Delhi District Court
State vs . Asif Malik Page No. 1/21 on 17 August, 2016
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0108112014
SC No. : 104/14
FIR No. : 376/14
U/s. : 376 IPC
PS : Govind Puri, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Asif Malik
S/o Shri Ikramuddin
R/o TA51, Gali no.3,
Tuglakabad Extn., New Delhi ........................ Accused
Date of Institution : 15.05.2014
Judgment reserved for orders on : 13.07.2016
Date of pronouncement : 17.08.2016
J U D G M E N T
Facts
1. On 06.04.2014, the prosecutrix (name withheld to protect her identity) came at the police station Govind Puri, New Delhi and got recorded her statement interalia that she was married to the accused Asif Malik on 14.06.2013. It was a love marriage. The family members of Asif Malik did not like her. Asif Malik divorced her in January 2014. She alleged that after the divorce, accused Asif used to call her and say that his family members made him divorce her but he would again perform Nikah with her.
FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 1/21 She alleged that on 06.04.2014, when she was alone in her house at Bhumiheen Camp, Govind Puri, at about 7:30 p.m., she found the accused standing at the door of her house. When she asked him to go, he gagged her mouth and committed rape upon her. She thereafter pushed him, bolted the door from outside and informed the police. The police came and apprehended him. She alleged that the accused committed sexual intercourse with her against her wishes and without her consent. Investigation
2. On this complaint, the case was registered u/s 376 IPC. The prosecutrix was sent to AIIMS for her medical examination. The accused was arrested. He was also got medically examined. The police recovered the bedsheet spread on the bed. The exhibits of the prosecutrix and the accused were collected and sent to the FSL. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. During the investigation, the prosecutrix handed over the copy of settlement order dated 30.01.2014 alongwith the copy of MOU dated 27.01.2014 between her and the accused. Verification of the age of the prosecutrix as well of the accused was made. School record was collected. The call details records in respect of the mobile number 9654955329 and 9873985344 for the period of 01.03.2014 to 10.04.2014 were collected from the service provider. Investigation revealed that both the prosecutrix and the accused were in regular contact with each other. After the investigation, the accused was sent for trial for the offence punishable u/s 376 IPC.
Charge
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 15.05.2014, prima FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 2/21 facie case was made out and the charge was framed u/s 376 IPC. The accused pleaded not guilty and claimed trial. Prosecution Evidence
4. To substantiate its case against the accused, the prosecution examined as many as sixteen witnesses.
PW1 ASI Yadram recorded the FIR Ex.PW1/A. He made endorsement Ex.PW1/B on the rukka and recorded DD no. 16A Ex.PW1/C. PW2 is the prosecutrix. She testified on oath that on 14.06.2013 she was married to the accused. It was a love marriage. After the marriage, the accused asked her to take divorce as his family would not accept her. He, however, promised to remarry her stating that his sister was not getting married due to their marriage. He then divorced her in January 2014 through the Court vide Memorandum of Understanding Ex. PW2/A. To that effect, a statement Ex.PW2/B was recorded in the Court and the accused paid her Rs. 3 lacs towards the settlement. She stated that since she did not tell the factum of their divorce in her family, the accused, started calling her saying that he would remarry and live with her and that he had taken divorce under the pressure of his family. She stated that the accused demanded Rs.3 lacs from her giving her assurance to remarry her. She paid him Rs.50,000/.
FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 3/21 She stated that on 06.04.2014, she asked the accused to return Rs.50,000/. She also told him that she does not want to remarry with him nor she wants to maintain relation with him. He then called her and said that he would return the money. On the same day at about 7.15 p.m, when she was taking rest in her room on the ground floor, he knocked the door and entered her room. Although, she asked him to go out of the room and wait outside, he did not listen and committed sexual intercourse with her forcibly. She tried to resist him, but since she was sick and feeling weak, he forced upon her. She somehow managed to get out of the room and bolted it from outside. She then dialled Women Helpline from her mobile No. 9654955329. The police came and opened the room. She informed her elder brother Ramzan Ali who also reached there. She stated that police took them to the police station where her statement Ex. PW2/C was recorded. She was taken to AIIMS where she was examined vide MLC Ex.PW2/D. She stated that the police seized the bedsheet from the bed room vide memo Ex.PW2/E. She also gave her statement to the Magistrate u/s 164 Cr.P.C. Ex.PW2/F. She handed over the documents of her divorce to the police vide memo Ex.PW2/G. She stated that during her medical examination, her salwar was taken by the doctor. She FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 4/21 identified the salwar and the bedsheet Ex.P1 and Ex.P2.
On being crossexamined, she stated that her family members knew about their relations. They used to go for outing before marriage. She admitted that the parents of the accused disowned the accused when he had been living with her. She stated that after the divorce, they used to talk and send messages. She denied that her parents knew about their divorce and the settlement from inception. She admitted that she had sent message Ex.PW2/D1 to Ex.PW2/D3 to the accused. She admitted that her house is situated in a populated area. She stated that she had raised alarm but no one came to rescue her. She denied that no such incident happened. She denied that when the accused entered the room, she came out, bolted the door from outside and called the police. She denied that she falsely implicated the accused after the divorce since her family had grudge against him. She denied that when she came to know that the accused was getting married with some other girl, she falsely implicated him.
PW3 W/HC Filomina took the prosecutrix to AIIMS. She collected her MLC and sealed exhibits with sample seal and handed over to the IO vide memo Ex.PW3/A. FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 5/21 PW4 Smt. Jamila is the mother of the prosecutrix. She has stated that in summer 2013, the prosecutrix was married to the accused. It was a love marriage. The parents of the accused were against their marriage. Later, they took divorce. On 06.04.2014 at about 8:00 p.m. when she returned her house, her neighbour informed her that the prosecutrix and the accused were taken to the police station. The prosecutrix told her that the accused had come in her house and committed rape upon her when she was alone.
PW5 Dr. Piyush Sharma did the medical examination of the accused vide MLC Ex. PW 5/A. He found him capable of performing sexual intercourse under normal circumstances. He collected the blood in gauze of the accused, his penile swab, control swab, jeans and shirt and handed over to the police alongwith the sample seal.
PW6 Ct. Sandeep Kumar took the accused to AIIMS. He collected his exhibits and handed over to the IO vide memo Ex.PW6/A. PW7 Smt. Archana Devi is the friend of the accused. She stated that on 06.04.2014, she had come to meet her mother at Kalkaji. She saw the accused entering the room of the prosecutrix and locking the door from inside. She stated that after sometime, she saw the FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 6/21 prosecutrix coming out crying and bolting the door from outside. The prosecutrix then called the police. She stated that the prosecutrix told her that the accused committed rape upon her.
