Delhi District Court
State vs Vinod Kumar Sharma on 28 August, 2012
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
S. C. Case no. 344/1/10
FIR No. 713/03
State Vs Vinod Kumar Sharma
Police Station Ashok Vihar
Tried U/s 376 and 506II IPC
Convicted Under 506 - Part II read with
Section
354 IPC
ORDER ON THE POINT OF SENTENCE:
04.09.2012
Pre: Ld. APP for the state.
Accused Vinod Kumar Sharma is in JC.
Ld. counsel Sh. R P Luthra along with Sh.K. N. Kaushik for accused Vinod
Kumar Sharma.
ld. APP argued on sentence and submits that already accused has been
acquitted for the offence u/s 376 IPC. He is only convicted for the offence u/s
506II read with 354 IPC. ld. APP further submits that a severe punishment be
awarded to him, since unchastity to a woman, is punishable with imprisonment of
either description for a term which may extend to seven years, or with fine, or
with both under section 506 Part II of IPC.
Contrary to the submissions of ld. APP, Ld. counsel for the accused
has argued and submits that accused is aged about 50 years old. He is a
government servant, serving in Northern Railway as Accountant. He again
submits that accused is a married person and he has one boy, who is college
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going student. Ld. counsel further submits that prosecutrix was his sisterin
law. The offence u/s 376 IPC could not be proved on record hence, accused
has been acquitted for the offence u/s 376 IPC. Ld. Counsel again submits that
wife of accused is ailing women and she under needs accused with her to look
after her. He further submits that accused has no previous criminal history and
he has never misused the liberty of bail and never tried to cause any interruption
in the administration of justice. He is in JC w.e.f. 28.08.2012. On these
grounds ld. Counsel for the accused prayed for release of accused on probation
of good conduct u/s 360 and 361 Cr. PC. Ld. Counsel again submits that section
4 of Probation Act is also applicable for the release of accused on probation of
good conduct. In support of his contentions Ld. Counsel has also relied upon the
judgment 'Bishnu Deo Shaw V. State of West Bengal - AIR 1979 Supreme court
964.
Again controverting the submissions of ld. Counsel for accused, ld. APP
submits that after enactment of Probation Act section 360 and 361 C4. PC are
inoperative in view of the judgment 'Guljar vs. State 2007 (1) SCC 619'.
ld. Counsel for accused again submits that reconciliation and harmonious
relationship should be maintained between sections 360, 361 Cr. PC and section
4 of Probation Act.
Keeping in view the present scenario and the facts and circumstances of
the case to seek a balance between justice and injustice is very vulnerable task.
However, moderation is the best means to arrive at for the best conclusion. I do
not agree with the contentions ld. Counsel for the accused to release the convict
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on probation of good conduct precisely for the reasons that accused has been
acquitted against the charge of rape and he has been convicted for the offence
u/s 506 part II read with 354 IPC and the prosecutrix in this case happens to be
the real sister of wife of accused. In light of these facts and circumstances of the
case, to my view ends of justice shall be met if accused is sentenced to
undergo 3 years R.I. for the offence under section 506II read with 354 IPC
and to pay a fine of Rs.25,000/ in default six months further R.I. Fine be paid
as compensation to the victim. Benefit of section 428 Cr. PC be also given to
the accused.
Accordingly, victim Vinod Kumar Sharma is
sentenced to undergo 3 years R.I. for the offence
under section 506II read with 354 IPC and to pay a
fine of Rs.25,000/ in default six months further R.I.
Fine be paid as compensation to the victim.
Benefit of section 428 Cr. PC be also given to the
accused.
ANNOUNCED IN THE OPEN COURT
ON THIS 04.09.2012
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
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IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 344/1/10
Assigned to Sessions. 11.12.2006
Arguments heard on 18.07.2012
Date of order. 28.08.2012
FIR No. 713/03
State Vs Vinod Kumar Sharma s/o Rishi Ram
Sharma, R/o 43A, LIG Flats, III Floor,
Ashok Vihar Delhi.
Also at : Flat no.31, 4th Floor, Pocket
C, PhaseIV, Ashok Vihar, Delhi.
