Delhi District Court
State vs . 1. Rahul @ Bhupender Singh on 29 October, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 177/13
Unique Case ID No..02405R0234542013.
State Vs. 1. Rahul @ Bhupender Singh
S/o Sh. Singh Pal Singh,
R/o RZ-14C, Jain Colony,
Part-III, Uttam Nagar,
New Delhi.
2. Anju w/o Sh. Suraj Pal Singh
House No. 10A, Jain Colony,
Part-III, Uttam Nagar, Delhi.
Date of Institution :17.08.2013.
FIR No.221/13 dated 18.05.2013.
U/s. 323/342/506/376/120B/34 IPC
P.S. Bindapur.
Date of reserving judgment/Order :10.10.2014.
Date of pronouncement :29.10.2014.
JUDGMENT
1. The accused had been chargesheeted by the Police for the offences u/s 323/342/506/376/120B/34 IPC.
2. As per the prosecution case, SI Kavita who was posted in Police Station Najafgarh on 18.5.2013, had reached Police Station Bindapur pursuant to the directions of the Additional Commissioner of Police, where she met ASI Kusum who handed over to her the MLC of prosecutrix 'S' (real name withheld to conceal her identity) and sealed exhibits containing her samples, SC No.177/13 Page 1 of 24 which had been brought by ASI Kusum from the hospital after the medical examination of the prosecutrix. Prosecutrix was present in the Police Station at that time. Thereafter SI Kavita alongwith ASI Kusum, Constable Parvesh and the prosecutrix reached the spot of incident i.e. RZ-10A, Jain Colony, Uttam Nagar. Upon reaching there, she recorded the statement of the prosecutrix which is reproduced hereunder:-
"......I am a student of final year of Delhi University Correspondence Course. I know Rahul for the last four-five years as he resides in our neighbourhood. We are friends. Today Rahul made three calls upon my mobile No.9811689433 from his mobile No. 9873850056 asking me to reach his house but I refused to go there. After some time, Rahul's sister-in-law (Bhabhi) Anju w/o Rishi signalled to me from the gali telling me to come to her house. Accordingly, I reached her house. Rahul was present near the room and he pulled me inside the room and bolted the door of the room from inside. I tried to escape from the room but found that the Anju had also bolted the door from outside. Thereafter Rahul beat me and forcibly committed sexual intercourse with me. Thereafter he called Anju from the window, asking her to open the bolt of the door. Thereafter I ran away and reached my home. I narrated the whole incident to my mother Laila. My mother made a call at telephone No.100.........."SC No.177/13 Page 2 of 24
3. On the basis of the aforesaid statement of the prosecutrix, IO SI Kavita prepared a rukka and got the FIR registered u/s 376/120B/34 IPC. Both the accused namely Rahul @ Bhupender and Anju were arrested. Both were taken to DDU Hospital for medical examination and the exhibits obtained by the doctor were seized by the IO. The condom used by accused Rahul, while raping the prosecutrix, was recovered from the spot of incident at the instance of prosecutrix. It was sealed with the seal of KM and seized by the IO. Statement of prosecutrix u/s 164 Cr.P.C. was got recorded and all the seized exhibits were sent to FSL for forensic examination.
4. On committal of case to the court of sessions, charge u/s 342 IPC, u/s 323 IPC, u/s 376 IPC and u/s 506 IPC was framed against the accused on Rahul @ Bhupender on 20.09.2013. On the same date charge u/s 376/109 IPC and u/s 506 IPC was framed against accused Anju. Both the accused denied the charges framed against them and accordingly trial was held.
5. At trial the prosecution has examined 15 witnesses to prove the charges against the accused. Ld. APP also tendered in evidence DNA report as Ex. PA. Statement of both the accused u/s 313 Cr.P.C. was recorded on 04.08.2014 wherein they denied the prosecution case and claim false implication. Accused Rahul further stated that his sister-in-law Anju was not present in the house on the date of incident and the posecutrix accompanied him voluntarily into the room. However, he denied that he had committed forcible sexual intercourse upon the prosecutrix on that day.