On being crossexamined, she stated that she knew the prosecutrix for about five years. She also knew that the accused had divorced the prosecutrix. PW8 Ms. Neha recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW2/F. PW9 Anuj Bhatia, Nodal officer, Vodafone Mobile Services Ltd. proved the CDRs of mobile no. 9654955329 issued in the name of Marjina and mobile no. 9873985344 issued in the name of Jameel for the period from 01.03.2014 to 10.04.2014 Ex. PW9/A and Ex.PW9/C respectively. He also proved the certificates u/s 65B of the Evidence Act and the Cell ID chart Ex.PW9/H. PW10 SI Rambir Singh stated that on the intervening night of 17 / 18.11.2013, in pursuant to call vide DD no. 39A, he reached the spot. The public persons had gathered there. They told him that the accused had abused the prosecutrix and given beatings to the mother of the prosecutrix namely Jameela. He stated that even in his presence, the accused resorted the same act but he controlled him. He got the mother of the prosecutrix medically FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 7/21 examined vide MLC no. 12/31/13 and prepared a kalandara Ex.PW10/A u/s 107/151 Cr.P.C. He admitted that at that time, the accused had been living in the said house. He denied that in fact the accused had sustained injuries and at the instance of the mother of the prosecutrix, he falsely implicated him. PW11 Ct. Jahan Singh on 15.04.2014, deposited the the exhibits in FSL, Rohini vide road certificate Ex.PW11/A. He stated that so long as the exhibits remained in his possession, no one tampered with it. PW12 SI Des Raj on 16.11.2013, on receipt of call vide DD no. 62B reached the spot with Ct. Sandeep Singh. By that time, the accused had been taken to the hospital. He went to the hospital and collected his MLC. He prepared the kalandara u/s 107/151 Cr.P.C. Ex.PW12/A. PW13 HC Saji Varghese handed over the kalandaras Ex.PW12/A and Ex.PW10/A to W/SI Kala Joshi vide memo Ex.PW13/A. PW14 Dr. Nipun did the medical examination of the prosecutrix vide MLC Ex.PW2/B. She also recorded the history narrated by the prosecutrix. She found her hymen ruptured. She took her vaginal smear and handed over to the police alongwith sample seal. She stated that there were no injury marks on the private part of the prosecutrix.
FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 8/21 PW15 SI Rishi Sharma on 06.04.2014 on receipt of DD no. 16A Ex.PW1/C reached the spot. There, he met the prosecutrix who told him that she has locked the accused Asif in the room since he committed rape upon her. She told him that she had married with the accused but they have taken divorce. He brought the accused and prosecutrix to the police station. He briefed the SHO who called W/SI Kala Joshi. On being crossexamined, he stated that he reached the spot at about 8 p.m. He opened the door of the room in which the accused was locked. He stated that on the spot, the prosecutrix had told him that she was raped by the accused.
PW16 W/SI Kala Joshi was the Investigating Officer of the case. She stated that on 06.04.2014, she reached the police station and met SI Rishi Sharma and the prosecutrix. She recorded the statement of the prosecutrix Ex.PW2/C, made endorsement and got the FIR registered. She also got the prosecutrix medically examined at AIIMS through lady Ct. Philomina. She interrogated the accused and arrested him vide memo Ex.PW15/A. She sent the accused for his medical examination. She collected the MLC and exhibits of the prosecutrix vide memo Ex.PW3/B. She prepared the site plan Ex.PW15/E. She seized the bedsheet vide memo Ex.PW2/E. She got the accused FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 9/21 medically examined. She got the statement of the prosecutrix recorded u/s 164 Cr.P.C. She collected Kalandaras u/s 107/151 Cr.P.C. Ex.PW12/A and Ex.PW10/A. She also obtained CDR of mobile of the prosecutrix. She collected the divorce / settlement documents Ex.PW2/A and Ex.PW2/B. She got the exhibits sent to FSL vide RC Ex. PW11/A. She obtained the FSL result Ex.PW16/B. She identified the bedsheet Ex.P2.
On being crossexamined, she stated that she reached the police station at about 8:30 / 8:45 p.m. The brother of the prosecutrix was there with the prosecutrix. She admitted that as per the CDRs, the accused and the prosecutrix used to talk to each other but she denied that she did not conduct the investigation fairly.
Statement of Accused
5. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. was recorded. He denied all the incriminating evidence against him but admitted that he had married the prosecutrix and divorced her. He stated that he did not promise to remarry her. It was a love marriage. The family members of the prosecutrix were present in the marriage. He admitted that a MOU was prepared and he paid Rs. 3 lacs to the prosecutrix at the time of divorce. He stated that the prosecutrix had called her in her house since she was not well. He brought food for her. She on the pretext that she was bringing water, locked the door from outside and FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 10/21 started shouting. He stated that the prosecutrix gave a false complaint against him. He stated that his parents were against their marriage. They had turned him out from the house. He stated that the prosecutrix used to call him even after the divorce. He denied that he committed sexual intercourse with the prosecutrix after the divorce. Defence Evidence
6. In defence, the accused did not examine any witness. Arguments and Findings
7. I have heard the arguments advanced by Ld. Counsel Sh. M. Hasibuddin for the accused and Sh. Mukul Kumar, Ld. Addl. PP for the State.
