW9 and his underwear was seized and his biological samples were also taken in the hospital. Thus, it is also established that Ex. 4a as mentioned in FSL report belonged to the accused.
34. Said parcels were examined by PW10 Dr. D. S. Paliwal in the FSL. He deposed that two parcels were sealed with the seal of SR signature LHMC and Smt. SSK Hospital Gynae casualty and two parcels were sealed with the seal of CMO LHMC SSK Hospital Delhi. Samples seals were also received and he deposed that seals were tallied with the sample seals, this proves that exhibits were remained intact till reached FSL Rohini.
35. PW10 further deposed that DNA was isolated from the source of exhibits 1j-1, 1j-2, 1j-3 and Ex.4a. DNA were generated from the said exhibits. On examination, he opined that DNA profiling (STR) analysis performed on the exhibits provided is sufficient to conclude that DNA generated from biological stains i.e. seminal stains present on the source of exhibits 1j-1, 1j-2, 1j-3 is similar with DNA profile of source of Ex. 4a. His report is Ex. PW10/A.
36. Perusal of the report reveals that 1j-1 and 1j-2 are two micro- slides of the victim and 1j-3 is the piece of cotton wool swab whereas Ex.4a is the dark brown liquid kept in a small tube (blood of accused). Allele data shows that allele data from the sources of exhibits 1j-1, 1j-2 and 1j-3 are SC No. 54/12 Page 19 of 30 State Vs. Raju @ Vinod identical to the allele data from the sources of exhibit 4a. Thus, this proves that accused had committed sexual intercourse with the victim.
37. PW9 while examining the accused on July 7, 2012 also opined that he is capable to perform sexual intercourse, thus the testimony of PW9 further corroborates the prosecution version.
38. Thus, it is proved beyond all reasonable doubts that there are scientific evidence to prove the testimony of PW5 that accused had committed sexual intercourse with her on July 6, 2012.
Testimony of PW5 relating to the incident of rape:-
39. PW5 in her examination-in-chief deposed that on July 6, 2012 she was sleeping along with PW4 and at about 1 AM accused pulled her towards him, thereafter, he removed her salwar and rolled up her suit and then put his penis in her mouth and thereafter, he inserted his finger in her vagina and then raped her. She further deposed that accused had gagged her mouth by her chunni and also tied her legs with shoe-laces. Thus, she described the incident of rape vividly. She further deposed that in the morning she made a complaint to PW4, consequently, PW4 took her to the police station. The testimony of PW5 to that extent that she was raped by accused is fully corroborated by the DNA report. Though a suggestion was given to PW5 that no such incident had taken place, but the same was denied by the victim. Thus, suggestion has no evidentiary value.
40. PW4 also corroborated the testimony of PW5 by deposing that on July 6, 2012 she was not feeling well. Consequently, she slept after taking medicine which was given by the accused. She further deposed that SC No. 54/12 Page 20 of 30 State Vs. Raju @ Vinod at about 2/3 AM, she realized that someone was doing galat kam with PW5 but she could not get up due to drowsiness of medicine. This fact is further corroborated by DW1 who admitted in his deposition that PW4 was sick on July 6, 2012 and she had taken medicine. PW4 further deposed that in the morning PW5 made a complaint about the incident. Thereafter, she took her to the police station. Thus, the testimony of PW5 is also fully corroborated by PW4. Since, the testimony of PW5 is corroborated by PW4 as well as by DNA report, there is no reason to disbelieve her testimony to that extent.
41. No doubt, there is a contradiction between the testimony of PW5 and the alleged history mentioned in the MLC of PW5 which was prepared by PW14 Dr. Nisha Sharma. PW5 stated before PW14 that sexual intercourse continued for about five minutes whereas in her testimony PW5 deposed that the said episode continued for about 2 hours between 1 AM to 3 AM. But to my mind, said contradiction is not fatal to the prosecution case in any manner. In her testimony, she deposed that the entire episode i.e. from beginning to end continued for 2 hours between 1 AM to 3 AM whereas in the MLC it is mentioned that sexual intercourse continued for only five minutes. PW5 in her deposition clarified that before doing sexual intercourse, accused had done various other sexual activities. Moreover, during deposition of PW5 no opportunity was given to the witness to clarify the said contradiction, thus I am of the view that the said contradiction is not fatal to the prosecution case in any manner.