SC No.177/13 Page 3 of 246. The accused examined a lady named Meena, residing in her neighbourhood as DW1 in their defence.
7. I have heard ld. APP, ld. Counsel for the accused and have perused the material placed on record.
8. The prosecutrix has been examined as PW7. She deposed that she knew accused for the last about 3 to 4 years before the date of incident as a friend and as a neighbour. She further deposed that on 18.5.2013 at about 1 pm or 1.15 pm when she was present alone in her house, she received two-three calls from accused Rahul, who was insisting upon her to come to the house of his sister-in-law (Bhabhi), who resided in her neighbourhood. She did not accede to the request of Rahul. Thereafter Anju came to her house and asked her to visit her (Anju's) house for some work and left. She thought that Anju may have some work with her and hence went to Anju's house immediately thereafter. On reaching the house of Anju, she found that only Anju and Rahul were present there. She was standing at the door of the house and she asked Anju why she has called her. Anju asked her to come inside the house. In the meanwhile accused Rahul came and pulled her inside the house and Anju left. Rahul bolted the door from inside. Rahul started telling her why they have filed a complaint against him regarding the incident wherein he had beaten her brother a few days back. He further told her that no harm would be caused to him and now he would not spare her. The accused Rahul consumed liquor while talking to her and thereafter started touching her inappropriately. She ran to open the door but found that it was locked from outside. The SC No.177/13 Page 4 of 24 accused started biting on her cheek, breast and neck. He slapped her and pulled her hair. She started weeping. Accused Rahul took off her jeans and panty, which she was wearing and laid her on the bed but on account of her struggle she fell down on the floor. She was was having menstrual periods at that time. Accused Rahul committed sexual intercourse with her. Accused was wearing a jeans and he pulled down the same up to knee level. He also wore a condom before committing sexual intercourse with her. Then she put on her clothes and ran towards the door to open it but it was still closed from outside. The accused called through the window of the room to his Bhabhi Anju to open the door. Anju opened the door and she came out. Rahul also came out and started beating her with sleeper whereas Anju was witnessing all this and was laughing. Rahul told her that he has done whatever he wanted to do. Thereafter she returned back. Her mother also returned home from her work and she narrated the incident to her. Her mother called at telephone No.100. Police made inquiries from her and asked her to reach the police station. Accordingly she alongwith her mother and Mausi (maternal aunt) reached Police Station where her statement was recorded which she proved as Ex.PW7/A. From the Police Station, she was taken to DDU Hospital, where her medical examination was conducted. Her panty and the piece of cotton cloth, which she had kept in her private part as she was having menstruation, were seized by the doctor. From the hospital she took the police officials to the house of Anju and shown them the room in which she was raped. Anju was not present there at that time as she had been called to the Police Station for questioning. Police officials prepared site plan of the room which she proved as Ex. PW7/B. The police officials had also taken SC No.177/13 Page 5 of 24 various photographs of the room as well as the whole house which she proved as Ex.PW7/C Colly. (total 16 in number). She deposed that police officials also seized one used condom and one condom wrapper from the dustbin which was on the stairs, vide memo Ex. PW7/D. She further deposed that for some days before the date of incident, she had stopped talking to accused as he was having her photographs and was blackmailing her saying that he would expose those photographs to the public. For this reason, she was reluctant to go when he called her as she feared that he would cause some harm to her.
9. She identified blue colour underwear, one single white colour socks and a piece of printed cloth which she was wearing at the time of incident and also a used condom when these were shown to her during the course of her testimony. These are Ex. P1, Ex.P2, Ex.P3 and Ex.P4 respectively.
10. The prosecutrix was declared hostile by the ld. APP on some points and in the cross examination conducted by ld. APP she denied that the accused was arrested in her presence. However, she identified her signatures at point A on the arrest memo and personal search memo of both the accused.
