Delhi District Court
Singh vs State Of Mp (1995) 5 Scc 518 , Hon'Ble on 19 April, 2016
IN THE COURT OF MS.ANURADHA SHUKLA BHARDWAJ
ADDITIONAL SESSIONS JUDGE : (SPECIAL FAST TRACK
COURT)01 : WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 108/13
Unique Case ID Number : 02401R0197152013
State v. Rahul Tomar
S/o. Sh.Mahender Pal
R/o RZG11/12, Laxmi park,
Nangloi, Delhi
Permanent Address:
Village Shikanderabad,
Thana Mujriya,
Tehsil/Distt. Badayu, U.P.
FIR No. : 58/13
PS. : Nihal Vihar
U/s. : 376/506 IPC
Date of filing of the charge sheet before : 22.04.2013
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 28.05.2013
In the Sessions Court.
Date of transfer of the file to this Court : 28.05.2013
{ASJ (SFTC)01, West, THC, Delhi}
Arguments concluded on : 28.03.2016
Date of Judgment : 08.04.2016
SC No. 108/13
FIR No.58/13,PS. Nihal Vihar Page 1 of 55 State v. Rahul Tomar
U/s. 376/506 IPC
Appearances: Ms. Madhu Arora, Ld. Addl. PP for the State.
Sh. Ram Krishna, Advocate for accused.
J U D G M E N T
1. Accused Rahul Tomar has been chargesheeted by Police Station Nihal Vihar, Delhi for the offences under section 376/506 of IPC on the allegations that in the first week of November 2012, the accused had followed her when she was coming back after filling water. He came to her house asked her to give water when she ignored him. He followed her and committed rape upon her inside her house.
2. After completion of the investigation, the charge sheet was filed before the Court of Ld. MM on 22.04.2013 and after its committal, the case was assigned to the Court on 28.05.2013.
3. After hearing arguments, charge for offences under sections 376/506 IPC was framed against the accused on 04.06.2013. The same, however, was modified vide order SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 2 of 55 State v. Rahul Tomar U/s. 376/506 IPC dated 23.08.2014, as the address of the prosecutrix was mentioned in the first charge as the place, which the prosecutrix mentioned in her complaint. The address, however, was correctly mentioned in her statement under section 161 Cr.P.C. The charge which was framed later had the correct address of the place of incident mentioned in it. The accused pleaded not guilty and claimed trial. Relevantly the year of the incident has also been mentioned as 2011 instead of 2012 in the charge. It was, however, accepted as a typographical error by the parties.
4. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
SC No. 108/13FIR No.58/13,PS. Nihal Vihar Page 3 of 55 State v. Rahul Tomar U/s. 376/506 IPC
5. The prosecutrix, as PW1, has deposed that in the year 2012 she was residing with her cousin Pushpa, who is a vegetable seller. On 26.08.2012 she alongwith her sister went to Chander Vihar to attend a birthday party of a friend of Pushpa, where accused was also present and they talked with each other. She further deposed that after 15 days she alongwith her nephew (son of her sister) went to Mangal Bazar to fill water from common tap. Accused came there and asked her for water. She did not reply and accused started following her. He came inside her house and again asked water from her. She went to the kitchen to bring water. In the meanwhile, Rahul bolted the door from inside and thereafter committed rape upon her. She raised alarm but no one was present except her 2 ½ years old nephew. She stated that the persons living in the first floor were also not present in the house. Accused left her house and threatened her that in case she disclosed anything to anybody she would be killed. Due to the threat and trauma, she did not tell anything to anyone. After about three months, her sister got suspicious and on her inquiry, she disclosed the incident to her. Her sister tested her pregnancy, which came out to be positive. Thereafter, she alongwith her sister and brother in law went to SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 4 of 55 State v. Rahul Tomar U/s. 376/506 IPC Police Station where the police recorded her statement Ex. PW1/A. She was taken to Sanjay Gandhi Memorial Hospital through constable for her medical examination. She had also shown the place of incident i.e her rented accommodation, where she was residing at the time of incident alongwith her cousin, to the police and the police prepared site plan, which is Ex. PW1/A1. She deposed that on 15.06.2013 she gave birth to a female child in her house. In her crossexamination, birth to a female child in her house.
the prosecutrix stated that she had informed the incident of rape to her parents but they did not come to Delhi. Since there was some confusion regarding the address as two different addresses were mentioned in her evidence, clarifications were taken by Ld. Prosecutor and the Court also questioned the prosecutrix and she stated that incident had taken place at Place E (Address not being mentioned specifically to conceal the identity of the prosecutrix). She stated that accused had told her that he was a driver. He had met her 23 times and talked to her after they met in party and before the incident. She admitted that accused used to take people from NGO (of which her sister and brother in law were members). However denied that because the NGO did not make the payment to the accused differences had arisen SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 5 of 55 State v. Rahul Tomar U/s. 376/506 IPC between them and so the accused was falsely implicated in this case in collusion with the NGO. A suggestion was given to the prosecutrix that the accused never entered her house or committed rape upon her.
6. PW2 Ct. Arvind Kumar had taken the prosecutrix for her medical examination. The exhibits of the case (given by the doctor) were seized by the IO vide memo Ex. PW2/A. PW2 deposed that they had gone to the house of prosecutrix F (complete address not being mentioned to conceal the identity of the prosecutrix). He further deposed that the accused after his arrest vide memo Ex. PW1/B, had taken the police to the place of occurrence E and had pointed out the place vide memo Ex. PW2/D. He was medically examined by the doctors of Sanjay Gandhi Memorial Hospital and his samples drawn by the doctor were seized by the IO vide memo Ex. PW2/C. In his crossexamination, he stated that prosecutrix had disclosed the place of incident as E.
