Delhi District Court
State vs . Giri Raj on 21 April, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Sessions Case No. 1163/09
Unique Case ID No.: 02404R0268212009
State Vs. Giri Raj
S/o Bhola
R/o House No. 106,
Sadik Nagar, Old Azadpur
Railway Station, Delhi
(Convicted)
FIR No.: 162/09
Police Station: Adarsh Nagar
Under Section: 376/506 Indian Penal Code
Date of committal to Sessions Court: 5.11.2009
Date on which orders were reserved: 8.3.2011
Date of Judgment: 6.4.2011
JUDGMENT:
As per the allegations on 26.7.2009 at about 4:00 am in Jhuggi near DDA Building, Transport Center, Railway Bridge, Azadpur, Delhi the accused Giri Raj committed rape with a pavement dweller an old lady 'M' (name of the prosecutrix is withheld as this is a case under Section 376 Indian Penal Code) against her wishes and consent and after criminally intimidating her with threat to kill her by pointing a knife.
St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 1BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 27.7.2009 the prosecutrix 'M' went to Police Station Adarsh Nagar and got her complaint recorded wherein she informed the police that on 26.7.2009 at about 4:00 am the accused Riri Raj whom she knew previously, entered her Jhuggi situated on a pavement. She further informed the police that the accused showed her a knife and threatened her to kill after which he committed rape upon her and ran away. On the basis of the said statement of the prosecutrix the present FIR was registered and the accused was registered on the same day.
CHARGE:
The Ld. Predecessor of this court has settled the charges under Section 376/ 506 (II) Indian Penal Code against the accused Giri Raj to which he has pleaded not guilty and claimed trial.
EVIDENCE:
In order to discharge the onus, the prosecution has examined as many as ten witnesses as under:
Prosecutrix/ public witnesses:
PW4 is the prosecutrix 'M' who has deposed that on 26.07.2009 she was sleeping outside her jhuggi when at around 4.00AM accused Giri Raj (whom the witness has correctly identified in the court) came to her jhuggi and committed rape with her (Balatkar Kiya). According to the witness the accused was carrying St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 2 a knife and put the knife on her throat and threatened not tell any person about it or else he would finish her. She has testified that after committing the rape the accused ran away. According to the witness, she has no relative or near one and stays alone and after the incident she raised a hue and cry when all the persons from neighbourhood gathered. She has further deposed that she informed her neighbours as to what had happened who advised her to go to Police Station where her statement was recorded which statement is Ex.PW4/A bearing her thumb impression at point A. The witness has also testified that she was taken to hospital where she was medically examined and police had seized her petticoat in the hospital. She has further proved that the accused was arrested near the Azadpur Mandi when they were coming back from the hospital, vide memo Ex.PW4/B and his personal search was conducted vide memo Ex.PW4/C. PW4 has also proved that the accused made disclosure statement which is Ex.PW4/D. According to her, the accused Giri Raj used to reside in their locality and was a vagabond.
She has further proved her statement under Section 164 Code of Criminal Procedure recorded before the Ld. Metropolitan Magistrate which is Ex.PW4/E (including the application moved by the investigating officer) and the statement made by her is Ex.PW4/F. The witness has correctly the case property i.e. her petticoat which is Ex.P.1.
In her cross-examined the witness has deposed that she went to the Police Station in the evening but she is unable to tell the time since she does not have a watch. According to her, a small boy St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 3 from locality had accompanied her to some distance to tell her the location of the Police Chowki as she did not know the same but she is not aware the name of the child. The witness has further deposed that the police had first recorded her statement in the Chowki on the basis of what she had told them and she had first gone to the police chowki and then to the Police Station. She has testified that she must have remained in the chowki for about ten to twenty minutes and she was taken to the police station on the motor cycle by the police officer namely Dharamvir. According to PW4, when her statement was being recorded in the Police Chowki there were 6-7 policemen present and she was also scolded by the police officers as to why he had come in the evening when the incident was of the morning and she told them that she did not know the way to the chowki. She is not aware of the name of the police officer who had scolded her. PW4 has further deposed that her statement was first taken in the police chowki, then in the police station and thereafter in the court but she is unable to tell the name of the court but has stated that it was recorded in Rohini Court Complex. She has also deposed that she was taken to the hospital in a car and was accompanied by two police officials. According to her, she stayed in the hospital for about half an hour to 45 minutes and from the hospital she was taken back to the police station from where she went to her home/ jhuggi. She has further deposed that it was night when she left the police station though she is unable to tell the time and states that she reached home at about 8 to 9 PM. According to PW4, the accused Giriraj used to sit on the gate and was a pick St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 4 pocket and had even previously been arrested by the police. She has deposed that she noticed the accused in the area for the first time about six months prior to the incident. The witness has testified that at the time when she raised the alarm initially only three persons came one of them was Rehana, after about ten minutes a large number of persons gathered. According to her, one other lady who was from Bihar has shifted from the area being scared from the accused and out of the crowd which had gathered later she knew a large number of people. The witness has further deposed that the police had asked her the names of the neighbours and persons who had gathered and she had told them about the same but she is unable to tell the names of all the neighbour who had gathered since she knew the names of only a couple of them. She has denied the suggestion that police did not record her statement as per her dictation or that her statement made to them was involuntarily. She has also denied that she did not tell the police the details of the accused and states that she had told them the details and had also told them that the accused was residing near Lal Bagh Station. According to the witness, the police prepared the site plan on her pointing out after she had given her complaint at the chowki. She is unable to tell where the site plan was prepared but states that she had shown the spot to the police by taking them to the jhuggi. According to