11. In the cross examination conducted on behalf of accused, she deposed that she had received three calls from the accused on 18.5.2013 and on each occasion, she talked to him for less than one minute. She deposed that upon reaching the house of Anju when she asked Anju, whey she has called her, Anju told her that Rahul wanted to meet her and she talked to Anju on the SC No.177/13 Page 6 of 24 door of the house for just 15 to 20 seconds. She did not leave Anju's house at that time as she wanted to ask Rahul why he wanted to meet her and why he had called her. While standing at the door she asked Rahul why had he called her. She further deposed that initially she and the accused Rahul were just friend for about one year and thereafter they had fallen in love with each other and they used to have physical relations also with each other. According to her they may have engaged in sexual relations with each other about three or four times before the date of incident. They used to exchange text messages through mobile phone. She used to send text messages to the accused Rahul from her mobile No. 9811689433 on his mobile no.9873850056. She deposed that nobody in her family was aware about her love relations with the accused. She admitted that a quarrel had taken place between her brother Shafi and Rahul in the month of March, 2013 and they had filed a complaint against accused Rahul but the same was later on compromised mutually. She had never asked the accused whether he would marry her. She denied that she did not want to marry the accused and only wanted to have sexual relations with him. She admitted that she had sent a text message to the accused saying that if any problem or dispute took place in their family, she would not support him. She was shown photocopies of the printouts of various text messages by the counsel for the accused and she admitted that these text messages were exchanged between herself and the accused Rahul. These text messages are collectively Ex. PW1/D1 (total 430 pages).
12. The proscutrix further admitted that her mother had SC No.177/13 Page 7 of 24 made a call at number 100 only regarding a quarrel and she did not mention about any rape in the said call. She voluntarily stated that at that time, she had not told her mother that accused had raped her. She deposed that her mother had already returned home when she had reached home from the house of Anju. According to her she was raped by the accused in the room marked X & Y in the photographs Ex. PW7/C (Colly.) She admitted that accused Rahul was aware about her menstrual period. She denied that on 18.5.2013 she had gone to the house of Anju only to have talks with the accused Rahul and no incident of rape had taken place. She further deposed that accused had committed rape upon her on the floor of the room. No carpet or mat had been spread on the floor. She also deposed that SI Kavita had seized used condom from the house of accused Anju at my instance. She had shown the same to SI Kavita and it was seized from the dustbin placed on the stairs leading to first floor. She was standing in the balcony when she saw the accused throwing the used condom in the dustbin within a few seconds after the door was opened by Anju. As soon as the door was opened by Anju, accused pushed her outside the room. She stated that the way to go out of the house was through balcony. She further stated that when she reached home, she did not tell her mother initially about the rape and only told her that there was a quarrel with Rahul as she was having injury marks on her face. She told her mother about the rape after arrival of the police. She was shown photographs Ex. PW7/D2 to Ex. PW7/D9 and she admitted that she alongwith accused Rahul are seen in these photographs. She admitted that her relations with the accused were so intimate and deep that they had even decided about the name to be given to their SC No.177/13 Page 8 of 24 offspring. She further denied all the suggestions put to her in the cross examination.
13. The mother of the prosecutrix has appeared as PW3. She deposed that she is working at a Beauty Parlour in Vasant Vihar and usually leaves home at about 8 am and returns at about 4 pm or 5 pm. She did not remember the exact date of incident and stated that it happened about six months ago. She deposed that on that day, she received a call on her mobile phone at about 2 pm from her elder daughter Malika asking her to reach home immediately as Rahul, who resides in their neighbourhood had molested her daughter i.e. prosecutrix. Accordingly, she reached home and found that there were bruise marks on the body of prosecutrix. She asked prosecutrix as to what had happened and the prosecutrix told her that Rahul has beaten her with chappal. Upon her repeated insistence, prosecutrix opened up and told her that she was called by Rahul and his bhabhi Anju to their house where Rahul committed forcible sexual intercourse with her with the aid of his bhabhi Anju who had closed the door of the room. Thereafter she made a call at telephone No.100. Police reached their home and made inquiries from her daughter and also recorded her statement. Thereafter she took police officials to the house of Rahul who was present in the house at that time. Rahul was apprehended and taken to the police station. They had also gone to the Police Station.
