Delhi District Court
9.2012 vs Mr.Brijesh on 6 September, 2013
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 59 of 2013.
Unique Case ID Number : 02401R0560262012.
State
versus
Mr.Brijesh
Son of Mr. Rameshwar,
Resident of H.No. P-4/879,
Sultan Puri, Delhi.
First Information Report Number : 167/12
Police Station Mundka,
Under sections 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 29.11.2012
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 05.12.2012.
in the Sessions Court
Date of transfer of the file to this Court : 17.01.2013.
{ASJ (SFTC)-01, West, THC, Delhi}.
Arguments concluded on : 31.08.2013.
Date of judgment : 31.08.2013.
Appearances: Mr.Neelam Narang, Additional Public Prosecutor for
the State.
Accused has been produced from judicial custody.
Mr.Salil Kumar Jha and Mr.Pramod Aggarwal, counsel
for the accused.
Ms.Shubra Mehndiratta, counsel for Delhi Commission
for Women.
*********************************************************
JUDGMENT
"It is little wonder that rape is one of the least-reported crimes. Perhaps it is the only crime in which the victim becomes the accused and, in reality, it is she who must prove her good reputation, her mental soundness, and her impeccable propriety." ---(Freda Adler (b. 1934), U.S. educator, author. Sisters in Crime, ch. 9 (1975).
1. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is related to the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male adult.
PROSECUTION CASE
2. Mr. Brijesh, the accused has been charge sheeted by Police Station Mundka, Delhi for the offence under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 01.09.2012 at 4.00 pm at House No. C-94, Friends Enclave, Railway Colony, Mundka, 3rd Floor, Delhi within the jurisdiction of Police Station Punjabi Bagh, he had forcibly committed rape upon prosecutrix (name withheld to protect her identity) against her consent. The prosecutrix is related to the accused as she is the wife of his brother in law (saala)/accused is the husband of the sister of the husband of the prosecutrix and is her nandoi.
CHARGE SHEET AND COMMITTAL
3. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 29.11.2012 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 05.12.2012 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court of Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi for 17.01.2013 vide circular number 20/372-512/F.3.(4)/ASJ/01/2013 Dated 04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
4. After hearing arguments, charge for offence under section 376 of the IPC was framed against accused Mr.Brijesh vide order dated 17.01.2013 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In order to prove its case, the prosecution has examined as many as 17 witnesses i.e. HC Surender, who had received the first information in Control Room as PW1; Ct. Subhash Chander, witness of investigation as PW2; the prosecutrix as PW3; Dr. Parkashi Chillar, Principal of Govt. Sarvodaya Kanya Vidhyala, who proved the age proof of the prosecutrix and that her date of birth is 30.07.1993, as PW4; Dr. Brijesh, who had medically examined the accused, as PW5; Dr. Asha, who had medically examined the prosecutrix, as PW6. Ms. Manisha Upadhyaya, Senior Scientific Officer from FSL, who has proved the FSL report, as PW7; ASI Abhinandan, first Investigation Officer, as PW8; Mr.Amarnath Singh, Nodal Officer from Idea Cellullar Ltd., who has proved the CDR and other documents pertaining to the mobile phone of the accused which is in the name of his wife, Ms.Sunita, as PW9; Mr.Rajeev Ranjan, Nodal Officer from TATA Tele Services, who has proved the CDR and other documents pertaining to the mobile phone which was allegedly with the prosecutrix which is in the name of Ms.Raj Bala,, as PW10; HC Sri Bhagwan, duty officer who had recorded the DD entry regarding the incident, as PW11; Ct. Khemender Kumar, witness of investigation who had taken the accused for his medical examination, as PW12; HC Ashok Kumar, MHCM of the case property, as PW13; Mr. Suraj, brother of prosecutrix as PW14; HC Sudesh, duty officer who had recorded the formal FIR of the case, as PW15; Ms. Prabha Devi, mother of prosecutrix, as PW16; and WASI Sarita, who is the Investigation officer of the case, as PW17.
6. The accused and his counsel have preferred not to cross examine PWs 1, 2, 4, 5, 6, 7, 10, 13 and 15 due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
7. In his statement under section 313 of the Cr.P.C, recorded on 22.03.2013, the accused Brijesh has controverted and rebutted the entire evidence against him submitting that he is innocent and he has been falsely implicated in this case. Since the marriage of the prosecutrix with his brother in law Mr. Ankit, she is forcing Mr. Ankit and his family to transfer the matrimonial home in her name, which is not acceptable to the family. As her father in law refused to do so because he had taken a loan of Rs.5 lacs at the time of purchase of the said house and against that he had promised him to get one floor transferred in his name but later on, this idea was objected by prosecutrix and her mother. Whenever he visited the matrimonial home of the prosecutrix, the prosecutrix had not welcomed him and she made altercation with him on trivial issue. She once threatened him to forget the aforesaid loan/financial assistance of Rs.5 lacs or transfer of one floor in his name otherwise he would be implicated in a false case. He did not take this threat seriously. On 01.09.2012, he called Mr. Ankit to know the health of Mr.Kishan (elder brother of Mr. Ankit) who was suffering from viral fever that time. But the phone was picked up by the prosecutrix and she did not talk to him properly. She also did not tell him about the welfare of Mr.Kishan. He did not go to the matrimonial home of the prosecutrix on 01.09.2012 and no incident as alleged had ever occurred. He has stated the aforesaid facts to the police also but the same were not taken into consideration. He has preferred to lead evidence in his defence and has examined four witnesses.
DEFENCE EVIDENCE
8. In his defence, the accused has examined Ms.Sunita, his wife, as DW1; Mr.Om Prakash, father in law of the accused as well as the prosecutrix, as DW2; Mr.Krishan Kumar, brother in law of the accused as well as the rposecutrix, as DW3; and Mr.Pankaj Madan, employer of the accused as DW4.
ARGUMENTS
9. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the points for consideration filed on behalf of the accused.
10. The Additional Public Prosecutor for the State has requested for convicting the accused Mr. Brijesh for having committed the offence under section 376 of the IPC and submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
11. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused persons on the record. It is argued that there is no proof of the telephone call made by the accused on 01.09.2012 nor of the call made by the prosecutrix to her father in law. The accused had not gone to the spot of incident on 01.09.2012 and was busy in his work. There is no injury on the prosecutrix, as is clear from her MLC nor there is any injury on the body of the accused, as per his MLC which show that the offence of rape has not been committed. There is no record of the first hospital where the prosecutrix was taken by her brother and mother. The prosecutrix has filed this false case only to get the property of her father in law transferred in her name and to stop him transferring the same in the name of the accused in lieu of the loan of Rs.5 lacs. Her evidence is not reliable. There is a delay in lodging of the FIR which is fatal.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
12. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
13. Under this sphere, I now proceed to test the submissions of both the sides.
CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS
14. The prosecution story unveils with a report regarding the incident being made to the police vide DD No. 39 A dated 03.09.2012 (Ex. PW 8/A- Ex.PW11/A). Information was also received in the PCR on 03.09.2012 from one Mr. Pappu Singh that rape had been committed of sister by brother in law of her sister which was sent by HC Surender (PW1) to the concerned PS vide PCR form - 01 ( part II) (Ex. PW1/A). Information was received on 03.09.2012 at about 11.30 PM by HC Shri Bagwan (PW11) that wrong act had been committed by Mr. Brijesh, nandoi of the prosecutrix and she is admitted is SGM hospital which was recorded vide DD entry (Ex.PW 11/A). On 04.09.2012, the statement of the prosecutrix (Ex.PW3/A) was recorded, on which the rukka (Ex.PW 17/A) was made on the basis of which FIR (Ex.PW15/B) was lodged and the certificate under section 65 Evidence Act (Ex.PW15/C) was issued and thereafter, the endorsement (Ex.PW 15/A) was made on the rukka. The prosecutrix was sent with HC Vijender to the SGM Hospital for her medical examination where she was medically examined by Dr. Asha (PW6) vide MLC (Ex.PW6/A). Twelve (12) sealed pullandas pertaining to the prosecutrix and one sample seal were seized vide seizure memo (Ex.PW2/A). The marriage card (Ex.PX) was seized vide seizure memo (Ex.PW17/B). School leaving certificate showing her date of birth as 30.07.1993 (Ex.PY) was also seized. On the pointing out by the prosecutrix, accused was arrested vide arrest memo (Ex.PW8/A), his personal search was taken vide personal search memo (Ex.PW8/B) and he made his disclosure statement (Ex.PW8/C). Accused was sent with Ct.Kheminder Kumar (PW12) to the SGM Hospital for his medical examination where he was medically examined by Dr.Brijesh (PW5) vide MLC (Ex.PW5/A). One (01) parcel pertaining to the accused and one sample seal were seized vide seizure memo (Ex.PW12/A). On the pointing out by the accused of the place of occurrence, the pointing out memo (Ex.PW8/D) was prepared by the IO. At the instance of the prosecutrix, the site plan (Ex.PW3/B) was prepared by the I.O. Inspector Devender Kumar issued letter dated 12.11.2011 (Ex.PW17/DA) to the Nodal Officer Vodafone asking for details of mobile phone number (withheld to protect the identity of the prosecutrix) of the prosecutrix and mobile phone no.9990278982 of the accused. Mr. Amarnath Singh (PW9), Nodal Officer of Idea Celllular Ltd has produced the CDR of mobile phone number 9990278982. (Ex.PW9/A to Ex.PW9/E). Mr. Rajeev Ranjan,(PW10) Nodal Officer of Tata Tele Services provided the details of the CDR of mobile phone number (withheld to protect the identity of the prosecutrix) of the prosecutrix (Ex.PW10/A to Ex.PW10/E). The date of birth of the prosecutrix is 30.07.1993 as per the school admission register (Ex.PW4/A), admission form (Ex.PW4/B) and school leaving certificate along with mark sheet (Ex.PW4/C and Ex.PW4/D) as deposed by Dr. Prakashi Chillar, Principal (PW4). The IO (PW17) deposited one sealed pullanda pertaining to the accused and one sample seal and one sealed pullanda pertaining to the prosecutrix and one sample seal on 04.09.2012 in the malkhana with H.C. Ashok Kumar, Malkhana Moharar (PW13) vide entry number 357 in register number 19 (EX.PW13/A) and on 06.09.2012 both the sealed pulendas and two sample seals were sent to the FSL, Rohini through Ct.Surender vide RC No.178/21/12 of register number 21 (Ex.PW13/B) and the acknowledgement (Ex.PW13/C) was taken. The exhibits of this case were examined by the FSL expert Ms. Manisha Upadhayay (PW7) vide her detailed FSL reports (Ex.PW7/A and Ex.PW7/B).
15. The allegations against the accused are that 01.09.2012 at 4.00 pm at House No. C-94, Friends Enclave, Railway Colony, Mundka, IIIrd Floor, Delhi, he had forcibly committed rape upon prosecutrix (PW3) aged about 20 years against her consent. Accused is the brother in law (jija) of Mr. Ankit, husband of the prosecutrix. On 01.09.2012, in the afternoon, accused came to the house of the prosecutrix after making a phone call on the mobile phone of her husband and went to the third floor asking the prosecutrix to prepare tea for him, which she did and when she came to take the empty glass of tea, he forcibly raped her. While raping the prosecutrix, he injured her back and threatened her with dire consequences. The prosecutrix became unconscious and regained consciousness after two days on 03.09.2012 in the hospital, where she told about the incident to her husband and her parents and her neighbours i.e. one uncle and aunty and she was taken from hospital to her parents house. Mr. Suraj, brother of the prosecutrix (PW14) on the instance of the prosecutrix telephoned to the police, which reached to her parents' house.
TESTIMONIES OF THE PROSECUTION WITNESSES
16. It is necessary and essential to elaborate the testimonies of the prosecution witnesses in brief.
The Most Material Witness- Prosecutrix.
17. PW3, the prosecutrix, has deposed on oath before the Court that she was married with Mr. Ankit on 02.06.2012. After her marriage, she used to reside with her in laws at House No.C-94, French Enclave, Mundka. Accused Mr.Brijesh is the brother in law-Jija of the husband of the prosecutrix (Nandoi). On 01.09.2012, in the noon hours, the accused made a phone call on the mobile phone of her husband, which she was retaining. He make enquiry from her regarding the family members present in the house. She informed him that she is alone at house. Accused immediately informed her that he is coming to their house. She immediately made a call to her father in law namely Mr. Om Parkash informing about the visit of the accused. Her father in law told her to serve food to the accused. Within half an hour, the accused came at their house and she paid respect to him and served water to him. He asked her to bring tea on the third floor of the house. She prepared tea for him and served the same and thereafter came down. After about five minutes, she again went to third floor to bring empty glass of tea. When she was picking up the glass of tea, the accused pulled by her hand due to which she received a jerk in her back. He closed her mouth with his mouth. The accused is well built and strong. He is aged about 32 years. He pushed her due to which her back hit the side of the bed. He raised her saree and removed her under garments. He removed his trousers and undergarment and raped her. He had forcibly made her lie on the bed and thereafter he raped her without her consent. He used force on her and has grievously injured her. She could not shout for help as he had closed her mouth with his mouth. He had over powered her. He threatened her with dire consequences (acha nahi hoga agar kisi ko bataya toh) in case she told any one about the incident and then he left the room. She tried to phone her father in law but lost consciousness. She regained consciousness after two days on 03.09.2012 when she was in the hospital. She told about the incident to her husband, her parents and her neighbours i.e. one uncle and auntie, who were in the hospital. She did not know the names of the neighbours. Her parents took her to their house and on her instance my brother Mr. Suraj telephoned the police. The police came to her parent's house and took her Sanjay Gandhi Memorial Hospital for her medical examination. The doctor had examined her and advised her admission in the hospital. She refused to get herself admitted in the hospital as she wanted to get the accused punished. Her Chachi Saas Ms. Beena had changed her saari and underwear when she was unconscious. She had washed her clothes. She had also washed the bed sheet on which the accused had committed rape on her. During her medical examination, the doctor had taken her samples. Her statement (Ex.PW3/A) was recorded by the police in the PS. Since the date of incident, she has not been able to stand and work alone as she has received grievous injuries in her spine. Since her discharge from the hospital, she has been living in her parents' house. Her husband some times comes to visit her at her parents' house and is not taking her to her matrimonial home as there is no one to look after her. Her husband is not supporting her and is pressuring her to change my statement against the accused who is the brother-in-law (Jija) of her husband. She has prayed that the accused may be punished as he has raped her. Since the last date, her husband has taken her once to her matrimonial home for two days and has tortured her for changing her statement against the accused. During investigation, the IO had prepared the site plan (Ex.PW3/B) at her instance. Police arrested the accused on her pointing out vide arrest memo (Ex.PW8/A) and also prepared his personal search memo (Ex.PW8/B). She has been cross examined at length on behalf of the accused.
Public Witnesses-Brother and Mother of the Prosecutrix
18. PW 14, Mr. Suraj, brother of the prosecutrix, has deposed that his sister was been married to Mr.Ankit on 28.06.2012. On 03.09.2012 at about 8:30 p.m., he had gone to the matrimonial house of his sister to see her condition as his mother had asked him. His sister's condition was not good and she was unconscious. He had asked his brother-in- law (Ankit) to take his sister to some hospital and had then left from there as there was a cremation of grandson of his brother. Thereafter, he made a phone call to Ankit to know about the hospital where his sister was taken. He informed him that he had brought his sister for treatment in Ambedkar Hospital. Thereafter, he reached Ambedkar Hospital in the night hours. She was not treated well in the hospital. He requested his brother-in-law to take his sister to their house at Sultanpuri. He hired a taxi for taking his sister to Sultanpuri. He accompanied them on his motorcycle. Thereafter, his brother-in-law brought his sister to their residence. When he reached his house, he saw that his sister was saying "Jijaji, Jijaji ne". He asked what has been done by Jijaji. She told him that Jijaji had committed wrong act with her. He made inquiry from her regarding galat kaam. She told him that she had been sexually assaulted. He asked her what she wanted and she told him that matter should be reported to the police. He made a call to the police on 100 number from his mobile phone number 9211691180 or 8447202382 as he was maintaining a double SIM mobile phone. The call was made by him at around 10:18 p.m. PCR came at their residence within half an hour. His sister narrated the incident to the police official. Police took his sister to SGM hospital and he accompanied her in the Gypsy. His sister was admitted in the hospital and she was medically examined. ASI Abhinandan met him in the hospital and he made inquiry from his sister. His sister refused for her admission in the hospital as she wanted action against the accused. He brought his sister to their residence at Sultanpuri in the night hours at around 3:00/4:00 a.m. On the next day, he along with his mother and sister went to police station. He left them in the police station and went to attend to some work. When he came back from his work to his house, he came to know that accused Brijesh had been arrested by the police.