her, the police had come to her jhuggi on two or three occasion at the initial stage but she did not tell the police that the accused had entered inside the jhuggi and states that the incident occurred outside the jhuggi where she was sleeping. The witness St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 5 has been confronted with her statement made to the police which is Ex.PW4/A where it mentioned that the accused had entered inside her jhuggi on which the witness has deposed that she must have stated to the police that the accused came inside the jhuggi but she does not remember. According to him, there was no scarring on the throat when the accused had put knife on her throat and she made efforts to free herself. The witness has further deposed that she could not hit the accused with anything since she did not have anything while she was sleeping and the accused had first twisted her hand. According to PW4, she first came to realize that the accused was around her when he had twisted her hand while she was sleeping but she did not inform this fact regarding twisting her hand to the police. She has also deposed that she had been requesting people to call the police but nobody helped her. The witness has also deposed that she had told the police the length of the knife (the witness by gestures had stated that it was almost half an arms length). She is unable to tell the details of the knife as it was dark and states that she was sleeping outside the jhuggi as it was summer season and she does not even have a cot (Khat) and was sleeping on the ground. According to PW4, the accused was not arrested in her presence and states that she was called by the police to identify and tell if the accused was the same person who had raped her or not on which she identified him. She has admitted that police did not interrogate the accused in her presence nor the statement of accused was recorded in her presence. According to her, the police only seized her petticoat and no other clothes were seized. She has St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 6 denied that she did not recognize the accused when the accused was committing rape on her and states that she had identified him clearly since it was almost dawn. She has also denied that Giriraj had given her Rs.5,000/- five to six months prior to the incident which he was demanding back and since she was unable to pay him, she has falsely implicated him in the present case. According to her, the accused ran away soon after committing the rape and did not stop at all. She has admitted that she had told her neighbours what had happened but her neighbours told her that they were afraid of accused and she should go to the police station herself and one Dhaba Wala namely Barkat had sent a small boy with her since she had told these people that she did not even know where the police chowki was. According to PW4, there is an Arhat of the commission agents of apple in front of her jhuggi but states that the said commission agents only work during the day. She has deposed that Kamlo had her jhuggi next to her jhuggi but she had gone away on account of the threats given to her by the accused. The witness has further testified that on the other side there is the Kabar where junked item were lying and even her jhuggi had been broken by the relatives of the accused i.e. his brothers etc. who have pushed her away and did not permit her to stay there. The prosecutrix 'M' has admitted that he had not received any injuries at the time of incident and states that only her hand was twisted. According to her, the SHO had only questioned her on the incident but she is not aware as to who had written her statement. She is unable to tell who was the officer who had written her statement Ex.PW4/A. She has denied St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 7 that she is not aware of the contents of the statement recorded by the police since she is illiterate or that she has falsely implicated the accused only because she was not in a position to pay back the loan which she had taken from him. She has also denied the various other suggestions put by the Ld. counsel for the accused. (It has been observed by this court that the witness was a frail built and does not appear to be financially well off at all.) She has been re-examined by the Ld. Addl. PP for the State with the permission of the court, wherein the witness has admitted that the accused Giriraj was arrested while they were returning from the hospital. The witness has been confronted with her cross examination wherein she has stated that the accused was not arrested in her presence and she was called to the police station. The witness has been asked as to which statement is correct on which she replied that while they were returning from the hospital the accused was arrested as she had told earlier.
PW3 Smt. Rehana Begum is the neighbour of the prosecutrix who has deposed that she know Munni Devi who resides in her neighbourhood jhuggi. According to the witness, the date, month or year she does not remember as she is illiterate, but about six to seven months ago, Munni Devi was crying that Giri Raj has committed rape with her. The witness has deposed that Munni Devi informed her that Giri Raj had committed rape on her after threatening her with a knife.
During her cross examination by Ld. defence counsel, the witness PW3 has deposed that she know Munni Devi since two to St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 8 three months prior to the incident. According to the witness, Munni Devi had come to her at around 6-7 AM. Witness is unable to tell the date when her statement was recorded as she is illiterate. Her statement was recorded at her house during the day. She made her statement to the police voluntarily.
Medical evidence/ witnesses:
PW7 Dr. M. K. Singh, Senior Resident, Deptt. of Paediatrics, has deposed that on 27.7.2009, the prosecutrix aged about 60 years was brought to the hospital with alleged history of sexual assault who was examined by Dr. Mahesh, Jr. Resident under his (witness) supervision and after examination the patient was referred to Gyne. Department where she was examined by Dr. Shubha. According to the witness, on that day the accused Giri Raj aged 30 years was also examined by Dr. Vineet under her supervision and thereafter the patient was referred to SR Surgery where he was examined by Dr. Shubha. The witness has deposed that at present Dr. Mahesh, Dr. Vineet and Dr. Shubha have left the services of BJRM hospital. The witness has identified the signatures of Mahesh, Dr. Vineet and Dr. Shubha having seen them while writing and signing during the course of office duties. She has identified the signatures of Dr. Mahesh at point A and of Dr. Shubha at point B on the MLC of the prosecutrix which is Ex.PW7/A. She has also identified the signatures of Dr. Vineet and Dr. Shubha at point A and B respectively on the MLC of accused Giri Raj on the MLC Ex.PW7/B. This witness has not been cross examined on St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 9 behalf of the accused despite opportunity in this regard.