14. In the cross examination, she deposed that police had made inquiries from her also but did not record her statement. She deposed that she had reached the house on the date of incident at SC No.177/13 Page 9 of 24 about 3 pm and had made a call at telephone No.100 after about 15 to 20 minutes. She admitted that in her call to PCR, she did not mention abut rape and only stated that something wrong has been committed with her daughter. She denied the suggestion that she had made a call of quarrel to the PCR on that date. She further deposed that now she has come to know that there was a love affair between her daughter i.e. prosecutrix and accused Rahul for the last three or four years. She admitted that a quarrel had taken place between her son Mohd. Shafiq and accused Rahul about four months before the date of incident but denied that the quarrel was on account of relations between prosecutrix and Rahul. She denied the suggestion that on the date of incident, Anju had called her to their house saying that prosecutrix and Rahul were present in a room there or that she visited their house and found prosecutrix alongwith Rahul in a room or that she had given beatings to the prosecutrix and brought her home.
15. PW2 is the father of the prosecutrix, he also did not remember the exact date of incident and stated that it happened about four months ago. He deposed that on that date at about 2.30 pm or 3 pm, when he was plying his auto rickshaw in Vasant Vihar, he received a call on his mobile phone from his elder daughter Malika asking him to reach home immediately. Accordingly, he proceeded towards his home, but on the way received another call from Malika asking him to reach PS Bindapur. Accordingly, he reached Police Station Bindapur. His wife met him outside the Police Station and told him that Rahul and his bhabhi had called prosecutrix to their home where she was beaten by them and was raped by accused Rahul. In the cross examination, SC No.177/13 Page 10 of 24 he stated that police did not make any inquiries from him and did not record his statement. He did not know whether there was any love affair between his daughter i.e. prosecutrix and accused Rahul for the last three or four years. He admitted that a quarrel had taken place between his son Mohd. Shafiq and Rahul but he did not know the cause of quarrel.
16. PW4 Dr. Babita had examined the prosecutrix in DDU Hospital on 18.5.2013 and proved her MLC as Ex. PW4/A. She deposed that during the examination of prosecutrix, in casualty, she found small bruise (bluish) at the base of her right breast, a small bruise (bluish) in lateral aspect of left breast, bruise (bluish)over left side jaw, small bruise (bluish) on the right side of neck of the prosecutrix. She then referred her to Gyne Department for further examination.
17. In the cross examination, she deposed that the prosecutrix seems to be normal and did not appear to be in terrified state at the time of her examination. She further stated that the bruises found on the body of the prosecutrix could not be suffered on account of slapping or fist blows. She did not remember whether the clothes of the girl were intact or torn. She deposed that had their been any tear in the clothes of the prosecutrix, she would have mentioned the same in the MLC.
18. The gynecological examination of the prosecutrix was done by Dr. Shruti Gaur in DDU Hospital. She had left the services of DDU Hospital thereafter and Dr. Monika Suri has been examined as PW8 in her place who proved the endorsement of Dr. Shruti SC No.177/13 Page 11 of 24 from point X to X on the MLC Ex. PW4/A as Ex. PW8/A. It appears from the aforesaid endorsement of Dr. Shruti that she had also noticed a bruise on the left side jaw, a bruise on the right side of neck, small bruise at the base of right breast and a small bruise in lateral aspect of left breast of prosecutrix. There was no injury on the private part of the prosecutrix and she was bleeding from her vagina as it was first day of her menstrual period.
19. The hymen of the prosecutrix was found torn but was not bleeding at that time. Dr. Shruti had obtained vaginal swab, vaginal slides and also obtained pubic hair sample, nail clippings and blood sample of the prosecutrix and also took into possession the purple colour under garments as well as green colour cloth applied on the vulva by prosecutrix and handed over all these in sealed condition to ASI Kusum.