42. From the above discussion, it is proved beyond all reasonable doubts that accused had not only committed rape upon the victim on July 6, 2012 but he also committed unnatural sex with her, hence accused is liable for the offence punishable under Section 376 as well as 377 IPC.
SC No. 54/12 Page 21 of 30State Vs. Raju @ Vinod Now coming to the incident which had taken place on July 1, 2012:-
43. PW5 in her examination-in-chief also deposed that when accused came out from jail, he had beaten her mausi (PW4) and also put hot knife on her body. Consequently, she became scared. PW4 deposed that the said incident had taken place on June 30, 2012. PW5 deposed that on July 1, 2012 accused had sent PW4 outside the house on the pretext of some work, her brother was also not at home. Thereafter, accused asked her to remove her clothes and when she refused, accused put hot knife at her chest and cheek and thereafter he removed her clothes. Since PW5 also deposed that accused had worn his clothes, it means that accused had also put off his clothes. She further deposed that in the meantime, someone had knocked the door as son of her tai came there, thus accused asked her to wear her clothes and accused also wore his clothes.
44. PW5 was medically examined vide MLC Ex. PW14/A wherein it is mentioned that there is healed scar marks over her right cheek and there was also healed scar marks on neck and mid chest. During trial, the testimony of PW14 remained unrebutted in this regard. PW5 deposed that injury was caused to her by putting hot knife on her cheek and chest and this fact is fully corroborated by the injuries mentioned in the MLC Ex. PW14/A which remained unchallenged during trial. No doubt, there is no other independent cogent evidence to prove that the healed scar marks were caused by hot knife but simultaneously there is no evidence in negative too. In these circumstances, there is no reason to disbelieve the testimony of PW5. Thus, it is also established that accused had outraged the modesty of PW5 on July 1, 2012 by making her naked, thus accused is also liable for the offence punishable under Section 354 IPC. Since, SC No. 54/12 Page 22 of 30 State Vs. Raju @ Vinod accused caused burn simple injury on the person of PW5 by hot knife, accused is also liable for the offence punishable under Section 324 IPC.
Contentions relating to the injuries caused to PW4:-
45. PW4 in her examination-in-chief deposed that on June 30, 2012 accused came in inebriated condition in the house and gave beating to her and also put hot knife on her thigh and hips and asked her with whom she had made relations when he was in jail. She told him that she did not make any relation with anyone in his absence. During her cross- examination, she admitted that she did not tell the said incident to any person including her mother-in-law. But this fact itself is not sufficient to raise any doubt over her testimony particularly when her deposition is corroborated by the medical evidence. PW4 was medically examined by PW9 Dr. Abhiseikh and he found fresh and old injuries on her body. He also found burn injuries mark on her right thigh and inner side of her left thigh. He also found brushes over her right hip. Though during the cross- examination of PW9 an attempt was made to raise doubt about the age of said injuries, but nothing came out during his cross-examination, which may help the accused to cause any dent in prosecution case. Since, the alleged incident had taken place on June 30, 2012 whereas PW4 was medically examined on July 7, 2012, thus, it is clear that the injuries would be old at the time of examination. The pivotal point is that the testimony of PW4 about the injuries caused by accused is fully corroborated by medical report. No lady would cause self inflicted injuries on her thigh and hips. Moreover, there is nothing on record to suggest that the injuries that were found on the body of PW4 were self inflicted. From the MLC and the testimony of PW4, it is established that after releasing from jail, accused has suspicion over the chastity of his wife, consequently, he made enquiry SC No. 54/12 Page 23 of 30 State Vs. Raju @ Vinod from her, firstly he gave beating to her and then caused injury by hot knife. As per MLC, PW4 had sustained simple injuries. Thus, it is also established that accused had voluntarily caused simply burn injuries to PW4 also, thus he is also liable for the offence punishable under Section 324 IPC.