Police Station Ashok Vihar
Under Section 376 and 506II IPC
JUDGEMENT
1. Briefly facts of the prosecution case are that prosecutrix is the real sister of wife of the accused. In the year 1997 marriage of brother of prosecutrix was finalized and she was accompanied by accused for shopping. She has been to Ashok Vihar flat by accused on some pretext and she was raped by accused i.e. her brotherinlaw (Jeeja) firstly in the year 1997 at his Ashok Vihar flat under threat on the point of knife. Again it has been alleged that in the year 2001, when PW1 Seema Sharma was working in a private company namely Adroid Financial Services, Anand Vihar, on one day when she reached Anand Vihar Railway Station, accused came there and asked her to 4 accompany him and when she refused to go along with him accused took her forcibly under threat to his rented room situated in Chander Nagar, in a TSR and forcibly committed sex with PW1 Seema Sharma. She alleged that accused was in the habit of taking her forcibly to this rented accommodation. He forcibly committed rape upon her for 2/3 times in the period of 2/3 months. Again on 11.10.2002, accused again forcibly took her to Sagar Residency Hotel where he forcibly committed rape upon her. Again on 19.06.2003, accused again took her to Ashok Vihar Flat where he committed rape upon her, under threat.
2. On 02.12.2003, when engagement of Seema Sharma was finalized, accused came to know about the same, he asked Seema Sharma to get severed the engagement otherwise he would cut her into pieces and also threatened her that he would inform the boy regarding his relations, with whom, engagement of Seema Sharma was finalized and he also threatened that he would show the nude photographs too to that boy.
3. After that when PW1 Seema Sharma stated that she would not severe her ties with that boy, accused stated all the facts to that boy. That boy, on phone informed family members of Seema Sharma that he had come to know regarding the relations and then family members of Seema inquired from PW1 Seema regarding the matter and then Seema 5 narrated all the facts to her family members. After that PW1 Seema Sharma made a complaint before the police authorities vide Ex.PW1/A. During the course of investigation, her statement was recorded by Ld. MM, Sh. M. K. Gupta under section 164 Cr.P.C. vide Ex.PW1/B. On 06.12.2003, PW20 Insp. Veena Sharma received complaint of Seema Sharma, she endorsed the same vide Ex.Pw20/A, produced the same before the duty officer and accordingly, case FIR No.7113/03 (Ex.PW14/A) was registered against accused by PW15 HC Bijender Singh, the duty officer of PS Ashok Vihar. On 06.12.2003, PW20 Veena Sharma got conducted medical examination of prosecutrix Seema Sharma at BJRM Hospital through Dr. Manoranjan Kumar Nirala, vide MLC Ex.PW3/A. On the same day, Seema Sharma was examined at gynae department by Dr. J.K. Jedia. After the medical examination, doctor produced one sealed parcel and one sample seal and PW20 Veena Sharma had taken the same into her possession vide Ex.PW16/A.
4. On 07.12.2003, PW20 Insp. Veena Sharma along with Seema Sharma and other police officials went Sagar Residency Jangpura, Delhi as it was stated by Seema Sharma that he made her to stay there and IO had taken the photocopy of the relevant register into her possession through seizure memo vide Ex.PW20/B. On 07.01.2004, subsequent to the direction of Hon'ble High Court, accused joined the investigation and he 6 was medically examined at BJRM Hospital by PW2 Dr. Bhogal vide MLC Ex.Pw2/A. During the course of investigation, IO obtained specimen handwriting and signatures of accused and sent to FSL and also collected his bank account details containing his admitted handwriting vide seizure memo Ex.PW18/B. During the course of investigation, IO obtained age proof of Seema vide Ex.PW20/C and the marriage card of brother of Seema, he checked out register of Hotel Sagar Residency and the bill receipts were taken into possession vide Ex.PW6/A and vide Ex.PW20/E. On 29.04.2004, PW7 HC Charanjeet Singh deposited the case property at FSL vide RC 11/21/04 and on 31.05.2003, PW19 Ct. Mithlesh deposited one sealed parcel at FSL Rohini.
5.This case was committed to the Sessions Court vide dated 11.12.2006 for trial as it pertains to the heinous crime committed under section 376, 506II IPC which is exclusively triable by court of Sessions.