19. He has been cross examined by the Additional Public Prosecutor for State and he has admitted that the police recorded his statement (Ex.PW14/A) in the present case that his sister had told him that on 03.09.2012, that she was alone at her matrimonial house and her Nandoi Brijesh made a phone call to her in the noon hours making inquiry regarding the presence of family members in the house and when his sister told him that she was alone and her Nandoi came to her matrimonial house. He has admitted to be correct that he had stated to the police in his statement that his sister was called by the accused on the third floor on the pretext of bringing water and when she went upstairs, accused dragged her hand and put her on the bed and thereafter removing her clothes, committed rape upon her and thereafter left from there while threatening with the dire consequences not to tell about the incident to anybody and she became unconscious. He has also admitted to be correct that he had told the police in his statement that incident had taken place on 01.09.2012 at around 4:00 p.m. He has admitted that after the medical examination of his sister, some pullandas pertaining to her were seized vide seizure memo (Ex.PW2/A). He has admitted that he had forgotten about the above facts due to lapse of time. He has been cross examined at length by the accused.
20. PW16, Ms. Prabha Devi, mother of prosecutrix, has deposed that the prosecutrix was married about 6 months ago with Mr. Ankit resident of Village Mundka. On 02.09.2012, she along with her elder daughter Ms. Rakhi had gone to the matrimonial house of the prosecutrix as she did not attended her call properly. She went to meet her to make enquiry regarding the same. She was lying unconscious on the bed. Her in-laws were also present there. She made enquiry from the father in law of the prosecutrix as to what had happened to her. He told her that it is a "Pitter- Dosh" that is why she is lying unconscious. She could not talk with her daughter as she was lying unconscious. Thereafter, she along with her daughter Ms. Rakhi returned back to her house. Thereafter, she went to Nursing home along with wife of her grandson as she was not feeling well as the child in her womb had died. She did not recollect her name as she is living separately. On 03.09.2012, her son Mr. Suraj had gone to the matrimonial house of the prosecutrix. Her son made a call to her informing that the prosecutrix is still lying unconscious. She asked him to reach hospital and meet with her. She deputed her for the cremation of dead child. Her son Mr. Suraj told her that he had talked with Mr. Ankit, husband of the prosecutrix and asked him to take her to the hospital. She made a call to her son in law Mr. Ankit to make enquiry his presence. He told her that he is at Ambedkar Hospital along with the prosecutrix for her treatment but he is taking her to the house as the prosecutrix started crying that her Jija (husband of sister of Mr. Ankit) had raped her. She asked him to remain in the hospital as she was reaching there. She along with Mr. Suraj reached there. She offered water to the prosecutrix. She could not talk with her daughter in the hospital. She along with her son Mr. Suraj brought back the prosecutrix to her house. When she made enquiry from the prosecutrix regarding her condition, she told her that she received a telephonic call of her Nandoi (Brijesh) when she was alone at her matrimonial house and she informed about the said call to her father in law, who told her to serve tea and food to Mr.Brijesh. Accused came to the house when she was alone and asked the prosecutrix to prepare tea for him. Brijesh went upstairs and asked the prosecutrix to bring tea on the upper floor. She did not know what had happened with her daughter. She again said that her daughter told her that when she went upstairs to serve tea to accused Brijesh, accused pushed her on the bed, shut her mouth with his mouth and thereafter forcibly raped her. When she was pushed on the bed, she received some injuries on her back. She asked the prosecutrix what she wanted and she told her that she wanted to kill the accused. When she asked her that she is not in a position to do so then she is told me she wanted to punish the accused and matter should be reported to the police. Her son Mr. Suraj immediately made a call to police on 100 number. Police gypsy came there and took her, her son and her daughter, the prosecutrix, to Sanjay Gandhi Memorial Hospital. Her daughter was medically examined in the hospital. She was advised for treatment after admission but she refused to get admission in the hospital due to terror of accused. In the hospital, the exhibits of the prosecutrix were taken by the doctor and handed over to the police vide the seizure memo (Ex.PW2/A). Her daughter also handed over school leaving certificate regarding her date of birth to the police. Accused Brijesh was arrested vide arrest memo (Ex.PW8/A) and his personal search was taken vide personal search memo (Ex.PW8/B). She prayed that accused should be punished as he had spoiled the life of her daughter. She has been cross examined at length on behalf of the accused.
Police Witnesses- Formal
21. PW1, HC Surender has received the information on 03.09.2013 from one Mr. Pappu Singh vide phone number 9211691180 that rape has been committed on his sister by the brother in law of her husband. He sent the same to the concerned PS and PCR and prepared The police control room form 1 (part II)(Ex.PW/A).
22. PW2, Ct.Subhash Chander is the witness of investigation. On receipt of DD No.39A, he accompanied the IO ASI Sarita to Sanjay Gandhi Memorial Hospital. After medical examination of prosecutrix, the exhibits and sample seal were received by the IO. 12 sealed pulenda and one sample seal of the hospital seized by the IO through seizure memo (Ex.PW2/A). The mother of the prosecutrix Ms.Prabha Devi (PW16) was also present in the hospital and her statement was also recorded. The custody of the prosecutrix was handed to her mother. The exhibits were deposited in the Malkhana.
23. PW-11, HC Sri Bhagwan is duty officer in present case, who had proved the DD No.39A (Ex.PW11/A) whereby information was received on 03.09.2012 at 11.30 pm that some wrong act has been committed by Brijesh, nandoi of the prosecutrix (name withheld) and that she is admitted in Sanjay Gandhi Memorial Hospital.
24. PW-12, Ct. Khemender Kumar, has deposed that he along with IO and accused went to Sanjay Gandhi Memorial Hospital for medical examination of accused Mr.Brijesh. After his medical examination, the doctor handed over one sealed pullanda and one sample seal with the seal of Hospital which he handed over same to the IO who seized the same through seizure memo (Ex.PW12/A).
25. PW-13, HC Ashok Kumar, is the MHCM. On 04.09.2012, W/ASI Sarita deposited one sealed pullanda pertaining to accused Mr.Brijesh and one sample seal and she also deposited one sealed pullanda pertaining to the prosecutrix and one sample seal vide entry No. 357 of Register No. 19 (Ex.PW13/A). On 06.09.2012, both the sealed pullandas and sample seals were sent to FSL Rohini through Ct. Surender vide RC No. 178/21/12 (Ex.PW13/B). The aforesaid sealed pullandas and sample seals were deposited at FSL vide acknowledgment (Ex.PW13/C). So long as case property remained in his custody, no one has tampered the same.
26. PW15, HC Sudesh, is the Duty Officer to whom ASI Sarita handed over a rukka to me for registration of FIR, under section 376 of the IPC. On the basis of said rukka, he made endorsement (Ex.PW15/A) for registration of FIR and got recorded the FIR (Ex.PW15/B) from computer operator. The certificate under section 65 Evidence Act (Ex.PW15/C) regarding correctness was issued by him.
Medical and Forensic Evidence
27. PW5, Dr. Brijesh, had medically examined the accused Brijesh Kumar and has prepared the MLC of the accused (Ex.PW5/A). After medical examination, blood sample was collected and handed over to the police after sealing the same.
28. PW6, Dr.Asha, had medically examined the prosecutrix and has prepared the MLC of the prosecutrix (Ex.PW6/A). After medical examination she collected samples and handed over the same to the police official.
29. PW7, Ms.Manisha Upadhyaya, Senior Scientific Officer (Biology) FSL Rohini had examined two sealed parcels on 06.09.2012 in the office. The seal of both the parcels were tallied as per the forwarding letter. One of the pulenda was having seal of SGMH GNCT of Delhi and second pulenda having seal of SGMH Mangolpuri Delhi. Parcel no.1 was found containing exhibits complete kit. Parcel no.2 was found containing blood samples. The exhibits of both the parcels were examined by her. She gave her biological report regarding the aforesaid parcels and same is as under
Result:- Semen could not be found in the contents of parcel no.1. However blood was detected on Ex.1K, 1L and 2. Her report dated
30.10.2013 is Ex.PW7/A. She also gave the serological report (Ex.PW7/B). In the result, blood sample was found putrefied. Official Witness
30. PW4, Dr.Parkashi Chillar, Principal of Govt. Sarvodaya Kanya Vidhyala has proved the admission register (Ex.PW4/A), Admission Form (Ex.PW4/B), School Leaving Certificate (Ex.PW4/C) and Mark Sheet (Ex.PW4/D) pertaining to the prosecutrix. As per the school record, her date of birth is mentioned as 30.07.1993.
31. PW-9, Mr.Amarnath Singh, Nodal Officer, has produced the CDR and other relevant documents pertaining to the mobile phone of the accused which is in the name of his wife. He produced the CDR (Ex.PW9/A) of mobile phone no. 9990278982 for the period 30.08.2012 to 05.09.2012 along with requisite certificate under section 65 B Evidence Act (Ex.PW9/B); customer application form (Ex.PW9/C) of the aforesaid mobile phone, which was issued in the name of Ms. Sunita Goel wife of Mr.Vijesh Kumar r/o 109, Block D-4, Sultanpuri, Delhi. At the time of issuing the connection the applicant had submitted photocopy of election card (Ex.PW9/D) as proof of residence. The location chart of the aforesaid cell ID of the aforesaid period (Ex.PW9/E) was also produced.