7. PW3 is the cousin of prosecutrix. Corroborating the evidence of prosecutrix regarding the incident of 26.08.2012, she further deposed that in February 2013 when she asked her SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 6 of 55 State v. Rahul Tomar U/s. 376/506 IPC cousin why she was gaining weight on her stomach but since prosecutrix did not disclose anything to her, she got suspicious and slapped her. Thereafter, the prosecutrix told her that around OctoberNovember 2012 the accused had come to their house on the pretext of taking water and had raped her. She tested her for pregnancy through a kit and came to know that the prosecutrix was pregnant. She had called accused who initially refused to accept, however, admitted later about the incident and suggested that the pregnancy be aborted. She stated that the IO had accompanied them to their house E where the incident had taken place. In her crossexamination she stated that she was residing in house E for three months and in December they shifted to house F. She clarified that at the time of incident she and her family were residing at house E.
8. PW4 HC Ram Mahesh proved the deposit of exhibits received from the hospital in the malkhana, the sending of exhibits to the FSL vide RC No.16/21/13, the copy of RC and acknowledgment as also the relevant entries. The documents have been exhibited PW4/C, D, A & B respectively. PW6 had taken the exhibits vide RC Mark PW6/A and had returned SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 7 of 55 State v. Rahul Tomar U/s. 376/506 IPC acknowledgment Mark PW6/B from FSL to the MHC(M).
9. The MLC of prosecutrix was proved by PW5 & PW10 as Ex. PW5/A and of accused by PW9 as PW9/A. PW9 has deposed that he had taken the blood and other samples of the accused and had given them to the IO. PW10 stated in her crossexamination that she had mentioned the history of the patient as told to her by the patient.
10. PW11 is the IO. She has proved the rukka Ex. PW11/A and has tendered the FSL report Ex. PW11/B. She proved her application seeking permission of the Court for getting the DNA test conducted on prosecutrix, accused and their daughter as also the DNA reports which are Ex. PW11/D, E, F & H. In her crossexamination, she stated that at the time of registration of FIR, prosecutrix was residing at house F and that the incident had taken place at house E. She admitted that she did not write house number of house E in the site plan at Point X. She stated categorically that she had verified the fact that no incident of rape took place in the house of accused, who was residing at house R. SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 8 of 55 State v. Rahul Tomar U/s. 376/506 IPC
11. The statement of accused was recorded. He denied the facts of the case as led in evidence by the prosecutrix. Except for admitting that prosecutrix was residing at house E. He stated that the prosecutrix was having physical relations with him with free consent. He stated that the false case was filed against him to extort money. He admitted that he was father of the daughter of prosecutrix and stated that he was ready to take the responsibility of the child and was willing to marry the prosecutrix.
12. In support of his stand taken for the first time in her statement under section 311 Cr.P.C., the accused examined three witnesses in defence evidence. DW1 Ms. Soni deposed that she was landlady of the accused. She said that the accused lived in her house for four years and she took the name of prosecutrix saying that she used to visit the accused in the rented house. Accused always introduced her as his friend. In his cross examination she stated that she had no document to show that the accused lived in her house as tenant at any point of time. DW2 Puran Singh deposed that he runs a grocery shop and accused was one of his customers. He said that he saw a girl (taking name of prosecutrix) making SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 9 of 55 State v. Rahul Tomar U/s. 376/506 IPC grocery purchase with the accused several times. In his cross examination he said that he would not recollect the faces of the customers who used to visit his shop. DW 3 Ramvir Gupta deposed that he was a property dealer. In January 2013 accused along a girl ( taking the name of Prosecutrix) visited his office twice to search for a rented accommodation. In his cross examination he said that about 1520 persons visited him monthly and admitted that he could not recollect the faces of those persons.
13. I have heard arguments. I have also considered the material on record, relevant provisions of law and the precedents on the point.
14. Ld. Counsel for the accused argued that : • The statement of prosecutrix was not recorded U/s.164 Cr.P.C. which is mandatory as per the amended law. • There is contradictory evidence of the prosecution witnesses on the place of incident.
• There is an unexplained delay in registration of FIR and IO did not inquire from the prosecutrix why she kept quiet for SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 10 of 55 State v. Rahul Tomar U/s. 376/506 IPC five months.
• Prosecutrix did not give the address of the accused though she was aware of it and the address of the accused is mentioned wrongly in the charge sheet.
• He argues that the prosecutrix was in her senses and was able to understand the consequences of her relationship, which disputes the fact that the act was committed despite her opposition.
• He argued that the accused in his disclosure stated that he was in love with the prosecutrix but the IO did not verify this fact. • He argued that the social worker of the NGO has stated that the accused used to frequently visit the house of prosecutrix and prosecutrix did not try to save herself when he made physical relations with her.
• He argued that the accused never disputed the fact that the child born to the prosecutrix on 15.06.2013 was not his. He also argued that there was dispute regarding the exact time of incident. If the incident was of November 2012, the child should have been born on or after 15.09.2013. • He argued that parents of prosecutrix did not come to Delhi despite acquiring the knowledge about the incident. The so called sister and brother in law had put pressure on the SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 11 of 55 State v. Rahul Tomar U/s. 376/506 IPC prosecutrix under their greed to demand money from the accused.
15. Ld. Addl. PP on the other hand argued that : • The DNA report proves the physical relationships between the accused and the prosecutrix which was denied by him throughout during the trial and was admitted only in his statement U/s.313 Cr.P.C.
• She argued that there is no confusion regarding the place of incident as the prosecutrix has specifically answered to the Court query that the incident took place in house E. • She also argued that the prosecutrix and her cousin lived in three houses over the period of time and therefore a confusion in this regard is ignorable.