6.To prove and substantiate its case the prosecution has examined 20 witnesses namely PW1 Prosecutrix, PW2 Dr. Bhogal, BJRM Hospital, PW3 Dr. Javed Salam - Incharge (Casualty) BJRM Hospital, PW4 A K Srivastava, Sr. Scientific Officer, PW5 M K Gupta - Civil Judge, who recorded statement of prosecutrix u/s 164 Cr. PC, PW6 Ct. Uggarsain, 7 he took the accused to hospital for his medical examination on 03.01.04, PW7 HC Charanjit Singh he took the samples to FSL Rohini, Delhi, PW8 Sh. Naresh Kumar Dixit - formal witness, PW9 Ravi Bhushan Sharma brother of prosecutrix - hear say witness, PW10 Shashi Sharma - mother of prosecutrix - another hear say witness, PW11 Brij Bhushan Sharma - brother of prosecutrix - hear say witness, PW12 Sandeep Dixit - formal witness - with whom the marriage of prosecutrix might take place but it could not be done, PW13 K C Sharma - formal witness to the effect that in his presence house of the accused was searched but no camera or photographs etc could be discovered, PW14 HC Vijender Singh - formal witness being duty officer, PW15 Om Prakash, aged about 82 years father of prosecutrix - hostile witness, PW16 Lady HC Geeta - formal witness - she took took the prosecutrix to hospital for her medical examination along with SI Veena Sharma, PW17 HC Ashok Kumar - formal witness - on 06.05.04 he took the accused to BJRM hospital for his medical examination, PW18 Hardev Singh Narula - Manager - Punjab National Bank - formal witness - He got exhibited the account opening form as Ex.PW18/B in respect of accused Vinod Kumar Sharma, PW19 Ct. Mithlesh Kumar - formal witness - he deposited the sealed parcel to FSL on 31.05.03., PW20 Insp. Veena Sharma - I. O. of the case.
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7.In this case the most material witnesses are PW1 Prosecutrix, PW2 Dr. Bhogal, BJRM Hospital, PW3 Dr. Javed Salam - Incharge (Casualty) BJRM Hospital, PW4 A K Srivastava, Sr. Scientific Officer, PW5 M K Gupta - Civil Judge, who recorded statement of prosecutrix u/s 164 Cr. PC and PW20 Insp. Veena Sharma - I. O. of the case. Other witnesses are formal in nature and hear-say witnesses.
8. Having gone through the statement of prosecutrix PW1 it has come on record that accused is brotherinlaw (Jeeja) of the prosecutrix. He had impressed the family members of the prosecutrix. Family members of the prosecutrix used to give due respect to the accused. But accused had a evil eye on the prosecutrix and he seduced the prosecutrix forcibly under threats and committed rape upon her at several times. It has specifically come on record in the deposition of prosecutrix that in the year 1997, marriage of her brother namely Ravi Sharma was finalized and marriage was fixed to take place in the year 1998. Due to finalization of the marriage of Ravi Sharma, PW1 Seema Sharma used to go along with accused for making purchases. In the year 1997, on one day PW1 Seema Sharma along with accused went to Chandni Chowk to make some purchases. Accused told her that he has to take some articles from his Ashok Vihar Flat and on that very pretext, 9 accused had taken PW1 Seema Sharma to his flat. At that time his wife Neelam Sharma was not present in the flat as she was in Sahibabad i.e. at her parental house. After reaching at the flat of Ashok Vihar, he caught hold PW1 Seema Sharma, who started weeping. Accused prayed before her that he loves her a lot and on hearing the same, Seema became a bit perplexed and got herself released from the accused. All of a sudden, accused took out a knife from his pocket and threatened Seema Sharma that if she did not accept his suggestion, he would kill her and her family members. On having received threats, Seema Sharma became perplexed and started weeping but accused did not refrain and forcibly removed her clothes and committed rape upon her. After this incident, accused threatened to PW1 Seema Sharma not to disclose regarding having committed rape upon her to any person, otherwise he would take such a step that she or her family members would not be in a position to show her face in the society. Further, perusal of the testimony of prosecutrix it has come on record that in the year 2001, when PW1 Seema Sharma was working in a private company namely Adroid Financial Services, Anand Vihar, on one day when she reached Anand Vihar Railway Station, accused came there and asked her to accompany him and when she refused to go along with him, he slapped her and hurled filthy abuses. Accused 10 threatened PW1 Seema Sharma for dire consequences and took her forcibly to his rented room situated in Chander Nagar, in a TSR and kept on threatening her that he would kill her and her family members and got himself separated from his wife/ sister of prosecutrix. After reaching at rented room, accused forcibly committed sex with PW1 Seema Sharma. Accused was in the habit of taking PW1 Seema Sharma forcibly to this rented accommodation and forcibly committed rape upon her for 2/3 times in the period of 2/3 months. She further deposed that on 11.10.2002, when she returned from Bombay after training and got down from the train at Nizamuddin Railway Station, accused met her there and under threat asked her to accompany him and then he forcibly took her to Sagar Residency Hotel where he forcibly committed rape upon her. After that he left Seema Sharma at her residence in Sahibabad.
