Delhi District Court
State vs . 1. Raj Kishor on 6 May, 2013
1
FIR No. 510/11
PS - Sultan Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 69/13
Unique ID No. : 02404R0020982012
State Vs. 1. Raj Kishor
S/o Ghinawan Shah
R/o House No. 962,
H. G. I. Labour Colony,
Sultan Puri, Delhi.
FIR No. : 510/11
Police Station : Sultan Puri
Under Sections : 376 IPC
Date of committal to session Court : 04/02/2012
Date on which judgment reserved : 22/04/2013
Date of which judgment announced : 06/05/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 52 2 FIR No. 510/11 PS - Sultan Puri report under section 173 Cr.P.C is as under : That in the intervening night of 0405/11/2011, SI Dayanand Yadav was present in the police station, prosecutrix (name withheld being a case u/s 376 IPC) with her mother Meena Devi and suspect Raj Kishor came to the police station and produced a written complaint which is to the effect that, she studies in 12 th class and one boy name Raj Kishor who lives in her gali on rent stalks her whenever she goes out (kahin bhi aate jaate peechha karta hai). On 01.11.2011 at about 2.30 p.m., she was alone at home, her mother had gone to her parental village Belwa Mishr, Teh. Padrona, Distt. Kushi Nagar, Uttar Pradesh and her father had gone on his work and her other brother and sister had gone out. At that time, Raj Kishor came to her house and established physical relations with her without her consent but due to fear of public shame (lok lihaj) she kept mum and today when her mother has returned she had disclosed all the incident to her mother and her mother after taking her has come to the police station. Her report be lodged and legal action be taken against Raj Kishor. The complaint was also signed by Meena Devi mother of the prosecutrix. SI Dayanand Yadav got the prosecutrix medically examined at BSA Hospital vide MLC no. 110/11. NGO was 2 of 52 3 FIR No. 510/11 PS - Sultan Puri also called. On the basis of the medical examination and the enquiries of the NGO the case was got registered by SI Dayanand Yadav. Accused Raj Kishor was arrested. His medical examination was got conducted. The sealed exhibits of the prosecutrix as well of accused Raj Kishor handed over by the concerned doctor were taken into police possession. The sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan u/s 376 IPC was prepared against accused Raj Kishor and was sent to the Court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376 IPC was made out against the accused. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty 3 of 52 4 FIR No. 510/11 PS - Sultan Puri and claimed trial.
4. In support of its case prosecution has produced and examined 10 witnesses. PW1 - Prosecutrix, PW2 - Smt. Meena Devi, PW3 - HC Kailash Chand, PW4 - Dr. Binay Kumar, Senior Medical Officer, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi - 110083, PW5 - W/Constable Manju, PW6 - Constable Pardeep, PW7 - Dr. Neeti Chaturvedi, Senior Resident, Gunae Department, BSA Hospital, Rohini, Delhi, PW8 - Ms. Poonam Sharma, Senior Scientific Officer (Biology), FSL, Rohini, Delhi, PW9 - HC Govind Singh and PW10 SI D. N. Yadav.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Prosecutrix is the victim who deposed regarding the incident and proved her complaint made to the police Ex.PW1/A signed by her at point A. She identified and proved her underwear Ex.P1.
4 of 52 5 FIR No. 510/11 PS - Sultan Puri PW2 Smt. Meena Devi is the mother of the prosecutrix who deposed regarding the incident as was disclosed to her by her daughter/prosecutrix and proved her signature at point B on the complaint Ex.PW1/A and that of prosecutrix at point A and also proved the arrest memo of accused Raj Kishor Ex.PW2/A and his personal search memo Ex.PW2/B signed by her at point A respectively.
PW3 HC Kailash Chand is the duty officer who proved the copy of the FIR Ex.PW3/A, signed by him at point A and his endorsement Ex.PW3/B on the rukka at point A. PW4 Dr. Binay Kumar, Sr. Medical Officer, SGMH, Mangol Puri, Delhi, who medically examined the patient/accused Raj Kishor and opined that there was nothing to suggest that the accused is not capable of performing sexual intercourse and proved the MLC Ex.PW4/A signed by him at point A. PW5 W/Ct. Manju, who on 05/11/2011 joined the investigation of the case with the IO and deposed on the investigation 5 of 52 6 FIR No. 510/11 PS - Sultan Puri aspects and proved the seizure memo of the sealed exhibits given by the concerned doctor after the medical examination of the prosecutrix Ex.PW5/A signed by her at point A. PW6 Ct. Pardeep, who deposed that on the intervening night of 0405/11/2011 he was posted at PS Sultan Puri as constable and was on emergency duty and on that day prosecutrix came to the police station along with her mother and they also produced accused Raj Kishor before IO SI Devender and deposed on the investigational aspects and besides proving the arrest memo of accused Raj Kishor Ex. PW2/A and personal search memo Ex. PW2/B signed by him at point 'B' respectively, also proved the disclosure statement of accused Ex. PW6/A signed by him at point 'A' and also proved the seizure memo of the sealed exhibits as was handed over by the concerned doctor after the medical examination of the accused Ex.PW6/B which bears his signature at point A. PW7 Dr. Neeti Chaturvedi, Sr. Resident Gynae Dept, SGMH, Delhi who proved the medical examination of the prosecutrix as 6 of 52 7 FIR No. 510/11 PS - Sultan Puri was conducted by Dr. Shalini vide MLC EX.PW7/A signed by the doctor Shalini at point A. PW8 Ms. Poonam Sharma, Sr. Scientific Offcier (Biology), FSL, Rohini, Delhi who proved the biological and serological reports Ex.PW8/A & PW8/B respectively signed by her at points A. PW9 - HC Govind Singh is the MHC(M) who proved the relevant entry of the register no. 19 as Ex. PW9/A, copy of the relevant entry of the RC No. 176/21/11 of register no. 21 Ex. PW9/B and the copy of the acknowledgment receipt of the FSL as Ex. PW9/C and deposed that the pullindas remained intact during his custody.