20. PW12 HC Vishal was on Emergency Duty in PS Bindapur on 18.5.2013 from 8 am to 8 pm. He deposed that on that day at about 3.50 pm, the Duty Officer informed him about the contents of DD No.50B which was regarding a quarrel with a lady at Jain Colony, House No.53 and causing injuries to a lady. Accordingly he alongwith ASI Kusum reached the aforesaid spot and meet the caller i.e. the prosecutrix where two or three ladies were also present near her. ASI Kusum made inquiries from her and thereafter they returned to the Police Station. In the cross examination he stated that ASI Kusum did not tell him what prosecutrix had told her.
21. ASI Kusum has been examined as PW9. She deposed SC No.177/13 Page 12 of 24 that on 18.5.2013 she accompanied HC Vishal (PW-12) who had received DD No.50B, to the spot of incident i.e. RZ-53, Jain Colony, Uttam Nagar, New Delhi. On reaching the spot, they met one lady named Laila Devi who told her that Rahul has beaten and quarreled with 'S'. 'S' was present at the spot but she did not say anything. Laila Devi told her that they have settled the dispute now. Accordingly, she alongwith Vishal returned to the Police Station. She further deposed that in the evening of the same day, Laila Devi alongwith 'S' and other family members reached the police station and told HC Vishal that 'S' has been raped by Rahul. 'S' seemed to be in a frightened state and was not in a position to make a statement. She took 'S' to DDU Hospital. On return from the hospital, she handed over the sealed exhibits alongwith one sample seal to SI Kavita which were given to her by the doctor after examination of the prosecutrix. SI Kavita seized those vide seizure memo Ex. PW9/A. Thereafter SI Kavita recorded the statement of 'S' in her presence. Then ASI Kusum alonwith SI Kavita, constable Arti, Constable Parvesh, prosecutrix 'S' and her maternal aunt (Mausi) reached the spot of incident i.e. the house of Rahul's bhabhi Anju at RZ-14C, Second Floor, Jain Colony, Uttam Nagar, New Delhi where Anju was present and was identified by the prosecutrix. She was arrested vide memo Ex. PW9/B. From there they went to the house of accused Rahul at RZ-10C, Jain Colony, Uttam Nagar, New Delhi, who also was present in the house and was identified by prosecutrix. He was arrested vide memo Ex. PW9/D. Thereafter they brought both the accused to the Police Station. She further deposed that during the night, she alongwith SI Kavita and prosecutrix 'S' again reached the spot of incident i.e. house of Anju and recovered a used condom from the SC No.177/13 Page 13 of 24 dustbin on the stairs, which was put up in a pullinda by SI Kavita and sealed with the seal of KM and was seized vide seizure memo Ex. PW7/D and thereafter they returned to the police station.
22. In the cross examination, she deposed that when she had reached the house of prosecutrix in the morning, prosecutrix met her but did not tell anything. She stated that prosecutrix seem to be in distressed state and she was in the same state when she had come to the police station in the evening at about 5.30 or 6 pm.
23. PW10 is Ms. Swati Katiyar, ld. Magistrate, who had recorded the statement of the prosecutrix u/s 164 Cr.P.C. which she proved as Ex. PW7/E. She also proved her certificate annexed to the said statement as Ex. PW10/A.
24. PW13 is HC Gopal Krishnan, who had deposited the sealed pullindas alongwith sample seals in FSL, Rohini on 6.6.2013.
25. PW15 is SI Kavita, the investigating officer of the case. Her examination in chief is similar to that of PW9 ASI Kusum and need not be reproduced. However, in her cross examination, she deposed that the prosecutrix had not mentioned about use of condom by the accused during the rape act in her statement. Prosecutrix told her about the same after they had returned to the police station after the medical examination of both the accused. She did not record the supplementary statement of the prosecutrix in this regard but mentioned about the same in the case diary. She SC No.177/13 Page 14 of 24 deposed that when she alongwith the prosecutrix had visited the spot of incident, prosecutrix told her that accused had raped her on the floor of the room and for this reason, she mentioned on the photograph mark A as "rape committed on the floor". According to her no liquor bottle was found by her in the room where the offence had been committed. She deposed that accused Rahul was residing in her own house whereas accused Anju resided in a rented house. She had recorded the statement of A's landlord but did not cite him as a witness in the charge sheet. She had made inquiries from prosecutrix's sister Malika and also recorded her statement but did not cite her also as a witness in the charge sheet. She did not make any investigation regarding the bunch of the text messages, exchanged between Rahul and prosecutrix which was received by her from accused Rahul.