Further, perusal of the testimony of PW1 Prosecutrix reveals that on 19.06.2003, accused with his wife and son came to Sahibabad and on that day also, he met PW1 Seema Sharma at Anand Vihar Railway Station and took her to Ashok Vihar Flat where he committed rape upon her under threat. After having committed rape, accused gave coffee to Seema to drink and after having drunk coffee, she lost her senses and when she regained her consciousness, she found herself in the same 11 Ashok Vihar Flat and at that time there was no clothe on her body and at that time accused was sitting beside her on the bed, having a camera in his hands and stated that he had taken number of nude photographs of her (Seema Sharma) and threatened Seema to the effect that if she did not accede to his saying, he would show those nude photographs to her relatives and other family members. She further deposed that accused stated that he would use these nude photographs at some appropriate time. PW1 prosecutrix testified that on 02.12.2003, her engagement was finalized and when accused came to know about the same, he asked Seema Sharma to get severed the engagement otherwise he would cut her into pieces and also threatened her that he would inform the boy regarding his relations, with whom, engagement of Seema Sharma was finalized and he also threatened that he would show the nude photographs too to that boy. But when PW1 Seema Sharma stated that she would not severe her ties with that boy, accused stated all the facts to that boy. That boy, on phone informed the family members of prosecutrix regarding the relations of accused and prosecutrix. Thereafter, family members of prosecutrix inquired from PW1 Seema regarding the matter and then Seema narrated all the facts to her family members. After that PW1 Seema Sharma made a complaint before the police authorities vide Ex.PW1/A. During the course of investigation, her statement was also recorded by Ld. MM under 12 section 164 Cr.P.C. vide Ex.PW1/B. This witness has been cross examined by defence counsel at length. I have perused the same.
9. PW2 Dr. Bhogal, BJRM hospital, came to the witness box and deposed that on 03.01.2004 he examined the accused Vinod Kumar Sharma, who was brought to the hospital with the alleged history of sexual contact. After examination he found that there was nothing to suggest that the patient was incapable to perform sexual intercourse. This witness has not been crossexamined.
10.PW3 Dr. Javed Salam, Incharge (Casualty) BJRM hospital deposed that on 06.12.2003 prosecutrix was examined by Dr. Manoranjan Kumar Nirala vide MLC Ex.PW3/A. He further deposed that on the same day she was examined in the Gynae Department by Dr. J K Jedia, Sr. Resident, Gynae. This witness identified the signatures of both doctors on the MLC Ex.PW3/A. This witness has been crossexamined.
11.PW4 A K Srivastava, Sr. Scientific Officer came to the witness box and got exhibited the FSL report as Ex.PW4/A and PW4/B. This witness has not been crossexamined.
12.PW5 Sh. M K Gupta, Sr. Civil Judge - Cum Rent Controller came to 13 the witness box and affirmed the fact of recording the statement of prosecutrix u/s 164 Cr.PC. He got exhibited the application of IO as Ex.PW5/A and his endorsement as Ex.PW5/B. He testified that on 17.08.04 he recorded the statement of proseuctrix u/s 164 Cr. PC. He got exhibited the Certificate in this regard as Ex.PW5/C. This witness has been crossexamined.
13.I have also perused the testimony of PW20 IO of the case. On perusal of the testimony of IO it has come on record that on 06.12.2003, PW20 Insp. Veena Sharma received complaint of Seema Sharma, she made her endorsement on the same vide Ex.Pw20/A, produced the same before the duty officer and accordingly, case FIR No.713/03 (Ex.PW14/A) was registered against accused by PW15 HC Bijender Singh, the duty officer of PS Ashok Vihar. The endorsement of duty officer on original tehrir is Ex.PW14/B. On 06.12.2003, PW20 Veena Sharma got conducted medical examination of prosecutrix Seema Sharma at BJRM Hospital through Dr. Manoranjan Kumar Nirala, vide MLC Ex.PW3/A. On the same day, Seema Sharma was examined at gynae department by Dr. J.K. Jedia. After the medical examination, doctor produced one sealed parcel and one sample seal. PW20 Veena Sharma had taken the same into her possession vide Ex.PW16/A. On 07.12.2003, PW20 Insp. Veena Sharma along with Seema Sharma and 14 other police officials went Sagar Residency Jangpura, Delhi as it was stated by Seema Sharma that accused had made her to stay there and IO had taken the photocopy of the relevant register into her possession vide seizure memo vide Ex.PW20/B. On 07.01.2004, subsequent to the direction of Hon'ble High Court, accused joined the investigation and he was medically examined at BJRM Hospital by PW2 Dr. Bhogal vide MLC Ex.Pw2/A. During the course of investigation, IO obtained specimen handwriting and signatures of accused to send FSL and also collected bank account details containing his admitted handwriting vide seizure memo Ex.PW18/B. Further, during the course of investigation, IO obtained age proof of Seema vide Ex.PW20/C and the marriage card of brother of Seema, check out register of Hotel Sagar Residency and the bill receipts were also taken into possession vide Ex.PW6/A and Ex.PW20/E. This witness has been crossexamined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
14.PW9 Ravi Bhushan Sharma, PW10 Shashi Sharma and PW11 Brijbhushan Sharma have deposed more or less on the similar lines as deposed by PW1 prosecutrix, since they are hearsay witnesses. They have also been crossexamined by defence counsel at length. I have 15 perused the same. No contrary evidence of the nature has come on record which may go to the root of this case.