Forensic evidence/ witness:
PW6 V. Shankarnarayanan, SSA, (Bio) FSL, has deposed that on 18.8.2009, four sealed cloth parcels were received in his office in the present case and on biological examination, blood was detected on Ex.4 and human semen was detected on Ex.2a, 2b and 3. He has proved his detailed report which is Ex.PW6/B bearing his signatures at point A. This witness has not been cross examined by the accused despite opportunity.
Police/ official witnesses:
PW1 HC Raghubir Singh has deposed that on 27.7.2009, he was posted as duty officer in police station Adarsh Nagar and was on duty from 5:00 PM to 1:00 AM, and at about 5:20 PM, on receipt of the rukka from W/SI Mukesh Devi, he recorded the present FIR and after registration of the same, handed over the copy of FIR and the rukka to Ct. Yogesh for handing over the same to W/SI Mukesh Devi copy of which is Ex.PW1/A bearing his signatures at point A and the endorsement made by him upon the rukka is Ex.PW1/B. The witness has not been cross examined on behalf of the accused, despite opportunity in this regard.
PW2 Ct. Rakesh has deposed that on 27.7.2009, he was posted as constable in Police Station Adarsh Nagar and on that day he along with W/SI Mukesh Devi, Ct. Mukesh and the complainant Smt. Munni Devi went in search of the accused and when they St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 10 reached near the Gate No. 1 of Azadpur Mandi where at the instance of complainant Munni Devi, accused Giri Raj was apprehended and after interrogation he was arrested. According to the witness, thereafter they reached BJRM hospital where complainant Munni Devi and the accused were medically examined. He has deposed that in the meantime Ct. Yogesh came in the hospital along with the rukka and copy of FIR and handed over the same to the investigating officer. According to the witness, after medical examination of the accused, the pulanda containing blood sample and clothes of the accused and the sample seal were taken into possession vide memo Ex.PW2/A bearing his signatures at point A. Thereafter, the accused was sent to the lock up and the case property was deposited in the malkhana.
During his cross examination by Ld. defence counsel, PW2 Ct. Rakesh has deposed that they reached at Gate No. 1 of Azadpur Mandi at about 5.30 PM and that at the time of arrest of the accused, complainant was also present and thereafter they left the for the hospital within 2/3 minutes. According to the witness, the accused was interrogated at 6.00 PM. Witness does not remember if the complainant Munni Devi was present at the time of interrogation of the accused. He has deposed that no public person was present when the accused was interrogated. According to the witness, after the arrest of the accused, his family members were informed by the investigating officer. According to him, Ct. Yogesh came in the hospital at around 6 - 6.30 PM.
St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 11PW5 HC Prahlad Singh has deposed that on 27.7.2009, he was posted as MHCM at Police Station Adarsh Nagar and on that day he investigating officer / SI Mukesh Devi deposited two pullandas sealed with the seal of MS BJRM hospital alleged to be containing the undergarments and vaginal swab of the prosecutrix along with two sample seals. According to the witness, the investigating officer had also deposited two more sealed pullandas with the seal of MS BJRM hospital alleged to be containing blood sample and pant of accused Giri Raj along with two sample seals. According to the witness, he made the entry at S. No. 4006 of Register No. 19. He has deposed that on 18.8.2009, the exhibits were sent to FSL Rohini through Ct. Mukesh vide RC No. 99/21/09 and thereafter he deposited the receipt. On 28.1.2010, HC Dilraj had deposited the pullandas alongwith FSL form. The witness has proved the relevant entry on register no. 19 and register no. 21 which are Ex.PW5/A and Ex.PW5/B respectively. According to the witness, the pullandas remained intact during his custody and he did not interfere with them nor allowed anyone to interfere.
PW8 Ct. Yogesh has deposed that on 27.7.2009, he was posted as a Constable in police station Adarsh Nagar and at about 6:00 PM, the duty officer handed over the copy of FIR and original rukka to him for further handing over to the investigating officer in the BJRM hospital. He took the same to BJRM hospital and handed over the same to investigating officer SI Mukesh Devi. This witness has not been cross examined on behalf of the accused despite opportunity in this regard.
St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 12PW9 Ct. Mukesh has deposed that on 27.7.2009 he was posted as Ct. at police station Adarsh Nagar and on that day he along with Ct. Rakesh Kumar and complainant Smt. Munni Devli left for search of the accused and when they reached at Gate No.1, Azad Pur Mandi complainant Munni Devi had pointed out towards a person coming from front side as accused Giri Raj and at her instance he was apprehended and on interrogation his name was known as Giri Raj after which he was taken to BJRM Hospital. According to the witness, the medical examination of the prosecutrix was got conducted and doctor handed over the exhibits of prosecutrix one of them containing the clothes of the prosecutrix and both the parcels alongwith the sample seal were taken into possession by the IO vide seizure memo Ex.PW9/A bearing his signatures at point A. According to the witness, the doctor had also handed over two sealed parcels and one sample seal duly sealed with the seal of hospital which were taken into possession vide memo Ex.PW2/A bearing his signatures at point B. The witness has further deposed that at the same time, Ct. Yogesh brought the copy of FIR and original rukka and handed over the same to the IO after which accused Giri Raj was arrested in the present case vide memo Ex.PW4/B and personally searched vide Ex.PW4/C bearing his signatures at point B. Thereafter, the accused was interrogated and his disclosure statement was recorded vide Ex.PW4/D bearing his signatures at point B. The witness has further deposed that, on 18.8.2009, he again joined the investigations of this case and took four sealed parcels and four sample seals from MHC(M) and took St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 13 the same to FSL Rohin vide RC No. 99/21 and handed over the copy of the receipt of the MHC(M) after the same have been deposited. According to him no tampering was done while the aforesaid exhibits and sample seals remained in his possession. This witness has not been cross examined on behalf of the accused despite opportunity in this regard.