PW10 SI D. N. Yadav is the Investigating Officer (IO) of the case and deposed that on the intervening night of 0405/11/2011, he was posted as Sub Inspector in PS - Sultan Puri and on that night at about 12:00 mid night, complaint/prosecutrix (name withheld) alongwith her mother Meena (PW2) and accused Raj Kishor came in the Police Station and the complainant/prosecutrix gave her complaint Ex. PW1/A and he 7 of 52 8 FIR No. 510/11 PS - Sultan Puri attested her signature at point 'A' and bearing his signature at point 'X' and further deposed that he made entry in this regard vide DD No. 4A, copy of which is Ex. PW10/A and deposed on the investigational aspects and proved the seizure memo of the sealed exhibits handed over by the Doctor after the medical examination of the prosecutrix Ex. PW10/B signed by him at point 'A' and proved rukka Ex. PW10/C signed by him at point 'A' and deposed that after interrogation, accused Raj Kishor was arrested and proved his arrest memo Ex. PW2/A, his personal search memo Ex. PW2/B signed by him at points 'B' respectively, his disclosure statement Ex. PW10/D signed by him at point 'A' and proved the site plan Ex. PW10/E signed by him a point 'A' and further deposed that he got the accused medically examined from the SGM Hospital and proved the seizure memo of the sealed exhibits handed over by the Doctor after his medical examination Ex. PW10/F signed by him at point 'A' and deposed that he collected the FSL result already Ex. PW8/A and Ex. PW8/B. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of the accused Raj Kishor was recorded u/s 313 8 of 52 9 FIR No. 510/11 PS - Sultan Puri Cr.P.C wherein he pleaded innocence and false implication and opted not to lead any defence evidence.
7. Ld. Counsel for the accused submitted that PW1 - prosecutrix is 20 years old. She further submitted that the house of the prosecutrix is situated in thickly populated area. Accused was known to the prosecutrix since last 4/5 years. She further submitted that prosecutrix in her crossexamination has admitted that that main door of the house was lying opened when accused raped her. Her clothes were not torn when accused forced himself upon her. She further submitted that no neighbour was examined or cited as a witness. She further submitted that there is delay in lodging the FIR. The date of incident is 01/11/2011 and the report was lodged on 05/11/2011 after four days of the incident. She further submitted that the MLC of the prosecutrix Ex. PW7/A shows no tear, no bleeding, laceration. Per Vaginal (P/V) Examination was not done because patient/ prosecutrix was not willing for Per Vaginal (P/V) Examination. She further submitted that semen could not be detected on the exhibits. She further submitted that prosecution has failed to prove its case against the accused and prayed for 9 of 52 10 FIR No. 510/11 PS - Sultan Puri the acquittal of the accused on the charge levelled against him.
8. While the Ld. Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Sh. S. C. Sroai, Ld. Addl. PP for the State and Ms. Sadhna Bhatia, Ld. Amicus Curiae for the accused and have also carefully perused the entire record.
10. The charge for the offence u/s 376 IPC against accused Raj Kishor is that on 01/11/2011, at about 2:30 p.m. at House No. 960, H. G. I. Labour Colony, Sultan Puri, Delhi - 110086, within the jurisdiction of PS - Sultan Puri, he committed rape upon the prosecutrix (name withheld) D/o Sh. Harendra Sharma aged about 20 years without her consent and against her wishes.
10 of 52 11 FIR No. 510/11 PS - Sultan Puri
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW1 - prosecutrix in her statement recorded on 04/05/2012 in the Court has stated her age as 20 years.
During her examinationinchief PW1 - prosecutrix has deposed that she is studying in class XII in Sarvodaya Kanya Vidhalaya, Nangloi.
Since PW1 - prosecutrix has stated her age as 20 years on 04/05/2012 at the time of recording of her evidence/ statement and as the date of alleged incident is 01/11/2011, on simple arithmetical calculation, the age of prosecutrix comes to 19 years 5 months and 27 days. Moreover the factum of the age of PW1 - prosecutrix has not been disputed by the accused Raj Kishor.
11 of 52 12 FIR No. 510/11 PS - Sultan Puri In the circumstances, it stands proved on the record that prosecutrix was aged 19 years 5 months and 27 days as on the date of alleged incident on 01/11/2011, thus a major. MEDICAL EVIDENCE
13. PW7 Dr. Neeti Chaturvedi, Sr. Resident Gynae Dept, SGMH, Delhi who proved the medical examination of the prosecutrix as was conducted by Dr. Shalini vide MLC EX.PW7/A signed by the doctor Shalini at point 'A'.
It is pertinent to reproduce the examinationinchief of PW7
- Dr. Neeti Chaturvedi which reads as under : " I have been working in BSA Hospital, from August, 2011. I have been deputed by the Medical Superintendent, BSA Hospital, to depose in place of Dr. Shalini, who worked with me and I am well conversant with the handwriting and signatures of Dr. Shalini. Dr. Shalini is on maternity leave.
I have seen the MLC No. 110/11 prepared by Dr. Shalini. The MLC is in the handwriting of Dr. Shalini and bears her signatures at point 'A'. Same is now exhibited as Ex. PW7/A. On examination, there was a tooth mark on the right cheek and there was no other sign of external injury. On local examination, no abnormal findings were detected and patient refused for internal examination and 19 number of 12 of 52 13 FIR No. 510/11 PS - Sultan Puri samples were taken and same were sealed with the seal of Hospital and handed over to the Police official of PS - Sultan Puri. On urine examination, pregnancy test was negative."