15.Other witnesses i.e. PW7 HC Charanjeet Singh deposed that on 29.04.2004 he deposited the case property at FSL vide RC 11/21/04. PW19 Ct. Mithlesh deposed that on 31.05.2003, he also deposited one sealed parcel at FSL Rohini.
16.After completing the prosecution evidence statement of accused u/s 313 Cr. PC was recorded in which the defence of accused was of denial in simplicitor. However, no defence evidence was led by the accused. Accused pleaded that he is innocent and he has been falsely implicated in this case. He did not commit any rape. He further took plea that this case has been filed to defame and to cause mental and physical sufferings to him. Prosecutrix is younger sister of his wife. She is 10 years younger to him. When she wrote him letters expressing love, he admonished her and warned her not to write such letters. His wife also admonished her and asked her not to repeat such acts of writing such letters. In 1998, the engagement of his brother in law Ravi Bhushan took place. At that time, his father in law, mother in law and both brothers in law namely Ravi Bhushan and Brij Bhushan came to his house and borrowed Rs.10,000/ and gold ornaments weighing 10 Tolas with a 16 promise to return after Gaud Ceremony. Accused pleaded that on demand, they refused to return money and ornaments and out of revenge, they filed this false case against him. He further pleaded that all these facts were apprised to Hon'ble Delhi High Court at the time of seeking anticipatory bail. Subsequently, complaint was filed by his wife against her mother, father and both brothers in law at PS Ashok Vihar, which was withdrawn due to pressure from elders of his wife's family.
17.Arguments were heard at length. It is argued by the ld. Counsel for the accused that there is no specific date mentioned for the first and second incident which is a highly important fact considering they were life altering incidents. The complainant in her examinationinchief (page 1, paragraph 2, line 6) clearly stated that she cannot recollect the date or the month of the first alleged incident. It is also an important fact that the complainant, at the time of so alleged first incident, was well educated and a mature person. Hence, it is highly improbable that if such incident had taken place, she would not be remembering the date or even the month of such incidents. These vague allegations and statements clearly demonstrate that it is just a story and not the truth. Ld. Counsel for accused again submitted that the place of first alleged incident i.e. 43A Ashok Vihar, was alleged to have been occupied by the accused, but the family of the accused was actually residing in that house at the time of 17 alleged offence and the complainant was not residing at the aforesaid address. In the complaint (Page 1, paragraph 4, line 2) the complainant has specifically stated that the wife of the accused was at Sahibabad i.e. at her parent's house and that no one was present at the said house in Ashok Vihar at the time of the alleged incident. The complainant in her examinationinchief (page 1, paragraph 2, Line 10), had repeatedly quoted the accused saying "from my house" on the date of the first incident, but had also admitted in crossexamination (page 8, paragraph 2, line 3), the knowledge, that the accused was not residing in 43A Ashok Vihar from 19951998. These statements by the complainant herself are contradictory to the core and do not inspire any confidence.