PW10 SI Mukesh Devi is the investigating officer of this case who has deposed that on 27.7.2009 she was posted at Police Station Adarsh Nagar and on that day at about 4:00 pm she received a phone call from the Police Station pursuant to which she went to the Police Station. According to her, prosecutrix 'M' met her in the police station and gave her statement which is ExPW4/A on which she prepared the rukka Ex.PW10/A and same was handed over to the Duty Officer for getting the case registered. She has further deposed that she along with prosecutrix and Ct. Rakesh and Ct. Mukesh left the police station for the search of accused and for the medical examination of the prosecutrix and when they reached near the gate of Azadpur Subzi Mandi, the accused Giri Raj met them. The witness has further deposed that the prosecutrix pointed out towards the accused as the same person who committed rape upon her and at the instance of Munni Devi the accused was apprehended after which the accused and the prosecutrix were taken to BJRM Hospital and got their medical examination conducted. She has proved having received the MLC of the prosecutrix which is Ex.PW7/A and that of the accused which is Ex.PW7/B. According to her, she received the exhibits of the accused from the doctor and St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 14 seized the same vide memo Ex.PW2/A and also seized the exhibits of the prosecutrix vide memo Ex.PW9/A. The witness has also deposed that Ct. Yogesh brought the copy of FIR and original rukka in the hospital and the accused Giri Raj was arrested in the hospital itself vide memo Ex.PW4/B and personally searched vide memo Ex.PW4/C after which the accused was interrogated and his disclosure statement was recorded which is Ex.PW4/D. The investigating officer has further deposed that the exhibits were deposited in the Malkhana and prosecutrix was relieved from the hospital. She has proved having recorded the statements of witnesses under Section 161 Code of Criminal Procedure. According to her, on 28.7.2009 she prepared the site plan at the instance of Munni Devi which is Ex.PW10/B and moved an application for getting the statement of prosecutrix recorded under Section 164 Code of Criminal Procedure vide Ex.PW10/C and on the same day the statement of the prosecutrix was recorded by the Ld. Metropolitan Magistrate which statement is Ex.PW4/F (duly proved by the prosecutrix herself). The witness has also proved having moved an application for obtaining the copy of the statement of prosecutrix vide Ex.PW4/E and thereafter she received the copy of the same. The investigating officer has further deposed that on 18.8.2009 she sent the exhibits of this case to FSL through Ct. Mukesh and thereafter she collected the FSL result. According to her, after completion of investigations she prepared the charge sheet which was filed in the court through SHO.
St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 15In her cross-examination the witness has deposed that the prosecutrix was alone when she took her for her medical examination and the relatives of the prosecutrix did not come even after her medical examination. She has further deposed that the prosecutrix did not inform her that she knew the accused Giri Raj prior to the date of incident. According to her, the prosecutrix used to sell vegetables after purchasing the same from the Mandi but she is not aware what the accused Giri Raj is doing. She is also not aware the colour of the clothes worn by the prosecutrix at the time of her medical examination and the colour of the petticoat worn by the prosecutrix. She has admitted that Rehana is the only person to whom the prosecutrix is known. According to her, she herself recorded the disclosure statement of the accused but she does not remember whether the accused informed her about his profession. She has testified that the accused Giri Raj was wearing a pant and shirt at the time when he was medically examined but she does not remember the colour of his clothes. She has admitted that no recovery of churra/ knife was effected in this case and only the prosecutrix had alleged that the accused had threatened her with a churra. According to PW10, the prosecutrix is residing alone with no relatives at open Patri near DD Building Azadpur and the prosecutrix did not disclose about her details regarding native village or district etc. She has further admitted that there is no document on record to show that the prosecutrix is aged 60 years but she herself disclosed her age. According to her, she has no idea since when the prosecutrix is residing in Delhi. The witness has denied the St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 16 suggestion that she had not conducted the investigations of this case fairly or that all the writing work was done while sitting at police station.
Statement of the prosecutrix/ defence evidence:
After completion of prosecution evidence the statement of the accused has been recorded under Section 313 Code of Criminal Procedure wherein all the incriminating material was put to him which he has denied. According to the accused he is innocent and has been falsely implicated in the present case. He has examined one Babu Bhaiya in his defence as DW1.
DW1 Babu Bhaiya has deposed that the accused Giri Raj is his neighbour and reside in the same area and is a vegetable vendor. According to him, few days back, he came to know that he is in judicial custody. The witness has deposed that he is a married man with five children and enjoys a good reputation in the area and there are no complains against him.