During her crossexamination PW7 - Dr. Neeti Chaturvedi has deposed that it is correct that the patient in the present case was not examined in her presence nor does she have any personal knowledge about the matter.
There is nothing in the crossexamination of PW7 - Dr. Neeti Chaturvedi so as to impeach her creditworthiness.
In the circumstances, the medical examination of PW1 - prosecutrix as was conducted vide MLC Ex. PW7/A stands proved on the record.
It is also to be noticed that in the MLC Ex. PW7/A the history as was told by the prosecutrix to the Doctor Shalini is also found recorded, which is to the effect that : "Victim (name withheld) D/o Ms. Harender Sharma R/o Sultan Puri, Delhi has been brought to the hospital by SI D. N. Yadav and W/Constable Manju accompanied by her mother Meena, accused her neighbour Raj Kishor of sexually assaulting her on 01/11/2011. She was alone in her house on 01/11/2011 when the accused attacked her, pulled 13 of 52 14 FIR No. 510/11 PS - Sultan Puri her hairs, slapped her, bite her on her cheeks, tried to forcefully pull her clothes. Victim cried for help but being along in her house nobody came for her help. After 2 hours her sister and brother came for help. Victim narrated by (the) incidence to her mother on 04/11/2011 (who was outside station till 04/11/2011 afternoon). After she was brought to BSA Hospital for medical checkup."
Undisputably the said history on the MLC Ex. PW7/A has not been disputed by the accused during the crossexamination of PW7 - Dr. Neeti Chaturvedi.
VIRILITY OF THE ACCUSED
14. PW4 Dr. Binay Kumar, Sr. Medical Officer, SGMH, Mangol Puri, Delhi, who medically examined the patient/accused Raj Kishor and opined that there was nothing to suggest that the accused is not capable of performing sexual intercourse and proved the MLC Ex. PW4/A signed by him at point A. Despite grant of opportunity PW4 - Dr. Binay Kumar was not crossexamined.
In the circumstances, it stands established on the record that accused was capable of performing sexual intercourse.
14 of 52 15 FIR No. 510/11 PS - Sultan Puri MEDICAL EVIDENCE OF ACCUSED
15. At the cost of repetition PW4 Dr. Binay Kumar, Sr. Medical Officer, SGMH, Mangol Puri, Delhi, who medically examined the patient/accused Raj Kishor and opined that there was nothing to suggest that the accused is not capable of performing sexual intercourse and proved the MLC Ex.PW4/A signed by him at point A. Despite grant of opportunity,PW4 - Dr. Binay Kumar was not crossexamined.
The MLC of accused Raj Kishor Ex. PW4/A also shows "Bruise and swelling over right zygomatic region".
Prosecution has discharged its initial burden of proving that accused sustained the said injury "Bruise and swelling over right zygomatic region" dur to the resistance offered/given by the prosecutrix in the forceful act committed upon her without her consent by the accused (mere sath jabardasti kar raha tha, meri marzi ke bina) and she gave him a leg blow but accused did not leave her.
Accused was under an obligation to explain how and under what circumstances he sustained/suffered the said injury "Bruise and swelling over right zygomatic region".
15 of 52 16 FIR No. 510/11 PS - Sultan Puri The absence of such an explanation both in section 313 Cr.P.C. statement of the accused and his omission to lead any evidence becomes an additional link in the prosecution case. BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW8 Ms. Poonam Sharma, Sr. Scientific Offcier (Biology), FSL, Rohini, Delhi proved the Biological and Serological reports Ex. PW8/A & PW8/B respectively signed by her at points 'A'.
PW10 SI D. N. Yadav in his examinationinchief has deposed that on 24/11/2011 the exhibits were sent to FSL through Constable Sri Bhagwan. Later the FSL result was collected and filed in the Court already Ex. PW8/A and Ex. PW8/B. As per the biological report Ex. PW8/A the description of the articles contained in parcel and result of analysis reads as under : 16 of 52 17 FIR No. 510/11 PS - Sultan Puri DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SD" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m', '1n', '1o', '1p', '1q' & '1r'. Exhibit '1a' : One underwear kept in an envelope marked 'Step 3B'.
Exhibit '1b' : One plain paper kept in an envelope marked 'Step 4 Debri collection' kept unexamined as nothing was found.
Exhibit '1c' : Powdery material kept in an envelope marked 'Step 4 Debri collection'.
Exhibit '1d' : Few nail clippings in an envelope marked 'Step 4 Nail scraping'.
Exhibit '1e' : Cotton wool swab on a wooden stick kept in a tube & then kept in an envelope marked 'Step 4 Body fluid collection'.
Exhibit '1f' : Cotton wool swab on a wooden stick kept in an envelope marked 'Step 4 Inbetween fingers'. Exhibit '1g' : Cotton wool swab on a wooden stick kept in an envelope marked 'Step 5 Breast swab'.
17 of 52 18 FIR No. 510/11 PS - Sultan Puri Exhibit '1h' : One plain paper kept in an envelope marked 'Step 6 Combing of Pubic hair' kept unexamined as nothing was found.
Exhibit '1i' : Few small strands of hair kept in an envelope marked 'Step 7 Clipping of Pubic hair'.
Exhibit '1j' : One plain paper kept in an envelope marked 'Step 8 Matted Pubic hair' kept unexamined as nothing was found.
Exhibits '1k1' : Two microslides having faint whitish smear & '1k2' kept in a plastic cover & then kept in an envelope marked 'Step 9 Vaginal secretion [V]'. Exhibit '1l' : Cotton wool swab on a wooden stick kept in a tube and then kept in an envelope marked 'Step 9 Cervical mucus collection [C]'.