18.ld. Counsel for the accused further argued and submitted that regarding the incidents of Chandar Nagar, first of all, no date is mentioned. The complainant is unable to remember the address or identify the locality or even any landmark such as a park, hospital, school etc., which is highly improbable if the complainant was taken to that specific location on more than one occasion (Examinationinchief, page 1, paragraph 1, line 1). It is important to note that the accused never had any connection with any residence in Chandar Nagar and also that the complainant never raised any alarm in the mode of transportation taken at the time of such incidents (Crossexamination, page 9, paragraph 3, line 3). In addition, 18 regarding the mode of transportation, it is important to note that no TSR travels across the border of DelhiUttar Pradesh. Hence the statements made by the complainant are full of vague statements and allegations which do not hold any shred of truth in them. Again it is argued and submitted that the alleged incident of 19062003, has huge discrepancy regarding the chain of events between the complaint and the statement u/s 164. Such as in Complaint it has been alleged that First rape was committed, then, coffee was given to her to drink after which, she became unconscious and then photograph were claimed to have been taken while in Statement u/s 164 Cr.P.C: First coffee was given to her to drink, than photographs were alleged to have been taken. No mentioning of rape being committed in that incident. On these grounds ld. Counsel further submitted that these discrepancies in the statements of the complainant are grave as such chain of events cannot be easily forgotten. Hence these statements made by the complainant do not inspire confidence. Ld. Counsel again submitted that complainant has admitted in crossexamination that she has never actually seen the photographs herself. She had also admitted in crossexamination that, she could not identify the camera which was shown and alleged to have been used for taking the photographs. Ld. Counsel further argued and submitted that in the Crossexamination it has come on record that she only went to shopping with the accused once or twice. 19
19.Ld. Counsel again submitted that the last incident was reported to have taken place on 19.06.2003. On 26.06.2003 a notification regarding advertisement of posts in railways was advertised. Two separate forms were filed (Ex.PW1/DD and Ex.PW1/DE). In both forms, the correspondence address was that of the accused instead of her owns. The contents of the admit card was admitted to have been hers but, the complainant denied the fact of filing such application completely in cross examination. All these discrepancies and bizarre coincidents and facts admitted by the complainant do not inspire much confidence of the statement made by the complainant. Ld. Counsel again submitted that with regard to the torn pieces of letter presented by the accused that in the crossexamination, complainant admitted to have been written by her but alleged to have been dictated by the accused. The contents of this letter are very frank and obscene and no person in their right mind will allow any other person to have such letters against their will. It is also important to note that these pieces of letters were not mentioned or presented by the prosecution. It is only upon being confronted by these letters in crossexamination that the complainant made such admission. Hence even this statement by the complainant raises certain suspicion on the credibility of the story made by her but definitely does not inspire any confidence in the same.
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20.Ld. Counsel further stated that greeting cards presented in cross examination (Ex.PW1/DA, Ex.PW1/DB AND Ex.PW1/DC) by the accused have been admitted by the complainant and taken on record by the court to have been sent to accused by the complainant from 19972003. It is the proof that the complainant was in communication with the accused even after such alleged incidents. Ld. Counsel further argued and submitted that different versions of the fact that, how the alleged crime came to the knowledge of the parents of the complainant, by the statements made by the complainant herself or the family or the complainant's family members generate immense amount of doubt and do not inspire confidence at all. In support of his contentions, ld. Counsel for the accused has relied upon the judgment 'Vijayan vs State of Kerala', wherein it has been observed by the Hon'ble Supreme Court of India, that:
"delay of 7 months in filing FIR, in absence of any supporting evidence it would be unsafe to convict the appellant wholly on the basis of testimony of the prosecutrix."
21.On these grounds ld. Counsel for the accused argued and submitted that accused be acquitted by giving him benefit of doubt.
22.Contrary to it, ld. APP argued and submitted that prosecution has 21 successfully proved its case since prosecutrix has correctly identified the accused as culprit who raped her. Ld. APP further argued and submitted that alone statement of prosecutrix is sufficient to hold the accused guilty in rape cases. In support of his contentions he has stated that it has been held on the point of sexual assault that:
"The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict and accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape of sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence on an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity I the shape of rule of law is introduced through a new form of testimonial tyranny making justice a causality. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
In another case of S. Ramakrishna Vs. The State 2008 (11) JT 635, the Apex Court while delivering this judgment also observed: 22
"10. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (In short "the Evidence Act") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence "
The contentions of ld. Counsel for accused that having not found any injury on the private part of the prosecutrix exfacie indicates that no rape could have been committed. Ld. APP opposing the aforesaid contentions of the ld. Counsel, contended that in case 'B.C. Deva Vs. State of Karnataka 2007 VII AD (S.C.) 143= 2007 12 SCC 122, it has been held that merely because no injury was found on the private parts of the prosecutrix would not negate her testimony about the rape committed on her.