In his cross-examination by the Ld. Addl. PP for the State the witness has testified that the accused Giri Raj is residing in the area since 1990 in the jhuggies constructed along the railway line. According to him, the family of accused is comprising of his mother, a younger brother and five children and his wife had left him about 8-9 months back. He has deposed that the family of Giri Raj is known to him well and he had only heard that Giri Raj had been arrested on the allegations of rape but he has no personal knowledge of the case. The witness has admitted that whatever he know was on the basis of what was told to him by the neighbours St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 17 but he is not aware of the facts of the case nor the accused told him about the same. He is not aware why the wife of the accused has left the family of the accused and states that he presumed that accused was in judicial custody and it was in his absence, she was not getting along well with the family of the accused and she therefore left the children and had gone away. He has denied the suggestion that he is deposing falsely before the Court only because he is the neighbour of the accused, whose family is well known to him. He has admitted that he had come to the Court along with the family members of the accused.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. counsel for the accused. I have also gone through the testimonies of the witnesses and also the written synopsis filed on behalf of the accused.
Age/ status of the prosecutrix:
The prosecutrix 'M' before the court is aged about sixty years as claimed by her and is a rag picker residing on a Patri in a Jhuggi which is situated at the virtual corner of the Jhuggi Cluster. There is no dispute to the age of the prosecutrix.
Identity of the accused:
The accused Giri Raj has been duly named by the prosecutrix in her first statement to the police. He was known to the prosecutrix even prior to the date of incident being a resident of the St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 18 same area. According to the prosecutrix, the accused Giri Raj is a vega-bond and was involved in cases of pick pocketing. Again, in her statement under Section 164 Code of Criminal Procedure before the Ld. Magistrate, the prosecutrix has specifically named the accused. Further, during her examination in the court she has not only named but also specifically identified the accused Giri Raj as the person who had committed rape (Balatkar) upon her.
Statement of the prosecutrix/ allegations against the accused:
The case of the prosecution is that the prosecutrix who is an old lady of sixty years, is a rag-picker and earns her livelihood as such. On the date of incident i.e. on 26.7.2009 while she was sleeping inside her Jhuggi (according to the prosecutrix, it was outside the jhuggi) the accused came to the place where she was sleeping and committed rape upon her by putting a knife on her throat and thereafter threatened her not to tell any person about the incident. According to the prosecutrix, after committing rape the accused ran away on which she immediately raised a hue and cry when all the people from the neighbourhood gathered and she told them what had transpired. On this her neighbours advised her to approach the police but none came forward to help her. She in her statement has specifically deposed that the accused Giri Raj used to reside in their locality and was a vega-bond. The witness has identified her signatures on the statement made by her before the Ld. Metropolitan Magistrate under Section 164 Code of Criminal Procedure and has also identified his petticoat which had been seized by the investigating officer. I have gone through the St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 19 statement made by the prosecutrix before the Ld. Metropolitan Magistrate under Section 164 Code of Criminal Procedure (duly proved by the prosecutrix herself) wherein she has supported the version earlier given by her to the police. The relevant portion of statement of the prosecutrix given to the Ld. Metropolitan Magistrate under Section 164 Code of Criminal Procedure is as under:
"...... 26.7.2009 ko subah char baje mere gale par Giriraj ne churi rakhi jab main so rahi thi. Usne mere kapre pakar kar khinche to main jaag gai. Veh bola aawaz mat nikalna varna main tere ko churi maar kar jaan se khatam kar doonga. Main zamin par leti rahi aur usne mere saath galat kaam kiya aur veh vahan se bhaag gaya....."
She has similarly deposed before the court and corroborated the aforesaid version given by her to the Ld. Metropolitan Magistrate. The relevant portion of her testimony is as under:
"...... On 26.07.2009 I was sleeping outside my jhuggi. At around 4.00AM accused Giriraj present in the court today came to my jhuggi and he committed rape with me (Balatkar Kiya). He was carrying a knife and he put this knife on my throat and threatened me not tell any St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 20 person about it or else he will finish me. After committing the rape he ran away. I have no relative or near one and stay alone. After the incident I raised an alarm and hue and cry and all the persons from neighbourhood gathered.
I informed my neighbours what had happened and they advised me to go to Police Station where my statement was recorded. The said statement is Ex.PW4/A which bears my thumb impression at point mark A. I was taken to hospital where I was medically examined.
Police had seized my peticott from hospital. The accused was arrested near the Azadpur Mandi when we were coming back from the hospital.
The accused was arrested vide memo Ex.PW4/B bearing my thumb impression at point A and his personal search was conducted vide memo Ex.PW4/C. Accused made disclosure statement Ex.PW4/D bearing my thumb impression at point A. Accused Giriraj used to reside in our locality and was a vagabond. My statement was also recorded before the Ld. M.M. ....."
It is evident from the above that firstly the identity of the accused Giri Raj stands established; secondly the act of the accused St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 21 in forcing himself down on the prosecutrix, an aged lady of 60 years of a frail built (as observed by the court during her examination) and thereafter committing rape upon her stands established and lastly the accused having committed the act by executing a threat of killing her in case if she raises an alarm by showing her a knife also stands established.