Delay in lodging FIR:-
46. In the instant case, the alleged incident had taken place on the intervening night of July 6, 2012 and July 7, 2012 between 1 AM to 3 AM whereas the formal FIR was lodged on July 7, 2012 at about 4.10 PM.
Accordingly, counsel appearing for accused contended that the FIR was recorded after due deliberation and consultation, hence the possibility of false allegations cannot be ruled out.
47. To my mind, the said contention is devoid of merits. PW5 in her deposition deposed that after the incident, she narrated the incident in the morning to PW4, she (PW4) also corroborated the testimony of victim by deposing that victim narrated the incident to her in the morning and thereafter, she took the victim to police station and from police station they were sent to hospital for medical examination. From DD No. 7 B (Ex. PW2/A) it is clear that victim had lodged a complaint with the police at about 7.30 AM on July 7, 2012 alleging that she was raped by her father Raju, thus it is established that victim at the very first instance lodged a complaint with the police at 7.30 AM that she was raped by her father. Mere fact that formal FIR was recorded after medical examination of the victim at about 4.10 PM is not sufficient to hold that FIR was recorded after due deliberation and consultation. Moreover, in the instant case the deposition of PW5 is fully corroborated by DNA report, thus there is no SC No. 54/12 Page 24 of 30 State Vs. Raju @ Vinod possibility of false implication, hence delay, if any is not fatal to the prosecution case in any manner.
Recovery of knife:
48. Prosecution case is that after the arrest of accused, accused got recovered the knife by which he caused injury on the person of PW4 and PW5. However, during trial prosecution has failed to establish that it was the same knife by which the injury was caused. Even the said knife was not shown to PW4 and PW5 to prove the allegations that the injuries were caused by the same knife. Even the knife was not sent to the expert to seek any opinion whether the injuries caused to PW4 and PW5 were caused by the said knife. Thus, the recovery of knife is not helpful to the prosecution in any manner. But to my mind, non proving of this fact is not fatal to the prosecution case in any manner because it has already been established that accused had caused simple burn injury on the person of PW4 and PW5 by putting hot knife on their body.
Conclusion:-
49. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to prove the guilt of accused beyond the shadow of all reasonable doubts for the offences punishable under Section 376/377/354/509/506/324 IPC, thus I hereby hold him guilty thereunder.
Announced in the open Court
on this 9th day of May, 2014 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
TIS HAZARI COURTS, DELHI/sv
SC No. 54/12 Page 25 of 30
State Vs. Raju @ Vinod
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No.: 54/12 ID No. : 02401R0429552012 FIR No. : 146/12 Police Station : Prasad Nagar Under Section : 376/377/354/509/506/ 324/323 IPC State Versus Raju @ Vinod S/o Late Shri Chand, R/o 16/870. H, Gali No. 5, Pyare Lal Road, Bapa Nagar, Karol Bagh, New Delhi.
.........Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Dinesh Sharma, Advocate, Amicus curiae for the convict Ms. Subhdra Mehendiratta, Advocate, counsel for DCW SC No. 54/12 Page 26 of 30 State Vs. Raju @ Vinod ORDER ON THE POINT OF SENTENCE:-
1. Vide separate judgement dated May 9, 2014, accused has been held guilty for the offence punishable under Section 376/377/354/509/506/324 IPC.
2 Learned counsel appearing for the convict requests for a lenient view on the grounds that convict is a sole bread earner of the family and entire family is comprising of four children including victim and they all are dependent upon the convict.
3. Per contra, learned Additional Public Prosecutor refuted the said contention and requests for maximum punishment.
4. I have heard rival submissions advanced by counsel for both the parties and also perused the report submitted by Ms. Subhra Mehendiratta, Advocate, counsel for Delhi Commission for Women.