32. PW-10, Mr. Rajeev Ranjan, Nodal Officer, brought CDR (Ex.PW10/A) of mobile used by the prosecutrix (number withheld in the judgment to protect the identity of the prosecutrix although it is mentioned in the evidence) with effect from 28.08.2012 to 04.09.2012; the customer application form (Ex.PW10/B) of the aforesaid mobile phone and same was issued in the name of Raj Bala W/o Roshan Lal, R/o D-1/289, Sultanipuri, Nangloi, Delhi. At the time of issuance of connection, the applicant had submitted the copy of Election Card (Ex.PW10/C). The witness also produced the Cell ID Chart (Ex.PW10/D) with location of the aforesaid mobile phone for the aforesaid period. The certificate under section 65 Evidence Act of the CDR (Ex.PW10/E) was also produced.
Police Witnesses-Investigation
33. PW-8, ASI Abhinandan, had deposed that DD No.39A, Mark PW8/A regarding incident of rape at house no.C-94, Friends Enclave colony, Mundka was conveyed to him by duty officer and he was asked to investigate the matter. He along with Ct. Subhash went to Sanjay Gandhi Hospital where he collected MLC no.15460 of patient (prosecutrix). After her medical examination, doctor handed over one sealed pulenda and one sample seal to him. Thereafter, he along with prosecutrix and her mother returned back to the PS. WASI Sarita was called in the PS to carry out further investigation. He handed over pulenda as well as sample seal to her along with MLC. The prosecutrix was also produced before her. ASI Sarita seized the aforesaid pulenda through seizure memo (Ex.PW2/A). Thereafter, he along with prosecutrix and her mother, ASI Sarita went to P-4/879, Sultan puri at the house of accused. Accused was pointed out by the prosecutrix as well as her mother. He was apprehended. After formal interrogation, accused was arrested in the present case vide arrest memo (Ex.PW8/A) and his personal search memo (Ex.PW8/B) was also prepared. The disclosure statement of accused (Ex.PW8/C) was also recorded. Thereafter, IO recorded statement of prosecutrix as well as her mother. The accused took the police team to the house of prosecutrix and pointed out the room of third floor, where he had committed rape upon prosecutrix on 01.09.2012. Pointing out memo (Ex.PW8/D) was prepared. The site plan was also prepared at the instance of prosecutrix. Thereafter, the police team along with accused returned back to PS. Accused was put in the lock up.
34. PW-17, WASI Sarita, has deposed that on 04.09.2012, SHO of PS Mundka called her at PS as there is one rape case which was to be investigated by her. She met the Duty Officer who introduced her to ASI Abhinandan. Prosecutrix along with her mother and brother were also present in the PS. She was already got medically examined by ASI Abhinandan and he handed over exhibits as well as sample seal to me which she seized through seizure memo (Ex-PW2/A). She interrogated the prosecutirx and she herself prepared a complaint (Ex.PW3/A) and handed over same to her. Thereafter, she made endorsement (Ex.PW17/A) upon the same for registration of the case under section 376 IPC. NGO was also called to counsel the prosecutrix. The prosecutrix was counseled by NGO official Magdalin Marian. She handed over the rukka to the Duty Officer for registration of FIR and he recorded the FIR. Thereafter, she along with prosecutrix, her mother, brother and ASI Abhinandan went to the place of occurrence i.e. C-94, top floor, Mundka where the prosecutrix pointed out the place where accused had raped her. She prepared site plan (Ex.PW3/B) of the said place. Thereafter, police team along with the prosecutrix and her mother and brother reached Sultan Puri at the house of accused i.e. P-4/879, Sultan Puri where accused met the police team and prosecutrix identified the accused who had raped her. He was apprehended and she prepared his arrest memo and personal search memo (Ex-PW8/A and Ex.PW8/B respectively). She also recorded disclosure statement of accused (Ex-PW8/C). She recorded the statement of prosecutrix as well as her mother under section 161 Cr.P.C. The victim was discharged from the investigation. The pointing out memo (Ex-PW8/D) was prepared at the instance of accused. Accused was brought to PS. Ct. Kaminder was deputed for getting the accused medically examined from SGM Hospital. After medical examination, Ct. Kaminder handed over to her one cloth pullanda and one sample seal which she seized through seizure memo (Ex-PW12/A). After serving food, the accused was put into lock up. On 05.09.2012, the accused was produced in the Court and was sent to judicial custody. The exhibits were sent to FSL on 06.09.2012. The prosecutrix handed over her marriage card (Ex.PX) to me during investigation which she seized through seizure memo (Ex-PW17/B). She also collected school leaving certificate of prosecutrix (Ex.PY) during investigation from the school duly verified by Principal. She also collected call detail record of Mobile phone of prosecutrix (number withheld) as well as mobile phone number 9990278982 of the accused. She also collected FSL result. After completion of investigation, the file was put up before SHO who forwarded the same before the Court.
TESTIMONIES OF THE DEFENCE WITNESSES
35. It is also necessary and essential to elaborate the testimonies of the defence witnesses in brief.
36. DW1, Ms. Sunita (wife of the accused), DW2 Mr.Om Prakash (father in law of the accused) and DW3, Mr.Krishan Kumar (brother in law of the accused) have deposed that accused did not visit the matrimonial house of the prosecutrix on 01.09.2013. Accused was working as Medical Representative in Vedic Heritage Herbal at F-61, Phase -I, Ashok Vihar, New Delhi and the name of his employer is Mr. Pankaj Medant. He used to visit in the field area namely Nangloi, Peera Garhi, Swarn Park, Mundka. He used to take orders from the medical shop and furnish the same to his employer. Mr.Om Parkash (DW2) had taken a loan of Rs. 5 lacs from the accused to buy the house which was arranged by the accused from himself and others. Mr.Om Parkash had not returned the aforesaid amount and had assured for returning the same or else he would transfer one floor of his house i.e.C-94, Friends Enclave, Railway Colony, Mundka, New Delhi in the name of the accused. When the prosecutrix came to know about these facts, she used to quarrel with her marital family and she used to say that the whole house belongs to her and nobody can take any part of it. She had threatened the accused against coming there. She wanted the house to be transferred in her name. When she came to know that DW2 was transferring one floor of the house in the name of the accused, she has falsely implicated him in the present case.
37. DW4, Mr. Pankaj Madan, has deposed that accused Brijesh Kumar was employed as an Medical Representative in Vedic Heritage Herbaceutical at F-61, Ashok Vihar, Ph-1, Delhi-52 of which he is the proprietor. It has TIN Number 0760301434. The work assigned to accused Brijesh was of going to the market to collect orders for firm and after collect the medicine from the firm and supply them in the market. He was paid a salary of Rs.6000-7000/- exclusive of incentive which he earns depending on the orders received. He has been regular and punctual. He bears a good moral character. DW4 have never had any complaints against him. The maximum amount earned by Brijesh Kumar would be Rs.15000-16000/- which is inclusive of salary and incentive. He has never confided in him about any domestic problems. However, he had told him that he had given some payments to his father in law due to which he had requested him for advance of salary several times. He did not tell him the exact amount which he had given to his father in law. There was no complaint against accused Brijesh Kumar in his knowledge. On 01.09.2012, accused Brijesh was sent by him to Nangloi to collect orders. There were several doctors whom he was supposed to visit. He had brought the diary maintain by accused Brijesh in which his scheduled of 01.09.2012 is mentioned (Ex.DW4/A). He identified the writing and signatures of accused Brijesh Kumar on Ex.PW8/C- the disclosure statement of accused is shown to the witness and he has identified the signature of accused at point A.) Accused Brijesh Kumar is also known as Vijay Kumar and he has signed as Vijay Kumar in ExPW8/C. He was aware about the nature of the case which is lodged against the accused and he was of the opinion that the accused could not have committed an offence of rape.
38. All the DWs have been cross examined at length by the Additional Public Prosecutor.
IDENTITY OF THE ACCUSED
39. There is no dispute regarding the identity of the accused Mr.Brijesh who has been identified by the prosecutrix. It is also not in dispute that the prosecutrix and the accused are related to each other as the accused is the brother in law (jeeja) of the husband of the prosecutrix/ accused is thehusband of the sister in law (nanad) of the prosecutrix and is her nandoi. He is also named in the FIR.
40. Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
41. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. It is clear from the admission register (Ex.PW4/A), Admission Form (Ex.PW4/B), School Leaving Certificate (Ex.PW4/C) and Mark Sheet (Ex.PW4/D) pertaining to the prosecutrix that her date of birth is 30.07.1993.