The prosecutrix has been exhaustively cross-examined by the Ld. Counsel for the accused wherein she disclosed that she had gone to the Police Station along with a small boy from the locality on which aspect there is no rebuttal. According to her, she first went to the Police Chowki and told them what had happened, from where she was taken to the Police Station on a Motorcycle by one police official namely Dharamvir. She has also testified that she was scolded by the police officers as to why there was a delay in coming to the Police Station and she had come in the evening despite the fact that the incident was of morning when she told them that she did not know the way to the Chowki.
In this regard I may observe that the Hon'ble Apex Court in the case of State of Rajasthan Vs. Om Prakash reported in (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
In the case of Tulshidas Kanolkar Vs. The State of Goa reported in (2003) 8 SCC 590, the Hon'ble Supreme Court has observed as under:
St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 22"..... The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle."St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 23
Applying the settled principles of law to the facts of the present case, no doubt there is a delay in registration of the FIR but this court has observed that the prosecutrix is an old lady of sixty years with a frail built and is not financially well off with no family or social support having a Jhuggi on the pavement and earning her livelihood by rag picking. Therefore, with this background the delay in the registration of FIR will not be fatal to the case of the prosecution since a valid explanation is forthcoming for the same. I am satisfied by the explanation offered by the prosecutrix and there is no reason to doubt the same since the aspect of the incident being taken place also finds a corroboration from independent sources.
In her cross-examination the prosecutrix has also submitted that one Rihana Begum had come to her when she raised a hue and cry when she had disclosed to her that Giri Raj had committed rape upon her. This testimony of the prosecutrix finds due corroboration from the testimony of Rihana Begum (PW3). Rihana Begum (PW3) has corroborated the testimony of the prosecutrix 'M' to the extent that about six to seven months from the date of her deposition in the court, she found the prosecutrix crying and she had told her that Giri Raj had committed rape upon her after threatening her with a knife. She has in her cross-examination stood her version. Though, Rihana Begum is unable to tell the date when her statement was recorded but according to the witness, her statement was recorded at her house during the day. She has also deposed that the prosecutrix had come to her at about 6:00 / 7:00 pm. There is no reason to doubt the version given by the St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 24 prosecutrix.
The provisions of Section 114 A of the Indian Evidence Act provide that in a prosecution for rape under Section 376 of the Indian Penal Code where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. In the present case apart from the statement of the prosecutrix, the forensic report also corroborates her version as semen stains have been detected in the swab and hence there is a valid presumption in favour of the prosecutrix as aforesaid.
Medical Evidence/ FSL Result:
Dr. M.K. Singh (PW7) has proved the MLC of the prosecutrix 'M' aged about 60 years who had been brought to the hospital with the alleged history of sexual assault. The MLC Ex.PW7/A shows that there was no external injury present on the body of the prosecutrix at the time she was examined. Further, it is evident from the MLC that the prosecutrix was examined on 27.7.2009 and she had told the doctor that she had been sexually assaulted at about 4:00 am on 26.7.2009. The FSL result has been duly proved by Senior Scientific Officer Sh. V. Shankaranarayanan.
The Biological report is Ex.PW6/A and the Serological report is Ex.PW6/B according to which human semen was detected on Ex.2a, 2b (micro slides of the prosecutrix prepared by the doctor at St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 25 BJRM Hospital) and Ex.3 (pants worn by the accused). I may observe that the incident having occurred at about 4:00 am to 5:00 am on 26.7.2009 and the vaginal swab being taken on 27.7.2009 at 6:20 pm i.e. after 36 - 37 hours will not be fatal to the case of the prosecution since medically the presence of the semen in the vagina can last upto 72 hours unless the vagina has been properly washed internally which is not the case. The victim is a pavement dweller who was scantly dressed in a petticoat at the time of the incident and apparently did not even have a bath, since at the time when she went to the Police Chowki and then to the hospital, she was wearing the same petticoat. There is no reason to disbelieve the findings of the forensic expert and I hereby hold that the FSL report supports the oral testimony of the prosecutrix.
Defence of the accused:
The defence of the accused is that the prosecutrix had taken a sum of Rs.5,000/- from him and when he asked for return of the same she falsely implicate him. In the cross-examination of the prosecutrix this suggestion of her having taken Rs.5,000/- from the accused had been made to her which she has specifically denied. On the other hand, the prosecutrix has made allegations that the accused is a vega-bond of the area and is involved in criminal cases of pick pocketing. She has specifically denied that she has falsely implicated the accused because she has not been able to pay back the loan which she had taken and there no was no such incident or that she had falsely implicated the accused on the asking of neighbours as a part of the conspiracy.St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 26
The defence so raised by the accused does not appear to be genuine since no woman worth the name would expose herself to such an allegation at this age (60 years) and that too against a young man of the age of her son (30 years) only because she is unable to pay back the loan. Firstly no documentary evidence of the loan being advanced to the prosecutrix has been brought on record. Secondly the neighbour of the victim namely Rehana Begum had seen the victim crying and on her asking, the prosecutrix had informed her that she had been raped by the accused.
It is evident from the testimony of prosecutrix that she has no family support and had been living alone and after the incident the family of the accused have demolished her Jhuggi and have pushed her away from the area after which she is homeless. It has also come on record in the testimony of the prosecutrix that one Kamlo who was residing in the Jhuggi next to her Jhuggi has also left the area which according to the prosecutrix was on account of the threats being extended to her by the accused on which aspect the prosecutrix has not been cross-examined.