Exhibit '1m' : Cotton wool swab on a plastic stick alongwith fluid kept in a tube and then kept in an envelope marked 'Step 10 Culture'.
Exhibit '1n' : Small amount of liquid kept in a syringe and then kept in an envelope marked 'Step 11 Washing from vagina'.
Exhibit '1o' : One envelope marked 'Step 12 Rectal examination' containing exhibits '1o1' and 18 of 52 19 FIR No. 510/11 PS - Sultan Puri '1o2a' & '1o2b'.
Exhibit '1o1' : Cotton wool swab on a wooden stick kept in a tube.
Exhibits '1o2a' : Two microslides having faint whitish smear
& '1o2b' kept in a plastic cover.
Exhibits '1p1' : Two microslides having very faint whitish
& '1p2' smear kept in an envelope & marked 'Step 13
Oral swab'.
Exhibit '1q' : Dark brown foul smelling liquid kept in two
tubes & then kept in an envelope marked 'Step
14 Blood collection of victim'.
Exhibit '1r' : One envelope marked 'Step 15 Urine and
Oxalate Blood vial'.
Exhibit '1r1' : Dark brown foul smelling liquid kept in a tube.
Exhibit '1r2' : Straw coloured foul smelling liquid kept in a
plastic container.
Parcel '3' : One sealed cloth parcel sealed with the seal of
"SGMH MANGOLPURI DELHI" containing exhibit '3', kept in a tube. Exhibit '3' : Damp brown gauze cloth piece described as 'Blood sample'.
19 of 52 20 FIR No. 510/11 PS - Sultan Puri RESULT OF ANALYSIS
1. Blood was detected on exhibits '1q', '1r1' & '3'.
2. Blood could not be detected on exhibits '1a', '1c', '1d', '1e', '1f', '1g', '1i', '1l', '1m', '1n', '1o1' & '1r2'.
3. Semen could not be detected on exhibits '1a', '1c', '1d', '1e', '1f', '1g', '1i', '1k1', '1k2', '1l', '1m', '1n', '1o1', '1o2a', '1o2b', '1p1', '1p2' & '1r2'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'P.Sh. FSL DELHI'.
The serological report Ex. PW8/B reads as under: Exhibits Species of origin ABO Grouping/Remarks '1q' Blood sample Sample blood putrefied, hence no opinion '1r1' Blood sample Sample blood putrefied, hence no opinion '3' Blood stained gauze No reaction cloth piece On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibits '1q' (Blood sample of the prosecutrix), '1r1' (Blood sample of the 20 of 52 21 FIR No. 510/11 PS - Sultan Puri prosecutrix) & '3' (Blood stained gauze cloth piece of the accused) ; blood could not be detected on exhibits '1a' (underwear of the prosecutrix), '1c' (Debri collection of the prosecutrix), '1d' (Nail scraping of the prosecutrix), '1e' (Body fluid collection of the prosecutrix), '1f' (Inbetween fingers of the prosecutrix), '1g' (Breast swab of the prosecutrix), '1i' (Clipping of Pubic hair of the prosecutrix), '1l' (Cervical mucus collection of the prosecutrix), '1m' (Culture of the prosecutrix), '1n' (Washing from vagina of the prosecutrix), '1o1' (Cotton wool swab of the prosecutrix) & '1r2' (Straw coloured foul smelling liquid of the prosecutrix) and semen could not be detected on exhibits '1a' (underwear of the prosecutrix), '1c' (Debri collection of the prosecutrix), '1d' (Nail scraping of the prosecutrix), '1e' (Body fluid collection of the prosecutrix), '1f' (Inbetween fingers of the prosecutrix), '1g' (Breast swab of the prosecutrix), '1i' (Clipping of Pubic hair of the prosecutrix), '1k1' (Vaginal secretion of the prosecutrix), '1k2' (Vaginal secretion of the prosecutrix), '1l' (Cervical mucus collection of the prosecutrix), '1m' (Culture of the prosecutrix), '1n' (Washing from vagina of the prosecutrix), '1o1' (Cotton wool swab 21 of 52 22 FIR No. 510/11 PS - Sultan Puri of the prosecutrix), '1o2a' (faint whitish smear of the prosecutrix), '1o2b' (faint whitish smear of the prosecutrix), '1p1' (Oral swab of the prosecutrix), '1p2' (Oral swab of the prosecutrix) & '1r2' (Straw coloured foul smelling liquid of the prosecutrix).
As per the biological report Ex. PW8/A with regard to the description of the articles contained in the parcels, it is noticed that parcel no. 1 belong to PW1 - prosecutrix which was seized vide seizure memo dated 05/11/2011 Ex. PW10/B and parcel no. 2 belong to accused which was seized vide seizure memo dated 05/11/2011 Ex. PW10/F. It is also to be noticed that the alleged incident is of dated 01/11/2011 and the exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k1', '1k2', '1l', '1m', '1n', '1o', '1o1', '1o2a', '1o2b', '1p1', '1p2', '1q', '1r', '1r1' & '1r2' were seized on 05/11/2011, during this period from 01/11/2011 till 05/11/2011 it cannot be ruled out that prosecutrix must have washed her clothes, underwear and must have answered the call of nature a number of times and must have taken bath a number of times and this not being a case of recent sexual intercourse activity and for the said reasons blood could not be detected on exhibits '1a' (underwear of the prosecutrix), '1c' (Debri collection of the 22 of 52 23 FIR No. 510/11 PS - Sultan Puri prosecutrix), '1d' (Nail scraping of the prosecutrix), '1e' (Body fluid collection of the prosecutrix), '1f' (Inbetween fingers of the prosecutrix), '1g' (Breast swab of the prosecutrix), '1i' (Clipping of Pubic hair of the prosecutrix), '1l' (Cervical mucus collection of the prosecutrix), '1m' (Culture of the prosecutrix), '1n' (Washing from vagina of the prosecutrix), '1o1' (Cotton wool swab of the prosecutrix) & '1r2' (Straw coloured foul smelling liquid of the prosecutrix) and semen could not be detected on exhibits '1a' (underwear of the prosecutrix), '1c' (Debri collection of the prosecutrix), '1d' (Nail scraping of the prosecutrix), '1e' (Body fluid collection of the prosecutrix), '1f' (Inbetween fingers of the prosecutrix), '1g' (Breast swab of the prosecutrix), '1i' (Clipping of Pubic hair of the prosecutrix), '1k1' (Vaginal secretion of the prosecutrix), '1k2' (Vaginal secretion of the prosecutrix), '1l' (Cervical mucus collection of the prosecutrix), '1m' (Culture of the prosecutrix), '1n' (Washing from vagina of the prosecutrix), '1o1' (Cotton wool swab of the prosecutrix), '1o2a' (Faint whitish smear of the prosecutrix), '1o2b' (faint whitish smear of the prosecutrix), '1p1' (Oral swab of the prosecutrix), '1p2' (Oral swab of 23 of 52 24 FIR No. 510/11 PS - Sultan Puri the prosecutrix) & '1r2' (Straw coloured foul smelling liquid of the prosecutrix).