16. The findings on the points relevant for a case of sexual assault and points raised by Ld. Counsel for accused are as under: IDENTITY OF THE ACCUSED:
17. There is no dispute regarding the identity of the accused, SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 12 of 55 State v. Rahul Tomar U/s. 376/506 IPC who has been identified in the Court by PW1, the prosecutrix, PW3 Pushpa, cousin sister of prosecutrix, PW11 SI Koyal, prosecutrix IO. It is also not in dispute that the accused and the prosecutrix were known to each other prior to the lodging of the FIR, as they both had met in a party. In fact the accused has also not challenged in his crossexamination that he was known to the prosecutrix. Accused is also named in the FIR (Ex. PW7/A). The identity of the accused thus stands established.
AGE OF THE PROSECUTRIX:
18. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her statement (Ex. PW1/A), her MLC (Ex. PW5/A) and in her particulars in her evidence, the prosecutrix has mentioned her age as 20 years. As per the prosecution, she was major at the time of the alleged incident. Her age is not disputed by the accused or by the prosecution. It is, therefore, clear that the prosecutrix was a major at the time of incident.
VIRILITY OF THE ACCUSED: SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 13 of 55 State v. Rahul Tomar U/s. 376/506 IPC
19. PW9 Dr. Rajesh had medically examined the accused vide MLC (Ex. PW9/A). It is mentioned in the MLC of the accused (Ex. PW9/A) that "there is nothing to suggest that Patient is not capable of performing sexual intercourse". The doctor had taken and seized the blood sample of the accused. The accused did not have any fresh external injury. The accused as such was capable of performing sexual intercourse and could have committed the rape.
DELAY IN FIR:
20. It was contented by the counsel for the accused that there was a delay in lodging of the FIR which is fatal to the prosecution case.
21. The counsel for the accused has argued that there is an unexplained delay in lodging the FIR which was lodged after due deliberation and consultation, with an intent to extort money from the accused at the behest of the cousin sister and brother in law of the prosecutrix.
22. The contention of the prosecution is that there is no delay SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 14 of 55 State v. Rahul Tomar U/s. 376/506 IPC in lodging the FIR as the prosecutrix was threatened by the accused not to disclose the fact. Considering the rural background of the prosecutrix and the fact that she was living away from her parents alongwith a distant relative, it was not unnatural on her part to have not disclosed the incident of rape immediately to anyone. The Additional Public Prosecutor has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible.
23. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction on this ground. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. The delay in lodging FIR, therefore, has to be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 15 of 55 State v. Rahul Tomar U/s. 376/506 IPC witnesses/relevant witnesses present at the scene of occurrence.
24. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forward by the prosecutrix.
25. Ld. Addl. PP has relied upon the judgment of Hon'ble Supreme Court in AIR 1996 SC 1393 (1), titled State of Punjab v. Gurmeet Singh & Anr. In the cited judgment, Hon'ble Supreme Court held that in sexual offences, the delay in lodging FIR, if properly explained, is not material. The Hon'ble Supreme Court held that "the Courts cannot over look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members go to the police and complain about the incident which concern SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 16 of 55 State v. Rahul Tomar U/s. 376/506 IPC the reputation of the prosecutrix and the honour of the family. It is only after giving a cool thought that a complaint of sexual offences is generally lodged."
26. The Hon'ble Supreme Court further held that "trial court over looked that a girl, in a tradition bound nonpermissive society in India, could be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of danger of being ostracized by the society or being looked down by the society. ...in the normal course of human conduct, the unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others overpowered by a feeling of shame and her natural inclination would be not to talk about it to anyone, lest the family name and honour is brought into controversy."
27. In the case reported as State of Rajasthan v. Om SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 17 of 55 State v. Rahul Tomar U/s. 376/506 IPC Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court 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.
28. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance 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 satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 18 of 55 State v. Rahul Tomar U/s. 376/506 IPC 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."
29. Coming to the facts of the case, the prosecutrix, a girl of 20 years, belonging to a small village of Ranchi, had come all the way from her village to earn livelihood in Delhi. In Delhi, she lived with her distant cousin and brother in law and looked after their son. She was living away from her parents and apparently did not have a direct emotional support. She did not disclose the incident to anybody for which she gives an explanation in her evidence that she was threatened by the accused. As held by Hon'ble Supreme Court in Gurmeet Singh (Supra), a girl as young as prosecutrix under such circumstances could have felt threatened, ashamed and reluctant to discuss the issue with anyone. The prosecutrix says in her examination in chief that due to the threat given by SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 19 of 55 State v. Rahul Tomar U/s. 376/506 IPC the accused and the trauma of the incident, she did not disclose the incident to anybody which appears to be a very reasonable explanation given by a girl under the circumstances in which the prosecutrix was. PW3 in her evidence says that the prosecutrix had not answered her query regarding the weight being gained by her and it was only after she was slapped by PW3 that she disclosed about her missed periods to her. The fear and the trauma were the reasons due to which the prosecutrix did not disclose the incident to anybody till she could hide it. The explanation is satisfactory and is therefore accepted as the ground for delay in the lodging of FIR.
EVIDENCE AND OTHER STATEMENTS OF THE PROSECUTRIX:
30. The main contention of the defence is that the testimony of prosecutrix given at the two stages is contradictory and so untrustworthy.
31. The prosecutrix gave her first statement to the police on 23.02.2013. Her statement was that on 26.08.2012 she alongwith her Didi (name withheld) had gone to attend a SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 20 of 55 State v. Rahul Tomar U/s. 376/506 IPC birthday party at B... (address withheld), where she met a boy named Rahul. Later when she used to go to M place (the detail mentioned in FIR and evidence not being repeated to conceal the identity of the prosecutrix) for fetching the water, Rahul met her once or twice. In the first week of November 2012 when she was coming to her rented house after filling up the water, Rahul met her on way. He asked her to give water to him but she went to her room without reply. He followed her and again asked her to give him water. She went to bring the glass, Rahul shut the door from inside. She was alone in the house, he committed rape upon her and threatened her that if she would disclose anything to anyone, he would kill her and so she did not tell this fact to anybody. On the date of FIR, she was feeling uncomfortable, when her sister forced her, she told her about the incident of November 2012, whereafter her sister brought the pregnancy tube from the chemist and tested her. The test came positive. The statement of the prosecutrix was not recorded U/s.164 Cr.P.C.