42. Therefore, it is clear that the prosecutrix was a major on the date of alleged offence.
VIRILITY OF THE ACCUSED
43. The accused has been medically examined by Dr.Brijesh (PW5) vide MLC (Ex.PW5/A) wherein it is opined that "There is nothing to suggest that this person can not perform the act of sexual intercourse)"
44. This report indicates that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape. Even otherwise, it is clear from the evidence of DWs 1, 2 and 3 that the accused is married and has two children which indicates that the virile.
45. Therefore, it is clear that the accused was medically capable of committing the offence.
MLC OF THE PROSECUTRIX AND FSL REPORTS
46. The MLC of the prosecutrix (Ex.PW6/A) shows that the prosecutrix in the history has told the doctor that "Pt gives H/O sexual assault by his sister in law's husband 2 days back. Acc. to patient, she has changed her clothes after that and passed urine & motion but she has not taken bath." She has also written in her own handwriting in Hindi language that with her consent she does not want to be admitted in the hospital.
47. In the Casualty, the doctor has observed that "No fresh external injury visible at the time of examination." In the Gynecology Department, the doctor has observed that "No local injury seen."
48. PW6, Dr.Asha has not been cross examined and therefore her testimony and the MLC of the prosecutrix (Ex.PW6/A) stand impliedly admitted by the accused.
49. Also the FSL reports (Ex.PW7/A and Ex.PW7/B) also show that semen was not detected on the contents of parcel number 1. However blood was detected on Ex.1K, 1L and 2. The FSL reports have not been disputed by the accused as PW7 has not been cross examined and stand impliedly admitted by the accused.
50. It has been argued on behalf of the accused that as there is no medical and forensic evidence against the accused, it indicates that he has been falsely implicated in this case.
51. However, this contention is not tenable as it cannot be ignored that the prosecutrix was medically examined on 03.09.2012 at 11.35 pm while the alleged incident occurred on 01.09.2012 in the afternoon and all evidence may have been washed out of the body of the prosecutrix while easing herself. Also, the fact that she did not have any injury on her body stands explained in the evidence of the prosecutrix herself that "the accused pulled by my hand due to which I received a jerk in my back. He closed my mouth with his mouth. The accused is well built and strong. He is aged about 32 years.....He had over powered me." In such a situation, perhaps there was no occasion to receive visible injuries or injuries on her private parts although as per the prosecutrix she had injured her back in the incident when the accused had pulled her towards him and she had hit the side of the bed.
52. It is also argued on behalf of the accused that the mobile phones of the prosecutrix, accused and their father in law, Mr.Om Parkash (DW2) were not seized nor examined in the FSL to prove the calls. However, this contention is not tenable as the CDRs of the relevant phones have been produced and proved in the evidence of PWs 9 and
10. Even otherwise, it is not the case that the accused had used a mobile phone only to talk with the prosecutrix.
53. Otherwise also, medical and forensic evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix which is of utmost importance and the judgment is mainly based on her evidence.
DEFENCE OF THE ACCUSED
54. In his statement under section 313 of the Cr.P.C., the accused has given mainly three word answers by saying "It is incorrect", "It is wrong" to most of the questions or feigning ignorance by saying "I do not know". Regarding most of the documents, he has stated that "It is a matter of record." He has stated that he is innocent and has been falsely implicated in this case by the prosecutrix as she wanted her father law to transfer his house in her name and not transfer a floor in the house in the name of the accused in lieu of the loan of Rs.5 lacs taken from him for purchase of the house as he could not return the loan.
55. On perusal of the cross examination of the prosecutrix, except for a cursory suggestion to the same effect which has been denied by her, there is no other substantive or documentary proof put to her.
56. The DWs 1, 2 and 3 have although deposed on the lines of the stand of the accused and DW4 has deposed that he was aware that the accused had given "some payments to his father in law" (amount not known) but it becomes clear from the cross examination of DW2 )father in law of the accused as well as the prosecutrix that the version of the accused appears to be false. DW2 has deposed in his cross examination that "I had brought the receipt regarding the payment made by me for the purchase of the house. Original seen and returned. Copy of the same is Ex-DW2/A. Despite efforts I was not able to find all the other documents regarding the registration of this property in my name as I tried to find the same after long gap for today.....I had purchased the house for a sum of Rs.15 lacs appx. I had sold a house situated in Prem Nagar for about 7-8 lacs. I had taken a loan of Rs.5 lacs from Brijesh. I had taken a loan of Rs.1 lac from my brother Mr. Subhash. Rest of the amount I had arranged myself from my income and savings......" He could not produce the documents regarding ownership of the house.
57. On perusal of receipt, Ex.DW2/A, it transpires that it is only a byana receipt and it mentions that an amount of Rs2 lacs has been paid by DW2 to one Mr.Tilak Raj and an amount of Rs.13 lacs is to be paid 10th February (year not mentioned though presumably 2011 as the receipt is dated 28.11.2010) but it does not in any manner indicate that DW2 is the owner of the house.. DW2 has failed to produce the sale deed or any documents of ownership of the house.
58. Further, it is clear from the evidence of DWs that the accused was earning only Rs.15,000/- to Rs.16,000/- maximum (as deposed by his employer DW4 that his salary was Rs.6,000-7,000/- exclusive of incentive). DW4 has also deposed that he had given advance of salary several times to the accused.
59. If the income of the accused was only Rs.15,000/- to Rs. 16,000/- and even he had to take advance several times from DW4, it does not appear probable that he would be able to give loan of Rs.5 lacs to his father law.
60. It is claimed that the accused had arranged Rs.5 lacs from his funds and from his brother Mr.Mukesh / relatives but neither Mr.Mulesh nor any relative has not been examined in defence. The accused also did not prefer to step into the witness box in his defence.
61. Also there is nothing brought on the record by the accused to show that there was any exchange of money what to say of Rs.5 lacs as loan to DW2 by the accused.
62. DW2 has come up with a new story in his evidence when he has deposed that "Before marriage the parents of prosecutrix came to my house for matrimonial talks and they inquired about my property i.e. my house. On that I said that after me everything would be there including the house and would be of both my sons i.e. Ankit and Krishan Kumar. After about one and half months of the marriage, prosecutrix started demanded to get my house to be transferred in her name. I had told her clearly t hat during my life time I shall not transfer my house to anyone and after my death it would go to my two sons only and not to her as she was my daughter in law. I had told her that at the time of purchase of the house, I had taken a loan of Rs. 5 lacs from Brijesh which I had to return and in case I did not return it I would transfer one floor in the house in his name. Prosecutrix had quarreled with me saying that this fact had not been told to her family prior to the marriage on which I told her that as it was not an appropriate stage there was no requirement of disclosing the fact of the loan and its repayment to her family. She still insisted for getting the house transferred in her name saying that there would be no problem for me." None of the other DWs have deposed anything in this regard.
63. DW2 has even gone to the extent of saying "I told her that as I had to return Rs.5 lacs to Brijesh, she should get Rs. 5 lacs for me which I would give to Brijesh as repayment and thereafter transfer the house in her name." It part of the deposition infact goes in favour of the prosecution as when there was a demand of Rs.5 lacs from the prosecutrix and she did not lodge any case against DW2 exercising restraint, then there was every reason for her to lodge the present case as something more terrible i.e. rape had occurred with her and only for this reason she lodged this case.
64. Further, it cannot be ignored that if the version of the DWs that the prosecutrix was threatening them against transferring one floor in the name of the accused and she wanted the transfer of the house in her name, then why they did not make any complaint to any authority about the same.
65. It also cannot be ignored that the prosecutrix was married to Mr.Ankit on 02.06.2012 and as per DW2 after one and a half months of marriage, she demanded that the house be transferred in her name which would be mid or late July, 2012. It is not probable that why a young girl who is newly married would sabotage her marriage for property. Her marital family has also not made any complaint against her to any authority. It appears that it is only an after thought to create a defence for the accused which is not even believable.
66. The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook.
67. It cannot be imagined that any girl would put herself in public glaze as a victim in a rape case against her husband's brother in law just to grab her father in law's property or to stop him from giving a floor in the name of the accused.
68. Another interesting fact which is revealed from the evidence of DW2 is that although he has claimed that he has been ousted from the house by the prosecutrix where she is staying with her husband but this fact is falsified when DW2 deposes that he has brought Ex.DW2/A from the ground floor of the house which indicates that he has comfortable access to the same.
69. DW3 has deposed that "My father used to prepare food for us. Most of time my bhabhi used to remain at her parental house. Vol. she used to visit in a week or so, after staying for about 4-5 day she again went to her parental house. My father was advised by our relatives not to perform marriage of my brother with the complainant. My father did not act upon the advice given by our relatives." But there is no such deposition by DW2 or DW1 which makes the evidence of DW3 unbelievable.