26. The medical examination of accused Rahul had been conducted by Dr. Arun Kumar in DDU Hospital at about 1 am on 19.5.2013. However, he had left the hospital thereafter and accordingly Dr. Rajesh Kohli appeared as PW6 and deposed that the MLC of accused Rahul Ex. PW6/A is in the handwriting of Dr. Arun Kumar bearing his signatures at point A. The MLC shows that there was nothing to suggest that accused Rahul is unable to perform sexual act. One of the findings recorded in the MLC and relevant to note here is "smegma absent". The MLC shows that blood sample, pubic hair sample and nail clippings and under garments of accused Rahul were taken by the doctor and handed over in sealed condition to the IO.
27. The DNA report Ex. PA shows that blood was detected SC No.177/13 Page 15 of 24 on cotton wool swab, hair strands, underwear, socks, a piece of cloth of the prosecutrix and the condom. However, semen could not be detected on these exhibit except the condom. The DNA report demonstrates that the DNA extracted from the blood sample of the prosecutrix did not match with the female DNA extracted from the condom Ex. 16.
28. It is a settled principle of law that in a rape case, the accused can be convicted on the basis of sole testimony of the prosecutrix, if the same appears to the court to be reliable, credible and trust worthy. If for certain reasons, the court is not prepared to place implicit reliance upon her testimony, it may be look for corroboration of her version from the other evidence on record. However, it is also to be kept in mind that like in every other criminal case, in case of rape also, it is the duty of the prosecution to bring home the guilt of the accused beyond reasonable doubt and it is not for the accused to say why the witnesses have lied against him.
29. In the instant case, it is apparent from the evidence on record that the prosecutrix and the accused Rahul were in deep love with each other. The prosecutrix has very candidly stated in her cross examination that they were just friends initially for one year and then fell in love and also engaged in sexual relations about three or four times before the date of incident. She admitted that they used to exchange text messages too. She also admitted that the text messages Ex. PW1/D1 have been exchanged between her and the accused Rahul.
SC No.177/13 Page 16 of 2430. I have gone through all these text messages. These contain romantic as well as sexually explicit language and show that the relations between the two were intensely intimate. These messages have been exchanged late at night on various dates in the month of December and January. In view of such intimate relations between the two, where they used to convey sexual fantasies to each other through text messages and even had sexual escapades four or five times, it intrigues this court as to why the accused would commit rape upon the prosecutrix.
31. The prosecutrix has deposed that she stopped talking to the accused few days before the date of incident. The rape incident is stated to have taken place on 18.5.2013. Thus it is evident that the prosecutrix was on talking terms with the accused Rahul till about first week of May, 2013. She has further deposed that accused was having her photographs and was blackmailing her saying that he would expose those photographs to public and for this reason she was reluctant to go to him when he called her on the date of incident as she feared that he would cause some harm to her. However, she has not mentioned so either in the FIR or in her statement u/s 164 Cr.P.C. Ex. PW7/E. She has stated so in her testimony before this court for the first time and hence is a clear improvement upon her earlier statement.
32. The prosecutrix has nowhere explained the type of her photographs which the accused had in his possession. Whether it was nude, obscene or simple photograph. If it was a simple photograph, then there was no reason for prosecutrix to fear the accused. She does not even say when was the photograph taken SC No.177/13 Page 17 of 24 and when did she handover the same to the accused Rahul. Further if it is true that she was reluctant to meet Rahul fearing that he may cause some harm to her, it is not discernible why did she visit Anju's house on her call, immediately after turning down the request of Rahul knowing that Rahul is present in her house. That apart, there is no evidence on record to show that accused Rahul had made calls to the prosecutrix, as deposed by the prosecutrix. Their mobile phones were not seized. The call details record of their mobile phones for 18.5.2013 have not been proved on record.