Ld. Counsel for accused argued that this is the violation of Section 164 (A) of Cr.P.C. according to which in the cases related to sexual offences including 376 IPC the statement of the person against whom the offence is committed shall be SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 21 of 55 State v. Rahul Tomar U/s. 376/506 IPC recorded by Judicial Magistrate. Ld. Counsel argued that the law had come into force on 03.02.2013. The FIR of this case was registered on 23.02.2013 and, therefore, the investigating officer was under obligation to have got recorded the statement of the prosecutrix before a Magistrate.
32. Apparently the case relates to a period when the law had just come into force and was being put into practice, there being a gap of only 20 days in the coming into force of the amended provision and registration of FIR of the present case. Even if it is considered that ignorance of law is not an acceptable ground either of acquittal or conviction, a relevant fact is how much and who was prejudiced by nonrecording of the statement. Apparently, the prosecutrix gave a statement to the police and she stood by the said statement before the Court. The background under which the law was brought into force is again relevant to conclude why such a provision was added in the law. The entire amendment was victim oriented and the reason behind the amendment was to record the statement of the victim before a judicial officer so that the truth can surface at earliest and the possibility of any manipulation in the hands of accused/ other authorities is SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 22 of 55 State v. Rahul Tomar U/s. 376/506 IPC ruled out. Nonrecording of statement U/s.164 Cr.P.C. cannot be considered as a tool for the accused to seek acquittal when the prosecutrix supports the prosecution case in the Court in her evidence. Even otherwise, it is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of PW3, then the investigation becomes less important as PW3 has not only deposed regarding the manner of commission of the crime but has also elaborated all the details and has assigned a clear and specific role to the accused.
33. In addition to above, it is settled law that lapses in the investigation are not to be read against complainant. Hon'ble Supreme Court in AIR 1996 SC 1393 (1), State of Punjab v. Gurmeet Singh, held that if the investigating officer did not conduct the investigation properly, the same cannot become a ground to discredit the testimony of prosecutrix, who did not have any control over the investigation agency. In Karnail Singh Vs State of MP (1995) 5 SCC 518 , Hon'ble Supreme Court held that in a case of defective investigation it would not be proper to acquit the accused if the same is SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 23 of 55 State v. Rahul Tomar U/s. 376/506 IPC otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring IO. In view of above, the nonrecording of statement of the prosecutrix U/s.164 Cr.P.C. does not come in the way of the prosecution case adversely.
34. Going back to the statement of the prosecutrix. In her statement recorded in the Court, she stated that in the year 2012 she was living with her cousin who is a vegetable seller and that she had stayed in her residence since then. She disclosed how on 26.08.2012 she went with her sister to attend a party where she met accused whom she identified in the Court through the screen. She says that after 23 days she alongwith her sister's son had gone to Mangal Bazar to fill water from the common tap where accused came and asked for water. She did not reply but he started following her. He followed her to her house and again asked for water. She went to the kitchen to bring water for him, in the meanwhile, he bolted the door of the house from inside, caught hold of her and committed rape upon her. The testimony of the prosecutrix is substantially the same as spoken by her to the police with minor variation, which do not effect the veracity SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 24 of 55 State v. Rahul Tomar U/s. 376/506 IPC of her statement.
35. A lot was said about the wrong mentioning of the address in the FIR and in the statement before the Court. It was argued that the address of the prosecutrix was mentioned as R... in the FIR but E in the statement given in the Court. The address was not clearly mentioned in the site plan. It is relevant to note that a supplementary statement of prosecutrix was recorded on 24.02.2013 wherein she said that her correct address was place E and she had inadvertently given the wrong address on the date of recording of FIR. No cross examination was conducted of the prosecutrix on this issue. She was not confronted with her complaint as well as statement regarding the addresses mentioned there. Relevantly, all the witness have stuck to the address of place E mentioned in the statement under section 161 Cr.P.C as the place of incident. The confusion in the mind of the prosecutrix about the address seems bonafide as she was a girl belonging to village. She stated in her statement that she did not remember the exact address but the incident of rape had occurred in her house. In answer to the specific question asked by the Court, she stated that she was residing at place E SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 25 of 55 State v. Rahul Tomar U/s. 376/506 IPC where the incident of rape had occurred. There was thus some confusion but properly clarified by the witnesses in their evidence about the place of incident. The IO and other police witnesses have corroborated the evidence of the prosecutrix regarding the place of incident. The sister of the prosecutrix stated in her evidence that they resided at place E only for three months, thereafter they shifted to place F and before that they were residing at place R. The statement was recorded much after the incident and, therefore, some confusion in the mind of prosecutrix in this regard is understandable. The Hon'ble Supreme Court in 2000 I AD (Cr) SC 49, titled State of HP Vs Lekh Raj & anr while distinguishing the discrepancies from contradictions had held that though the latter can be fatal for prosecution the former rather can be proof of truthfulness of a witness. It was held that the normal course of human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by courts.
In view of the above judgments and the explanation coming from the prosecution witnesses regarding the confusion on the address where the offence was committed, SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 26 of 55 State v. Rahul Tomar U/s. 376/506 IPC therefore, is to be ignored.