17. Now let the testimonies of PW1 - prosecutrix and PW2 - Smt. Meena Devi, mother of prosecutrix be perused and analysed.
PW1 - prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "I am studying in Class - XII in Sarvodaya Kanya Vidhalaya, Nangloi. I know accused Raj Kishor. He is staying as a tenant in our Gali. On 01/11/2011, I was alone at my above stated house. Mymother haad gone for visit to our village at Belwa Misr, District Kushinagar, UP and my father and sister had gone for work. My brother had gone to School. At about 2:30 p.m., accused Raj Kishor came to my house and "Mere Saath Jabardasti Kar Raha Tha, Meri Marji Ke Binah". First of all, accused entered my house then he gave me beatings. He then tried to make me unconscious by hitting his head against my head. I sat down due to pain. I raised alarm. Accused covered my face with a pillow. He again tried to kill me by strangulating my neck. He then pushed me on the bed. He bit me on my right cheek (witness has pointed towards her right cheek). He pressed hard on my breast. I gave him a leg blow but accused still did not leave me. Accused tried hard to open my Salwar and manage to open it but he could not do anything. At 4:30 p.m. my brother came and on seeing my brother, accused ran away. I remained in my house while my brother informed my sister telephonically. After my sister came home, she sent for accused but he 24 of 52 25 FIR No. 510/11 PS - Sultan Puri had already run away from his house. On the same day, my mother was informed about the incident telephonically. My mother could return back only on 04/11/2011. My mother took me and accused to Police Station. I made complaint Ex. PW1/A which is in my handwriting and bears my signatures at point 'A'."
Prosecutrix in her examinationinchief further deposed that : "I was taken for my medical examination to Ambedkar Hospital along with my mother and Police official. After medical examination, we returned back to PS and thereafter I went to my house.
At the time of medical examination, my underwear was handed over to the doctor. I can identify my underwear if shown to me.
At this stage, one sealed parcel sealing with the seal of FSL has been produced. The seal is opened and one box containing case property is taken out. The said box has several envelopes. One of the envelopes contains the underwear of the witness which is shown to her and has been identified by her. The underwear is Ex. P1.
I can identify the accused if shown to me. Accused Raj Kisore is present in the Court today. However, there is a wooden screen between the witness and the accused. The Counsel for accused is present and submits that identity of accused is not disputed. In the facts and circumstances and considering the guidelines issued to record statement of rape victims, physical identification of accused by the witness is dispensed with.
(At this stage, Ld. Addl. PP for the State seeks permission to crossexamine the witness as she is resiling from her earlier statement. Heard. Allowed).
25 of 52 26 FIR No. 510/11 PS - Sultan Puri XXXXX by Ld. Addl. PP for the State.
It is correct that in my complaint Ex. PW1/A I have stated that accused had "Mere Saath Jabardaasti, Meri Marji Ke Binah, Sharirik Sambandh Banaya". Whatever I have stated in my complaint Ex. PW1/A is correct.
Court Ques. : What do you mean by Sharirik Sambandh? Ans. : I mean that accused had opened my Salwar and had also opened his pant and committed sexual intercourse with me against my wishes.
I could not stated this in my chief examination recorded today out of embarrassment. It is correct that my mother returned back on 04/11/2011 in the evening and till then I had not told about the incident to anyone out of shyness and fear of society. It is correct that on her return, when my mother came to know about the incident, she called the accused and made inquiry from him and thereafter took me and accused to the Police Station with her.
It is correct that in the hospital one lady from NGO had also come and inquired about the incident from me."
From the aforesaid narration of PW1 - prosecutrix it is clearly indicated that on 01/11/2011, when prosecutrix was alone at her house, at about 2:30 p.m. accused came to her house and gave beatings to her and also tried to make her unconscious by hitting his head against her head. When prosecutrix sat down due to pain and raised alarm on which accused covered her face with a pillow and tried to kill her by 26 of 52 27 FIR No. 510/11 PS - Sultan Puri strangulating her neck and then pushed her on the bed and bit her right cheek and pressed her breast. Despite giving him of a leg blow by prosecutrix he did not leave her and opened her salwar and also opened his pant and committed intercourse with her against her wishes.