33. The conduct of the prosecutrix coupled with the evidence on record, shows that accused Anju had come to prosecutrix house to call her on behalf of her brother-in-law (devar) Rahul and the prosecutrix readily agreed to reach her house as she herself wanted to meet him, being in love with him. There is no evidence on record to suggest that there had been any quarrel between the accused Rahul and the prosecutrix or that they had snapped their love relations.
34. Thus it is undoubtedly clear that the visit of prosecutrix to and her entry into the house of Anju, was voluntary and without any force or pressure as she herself desired to meet the accused Rahul. That being the case, it does not appeal to reason that the accused would rape her when she was already involved with him sexually and that too in such a violent or brutal manner as stated by prsecutrix.
35. The prosecutrix has further deposed that on return to SC No.177/13 Page 18 of 24 her house from Anju's house, she narrated the incident to her mother, who made call at telephone No.100. She has not spoken about the presence of her sister Malika in the house at that time. Her mother appearing as PW3 has deposed that on the date of incident, she received a call on her mobile phone at about 2 p.m. from her elder daughter Malika asking her to reach home immediately as Rahul has molested her sister 'S'. PW2, the father of the prosecutrix, has deposed that on the date of incident at about 2.30 p.m. or 3 p.m. when he was plying his auto rickshaw in Vasant Vihar, he received a call from his elder daughter Malika asking him to reach home immediately. Thus the testimony of PW2 & PW3 demonstrates that their elder daughter Malika alone was present in the house when prosecutrix returned home from the house of Anju. It is Malika, who informed her parents about the condition of the prosecutrix. Therefore, Malika was the first person to see the prosecutrix after the occurrence and she was the first person to whom the prosecutrix had conveyed what she had gone through. She was therefore a material witness for the prosecution but for the reasons not available on record, she has not been examined by the investigating officer nor has she been produced as a witness in this court. Non examination of Malika as a witness creates a doubt in the prosecution case and in my opinion, an adverse inference has to be taken against the prosecution that if Malika would have been examined as a witness, she would have deposed against it.
36. PW9 and PW12 are the police officials, who had reached the house of the prosecutrix on receipt of DD No.50B which had been recorded pursuant to the call received at SC No.177/13 Page 19 of 24 telephone no.100, presumably made by mother of the prosecutrix. PW12 has deposed that PW9 made inquiries from the prosecutrix and he did not talk to her. PW9 has deposed that the prosecutrix's mother Laila Devi told them that Rahul had quarrelled with and had beaten her daughter 'S'. 'S' was present at the spot but she did not say anything. Laila Devi also told them that they have settled the issue and accordingly she alongwith PW12 returned to the police station. This indicates that only a minor quarrel had taken place between 'S' and Rahul and the dispute had been settled amicably, for which reason no further action was insisted upon by the prosecutrix and her mother at that time.
37. The prosecutrix has admitted that her mother made the call at telephone no.100 only regarding the quarrel and she did not mention about the rape in the same. She however stated voluntarily that she had not told her mother by that time that the accused had raped her. Thus, according to the prosecutrix, her mother did not know at the time of making call at telephone no. 100 that she had been raped by the accused. Her mother PW3 has deposed that upon reaching home, she found bruise marks on the body of her daughter 'S'. She asked her what had happened and 'S' told her that Rahul had beaten her with chappals. Upon repeated insistence, 'S' opened up and told her that she was called by Rahul and his Bhabhi Anju to their home and where Rahul committed forcible sexual intercourse with her with the aid of his Bhabhi Anju, who had closed the door of the room. She deposed that thereafter she made a call at telephone no.100. Thus, at the time of making call at telephone no.100, she was aware that her daughter 'S' had been raped by the accused but she made a call SC No.177/13 Page 20 of 24 only regarding a quarrel and not regarding the rape. In the cross examination, she admitted that she did not mention about rape in her call to the PCR but denied that she had made a call of quarrel to the PCR. Even if it be presumed for the sake of arguments that PW3 did not mention about rape in her call at telephone no.100 out of bashfulness, yet it is not understandable why they told PW9, who had reached their house pursuant to the aforesaid call, that they have settled the issue. Why did she not mention to PW9 that 'S' has been raped and action may be taken against the assailant i.e. Rahul. This is nowhere explained by either the prosecutrix or her mother and thus brings the prosecution case within the sphere of doubt.