36. Medical and Scientific Evidence:The prosecutrix in this case was pregnant when the FIR of the case was registered. During the pendency of the case, the prosecutrix delivered a female child. An application was moved in between for obtaining the DNA profile of the accused and the prosecutrix to ascertain the paternity of the child born to the prosecutrix. The accused gave a no objection to the application being allowed. His no objection was recorded by the court on 20.07.2013, whereafter, the blood was taken and sent to FSL for performing requisite tests to ascertain the paternity of the baby. The tests were conducted and the report was filed by the IO during trial, which has not been disputed by the accused. As per the report the prosecutrix and the accused were found to be biological mother and father of female child on the basis of DNA profile. It thus stands established that sexual relations were made between the accused and the prosecutrix, consequent whereto a female child was born to the prosecutrix on 15.06.2015. The scientific evidence thus strongly supports the prosecution case.
SC No. 108/13FIR No.58/13,PS. Nihal Vihar Page 27 of 55 State v. Rahul Tomar U/s. 376/506 IPC INVESTIGATION:
37. The investigation conducted in the present case as well as the documents prepared have been proved by the police witnesses. The FIR has been proved by PW7 ASI Naresh Kumar. The MLCs of the prosecutrix and the accused have been proved by PWs 5, 10 and 9. The FSL reports and the DNA reports have not been challenged. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
38. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO PW 11 SI Koyal. She has clearly deposed that the prosecutrix had come to the PS and made the complaint. The accused as well as the prosecutrix were taken to the hospital for their medical examination; accused was arrested; documents pertaining to his arrest were prepared; parcels of the accused and the prosecutrix were seized; medical documents were prepared; parcels were collected from the doctor and sent to the FSL for examination; etc. Pw4 has deposed that exhibits of the case were deposited with him and were taken to FSL from him by SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 28 of 55 State v. Rahul Tomar U/s. 376/506 IPC Ct. Sukhlal PW6. The entries of deposit and sending the exhibits to FSL have been proved by PW2. PW6 has categorically said that the pullandas were not tempered while they were in his possession. Both these witnesses were not crossexamined. There is nothing on the record to show that their testimonies are false or not reliable.
MENS REA / MOTIVE:
39. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance. The absence of motive, however, does not necessarily discredit the prosecution case if the case stands otherwise established by other conclusive circumstances and the evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
40. In the present case the accused took an initial plea of false implication to show his innocence. The prosecutrix, however, stood by her version, which came out to be true in the scientific evidence also. A witness is normally to be considered independent unless he or she springs from sources SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 29 of 55 State v. Rahul Tomar U/s. 376/506 IPC which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism. However, there can be no sweeping generalization. Each case must be judged on its own facts. Accused of the instant case has not taken a serious plea of enmity. There is no suggestion given to prosecutrix regarding consensual relationship. The paternity of the child was admitted after the report of DNA filed on record. Nothing therefore, is coming on record suggesting that the prosecutrix had any reason to implicate the accused falsely , even though he was willing to take the responsibility of her and her child. On the contrary the conduct of the accused suggest that he was not willing to take the responsibility of the girl and the child, which as per him was a product of consensual relationship though denied by the prosecutrix.
Defence of the accused:
41. The prosecutrix through out the trial claimed that she was SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 30 of 55 State v. Rahul Tomar U/s. 376/506 IPC bearing the child of the accused. Not once during the entire trial did the accused admit that he had physical relations with the prosecutrix or that there was any consensual relation between the two of them. On the contrary he denied having had any relation with the prosecutrix. He suggested that the prosecutrix had wrongly implicated her in the false case to avoid some payments, which were to be made to him by some NGO, and she did this at the instance of her sister and brother in law. It was suggested to the prosecutrix that accused used to take people from the NGO (with which the cousin of the prosecutrix and her husband were associated) by auto and that the said NGO did not make payment to the accused because of which differences arose and he was falsely implicated in collusion with the NGO. It was suggested to the prosecutrix that the accused never entered her house or committed rape upon her. The prosecutrix did deny the suggestions so given. The accused thus did not take the defence of consensual relationship during the trial. The prosecutrix was not given suggestion that she was going around with him consenting to physical relations or that she wanted to marry the accused or that the pregnancy was in fact a result of consensual relation that she had with him. The accused did not own up to the SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 31 of 55 State v. Rahul Tomar U/s. 376/506 IPC pregnancy of the deceased at all till the result of the DNA mapping was filed in the court. The prosecution witnesses were not afforded an opportunity to meet out the case of the accused on his plea of consensual relationship. It is settled law that to become admissible, the defence, which is based on facts, has to be put to the prosecution witnesses in their cross examination. The prosecution can not be caught unaware of something that springs up suddenly at the stage of defence, when the witnesses of prosecution are already gone. In 2011 (1) CC Cases (SC) 312, Sher Singh and Anr. Vs. State of Haryana, the Hon'ble Supreme Court held that the defence of the accused was an afterthought as there was no suggestion (given) to the prosecution witnesses. In the present case also the accused denied his relationship with the prosecutrix throughout the prosecution evidence, not giving any suggestion to any prosecution witness in the trial regarding his defence and, therefore, his defence will have to be discarded as an afterthought having been taken after he acquired the knowledge of he having been scientifically found to be the father of the child of the prosecutrix.
SC No. 108/13FIR No.58/13,PS. Nihal Vihar Page 32 of 55 State v. Rahul Tomar U/s. 376/506 IPC Defence witnesses:
42. The defence of the accused has been discarded as an afterthought. He, however, has examined three persons in support of its case. Since the law says that the defence witnesses cannot be summarily discarded as they are to be treated equal to the proescution witnesses; there evidence will be considered on merit. The three examined witnesses are landlady of the accused, one grocery shop owner and one property dealer. None of these witnesses have said in their evidence that they knew the prosecutrix. All the three are saying that they saw Jit Muni with the accused. Who was this Jit Muni? The witness was not seen by any of these witnesses. She was not living with the accused. They did not even disclose as to who told them the name of the prosecutrix. Two of the witnesses are saying that they did not remember the persons whom they met in the course of their business giving no explanation for how they remembered this particular person, who was not even residing in the area. Again no suggestion was given to the prosecutrix in her cross examination that she went to the house of the accused where she met her landlady; or to the shop of property dealer or the grocer. The witnesses, therefore, cannot be relied to SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 33 of 55 State v. Rahul Tomar U/s. 376/506 IPC disbelieve the prosecution case.