During her crossexamination, PW1 - prosecutrix negated the suggestions that she fell in love with the accused during his visits to her house. Vol. Accused is married and has a child so she could not have loved him or that she used to visit Aggarwal Restaurant at Shani Bazar Road, Sultan Puri, with the accused once or twice a month to have snacks, tea etc. or that she visited Jhandewalan Mandir and Mata Vaishno Devi Shrine with the accused or that about twothree years prior to this incident, she had run away from her house to Najafgarh or that she gave a telephonic call to accused at that time and told him that he should marry her or that accused came and advised her that since he is married, he could not marry her or that accused made her understand and took her to her house with great difficulty at that time or that when accused came, she told him that he should marry her or she would defame him. Vol. It is the accused who told her to marry him or that he would otherwise defame him or that she is deposing falsely against the accused as she was 27 of 52 28 FIR No. 510/11 PS - Sultan Puri in love with him and wanted to marry him but the accused refused to marry me or that accused did not commit forcible sexual intercourse with her or that he ever tried to rape with her or that she did not sustain any injury on her private parts during the incident or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - prosecutrix, nothing material has been brought out so as to impeach her creditworthiness. In the witness box, she has withstood the text of cross examination and her testimony is consistent throughout except that a little bit PW1 - prosecutrix oscillated in her examinationinchief but her version on the core spectrum of the crime has remained intact and her testimony on careful perusal and analysis is found to be clear, natural, cogent, convincing, reliable and inspires confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of prosecutrix is also found to be in consonance with her complaint Ex. PW1/A lodged with the Police. The testimony of PW1 - prosecutrix is also found to be corroborated by her MLC Ex. PW7/A which interalia specifically mentions that there was a 28 of 52 29 FIR No. 510/11 PS - Sultan Puri tooth mark on her right cheek as well as by the MLC of accused Ex. PW4/A as discussed hereinbefore.
The testimony of PW1 - prosecutrix is also found to be corroborated by PW2 Smt. Meena Devi, her mother, to whom she disclosed the fact relating to the crime soon after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW2 - Smt. Meena Devi in her examinationinchief has deposed that on 2728/10/2011, she had gone to her matrimonial village Bailwamishr to celebrate Chhat Pooja there, after leaving her husband and children at her house. In the evening of 01/11/2011, on the date of Chhat, she received telephone from her elder daughter Alka Kumari, who told that accused Raj Kishor committed rape upon her younger daughter (prosecutrix). She told her elder daughter that after Chhat Pooja, she will come. On 04/11/2011, she returned to her house from village Bailwamishr. Her younger daughter (prosecutrix) told her that on 01/11/2011, accused Raj Kishor, who was residing in their neighbourhood, entered into the house, when she (prosecutrix) was alone in the house and committed rape upon her. She (prosecutrix) also told 29 of 52 30 FIR No. 510/11 PS - Sultan Puri that accused put pillow on her mouth and also bitten on her cheeks. She (prosecutrix) further told that accused also tried to kill her by pressing her neck. She (prosecutrix) further told that after committing the rape upon her, accused sat on the chair and did not allow her to came out from the room. She (prosecutrix) further told that when, her brother (her son) Rahul, came there, accused ran away from there. She (prosecutrix) further told that her son called her elder daughter namely Alka from Kanjhawala, where she was working. Thereafter, she took her daughter (prosecutrix) along with her elder daughter to PS on the same day at about 9:00 p.m., where her daughter gave complaint to the Police, which is already Ex. PW1/A and same bears her signatures at point 'B' and signatures of her daughter at point 'A'. Thereafter, my daughter (prosecutrix) was taken to the Ambedkar Hospital, where medical examination of her daughter was conducted. One lady, who was told to them was from NGO, read the complaint Ex. PW1/A and she also put her signatures on it. Thereafter, she along with her both daughters returned home. Accused was also arrested by the Police vide arrest memo Ex. PW2/A and his personal search was also conducted vide memo Ex. PW2/B. Both the memos bear her signatures at point 'A'.
30 of 52 31 FIR No. 510/11 PS - Sultan Puri Except this, no other proceeding was done by the Police in her presence.
During her crossexamination by the Ld. Addl. PP for the State she (PW2 - Smt. Meena Devi) has deposed that it is correct that she made inquiry from accused Raj Kishor and he denied the facts of rape or that she took the accused and her daughter (prosecutrix) to Police Station - Sultan Puri and further stated that it is further correct that accused was interrogated in the Police station and there, he admitted that he committed rape upon her daughter. She denied that the site plan was prepared by the Police at her house. Vol. she had told the Police about the place where the commission of rape was committed at the PS and Police prepared site plan there. She also denied that she is deposing falsely in this regard. She further deposed that the factum of rape was not disclosed by her daughter due to shyness, loklaz and fear of society.
During her crossexamination by the Ld. Counsel for accused, PW2 - Smt. Meena Devi negated the suggestions that prosecutrix used to go out with the accused to Aggarwal Restaurant at Shani Bazar Road, Sultan Puri once or twice for an outing or that she had accompanied him for visit to Jhande Walan Mandir and Mata Vaishno 31 of 52 32 FIR No. 510/11 PS - Sultan Puri Devi Shrine or that 2/3 years prior to the incident, her daughter had run away from her house to Najafgarh or that she gave a telephonic call to accused at that time and told him that he should marry her or that accused advised her daughter that since he is married, he could not marry her or that due to this reason, the accused has been falsely implicated in this case or that when accused demanded his money back from them, which was taken by them on loan from him, he was falsely implicated by them in the present case or that her daughter fell into love with the accused or she was having love affairs and she always used to insist the accused to marry her or that facts were later on, concocted by her (PW2 - Meena Devi) and accused was falsely implicated in the case or that she is deposing falsely.