70. The accused has claimed that DW3 was at home as he was not well on 01.09.2012 when the alleged incident had occurred. DW3 has deposed in his examination in chief that he was having pain but in his cross examination he has deposed that "I had taken medicines from the doctor in our gali for the ailment of Stone. I can not produce any prescription of the doctor regarding my treatment which was taken by me from the doctor. I had taken medicine from a doctor from Sharma Clinic." Needless to mention here that there is a difference in pain and pain from stone. Further, neither any medical prescription nor the doctor have been produced in defence to show that DW3 was actually suffering from any medical problem on 01.09.2012. therefore, it cannot be said that as DW3 was unwell, he was at home on 01.09.2012 when the alleged incident had occurred.
71. As regards the evidence of DW4, it may be mentioned that although he is claimed to be the employer of the accused but this appears to be doubtful when he has deposed that "In my office no proper record was being maintained with regard to the orders and payments collected by the accused or other employees and for supply of medicine from other firm.......Some times I gave him Rs.1000/- as advance salary which was deducted from his monthly salary later on . I can not give the exact dates when I had given advance salary to the accused but the same were in the months of March and April 2012. No documents was executed regarding the advance payments. .....I do not have any record or document to show that the accused was ever in my employment." He has also failed to produce any document to show that he is the proprietor of Vedic Heritage Herbaceutical at F-61, Ashok Vihar, Ph-1, Delhi-52. DWs 1, 2 and 3 have mentioned the name of the employer of the accused as Mr.Pankaj Medant while the name of DW4 is Mr.Pankaj Madan and it does not appear to be a typographical mistake as no application has been filed till date for correction of spellings which indicates that Mr.Pankaj Madan and Mr.Pankaj Medant are two different men. Even otherwise, reliance cannot be placed upon the diary produced by DW4 allegedly written by the accused (which has not been proved by the accused as he preferred not to examine himself) as for the first time it is stated by DW4 that accused Mr.Brijesh is also known by the name of Mr.Vijay when there is no such claim of the accused or DWs 1, 2 or 3. These facts make the evidence of DW4 not reliable.
72. DW2 has deposed that the prosecutrix is not permitting Mr.Ankit, her husband to come to the Court for giving evidence in favour of the accused. However, this deposition does not appear to be correct as DW2 has also deposed that Mr.Ankit is living with the prosecutrix in her matrimonial home. If the brother in law of a man is implicated in a false rape case by his wife and his father has been ousted from the house by his wife, why would any man support his wife and stay with her and not appear as a witness for his brother in law. This fact indicates that the accused has been correctly arrested in this case.
73. It is claimed that on 01.09.2012, the accused had not gone to the house of the prosecutrix nor committed her rape. Reliance has been placed on the CDRs to show that the accused was not even in the area of Mundka.
74. However, firstly it may be mentioned that the fact the accused had telephoned and talked to the prosecutrix on 01.09.2012 is admitted by the accused himself in his statement under section 313 of the Cr.P.C. and also deposed by DW3. Secondly, it is not the case of the prosecution that the accused had called the prosecutrix from his mobile phone as there is no such deposition by the prosecutrix.
75. From the CDRs and location charts proved by PWs 9 and 10 (PW10 has not been cross examined) it is revealed that the mobile phone number 9990278982 in the name of the wife of the accused, was used by the accused to talk on the mobile phone (number withheld) used by the prosecutrix at 12:57 hours, 13:25 hours, 17:33 hours and 17:34 hours for 252, 15, 22 and 230 seconds respectively. It is also clear that the mobile phone of the accused was indeed in the area of Mundka in the afternoon of 01.09.2012 which indicates that the accused had indeed visited the house of the prosecutrix. The prosecutrix has also categorically stated in her complaint Ex.PW1/A and her evidence that the accused had come to her house on 01.09.2012 and raped her (quality of the evidence of the prosecutrix is being discussed under the heading of statement and evidence of the prosecutrix).
76. It is clear that the accused had indeed gone to the house of the prosecutrix on 01.09.2012 in the afternoon.
77. Therefore, in view of the foregoing discussion, I am of the considered opinion that there is no veracity in the defence of the accused.
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
78. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW3, the prosecutrix.
79. It is argued on behalf of the accused that the prosecutrix has made several improvements from her complaint, Ex.PW3/A in her evidence before the Court (with which was confronted during evidence) which makes her evidence not believable. She has not mentioned in her complaint that She had also told that she had tried to phone her father-in-law but had lost consciousness; She had also told that she had told about the incident to her parents, her husband, her neighbours i.e. one uncle and Aunty who were there in the Hospital; She had also told that her parents have taken her to their home where at her instance her brother Suraj had telephoned the police informing about the incident; She had also told that the police had come to her parent's house and had taken her to SGM hospital; She had also told that in the presence of the police, the doctor had advised her for admission in the hospital but she had refused; She had also told that Ms. Beena, her Chachi Saas, had changed her saree and underwear and washed her clothes and the bed sheet on which the offence was committed by the accused; She had also told that since the incident she has not been able to stand on her own as she was injured by the accused in the commission of the offence; As the fan was not working in the room on the ground floor, the accused told her to bring tea in the room on the top floor; When the accused had caught hold of her hand, she had requested him to leave it.; She had also told about my injuries to W/ASI Sarita; She had also stated about the incident to her husband, mother and brother and one uncle and aunty and she had told about these facts in her statement to W/ASI Sarita, etc.
80. It is further argued on behalf of the accused that the prosecutrix has not even been able to tell the time when her complaint was written, the time of arrival of the accused at her house, time of her phoning her father in law on receipt of the phone call from accused, time when the police came to her parents' house etc.
81. It may be observed here that it is not possible for anyone much less a victim of rape to remember the exact timing when a particular incident occurred. It is a general handicap attached to all eye witnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if the speak to all events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed with broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witness was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone. It cannot be expected from the prosecutrix that she shall be able to furnish the exact timing when a particular incident occurred as she cannot be expected to look at the clock every time.
82. In my considered opinion, not much relevance can be attached to the fact that there are some improvements in the evidence of the prosecutrix but the same come under the realm of clarifications as it is well settled law that the FIR/complaint need not be an encyclopedia of facts of any case. It is no longer res integra that it is not the requirement of law that every minute detail of the occurrence needs to be recorded in the FIR. The FIR is not intended to be an encyclopaedia of the background scenario of the crime. The legal principle which can be culled out is that the omission of material facts pertaining to the crime in the FIR is a relevant factor in judging the veracity of the evidence of the maker of the FIR but by itself is not sufficient to throw the evidence of the said witness. If the evidence of said witness is otherwise found to be credible, the omission in the FIR is of no consequence.
83. In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial.
84. I find on perusal of the complaint/statement (Ex.PW3/A) that the prosecutrix has signed her signatures with both her names at the bottom but she has spelled one of her names wrongly. This fact indicates that she must have been very disturbed at that time otherwise she would have spelt her name correctly.
85. It must also be remembered that at the time of her evidence the prosecutrix was in the safe and comfortable cocoon of her parents' house and could tell about all the details which she may or may not have given when the complaint was made.
86. Further, the prosecutrix has very consistently given the version regarding the incident and even in her lengthy cross examination, the accused has not been able to shatter her veracity.
87. The fact that the prosecutrix has admitted in her cross examination that she had signed on 3/4 documents in the PS and she cannot say whether she had signed Ex.PW8/A and B in the PS or somewhere else does not make her evidence doubtful as her evidence was being recorded after over five months and due to lapse of time it is not always possible to remember all the details.
88. It is argued on behalf of the accused that as the prosecutrix has refused admission in the hospital, the same indicates that the case is false. However, a very justified and logical explanation is given by the prosecutrix when she has deposed that she refused to get herself admitted in the hospital as she wanted to get the accused punished. Any girl with whom an offence, as alleged, is committed would certainly want the culprit to be punished.
89. It is further argued on behalf of the accused that as the clothes of the prosecutrix and the bedsheet were not seized, the same indicates that the case is false. Here again, the explanation has come from the prosecutrix herself when she has deposed that her Chachi Saas, Ms. Beena, had changed her saari and underwear when she was unconscious. She had washed her clothes. She had also washed the bed sheet on which the accused had committed rape on her. Therefore, there was no occasion for her to hand over her clothes and the bedsheet to the doctor.
90. The plight of the prosecutrix appears more pathetic when her husband was not supporting her and was pressuring and torturing her to change her statement against the accused who is the brother-in-law (Jija) of her husband. (the prosecution had dropped Mr.Ankit, husband and Mr.Om Prakash, father in law of the prosecutrix was the list of witnesses on 07.02.2013 and 28.02.2013 due to this very ground). The least any married girl would expect is that her husband and marital family would support her in time of need. The apprehension and anxiety of the prosecutrix was confirmed when her father in law appeared as a defence witness as DW2 (despite giving his statement under section 161 of the Cr.P.C. that the prosecutrix had informed him telephonically that the accused had phoned her and told her that he is coming to her house on which he had asked her to serve water, tea and food to the accused).