8. Ld. Counsel for the accused vehemently argued that the marriage between the accused and the prosecutrix was a love marriage. It was against the wishes of the parents of the accused. After the marriage, the accused used to live in the house of the prosecutrix. Some dispute arose and it resulted into registration of Kalandara u/s 107/151 Cr.P.C. He was harassed by the family members of the prosecutrix. Finally, they agreed to take divorce. Ld. Counsel stated that even after the divorce, the prosecutrix used to call the accused which is evident from the testimony of the prosecutrix and the CDR. PCR call vide DD no. 16A was regarding quarrel but later, she alleged rape. Ld. Counsel stated that in fact the prosecutrix had called the accused in her house. He went there with food but the prosecutrix wrongfully confined him since she had grudge against him. She falsely implicated him. Ld. Counsel stated that had there been a case of forcible sexual intercourse, she might have sustained injuries. Her MLC and the testimony of PW10 show that there were no injuries on the FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 11/21 private parts of the prosecutrix. FSL report does not incriminate the accused in any manner. Ld. Counsel stated that the accused has been falsely implicated.
9. Ld. Addl. PP on the contrary argued that though the accused had married with the prosecutrix but he had taken divorce from her. After the divorce, he took Rs. 50,000/ from her and when she asked him to repay, he came in her house when she was alone and committed sexual intercourse with her against her wishes. Ld. Addl. PP stated that after the divorce, their relations ended but the accused wanted to remarry with the prosecutrix. When the prosecutrix refused to remarry, he got annoyed and committed rape upon her. Ld. Addl. PP stated that matter was reported to the police immediately after the incident and there was no delay, so there was no question of fabricating a story to falsely implicate the accused. Ld. Addl. PP stated that admittedly the prosecutrix and the accused used to talk to each other after the divorce but nothing can be inferred from the CDRs that the accused did not commit rape upon her. The accused has admitted to have gone to her house on the aforesaid date and time. Her testimony is very categorical on the fact that the accused committed rape upon her. Her testimony is duly corroborated by PW7 who had seen the accused entering her home and she crying and telling her that she was raped by the accused. As regards injuries, Ld. Addl. PP stated that it is not necessary that every incident of rape would result into injuries. Ld. Addl. PP stated that testimony of the prosecutrix is consistent and cogent and is sufficient enough to prove the guilt of the accused.
10. I have considered the submissions and gone through the entire material available on record.
FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 12/21
11. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 13/21 Exception 2 .............."
12. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
13. A bare perusal of the testimony of the prosecutrix / PW2 would show that she was married to the accused on 14.06.2013. It was a love marriage. The parents of the accused did not approve their marriage and disowned the accused. The accused started living in the house of the prosecutrix. They took divorce on the asking of the accused in January 2014 through the Court of law vide Memorandum of Understanding Ex.PW2/A. They also gave statement Ex.PW2/B to that effect. The accused paid her Rs.3 lacs in lieu of the settlement.