There is nothing in the crossexamination of PW2 - Meena Devi so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. Her testimony is found tobe clear, natural, cogent, trustworthy, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
32 of 52 33 FIR No. 510/11 PS - Sultan Puri
18. While analysing the testimonies of PW1 prosecutrix and PW2 - Smt. Meena Devi, her mother as discussed hereinabove inspite of crossexamination nothing has come out in the statements of PW1 - prosecutrix and PW2 - Smt. Meena Devi, her mother, which may throw a slightest doubt on the prosecution version of the incident. Though, suggestions by defence to PW1 - prosecutrix that she fell in love with the accused during his visits to her house. Vol. Accused is married and has a child so she could not have loved him or that she used to visit Aggarwal Restaurant at Shani Bazar Road, Sultan Puri, with the accused once or twice a month to have snacks, tea etc. or that she visited Jhandewalan Mandir and Mata Vaishno Devi Shrine with the accused or that about twothree years prior to this incident, she had run away from her house to Najafgarh or that she gave a telephonic call to accused at that time and told him that he should marry her or that accused came and advised her that since he is married, he could not marry her or that accused made her understand and took her to her house with great difficulty at that time or that when accused came, she told him that he should marry her or she would defame him. Vol. It is the accused who told her to marry him or that he would otherwise defame him or that she 33 of 52 34 FIR No. 510/11 PS - Sultan Puri is deposing falsely against the accused as she was in love with him and wanted to marry him but the accused refused to marry me or that accused did not commit forcible sexual intercourse with her or that he ever tried to rape with her or that she did not sustain any injury on her private parts during the incident or that she is deposing falsely and the suggestions to PW2 - Smt. Meena Devi, mother of the prosecutrix that prosecutrix used to go out with the accused to Aggarwal Restaurant at Shani Bazar Road, Sultan Puri once or twice for an outing or that she had accompanied him for visit to Jhande Walan Mandir and Mata Vaishno Devi Shrine or that 2/3 years prior to the incident, her daughter had run away from her house to Najafgarh or that she gave a telephonic call to accused at that time and told him that he should marry her or that accused advised her daughter that since he is married, he could not marry her or that due to this reason, the accused has been falsely implicated in this case or that when accused demanded his money back from them, which was taken by them on loan from him, he was falsely implicated by them in the present case or that her daughter fell into love with the accused or she was having love affairs and she always used to insist the accused to marry her or that facts were later on, concocted by 34 of 52 35 FIR No. 510/11 PS - Sultan Puri her (PW2 - Meena Devi) and accused was falsely implicated in the case or that she is deposing falsely were put, which were denied by the said PWs but the same have not been made probable much established by any cogent evidence. Moreover, there is no iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
19. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention 35 of 52 36 FIR No. 510/11 PS - Sultan Puri the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of medical evidence, biological and serological evidence, the 36 of 52 37 FIR No. 510/11 PS - Sultan Puri medical/gynaecological examination of prosecutrix vide MLC Ex. PW7/A and the MLC of accused Ex. PW4/A as discussed hereinbefore, the act of performing of sexual intercourse activity by complete penetration of penis or by partial penetration of the penis, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Raj Kishor with PW1 - Prosecutrix without her consent.
20. It is now well settled principle of law that conviction for rape can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. (Ref. State of 37 of 52 38 FIR No. 510/11 PS - Sultan Puri H.P. Vs. Asha Ram AIR 2006 SC 381).
21. Ld. Counsel for accused submitted that there is delay in lodging the FIR. The date of incident is 01/11/2011 and the report was lodged on 05/11/2011 after four days of the incident.
I have carefully perused and analysed the evidence on record.
Undisputably, the alleged incident is of dated 01/11/2011 and the complaint was lodged by PW1 - prosecutrix on 05/11/2011 Ex. PW1/A signed by her at point 'A' and signed by her mother at point 'B'. No doubt, there is delay of four days in lodging the report with the Police but the delay has been properly and satisfactorily explained by PW1 - prosecutrix who in her examinationinchief has specifically deposed that : "On the same day, my mother was informed about the incident telephonically. My mother could return back only on 04/11/2011. My mother took me and accused to Police Station. I made complaint Ex. PW1/A which is in my handwriting and bears my signatures at point 'A'."
The testimony of PW1 - prosecutrix has also been 38 of 52 39 FIR No. 510/11 PS - Sultan Puri corroborated by PW2 - Smt. Meena Devi, who in her examinationin chief has deposed which is reproduced and reads as under : "On 2728/10/2011, I had gone to my matrimonial village Bailwamishr to celebrate Chhat Pooja there, after leaving my husband and children at my aforesaid house. In the evening of 01/11/2011, on the date of Chhat, I received telephone from my elder daughter Alka Kumari, who told that accused Raj Kishor committed rape upon my younger daughter (prosecutrix). I told my elder daughter that after Chhat Pooja, she will come.
On 04/11/2011, I returned to my house from village Bailwamishr. My younger daughter (prosecutrix) told me that on 01/11/2011, accused Raj Kishor, who was residing in our neighbourhood, entered into the house, when she was alone in the house and committed rape upon her. She also told that accused put pillow on her mouth and also bitten on her cheeks. She further told that accused also tried to kill her by pressing her neck. She further told that after committing the rape upon her, accused sat on the chair and did not allow her to came out from the room. She further told that when, her brother (my son) Rahul, came there, accused ran away from there. She further told that my son called her elder daughter namely Alka from Kanjhawala, where she was working. Thereafter, I took my daughter along with my elder daughter to PS on the same day at about 9:00 p.m., where my daughter gave complaint to the Police, which is already Ex. PW1/A and same bears my signatures at point 'B' and signatures of my daughter at point 'A'."