91. Here it may be mentioned that the CDR (Ex.PW10/A) of the mobile phone number of the prosecutrix (number withheld) does indeed show that calls were made from mobile phone number 9540557636 (of DW2 as stated by him in his statement under section 161 of the Cr.P.C.) at 11:55 hours, 12:06 hours, 13:04 hours, 15:17 hours, 16:07 hours and 16:27 hours on 01.09.2012 to the mobile phone with the prosecutrix which indicates that before and after the incident the calls were made. The prosecutrix has also deposed that after the incident when she was phoning her father in law, she had lost consciousness and had regained much later on 03.09.2012. The CDR shows that the version of the prosecutrix is absolutely correct.
92. It is argued on behalf of the accused that the prosecutrix did not shout for help when the alleged offence was committed which shows that no such offence was committed. However, there is no force in this contention as the prosecutrix has deposed that the accused had closed her mouth with his mouth and he had over powered her.
93. It is further argued on behalf of the accused that as per the prosecution, the prosecutrix remained unconscious for two days from 01.09.2012 to 03.09.2012 and was taken to Ambedkar Hospital but no such medical record has been produced which shows that the accused is innocent. However, it may be mentioned here that it may be a lapse on the part of the Investigation Officer who did not collect the same but it does not in any manner indicate that the case is false.
94. The prosecutrix has very categorically deposed that on 01.09.2012, in the after noon, the accused phoned her on the mobile phone of her husband, which she was retaining. When she informed him that she is alone at house, he immediately told her that he is coming to their house. She immediately made a call to her father in law namely Mr. Om Parkash informing about the visit of the accused. Her father in law told her to serve food to the accused. Within half an hour, the accused came at their house and she paid respect to him and served water to him. He asked her to bring tea on the third floor of the house. She prepared tea for him and served the same and thereafter came down. After about five minutes, she again went to third floor to bring empty glass of tea. When she was picking up the glass of tea, the accused pulled by her hand due to which she received a jerk in her back. He closed her mouth with his mouth. The accused is well built and strong. He pushed her due to which her back hit the side of the bed. He raised her saree and removed her under garments. He removed his trousers and undergarment and raped her. He had forcibly made her lie on the bed and thereafter he raped her without her consent. He used force on her and has grievously injured her. She could not shout for help as he had closed her mouth with his mouth. He had over powered her. He threatened her with dire consequences (acha nahi hoga agar kisi ko bataya toh) in case she told any one about the incident and then he left the room. She tried to phone her father in law but lost consciousness. She regained consciousness after two days on 03.09.2012 when she was in the hospital.
95. There is nothing material brought forth in her lengthy cross examination on behalf of the accused which could shatter the veracity of her evidence.
96. Therefore, in view of the foregoing discussion, the evidence of the prosecutrix appears to be reliable and believable.
EVIDENCE OF BROTHER AND MOTHER OF PROSECUTRIX
97. It is clear on the careful perusal of the testimonies of PWs 14 and 16, brother and mother respectively of the prosecutrix that they have corroborated the version of the prosecutrix successfully. There are some contradictions in their evidence regarding the place where the incident was first disclosed to them; on what vehicle PW14 accompanied the prosecutrix; presence of Uncle and Aunty, neighbours of the prosecutrix; how PW16 reached the hospital; etc. However, these contradictions are too minor even to taken into consideration and do not strike at the root of the prosecution case in any manner. They are attributable to the lapse of time also.
98. When an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
99. In fact, PWs 14 and 16 have elaborated the condition of the prosecutrix when they had seen her after the incident as she was not even in a position to speak properly and was only saying "Jijaji, Jijaji ne". On enquiry be PW14 as to what has been done by Jijaji, she told him that Jijaji had committed wrong act with her and that she had been sexually assaulted by him. When PW16 on 02.09.2012 and PW14 on 03.09.2012, had visited the house of the prosecutrix they had found her to be unconscious and had told Mr.Ankit, her husband to take her to a doctor. PW14 had called the police at 100 number informing about the incident. Both PWs 14 and 16 have materially supported the version of the prosecutrix and have given the same narration of the incident as the prosecutrix since she had told them about the incident on regaining consciousness. Their evidence is consistent and corroborative and appears to be reliable.
PUBLIC WITNESSES NOT EXAMINED
100. It is further argued on behalf of the accused that as per the prosecution, the prosecutrix had told about the incident to her husband, mother and brother besides one uncle and aunty, her neighbours but the uncle and Aunty as well the father of the prosecutrix have not been examined by the prosecution.
101. However, it may be mentioned here that the non-examination of the Uncle, Aunty and father of the prosecutrix is not fatal to the prosecution case as it is not the quantity or number of witnesses which is important but the quality of evidence which is led. Even otherwise, the brother and mother of the prosecutrix have been examined as prosecution witnesses.
DELAY IN FIR
102. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal is now being taken into consideration.
103. As per the complaint, Ex.PW3/A dated 04.09.2012 the offence was committed on 01.09.2012 at 4 pm. The FIR has been lodged on 04.09.2012 at 11:00 hours. The information regarding the offence was made vide DD No.39 (Ex.PW11/A) at 11.30 pm on 03.09.2012.
104. It is argued on behalf of the accused that the delay in lodging of the FIR has been not explained by the prosecution.
105. The Additional Public Prosecutor, on the other hand, 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 since the prosecutrix became unconscious for two days after the incident.
106. 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. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR 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 witnesses present at the scene of occurrence.
107. In the case reported as State of Rajasthan v. Om 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. 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 s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
108. In this regard, I may observe that 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 forwarded by the prosecutrix.
109. The Hon'ble Apex Court in the judgment reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
110. I find on perusal of the record that indeed the criminal action was swung into motion on the third day of the alleged incident though the information was made on 03.09.2012 at 11.30 pm. The prosecutrix has deposed in her evidence that she had lost consciousness and had regained consciousness after two days in the hospital. She disclosed about the incident and was practically hysterical at that time as she was saying "Jeejaji ne, Jeejaji ne". When her family brought her home and enquired what she wanted to do, she told them that she wanted the accused to be punished on which her brother telephoned the police. The explanation which appears to be satisfactory has been furnished by the prosecutrix. It cannot be said that there was any deliberation or consultation in between as the prosecutrix was unconscious for two days.
111. Therefore, it cannot be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay had been satisfactorily explained.
MENS REA / MOTIVE
112. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial 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.
113. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
114. In the present case there is sufficient evidence on record to show that the accused did have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources 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. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. 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 and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
115. In the present case, a story has been projected that the accused has raped the prosecutrix and this version appears to be true as there is no reason why he would go to her house after learning that she was alone. There does appear to be criminal intention and mens rea on the part of the accused.
INVESTIGATION
116. The investigation conducted in the present case as well as the documents prepared have been deposed by the police witnesses. The FIR has been proved by PW15. The MLCs of the prosecutrix and the accused have been proved by PWs 5 and 6. The FSL reports have been proved by PW7. The CDRs have been proved by PWs 9 and 10. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
117. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the first and the second IOs. They have clearly deposed that they were informed about the rape of the prosecutrix; 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. There is nothing on the record to show that their testimonies are false or not reliable.
118. 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.
119. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
120. It may also be observed here that the accused has also failed to show that he is not the person who had raped the prosecutrix. He has also failed to substantiate his claim of innocence or falsify the prosecution version or show that the evidence of the prosecution witnesses is not reliable and credible.
CONCLUSION
121. It s 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. It is also clear from the record that on 01.09.2012 at 4.00 pm at House No. C-94, Friends Enclave, Railway Colony, Mundka, 3rd Floor, Delhi, accused had forcibly committed rape upon prosecutrix against her consent. The prosecutrix is related to the accused as she is the wife of his brother in law (saala)/accused is the husband of the sister of the husband of the prosecutrix and is her nandoi.
122. Strength can be drawn from the case reported as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 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 selfimportance 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.
10. 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 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."
123. 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.
124. 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.
125. The prosecution has successfully proved that on 01.09.2012 at 4.00 pm at House No. C-94, Friends Enclave, Railway Colony, Mundka, 3rd Floor, Delhi, the accused had forcibly committed rape upon prosecutrix. The offence has a semblance of being incestuous as the prosecutrix is related to the accused as she is the wife of his brother in law (saala)/accused is the husband of the sister of the husband of the prosecutrix and is her nandoi.