43. Though the defence of the accused taken at highly belated stage is not believable per se; even if it is considered for the sake of argument that there was any consensual relationship between the accused and the prosecutrix, the accused remains responsible for rape, as he did not own up the relationship and left the pregnant prosecutrix to bear the consequences of their alleged consensual relationship. PW3 in her evidence said that when she confronted accused regarding the pregnancy of the prosecutrix he asked her to get the same terminated. This fact was not disputed by the accused in the cross examination of the witness. No suggestion was given to the witness that she had not questioned the accused about the pregnancy of the prosecutrix or that he had not even asked her to get the same terminated. Yet he did not admit his relationship with the prosecutrix. In his statement under section 313 Cr.P.C., for the first time he said that he was willing to take the responsibility of his daughter. But his verbal intentions did not culminate in an action. He apparently did not approach or offered to marry or offered to maintain the daughter. There is no such thing SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 34 of 55 State v. Rahul Tomar U/s. 376/506 IPC atleast in evidence. The owning up thus appears to be an attempt only to avoid the conviction, with no honest intention attached to it.
44. Dealing with the defence of the accused as taken by him, the Hon'ble Supreme Court in 2014(2)LRC65(SC) dealt with the consent as defined under section 90 of the IPC. The Hon'ble Supreme court held that " if consent is given by the prosecutrix under a misconception of a fact it is vitiated. In the present case the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relation with her, which act of the accused squarely falls under the definition of rape as he had sexual intercourse with her consent, which was consent obtained under a misconception of fact as defined under Section 90 of the IPC." In view of above judgment, even if there was a consensual relationship as is being suggested by the accused (though not stated by the prosecutrix) his intention in the relationship is not coming out honest. As at no point of time SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 35 of 55 State v. Rahul Tomar U/s. 376/506 IPC during the trial and in presence of the prosecution witnesses, he admitted that he was the father of the child of the prosecutrix or that he wanted to marry the prosecutrix.
45. It was argued by the counsel for the accused that the delivery of the child was not supporting the date of the rape as the delivery under normal circumstances was expected to have taken place nine months after the date of alleged incident. The incident claimed in the prosecution case is of first week of November 2012, though the prosecutrix has not given the date in her evidence. It is relevant to note that the prosecutrix has given a date as per approximation. The incident was reported much later, when the pregnancy came to the knowledge of the cousin of prosecutrix. The date therefore, is not to be read as conclusive. The child was born at home of the prosecutrix. The cousin PW 3 has deposed that the date of delivery was not known. There is thus nothing to suggest that the prosecutrix was telling a lie about the date of incident, which has been suggested as October end or November beginning in the evidence of witnesses. Relevantly prosecutrix herself has not given the date of incident in her evidence in court and has not been questioned about the same SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 36 of 55 State v. Rahul Tomar U/s. 376/506 IPC in her crossexamination. There being no contradicting evidence on the issue, the fact cannot be read against the prosecutrix.
46. Ld. Counsel argued that the counselor from the NGO, who had counseled the prosecutrix stated in her report that the prosecutrix had not opposed the physical relation. The report of the counselor does not suggest anything beyond what is written in it. It says categorically that the prosecutrix was consistent that she was raped in her house and the version given to her was consistent with what she said to the police and in the court.
47. It was argued by Ld counsel that the accused admitted in his disclosure that he loved the prosecutrix but the IO did not investigate this fact. Firstly the disclosure is not admissible evidence. Secondly the disclosure is not saying that there was a consensual relationship. Over and above the accused himself did not own up during trial that he loved prosecutrix or that she was also in love with him and there was consensual relationship. He himself disowned his disclosure. The accused in fact is coming out as an opportunist. He SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 37 of 55 State v. Rahul Tomar U/s. 376/506 IPC changes his version at every step to suit his case. His defence of consensual relationship has been discarded hereinabove otherwise.
48. It was argued by Ld. Counsel for the accused that the Parents of the prosecutrix were aware of the incident; yet they did not come to oppose it; which shows that the relationship was a consensual one and the parents of the prosecutrix were also consenting for the marriage. In this regard he relied upon the judgment of Hon'ble Supreme court in (2013) 9 Supreme Court Cases 113 , titled Kaini Rajan Vs State of Kerala wherein the Hon'ble Supreme Court held the behaviour of the parents of the prosecutrix was strange as the parents who came to know about the relationship after the pregnancy of the girl went straight to the PS to lodge a complaint. The facts of the said case cannot be applied to the present case as unlike in the cited judgment, the prosecutrix of the present case was not living with her parents. The girl had no direct contact with her parents. She admits in crossexamination that she informed her parents, however, nothing further was asked from her. Considering the strata of the society to which the prosecutrix belonged, her parents having not come to Delhi to SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 38 of 55 State v. Rahul Tomar U/s. 376/506 IPC support their daughter is not a strange behaviour as was laid down by Hon'ble Supreme Court in the cited judgment. Relevantly PW3 in her evidence has stated that she had confronted the accused about the pregnancy of the prosecutrix and he asked her to get the same terminated. The accused did not dispute this fact in his crossexamination.