"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
23.ld. Counsel for the complainant through ld. APP has also relied upon the following citations:
a) 2003 (1) RCR - 733 - Vikram Singh Vs State of Haryana, wherein it has been observed that :
"Rape incident 13 years back and she was not a 23 consenting party." "The victim did not consent, statement made before Court"
b) (I )2003) SLT page 87 - SC Sudhansu Sekhar Sahoo Vs State of Orissa, wherein it has also been held that:
"Delay is not serious in lodging the FIR"
c) I (2004) SLT - 101 SC - State of Punjab Vs Ramdev, wherein it has been observed that:
"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the First Information Report............"
d)1996 (1) RCR - 533 - State of Punjab Vs Gurmit Singh, wherein it has been observed that:
"7. The trial Court also disbelieved the version of the prosecutrix regarding rape. It found that the testimony of prosecutrix did not inspire confidence for the reasons ......................
8. The grounds on which the trial court disbelieved the version of the prosecutrix are not all sound. The findings recorded by the trial court rebel against realimsm and lose their santity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was a student of X Class.........."
e) 2003 (1) RCR SC Sudhansu Sekher Sahoo Vs State of Orissa, wherein it has also been held that:
"In view of the social conditions in India, there may be delay in lodging FIR. Rape victim may think seriously before giving the information to the police about rape as the onslaught of a social stigma may haunt her for life. Though the delay as such is not serious, but while considering broad probabilities of the case, the delay in 24 giving the information to the police also assumes some importance."
f) 2004 (1) SCC 421 - State of Punjab Vs Ramdev Singh, wherein it has been observed that:
"Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity ...................... the right to life contained in Article
21. the courts are therefore expected to deal with the cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. ......"
In judgment 'State of U.P. Vs. Chhotey lal I (2011) SLT 445' it has been observed that:
"Section 375 clauses First, Second, Sixth Against her 'Will' and 'without her consent' - Expressions may overlap sometimes but surely two expressions in Clause First and Clause Second have different connotation and dimension. Meaning of expression.
Testimony of Prosecutrix - To be analysed and examined care fully. Evidence of prosecutrix is similar to evidence of an injured complainant or witness. Woman who is victim of sxual assault is not an accomplice to crime. Testimony of prosecutrix, if found reliable, may be sufficient to convict culprit and no corroboration of her evidence is necessary."
On these grounds ld. Counsel for complainant through ld. APP submitted that accused be convicted.
24.Before reaching at any conclusion let the section 90 of IPC on the point of consent be reproduced verbatim which is as under: "90. Consent known to be given under fear or misconception.A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a 25 misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
25.In the case in hand, it has specifically come on record in the deposition of prosecutrix that she has been raped by accused in the year 1997 at the point of knife therefore, the argument of ld. Counsel for accused that prosecutrix had given her consent to accused for sexual intercourse, does not come to his rescue in toto. However, the delay of about 7 years in lodging the FIR and intermittent sexual intercourse between accused and prosecutrix appears to have been impacted the element of consent which attract section 90 of the IPC. The element of consent can only be drawn from the crossexamination of the prosecutrix vide Ex.PW1/DA(Greeting Card), PW1/DB (envelop of greeting card) and PW1/DC (lover letter) which shows the fact that sexual intercourse between the prosecutrix and accused out of love and affection.
26.Again it is not out of place to mention here that at various occasions vide deposition of PW1 that she was subject to rape by accused who caused intrusion with intend to outrage her modesty, can be ascertained from the 26 sequence of events as mentioned above. In light of these facts and circumstances of the case, the case revolves around circumstantial evidence. In this regard the principles of circumstantial evidence have been well illustrated by Hon'ble Supreme Court of india in 'Padala Veera Reddy Vs State of A. P. and Ors.' that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests : the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
Time and again Hon'ble Apex Court reiterated the principles and explaining the magnitude of conviction on the basis of circumstantial evidence through catena of judgments reduced into the following three principles i.e. in case titled as 'Chandmal V State of Rajasthan AIR 1976 SC 917':
i) The circumstances from which evidence is drawn must be cogently and firmly established;
ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
iii) The circumstances taken cumulatively should form a 27 chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else.
The sum and substance of illustrations of the above bottomline principles is that as and when any conviction is recorded on the basis of the circumstantial evidence the court must take extra cautions to evaluate each and every aspect of the act of the accused and a chain of facts as well as artifacts which can give only one conclusion i.e. of inevitable finding and no scope of doubt remains in the chain of facts and artifacts.
27.However, there is blurred distinction between outraging the modesty of a woman and committal of rape. In this regard the following important observations have also been made in several cases which are as under: In 'Basudev Nain Vs State 1991 Cr. LJ 1594 (Ori)' it has been observed that :
"When the accused dragged a lady to some distance, stripped her of her clothing, and made her stark naked and did some immoral act not amounting to rape or attempt to rape, he is guilty under section 354 IPC".