The accused has examined one Babu Bhaiya who is stated to be residing in the same area, as his witness as DW1. In his cross-examination DW1 has informed the court that the wife of the accused had left him about eight to nine months ago and he has no personal knowledge of the case. He has also stated that he is not aware of the facts of the case and is not aware why the wife of the accused had left. This being the background, I hereby hold that the defence witness is unable to help the accused in any manner.St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 27
Arguments of the Ld. Counsel for the accused:
Ld. Counsel appearing on behalf of the the accused has vehemently argued that as per the prosecutrix, the accused was a pick pocket and used to sit on the gate and had been arrested by the police and that she (prosecutrix) had even noticed the accused for about six months prior to the incident. According to the Ld. counsel, the accused Giri Raj has clean antecedents and has no criminal case pending against him which belies the claim of the prosecutrix. Ld. counsel has further pointed out that according to the prosecutrix a large number of persons had gathered when she raised an alarm but those persons have not been cited as witnesses and therefore, the version of the prosecutrix should not be believed. She has also pointed out that the knife allegedly used by the accused to threaten the prosecutrix has not been recovered due to which reason the version of the prosecutrix that she was raped on the point of knife cannot be believed.
Ld. Addl. PP for the State on the other hand has vehemently argued that mere non recovery of the knife would not be fatal to the prosecution case once the prosecutrix in her testimony stood her version to this effect. He has also pointed out that the prosecutrix is an old lady of 60 years and was a pavement dweller without any family or social support and taking advantage of her pitiable situation, the family of the accused has demolished the jhuggi of the prosecutrix leaving her homeless. He has also pointed out that the public witness Kamlo who was the neighbour of the prosecutrix and had come to the spot after the prosecutrix raised an St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 28 alarm, is not traceable having left the area on account of the threats extended by the family of the accused and this being so, the accused cannot be permitted to take advantage of the situation which is his own creation.
I have considered the submissions made before me. Though, there are no details of previous criminal involvements of the accused Giri Raj but that in itself would not be sufficient to discredit the testimony of the prosecutrix. I may observe that the witness examined by the accused in his defence has himself disclosed that even the wife of the accused had left him about six to seven months ago. Further, Rehana Begum (PW3) who is the neighbour of the prosecutrix had also been examined by the prosecution and she stood by the version given by her to the police. The prosecutrix has even testified that one Kamlo who was residing next to her Jhuggi, had left out of fear as she had been threatened by the family of the accused. Further, non joining of other public witnesses would not be fatal to the case of the prosecution once there is sufficient corroboration from other sources. The accused cannot be permitted to take the benefit of his own wrongs and once the prosecutrix has specifically stated that she had been threatened by the account on the point of knife, non recovery of the knife will not prove fatal to the case of the prosecution.
FINAL CONCLUSIONS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 29 laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The circumstances should be of conclusive nature and tendency;
3. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the settled principles of law to the facts of the present case, it is evident that the prosecution has been able to prove and establish the identity of the accused Giri Raj who is residing in St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 30 the locality. It has also been proved that the age of the prosecutrix 'M' is 60 years. It stands established that on 26.7.2009 at about 4:00am while the prosecutrix was sleeping at her Jhuggi the accused Giri Raj committed rape upon her after threatening her with a knife and also threatened her to kill her if she disclosed the incident to anybody. The prosecution has further proved that after committing the rape, the accused Giri Raj ran away from the spot and the prosecutrix raised an alarm on which her neighbourers had gathered and advised her to report the matter to the police. The forensic evidence on record proves the allegations of rape upon the prosecutrix and human semen was detected on Ex.2a, 2b (micro slides of the prosecutrix prepared by the doctor at BJRM Hospital) and Ex.3 (pants worn by the accused).
The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLC, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical/ forensic evidence and the witness of the prosecution have been able to built up a continuous link.
St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 31This being the background, I hereby hold the accused Giri Raj guilty of the offence under Section 376 and Section 506 (II) Indian Penal Code for which the accused is accordingly convicted.
Case be listed for arguments on the point of sentence on 18.4.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 8.4.2011 ASJ-II(NW)/ ROHINI St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 32 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI Sessions Case No. 1163/09 Unique Case ID No.: 02404R0268212009 State Vs. Giri Raj S/o Bhola R/o House No. 106, Sadik Nagar, Old Azadpur Railway Station, Delhi FIR No.: 162/09 Police Station: Adarsh Nagar Under Section: 376/506 Indian Penal Code Date of Conviction: 6.4.2011 Arguments heard on: 18.4.2011 Date of Sentence: 21.4.2011 APPEARANCE: Present: Sh. Taufiq Ahmed, Addl. Public Prosecutor for the State.
Convict Giri Raj in judicial custody with Ms. Amba Gupta advocate.