14. Testimony of PW2 further shows that she did not disclose the factum of their divorce to her family members as the accused used to say that he would remarry her and live with her and that he had taken the divorce under the pressure of his family members. PW2 has stated that the accused demanded Rs. 3 lacs from her giving her assurance that he would remarry her. She paid him Rs. 50,000/. On 06.04.2014, she asked the accused to return Rs. 50,000/. She told him that she does not want re marry with him nor she wants to keep any relation with him. Her testimony shows that on the same day i.e. on 06.04.2014 at 7:15 p.m., when she was alone in her house, the accused opened the door and entered her room. When she asked him to go, he did not listen and committed sexual FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 14/21 intercourse with her forcibly. She tried to resist him but since she was not well and feeling weak, he forced upon her. She somehow managed to get out from the room and bolted it from outside. She then sought help from woman helpline and called the police. The police came there and brought the accused from the room. PW7 had seen the accused entering her house and locking the door from outside. She has stated that after sometime, she saw the prosecutrix coming out, crying and bolting the door from outside. The prosecutrix told her that the accused has committed rape upon her. She has stated that when the accused entered her house, no one except the prosecutrix was present. Nothing material came in the testimony of PW7 to disbelieve her. PW4 has stated that on 06.04.2014 at about 8:00 p.m., when she returned her house, her neighbour informed her that the prosecutrix and the accused were taken to the police station. When she enquired from the prosecutrix, she told her that the accused had come in her house and committed rape upon her. PW15, who went to the spot on receipt of information Ex.PW1/C, has stated that he had met the prosecutrix on the spot. She was outside the room. She told him that she has locked the accused in the room. She narrated him the incident that the accused has committed rape upon her. The accused even did not dispute of his going to the house of the prosecutrix at that time.
15. In the instant case, after the statement of the prosecutrix Ex.PW2/C, she was taken to AIIMS. The doctor recorded the history of incident narrated by her on the MLC Ex.PW2/D. It reveals that she was sexually assaulted by the accused on 06.04.2014 at about 7:30 p.m. She had mild bleeding. Her vaginal smear and salwar were taken. The accused was examined vide MLC Ex.PW5/A. The doctor found him capable of FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 15/21 performing sexual intercourse under normal circumstances. His blood in gauze, penile swab, control swab and clothes were taken. The bedsheet from the bed was also seized. The exhibits were sent to the FSL. It is true that the FSL report Ex.PW16/B does not show the presence of blood and semen on the exhibits except in the blood in gauze of the accused and there were no injury marks on the prosecutrix as well as on the accused as per the MLC Ex.PW2/D and Ex.PW5/A but on this very count, it can not be said that no such offence had taken place. Even slightest penetration would amount to rape. It may or may not be necessary that the penetration may result into injuries on the person of the prosecutrix or the accused. Further, the penetrative sexual may not necessarily result in ejaculation.
The testimony of PW1/prosecutrix is categorical to the fact that she was raped by the accused. Nothing material came in her crossexamination to discredit her. Her testimony shows that she tried to resist the accused but since she was sick and feeling weak, the accused forced upon her. As regards injuries, it is well settled that the absence of the injury on the private part of the victim does not by itself falsify the rape.
16. The Supreme Court in the pronouncement reported at 2007 Crl.L.J. 4704 Radhu vs. State of Madhya Pradesh succinctly laid down the principles : "It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 16/21 her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent.
17. In Ranjit Hazarika vs State Of Assam, (1998) 8 SCC 635 the Apex Court observed thus : "The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the crossexamination. Neither the nonrupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross examination of the prosecutrix, nothing has been brought out to doubt her veracity.
18. In the instant case, the prosecutrix had informed the police immediately after the incident. There was no delay in lodging the report. She is consistent and cogent as to the incident of rape committed by the accused. I do not find any material variance in her complaint Ex.PW2/C with the statement recorded u/s 164 Cr.P.C. Ex.PW2/F. The mandate of the law as settled by plethora of judgments is that if the statement of the prosecutrix inspires confidence, the conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required. In the FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 17/21 instant case, the testimony of the prosecutrix is of impeachable character.