In the cited judgment the Hon'ble Supreme Court has relied upon a few judgments, where such relations were concluded to be consensual, however, in none of the judgments, the DNA test was conducted to conclude the paternity of the child which has been done in the present case and it has been established that accused is the father of the child. Further, unlike in the cited judgment the prosecutrix did not say that it was consensual relation rather claimed that it was forcible. She did not take the plea of sexual relationship on the promise of marriage. The accused himself during the trial did not admit the physical relations which he had with the prosecutrix rather he took a defence that he was falsely implicated. It was only after the result of paternity that he pleaded to accept his responsibility.
49. It was argued by Ld. Counsel that the accused never SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 39 of 55 State v. Rahul Tomar U/s. 376/506 IPC disputed the relationship with the prosecutrix. This is, however, incorrect as per records. The accused in fact never accepted his relationship with the prosecutrix in the trial until the report on DNA was filed on record. His defence till then was that no incident had taken place and that he was being falsely implicated because the NGO, to which the cousin of prosecutrix was related, owed him some money. The prosecutrix categorically stated in her examination inchief that a female child was born to her, however, at no point of time till his statement u/s. 313 Cr.P.C, accused offered to marry the prosecutrix or to maintain the child. The defence taken therefore, is an afterthought and does not help the accused in any manner.
50. It is clear from the record that the evidence of the prosecutrix is free from blemishes. It is worthy of credence and trust. Nothing has been shown by the accused to indicate that the prosecutrix had any vested interest in leveling false allegations against him.
51. Strength can be drawn from the case reported as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat , (SC), SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 40 of 55 State v. Rahul Tomar U/s. 376/506 IPC 1983 A.I.R.(S.C.) 753, wherein the Apex Court observed:
"The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as : (1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self importance in the context of her inferiority complex. (6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
(9) By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 41 of 55 State v. Rahul Tomar U/s. 376/506 IPC of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
52. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites 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 facts so established should be consistent onlywith 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;
3. The circumstances should be of conclusive nature and tendency;
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.SC No. 108/13
FIR No.58/13,PS. Nihal Vihar Page 42 of 55 State v. Rahul Tomar U/s. 376/506 IPC
53. Applying the above principles of law to the facts of present case, it is evident that the evidence of the prosecution especially the prosecutrix is reliable, believable and trustworthy and the prosecution has established the case of rape. The facts of the case are consistent with the hypothesis of guilt of the accused.
54. The prosecution thus has proved by the testimony of prosecutrix and her cousin that the prosecutrix had met the accused in a birthday party. The prosecutrix had stated categorically which has not been disputed by accused that accused would follow her and followed her on the day of incident asking her to give him water. She tried to avoid but he came to her house following her. Since the accused was known to her she went to the kitchen to bring him water, however, he in the meanwhile shut the door from inside and thereafter, committed rape upon her. She says categorically that there was no one in the house at the time of incident and that the persons who lived on the first floor were also not present in their house. It is proved having not been rebutted that the prosecutrix out of fear and pressure created by the SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 43 of 55 State v. Rahul Tomar U/s. 376/506 IPC accused, who had threatened her, she did not inform anybody and the fact got revealed when she got pregnant. It has been established by the prosecution that the child born to the prosecutrix is the biological child of the accused. The accused on the other hand has failed to prove his defence taken at the last stage after conclusion of evidence regarding consensual relationship which was not pleaded by him at any stage prior to that by giving relevant suggestions to the prosecutrix.
FINAL CONCLUSION:
55. 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 circumstantial evidence and the witnesses of the prosecution have been able to build up a continuous link. All the facts relevant in respect of the offence punishable under section 376/506 of the IPC have been SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 44 of 55 State v. Rahul Tomar U/s. 376/506 IPC properly proved.
56. Accordingly, the accused is hereby convicted for having committed offence punishable under section 376/506 of the IPC.
57. Let he be heard at the point of sentence.
Announced in the open Court on this 8th day of April, 2016.
(ANURADHA SHUKLA BHARDWAJ) Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
SC No. 108/13FIR No.58/13,PS. Nihal Vihar Page 45 of 55 State v. Rahul Tomar U/s. 376/506 IPC IN THE COURTOF MS.ANURADHA SHUKLA BHARDWAJ, ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK COURT)01, WEST, TIS HAZARI COURTS, DELHI Sessions Case Number : 108/13 Unique Case ID Number : 02401R0197152013 State versus Rahul Tomar Son of Sh. Mahender Pal Resident of RZG11/12, Laxmi Park, Nangloi, Delhi.
Permanent Address Village Shikanderabad, Thana Mujriya, Tehsil+ Distt. Bandayu, U.P. First Information Report Number : 58/13 Police Station: Nihal Vihar Under sections: 376/506 of the Indian Penal Code.
Appearances: Ms. Madhu Arora, Additional Public Prosecutor for the State.
Convict produced from JC.
Sh. Umesh Chandra & Sh. Ram Krishna, Ld. Counsels for convict.
SC No. 108/13FIR No.58/13,PS. Nihal Vihar Page 46 of 55 State v. Rahul Tomar U/s. 376/506 IPC ORDER ON SENTENCE
1. The accused has been convicted by order/judgment of this court dt. 08.04.16.
2. I have heard Ld. Counsels for convict as well as Ld. Addl. PP on the point of sentence.
3. The Additional Public Prosecutor for the State 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.
4. The convict and his counsel, on the other hand, have requested for a lenient view to be taken against him and for his release on probation. It is stated by the counsel for the convict that the convict was 22 years old and both the convict and prosecutrix were in love with each other. It is stated that the child born to prosecutrix died after two weeks and as such she had not suffered any adverse effect on her future life. The convict has 11 members in his family including the widow of his brother and her SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 47 of 55 State v. Rahul Tomar U/s. 376/506 IPC five minor children as also his own parents. He is a first time offender and has never committed any offence earlier. It is also assured that he shall not commit any offence in future.