ORDER ON SENTENCE:
Vide my detailed judgment dated 6.4.2011 the accused Giri Raj has been held guilty of the offence under Section 376 and 506 (II) Indian Penal Code and convicted accordingly.St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 33
The accused Giri Raj a young boy of 30 years has been accused of raping the prosecutrix 'M' a destitute aged about 60 years on the point of knife. As per the allegations on 26.7.2009 at about 4:00 am while the prosecutrix 'M' was sleeping at her Jhuggi, the accused Rigi Raj who is a vega-bond, committed rape upon the prosecutrix by putting a knife on her throat. He also threatened the prosecutrix to kill her if she disclosed the incident to anybody and after committing the rape, he ran away from the spot. As soon as the accused ran away the prosecutrix raised an alarm on which her neighbourers gathered and she disclosed the incident to them. Her neighbourers advised her to report the matter to the police but did nothing to help her. The prosecutrix, a rag picker, an old lady of 60 years did not know the way to the Police Station. Ultimately it was a Dhabawala in the area who on seeing the plight of the prosecutrix sent his small boy (Chottu) to show the prosecutrix the way to the Police Chowki and advised her to lodge a complaint. This was under these circumstances that the prosecutrix reached the Police Chowki and narrated the incident to the Chowki Incharge and also specifically named the accused as the violator. At the Police Chowki she was scolded as to why she had come late on which she explained her circumstances to the Police and the Chowki Incharge thereafter took the prosecutrix 'M' to Police Station on their official motorcycle where the present case was registered and the prosecutrix was got medically examined and the accused arrested on her pointing out. The prosecutrix 'M' has appeared in the court and duly identified the accused as the person who has committed rape St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 34 upon her. On the basis of the testimony of the prosecutrix and the forensic evidence on record proving the presence of semen on the micro slides of the prosecutrix and the pants of the accused; this court has held the accused Giri Raj guilty of the offence under Section 376 and 506 (II) Indian Penal Code and convicted him accordingly.
I have heard the arguments on the point of sentence. Ld. counsel appearing on behalf of the convict has vehemently argued that the convict Giri Raj is a young man and belongs to a very poor family. It is submitted that the convict Giri Raj has not been held guilty in any other case. He submits that the convict is the only earning hand of his family and any harsh view against the convict would adversely affect his entire life as well as the other members of his family who are dependent upon him. According to the Ld. counsel the convict is in judicial custody since 27.7.2009 and requests that a lenient view be taken against him.
Ld. Addl. PP for the State on the other hand has argued that a strict punishment be awarded against the convict the convict, by his act, has defamed the sanctity of the prosecutrix, a married woman. He has requested for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him.
I have considered the rival contentions. The convict Giri Raj is young man of 30 years having a family comprising of aged parents, wife, two sons and three daughters. He is totally illiterate and was running a Rehri of juice. I may also observe that the St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 35 convict is involved in two other cases i.e. FIR No.84/09, Police Station Adarsh Nagar, under Sections 325/506 IPC and FIR No.347/06, Police Station Adarsh Nagar; under Sections 324 IPC. The prosecutrix all through the trial had alleged that the accused was a vegabond having criminal cases against him but the accused denied the same and even suggested to the prosecutrix that there were no cases.
It has been observed by the Hon'ble Apex Court that Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. [Ref.: State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550].
Rape is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution'). Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely since it affects the entire psychology of a woman and pushes her into deep emotional crisis.
As observed by the Hon'ble Apex Court a socially sensitized judge, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions. [Ref.: Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty reported in AIR 1996 SC 922].
St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 36It is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. (Ref: Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78).
Of late crime against women generally and Rape in particular is on the increase and ironically society appears to be unconcerned, showing little or no concern for honour of women. Crime of rape instead of declining has increased and has assumed dangerous proportion. The act of the accused who was a married man in raping a woman old enough to be his mother is not only shocking but also outrageous in its contours and does not call for any leniency. Leniency in matters involving sexual offences is not only undesirable but also against public interest. Such types of offences are dealt with severality and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy.
In the present case, the prosecutrix 'M' a destitute aged 60 years was residing alone in her Jhuggi constructed on a pavement with no social or familial support. Taking advantage of the old age and frail/ weak built of the prosecutrix and her defenceless situation, the convict Giri Raj aged 30 years, committed rape upon her in the early morning finding her a soft target on the point of knife and St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 37 threatened her to kill if she disclosed about the incident to anyone. It has also come on record that the family of the convict had demolished the Jhuggi of the prosecutrix during the trial of the present case and also threatened one Kamlo a neighbour of the prosecutrix as a result of which the said Kamlo has left the area and could not be made available during the trial.
It is in this background that this court is required to treat the issue with more sensitivity. The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent and I am convinced that the convict Giri Raj deserves no mercy and any leniency shown to the convict would be highly misplaced. I hereby award the following sentences to the convict Giri Raj:
1. The convict is sentenced to Rigorous Imprisonment for a period of Ten Years and fine to the tune of Rs.25,000/- for the offence under Section 376 Indian Penal Code. The total fine amount of Rs.25,000/- (Rs. Twenty Five Thousand), if recovered, shall be paid to the prosecutrix 'M' under Section 357 Cr.P.C. as compensation. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of Six Months.
2. Further, the convict is sentenced to Rigorous Imprisonment for a period of two years and fine to the tune of Rs.2,000/- for the offence under Section 506 (II) Indian Penal Code. In default of the payment of fine the convict shall undergo Simple St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 38 Imprisonment for a period of one month.
Both the sentences shall run concurrently. Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules. The convict is in judicial custody. He is sent to judicial custody for serving the remaining sentence.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of cost and another be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 21.4.2011 ASJ-II(NW)/ ROHINI
St. Vs. Giri Raj, FIR No. 162/09, PS Adarsh Nagar Page No. 39