19. In State of Maharasthra v. Chandraprakash Kewalchand Jain, 1990 AIR 658, it was observed: "A prosecutrix of a sexoffence cannot be put on par with an accomplice. She is in fact a victim of the crime. 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. If a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
20. It was contended by Ld. Counsel for the accused that the prosecutrix and the accused used to call each other even after the divorce which fact is also evident from the CDRs and the testimony of PW9. Even on 06.04.2014, it was the prosecutrix who had called the accused in her house. He had taken food for her but the prosecutrix locked him inside, called the police and falsely implicated the accused making allegations of rape. It is no denial about the fact that the prosecutrix and the accused used to call each other after the divorce. Testimony of PW2 shows that the accused at the time of taking divorce had promised to remarry her after the marriage of his sister. The accused had taken Rs. 50,000/ from her. On 06.04.2014, she had asked the accused to return the sum and said that she does not want to remarry with him nor she wants to maintain relation with FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 18/21 him. He then called her and said that he would return the money. On the same day at about 7:15 p.m., he came in her house and committed rape upon her. The prosecutrix never said that she did not talk to the accused or there had been no talk between her and the accused after the divorce. She is very categoric on the fact that the accused entered her house and committed sexual intercourse with her without her consent.
21. Ld. Counsel for the accused further argued that the prosecutrix has falsely implicated the accused after the divorce since her family members had grudge against him and further the accused was getting married with some other girl.
I find this contention sans merit. PW2 has categorically denied that her family had grudge against the accused or when she came to know about the accused getting married with some other girl, she falsely implicated the accused. It is to be noted that no such suggestions were given to the mother of the prosecutrix / PW4. Her testimony remained unrebutted.
22. In the instant case, the prosecutrix immediately after the incident had informed the police. She also narrated the incident to her mother / PW4 and her friend PW7. She called her brother who also went with her to the police station. PW4 and PW7 have corroborated this fact that the prosecutrix had told them that the accused had come in her house and committed rape upon her.
23. Section 157 of the Indian Evidence Act provides that where the statement of a witness requires to be corroborated, any former statement made by him on the same subject matter may be used as a corroboration. In the case of Rameshwar v. State of Rajasthan (1952) SCR 377, the FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 19/21 Supreme Court allowed the statement to the court of a young girl who was the victim of rape, to the court, to be corroborated by the girl's own statement to her mother four hours after the incident, to the effect that she had been raped by the accused. In the instant case, the prosecutrix took almost no time to inform PW7 about the incident. The object of the section is to admit statements made at the time when mind of a witness is still so connected with the event as to make it probable that his description of the thing would be accurate. That being the position, the testimony of PW7 is relevant as to the incident narrated to her by the prosecutrix immediately after the incident. Her testimony is consistent with the facts, the prosecutrix has stated in her testimony
24. It was contended by Ld. Counsel that DD Ex.PW1/C was in respect of a quarrel and it does not find mention of rape upon the prosecutrix. I do not find any force in this contention as testimony of prosecutrix shows that she had informed the police from the helpline that she was raped by the accused. PW7 has stated that the prosecutrix was shouting and told her that she was raped by the accused. Testimony of PW15 shows that when he on receipt of DD Ex.PW1/C reached the spot, the prosecutrix told him that she has locked the accused in the room since he has committed rape upon her.
Conclusion
25. The facts and circumstances of the present case show that the accused forcibly committed sexual intercourse with the prosecutrix. The evidence of the prosecutrix is consistent and cogent and inspires confidence. Her testimony is natural and worthy of credits. Her testimony FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 20/21 shows that there was no positive concurrence of the prosecutrix to have sexual intercourse. It was the accused who without the consent of the prosecutrix entered her room and committed sexual intercourse with her against her wishes. She tried to resist the accused but since she was not well and weak, she could not resist him. I am of the view that the prosecution has successfully proved the guilt of the accused and brought home all the ingredients of the offence with which, he has been charged. I, therefore, hold the accused guilty of the offence punishable u/s 376 IPC and convict him thereunder.
Announced in the open court today i.e. 17.08.2016 ( Sanjiv Jain) ASJSpl. FTC / Saket Courts New Delhi FIR No. : 376/14 PS : Govind Puri State Vs. Asif Malik Page No. 21/21