5. Perusal of the report reveals that the victim had already married with a boy and at presently she is residing at Ghanta Ghar, Subzi Mandi, Delhi. It further reveals that she had deposited the interim compensation amount in the FDR for five years in SBI Patel Nagar Branch.
It is further revealed that the second wife of convict i.e. PW4 is working in a beauty parlour at Karol Bagh, Delhi.
6. No doubt convict may be a bread earner of his family but this sole mitigating factor is insufficient to take a lenient view considering the SC No. 54/12 Page 27 of 30 State Vs. Raju @ Vinod other aggravating factors available on record. It is undisputed fact that victim was also the daughter of convict; despite that he had committed rape upon her, thus he chose his own daughter to satisfy his lust. Being the father of victim, it was his duty to protect the victim from any such assault but he himself violated all limits of humanity and committed rape upon her. Further he also behaved in a cruel manner as he caused injury on the person of his daughter by putting hot knife on her chest and he also caused injury to his wife (PW4) by putting hot knife on her thigh and hips. Even during trial, convict did not hesitate to level the allegations of prostitution against his wife and daughter without adducing any cogent piece of evidence. This further indicate that convict has no repentance over his act. During trial, it is also revealed that the convict has criminal antecedents and he used to go to jail frequently and at one occasion, he remained in jail continuously for five years.
7. Considering the aggravating factors available on record, I am of the view that it is not a fit case to impose the minimum sentence as prayed by learned counsel for convict.
8. After considering the mitigating and aggravating factors and submissions advanced by counsel for both the parties, I hereby sentence the convict Raju @ Vinod as under:
(i) rigorous imprisonment for 14 years and a fine of ` 25,000/- in default simple imprisonment for one year for the offence punishable under Section 376 IPC.
(ii) rigorous imprisonment for 10 years and a fine of SC No. 54/12 Page 28 of 30 State Vs. Raju @ Vinod ` 15,000/- in default simple imprisonment for nine months for the offence punishable under Section 377 IPC.
(iii) rigorous imprisonment for 3 years and a fine of ` 5,000/- in default simple imprisonment for four months for the offence punishable under Section 506 IPC.
(iv) rigorous imprisonment for 3 years and a fine of ` 5,000/- in default simple imprisonment for four months for the offence punishable under Section 324 IPC.
(v) No separate sentence is passed for the offence punishable under Section 354/509 IPC.
9. Benefit of Section 428 Cr.P.C be given to the convict. All sentences shall run concurrently.
10. If the fine amount is paid, the same shall be diverted to the Victim Compensation Fund.
11. No doubt, as per the report submitted by counsel for Delhi Commission for Women, victim had already married with a boy and presently she is residing with him at Ghanta Ghar, Delhi, but it is undisputed fact that due to the act of convict, victim must have suffered trauma and mental agony, thus victim deserves compensation. Similarly, PW4 had also sustained injury, thus she also deserves suitable SC No. 54/12 Page 29 of 30 State Vs. Raju @ Vinod compensation. Accordingly, recommendation is made under Section 357 A Cr.P.C for suitable compensation to PW5 and PW4. Copy of order be sent to Secretary, DLSA Central District for the purpose of assessing the amount of compensation and its disbursement under intimation to this Court. The interim compensation to the tune of ` 35,000/- had been already awarded to the victim (PW5), thus same shall also be adjusted at the time of assessing the quantum of compensation. It is made clear that the amount of compensation shall not be released to PW5 in one instalment.
12. Copy of judgment along with order on the point of sentence, be given to the convict free of cost. Since, convict is represented by learned amicus curiae during trial, copy of all the evidence, charge-sheet and copy of charge be also given to the convict free of cost. The same be sent to the Jail Superintendent with direction to deliver the same to the convict.
Announced in the open Court
on this 15th day of May, 2014 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
TIS HAZARI COURTS, DELHI/sv
SC No. 54/12 Page 30 of 30