126. The prosecution has been able to successfully prove the following facts:
1. the identity of the accused and that he is the brother in law (jeeja) of the husband of the prosecutrix and is her nandoi;
2. the prosecutrix was a major;
3. the manner in which the offence has been committed that on 01.09.2012, in the afternoon, the accused made a phone call on the mobile phone of the husband of the prosecutrix and when she informed him that she is alone at house, he told her that he is coming to their house. She immediately called her father in law, Mr. Om Parkash, informing about the visit of the accused and he told her to serve food to the accused. Within half an hour, the ac-
cused came at their house and she paid respect to him and served water to him. He asked her to bring tea on the third floor of the house. She prepared tea for him and served the same and thereafter came down. After about five minutes, she again went to third floor to bring empty glass of tea. When she was picking up the glass of tea, the accused pulled by her hand , pushed her, raised her saree and removed her under garments. He removed his trousers and undergarment and raped her. He had forcibly made her lie on the bed and thereafter he raped her without her consent. He had over powered her and she could not shout for help. He threatened her with dire consequences (acha nahi hoga agar kisi ko bataya toh) in case she told any one about the incident and then he left the room. She tried to phone her father in law but lost consciousness. She regained consciousness after two days on 03.09.2012 when she was in the hospital. She told about the incident to her husband, her parents and her neighbours i.e. one uncle and auntie, who were in the hospital.
4. the place of commission of the offence i.e. the matrimonial house of the prosecutrix on the third floor;
5. the investigation including the documents prepared, MLC, etc.
127. 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 of the IPC have been properly proved.
128. In view of the foregoing reasons, the conscience of this Court is completely satisfied that the prosecution has been able to successfully bring home the charge against the accused Mr.Brijesh regarding the commission of offence punishable under section 376 of the IPC.
129. Accordingly, the accused, Mr.Brijesh, is hereby convicted for having committed offence punishable under section 376 of the IPC.
130. Let him be heard of the point of sentence.
Announced in the open Court on (NIVEDITA ANIL SHARMA)
this 31st day of August, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
********************************************************* ***** IN THE COURT OF MS. NIVEDITA ANIL SHARMA, ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK COURT)-01, WEST, TIS HAZARI COURTS, DELHI Sessions Case Number : 59 of 2013.
Unique Case ID Number : 02401R0560262012.
State
versus
Mr.Brijesh
Son of Mr. Rameshwar,
Resident of H.No. P-4/879,
Sultan Puri, Delhi.
First Information Report Number : 167/12
Police Station Mundka,
Under sections 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 29.11.2012
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 05.12.2012.
in the Sessions Court
Date of transfer of the file to this Court : 17.01.2013.
{ASJ (SFTC)-01, West, THC, Delhi}.
Date of judgment : 31.08.2013.
Arguments on sentence concluded on : 06.09.2013.
Date of order on sentence : 06.09.2013.
Appearances:Mr.Neelam Narang, Additional Public Prosecutor is on leave.
Mr. Anil Kumar, Substitute Additional Public Prosecutror for State.
Convict Mr.Brijesh has been produced from judicial custody. Mr.Pramod Aggarwal, counsel for the convict.
******************************************************** ORDER ON SENTENCE "A while ago?" Anaxantis asked. "Yes, he raped me a while ago. Exactly nine months and two days ago. What's that? Nine months or nine minutes. It's the same. And it is in the past, you say? Then why is it still happening, every day, every time I close my eyes? Every time I hear someone behind me, and I don't know who it is? How is it that I get an almost irresistible urge to kill anyone who happens to touch me unexpectedly? Tell me, Hemarchidas, how do I forgive, let alone forget, something that is still happening, that keeps happening over and over? How?
How do I do that?"
― Andrew Ashling, The Invisible Chains - Part 1: Bonds of Hate
1. In pursuance of judgment dated 31.08.2013 as passed by this Court convicting the accused namely Mr.Brijesh for offence punishable under section 376 of the Indian Penal Code (hereinafter referred to as the IPC), I have heard the Additional Public Prosecutor for the State as well as the convict and the counsel for the convict on the point of quantum of sentence to be awarded to the convict and also carefully perused the case record.
2. It has already been observed in the judgment that this case is a glaring example of the growing menace of sexual abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is subjected to unwanted physical contact by a perverted male adult who is related to her and the offence has a semblance of being incestuous as the prosecutrix is related to the accused as she is the wife of his brother in law (saala)/accused is the husband of the sister of the husband of the prosecutrix and is her nandoi.
3. "The psychological harm on the victim is massive as it evokes doubts, raises questions for which answers are not easy to get. The victim may suppress emotions or be filled with feelings of rage, guilt and shame. It is difficult for such victims to trust others later on in life. The victim needs to stand up for himself/herself and not allow the trauma to make them psychologically and socially weak. Active social support from family, friends, guidance centres and counselors can bring the victim's faith in the goodness of human beings back." --- Dr.Sanjay Chugh, Senior Consulting Psychiatrist.
4. 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.
5. 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 as the convict hails from a modest family. He is married man, aged about 38 years. He was working as a Medical Representative. He is the only bread winner of his family comprising of his wife and two minor children. He is in custody w.e.f. 04.09.2012. He is a first offender and has never committed any offence earlier. It is also assured that he shall not commit any offence in future.
6. Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider it proper to award a substantive sentence upon the convict. Rape in itself is abominable, ghastly, inhuman and barbaric. The convict has violated the person and soul of the prosecutrix. He has subjected the prosecutrix to unwanted physical contact by a perverted male adult. The victim lacks self-confidence and is always under a sense of guilt and denial. It's not about the body. It's more about the mind. Sexual abuse is a rape of the mind and thought processes.
7. 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. He has violated the very sanctity of the relationship between them.
8. I am of the considered opinion that the convict should be awarded a substantive, stern and firm sentence because he has defiled her. As per social morality which attaches highest importance to the chastity of a woman, the outrage and breach of her privacy and modesty is a heinous offence. Keeping into consideration the fact that the act of rape is an act of a perverted man, the minimum sentence provided of seven years or a lesser imprisonment should not be awarded to the convict. I do not find any mitigating factors.
9. 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 a heinous crime 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.
10. 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. Socio-economic, status, religion, race caste or creed o 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. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court.
11. 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."
12. In the present case, the convict has committed rape on a young woman who is the wife of his brother in law (saala). The convict has taken advantage of a helpless and defenceless vulnerable prey. She must have undergone immense physical pain and agony when the offence was committed. The convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating her person and giving her a lifelong trauma.
13. A view which is likely to result in vicitimization or 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 mis-conduct of a men which is not only highly reprehensible and abhorable but also criminal in nature. If this 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 Indian girls. Allowing such persons to go scott free after exploiting poor and helpless girls in this manner could not have been the intention of the legislature which considered rape to be such heinous as to attract imprisonment upto life.
14. Sexual violence apart from the 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 self-esteem 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. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys 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 society sensitized judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions (Reliance can be placed upon 2004 IX AD (S.C.) 5 and Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC
922).
15. Recently, crime against women generally and rape in particular is on the increase and the society also appears to be concerned for the honour of women. In this backdrop, this Court is required to treat the issue with more sensitivity. The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The offences against women are on a rise and there is an urgent need to curb this tendency by awarding deterrent punishment to perpetrators of this grave offence.
16. Section 376 IPC reads that Punishment for rape:- (1) Whoever, except in the cases provided for by sub-section (2), 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:.............
17. In the present case, the act of the convict is most deplorable, both legally and morally. It is time for realization that certain category of sexually depraved behaviour is totally unacceptable in the Indian Socio-Legal System which seeks to protect the chastity the first virtue of a woman and such behaviour can prove to be costly as has happened in the present case. The victim is a young woman who reposed trust in the convict as he is related to her. Then the convict shattered her faith by committing the offence.
18. Keeping in view the ghastly and inhuman act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path. The convict does not deserve any leniency or a minimum sentence.
19. Therefore, considering these aggravating facts, I hereby sentence Mr.Brijesh, for offence under section 376 of the IPC to rigorous imprisonment for ten 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.
20. All the sentences shall run concurrently, in the event of the fine not being realized.
21. 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 in judicial custody w.e.f. 04.09.2012. He is sent to judicial custody for serving the remaining sentence.
22. 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.
23. 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 357-A of the Cr.P.C. The terms of the scheme entitle every rape victim to minimum compensation of 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.
24. 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 16.09.2013 for the said purpose.
25. 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.
26. A copy of the judgment dated 31.08.2013 and a copy of the or- der on sentence dated 06.09.2013, 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, namely, Mr.Brijesh, free of cost immediately.
27. A copy of the judgment dated 31.08.2013 and a copy of the or- der on sentence dated 06.09.2013 also be given to the Substitute Addi- tional Public Prosecutor, as requested.
28. 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 (NIVEDITA ANIL SHARMA)
this 06th day of September, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
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