5. The convict though he took a plea in his SA that he was willing to take the responsibility of the prosecutrix and her minor child, has not said a word about prosecutrix as of now. Ld. Counsel has argued that it was a consensual relationship, however, this fact has been negated in the judgment holding categorically that convict did not own up to the relationship during the trial before the recording of statement u/s. 313 Cr.P.C. Now at this stage he has again gone back and is taking a plea that since the child born to prosecutrix has died, she has actually not suffered any loss. This seems to be an irresponsible statement. The convict seems to have no sympathy with the prosecutrix who has lost her child, which was his child also. To him, the pain of bearing a child and giving birth has become a nullity after the death of the child. There is nothing in the prosecutrix having lost her virginity and consequentially prospects of marriage. Not only the prosecutrix suffered unwarranted physical assault committed by convict, she also lost her child, which would have definitely caused her mental trauma.
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6. Keeping in view the offence committed by the convict, I am not inclined to take a lenient view against him and release him on probation. He has raped a young woman who was helpless, defenceless, vulnerable and an easy prey.
7. The object of sentence 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. To show mercy in the case of such cases would be a travesty of justice and the plea for leniency is wholly misplaced. The welfare and interest of other women in the society also needs to be protected for the reason that if the convict is released, they may be subjected by him in a similar offence with them.
8. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. Socioeconomic, status, SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 49 of 55 State v. Rahul Tomar U/s. 376/506 IPC religion, race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
9. In the judgment reported as Shri Bodhisattwa Gautm v. Miss Subhra Chakraborty, AIR 1996 SC 922, the Hon'ble Apex Court observed that:"
The entire psychology of a woman and pushes her into deep emotional crisis. It 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'). The 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. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions."
10. A view which is likely to result in vicitimization or SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 50 of 55 State v. Rahul Tomar U/s. 376/506 IPC exploitation of innocent girls needs to be avoided and the Courts need to take a view which would discourage unscrupulous from taking advantage of innocent girls. If a view otherwise is taken, it will amount to putting premium on the misconduct of men which is not only highly reprehensible and abhorable but also criminal in nature. If this is allowed to happen, it will enable immoral and dishonest persons to exploit girls. The Court can not and should not give such a licence to those who keep on looking for opportunities to exploit the sentiments and vulnerability of girls.
11. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her selfesteem and dignity. It degrades and humiliates the victim and leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity.
12. Section 376 IPC reads that Punishment for rape: (1) Whoever, except in the cases provided for by subsection (2), SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 51 of 55 State v. Rahul Tomar U/s. 376/506 IPC commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Section 376 provides for a minimum sentence of 7 years to be imposed on the person committing sexual offences. There cannot be anything less imposed upon the convict for haivng violated the prosecutrix, who got pregnant because of this relationship and delivered a child, which was concluded to be the child of convict also by scientific evidence.
13. Therefore, considering the facts, I hereby sentence convict, for offence under section 376 of the IPC to rigorous imprisonment for seven years and a fine in the sum of Rs.50,000/ in default of payment of which, he shall undergo rigorous imprisonment for a period of one year. Since it has come out in the evidence of prosecutirx that she was threatened by the convict and the pressure was such that she SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 52 of 55 State v. Rahul Tomar U/s. 376/506 IPC chose not to disclose her pregnancy, the effect of section 506 IPC is also to be considered in the instant case. The convict is sentenced for offence u/s. 506 of the IPC to rigorous imprisonment for one year. Both the sentences shall run concurrently.
14. Benefit of section 428 of the 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 sent to judicial custody for serving the sentence.
15. The entire amount of fine, if realized, is awarded to the prosecutrix as compensation for the benefit of the prosecutrix. Fine has not been deposited by the convict.
16. Further, this Court directs that the State shall pay to the prosecutrix/victim an appropriate sum as victim compensation in terms of Rules 3 and 5 read with Entry 2 to the schedule of the Delhi Victims Compensation Scheme 2011 (notified on 02.02.2012) read with section 357A of the Cr.P.C. The terms of the scheme entitle every rape victim to minimum compensation of SC No. 108/13 FIR No.58/13,PS. Nihal Vihar Page 53 of 55 State v. Rahul Tomar U/s. 376/506 IPC Rs.2 lacs and a maximum compensation of Rs.3 lacs. Having regard to the facts of the case and the circumstances of the prosecutrix/victim, the Government of NCT is directed to pay an appropriate amount of compensation to the victim. 75 % of the amount shall be deposited in a fixed deposit, in terms of Rule 7 of the Scheme, in a nationalized bank for a period of three years and the remaining 25 % shall be available for utilization and initial expenses by the victim/prosecutrix.
17. These directions shall be complied within six weeks. The Delhi Legal Services Authority, which is the designated body under the said Scheme, shall oversee the implementation of these directions. The State shall ensure that the victim is duly informed within one week. The victim shall appear the Delhi Legal Services Authority on 28.04.16 for the said purpose.
18. 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, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
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19. A copy of the judgment dated 08.04.16 and a copy of the order on sentence dated 19.04.16, duly attested, besides the complete set of copy of the relevant case record, in compliance of directions of the High Court, be given to the convict, free of cost immediately.
20. A copy of the judgment dated 08.04.16 and a copy of the order on sentence dated 19.04.16 also be given to the Substitute Additional Public Prosecutor, as requested.
21. After completion of the formalities and expiry of the period of limitation, the ahlmad is directed to consign the file to the record room.
Announced in the open Court on this 19th day of April, 2016.
(ANURADHA SHUKLA BHARDWAJ) Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
SC No. 108/13FIR No.58/13,PS. Nihal Vihar Page 55 of 55 State v. Rahul Tomar U/s. 376/506 IPC