38. Much emphasis was laid by the Ld. APP upon injury marks found on the body of the prosecutrix soon after the occurrence to argue that these injury marks are only because of forcible sexual intercourse and nothing else. The prosecutrix has deposed in this regard that the accused had bitten her cheeks, neck and breast. He also slapped her and pulled her hairs. Her mother PW3 has deposed that she found bruise marks on the body of 'S' but did not clarify as to upon which part of the body. The testimony of PW4, the doctor who had examined the prosecutrix in DDU Hospital soon after the occurrence and the perusal of MLC Ex.PW4/A prepared by her shows that the prosecutrix was having a small bruise (bluish) at the base of her right breast, a small bruise (bluish) in lateral aspect of left breast, bruise (bluish) over left side jaw and small bruise (bluish) on right side of neck. She has deposed in her cross examination that the girl seemed to be normal at the time of her examination and did not appear to be in SC No.177/13 Page 21 of 24 a terrified state. She also stated that the bruises found on the body of 'S' could not be suffered on account of slapping or fist blows. Significantly, no bite marks were found on any body parts of the prosecutrix. It is thus clear that the bruise found on the body of the prosecutrix were neither caused by biting of the accused nor by slapping or fist blows. Therefore the assertion of the prosecutrix that the accused had beaten her on neck and breast and had slapped her, gets falsified by the aforesaid medical evidence on record. It is not clear either from the MLC Ex.PW4/A or the deposition of PW4 as to whether these bruises found on the body of the prosecutrix were fresh or old. It may be that the prosecutrix had suffered these bruises in the act of intense and intimate love making and sexual encounter with the accused either on the date of incident or on any day before. Be that as it may, suffice to say that the medical evidence does not support the version of the prosecutrix that she was bitten and beaten by the accused on the date of incident.
39. The prosecutrix has not mentioned in her statement Ex.PW7/A recorded by PW15, on the basis of which FIR has been registered, that the accused had used a condom while committing rape upon her. PW15 has deposed that the prosecutrix told her about the use of condom by the accused during the rape act, after they had returned to the police station from the hospital after medical examination of both the accused. She further stated that she did not record supplementary statement of the prosecutrix in this regard. The condom is stated to have been recovered during the night intervening between 18.5.2013 and 19.5.2013. At that time, there was no written statement from the prosecutrix SC No.177/13 Page 22 of 24 indicating that the accused had used condom while raping her. Thus the recovery and seizure of condom from the dustbin in the house of accused Anju appears to be extremely doubtful. Further it is the case of the prosecution itself that the prosecutrix was having her menstrual periods on the date of incident. Therefore, in all probability there would have been her blood upon the external surface of the condom stated to have been used by the accused while raping her. However, DNA report Ex.PA shows that the female DNA profile extracted from the blood found on the external surface of condom Ex.P4 does not match with the DNA profile extracted from the blood sample of the prosecutrix. Thus the forensic evidence too does not corroborates the version of the prosecutrix.
40. Thus it is seen that the version of the prosecutrix is not only doubtful or incredible but also improbable. There are contradictions between her testimony and that of her mother which go to the root of prosecution case. Her sister Malika, who seems to be a material witness, has not been examined. The version of the prosecutrix is neither corroborated by medical evidence nor by the forensic evidence. The prosecutrix or her mother did not tell PW9, at the first instance when she reached their house on receipt of DD No. 50B, that she has been raped by the accused. Instead PW9 was told that there was a minor quarrel and the dispute has been settled.
41. In view of the above, the prosecution case cannot be believed. It has failed to prove its case beyond reasonable doubt.
SC No.177/13 Page 23 of 2442. With the result, both the accused are hereby acquitted, giving them benefit of doubt.
Announced in open (VIRENDER BHAT)
Court on 29.10.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.177/13 Page 24 of 24