Again in 'Kuthu Vs State of Madhya Pradesh 1998 Cr.LJ 960 (MP)' the following observation has been made ;
"When the accused took the prosecutrix to a lonely place by deception, then suddenly pushing bunch of leaves into her mouth and untid her undergarments, the offence of outraging modesty is proved."
In another case 'Shivraj Chandrappa Vs State of Maharashtra 1998 Cr. LJ 3168 (Bom)' it was observed that: 28 "The accused asked the victim gril to go inside the room to bring the tobacco packet, followed her into the room, locked the door from inside, wrapped cloth around her mouth so that she could not should and fell her on the wooden trunk in an attempt to rape her. She anyhow removed the cloth wrapped round her mouth and shouted, released herself and ran way. The accused is guilty of outraging modesty and wrongful confinement of the victim girl."
The relevant section 354 IPC is being reproduced verbatim which is as under: Section 354 IPC "Assault or criminal force to woman with intent to outrage her modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
28.In view of the observations made in the judgments by the Hon'ble Superior Courts the sum and substance with regard to the conviction of accused on the statement of prosecutrix alone is that corroboration from other sources for the conviction for the offence of rape is not mandate of law but the rule of prudence developed and laid down by the catena of judgments by the superior courts. It has come on record that prosecutrix first met with accused in the year 1997, second time in the year 2001, on 11.10.2002 and on 19.06.2003 but nowhere the matters appears to have been reported even intermittently which indicates that no sexual intercourse between the parties took place against the wishes of prosecutrix but simultaneously it can be inferred beyond reasonable doubt that at various occasions accused caused intrusion with intend to outrage the modesty of the prosecutrix. In this regard the deposition of 29 PW1 prosecutrix has been corroborated by the depositions of PW9, PW11 and PW10 who happens to be the brothers and mother of the prosecutrix respectively. Being PW9, PW11 and PW10 brothers and mother appears to be interested witnesses so the deposition of prosecutrix regarding taking out a knife by accused from his pocket on first occasion in the year 1997 and threatening her if she did not accept the offer of accused he would kill her and her family members, is not acceptable since this incident as deposed by PW1 took place in the year 1997 whereas the FIR of the present case was got recorded in the year 2003. Besides, no specific date and time has been given by the prosecutrix. Hence, in absence of corroboration from independent witnesses, recording of conviction against accused for the offence of rape may result into miscarriage of justice due to the fact that no complaint in this regard was made to any one prior to 2003 as the incident of rape as alleged took place in the year 1997 vide deposition of PW1 prosecutrix.
29.The deposition of PW1 prosecutrix that on 02.12.2003 as soon as her engagement was fixed with one boy, accused threatened her to cut into pieces, vide her complaint in this regard which is Ex.PW1/A and duly endorsed by IO vide endorsement Ex.PW20/A, can afford the conclusion to draw the inference that accused caused intrusion in the life of the prosecutrix and such act of accused causing threat to disclose relations 30 of the prosecutrix to the boy, certainly goes to indicate that accused outraged the modesty of the prosecutrix by threatening her, which is an offence punishable u/s 506 II read with 354 IPC. In light of these facts and circumstances of the case and absence of corroboration from other material independent witnesses the deposition of prosecutrix to the extent of causing threat and intrusion into the life of the prosecutrix, is acceptable to the court as the corroboration is not a rule of law but the rule of prudence which culminated through the common law. So to my view under the present circumstances of the case the conviction for rape of accused in absence of independent corroboration will lead to miscarriage of justice. However, no woman in the Indian ethos and pathos and cultural traditions will tell a lie regarding her modesty and chastity in the Society, so the deposition of prosecutrix cannot be denied in toto but an inference can be drawn that if no rape has been proved by some other external circumstances yet it can safely be inferred that accused impacted the modesty of the prosecutrix which is an offence punishable u/s 506 Part II, IPC. It is well settled proposition of law that accused can be convicted for the lessor punishment. Accordingly, I convict the accused for the offences u/s 506 - Part II read with 354 IPC and acquit the accused for the offence u/s 376 IPC precisely for the reasons discussed in the preceding paras.
Accordingly, I convict accused for the offences u/s 506 Part II IPC read with 354 IPC ; and I acquit him for the offence u/s 376 IPC.
ANNOUNCED IN THE OPEN COURT ON THIS 28.08.2012 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 31