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her 39 of 52 40 FIR No. 510/11 PS - Sultan Puri prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
40 of 52 41 FIR No. 510/11 PS - Sultan Puri The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
41 of 52 42 FIR No. 510/11 PS - Sultan Puri The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
42 of 52 43 FIR No. 510/11 PS - Sultan Puri
22. Ld. Counsel for the accused submitted that the MLC of prosecutrix Ex. PW7/A shows, no tear, no bleeding, leceration, Per Vaginal (P/V) Examination was not done because patient/prosecutrix was not willing for Per Vaginal (P/V) Examination. Ld. Counsel for the accused further submitted that semen could not be detected on the exhibits.
I have carefully perused and analysed the evidence on record.
PW7 Dr. Neeti Chaturvedi, Sr. Resident Gynae Dept, SGMH, Delhi who proved the medical examination of the prosecutrix as was conducted by Dr. Shalini vide MLC EX.PW7/A signed by the doctor Shalini at point 'A'.
It is pertinent to reproduce the examinationinchief of PW7
- Dr. Neeti Chaturvedi which reads as under : " I have been working in BSA Hospital, from August, 2011. I have been deputed by the Medical Superintendent, BSA Hospital, to depose in place of Dr. Shalini, who worked with me and I am well conversant with the handwriting and signatures of Dr. Shalini. Dr. Shalini is on maternity leave.
I have seen the MLC No. 110/11 prepared by Dr. Shalini.
43 of 52 44 FIR No. 510/11 PS - Sultan Puri The MLC is in the handwriting of Dr. Shalini and bears her signatures at point 'A'. Same is now exhibited as Ex. PW7/A. On examination, there was a tooth mark on the right cheek and there was no other sign of external injury. On local examination, no abnormal findings were detected and patient refused for internal examination and 19 number of samples were taken and same were sealed with the seal of Hospital and handed over to the Police official of PS - Sultan Puri. On urine examination, pregnancy test was negative."
From the aforesaid narration of PW7 - Dr. Neeti Chaturvedi, it is clearly indicated that patient/prosecutrix refused for internal examination and 19 number of samples were taken and the same were sealed with the seal of hospital and handed over to the Police official of PS - Sultan Puri.
It is to be noticed from evidence on record that said 19 sampled were seized by the Police vide seizure memo Ex. PW10/B and was sent to FSL, Rohini for analysis.
It is also to be noticed that in the MLC Ex. PW7/A the history as was told by the prosecutrix to the Doctor Shalini is also found recorded, which is to the effect that : 44 of 52 45 FIR No. 510/11 PS - Sultan Puri "Victim (name withheld) D/o Ms. Harender Sharma R/o Sultan Puri, Delhi has been brought to the hospital by SI D. N. Yadav and W/Constable Manju accompanied by her mother Meena, accused her neighbour Raj Kishor of sexually assaulting her on 01/11/2011. She was alone in her house on 01/11/2011 when the accused attacked her, pulled her hairs, slapped her, bite her on her cheeks, tried to forcefully pull her clothes. Victim cried for help but being along in her house nobody came for her help. After 2 hours her sister and brother came for help. Victim narrated by (the) incidence to her mother on 04/11/2011 (who was outside station till 04/11/2011 afternoon). After she was brought to BSA Hospital for medical checkup."
No doubt, as per biological report Ex. PW8/A semen could not be detected on exhibits '1a' (underwear of the prosecutrix), '1c' (Debri collection of the prosecutrix), '1d' (Nail scraping of the prosecutrix), '1e' (Body fluid collection of the prosecutrix), '1f' (In between fingers of the prosecutrix), '1g' (Breast swab of the prosecutrix), '1i' (Clipping of Pubic hair of the prosecutrix), '1k1' (Vaginal secretion of the prosecutrix), '1k2' (Vaginal secretion of the prosecutrix), '1l' (Cervical mucus collection of the prosecutrix), '1m' (Culture of the prosecutrix), '1n' (Washing from vagina of the prosecutrix), '1o1' (Cotton wool swab of the prosecutrix), '1o2a' (Faint whitish smear of the prosecutrix), '1o2b' (faint whitish smear of the prosecutrix), '1p1' (Oral swab of the prosecutrix), '1p2' (Oral swab of the prosecutrix) & 45 of 52 46 FIR No. 510/11 PS - Sultan Puri '1r2' (Straw coloured foul smelling liquid of the prosecutrix). But the site cannot be lost of the fact that as discussed hereinabove, the alleged incident is of dated 01/11/2011 and it was reported to the Police on 05/11/2011 vide Ex. PW1/A. During the interregnum of the said period from 01/11/2011 to 05/11/2011, prosecutrix must have answered the call of nature a number of times, must have taken bath a number of times and must have washed her clothes/underwear, therefore, non detection of semen in the said exhibits as detailed hereinabove of the biological report Ex. PW8/A does not falsify the case of the prosecution which is otherwise proved by clear, cogent and convincing evidence on the record.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical 46 of 52 47 FIR No. 510/11 PS - Sultan Puri jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
PW1 - prosecutrix during her crossexamination by Ld. Addl. PP and in answer to the Court question has explained the meaning of Sharirik Sambandh and the reason for not stating about it in her examinationinchief. The relevant part of her crossexamination by the Ld. Addl. PP and the Court question and answer is reproduced and reads as under : "XXXXX by Ld. Addl. PP for the State.
It is correct that in my complaint Ex. PW1/A I have stated that accused had "Mere Saath Jabardaasti, Meri Marji Ke Binah, Sharirik Sambandh Banaya". Whatever I have stated in my complaint Ex. PW1/A is correct.
Court Ques. : What do you mean by Sharirik Sambandh? Ans. : I mean that accused had opened my Salwar and had also opened his pant and committed sexual intercourse with me against my wishes.
I could not stated this in my chief examination recorded today out of embarrassment."
Inspite of incisive crossexamination of PW1 - prosecutrix, 47 of 52 48 FIR No. 510/11 PS - Sultan Puri nothing material could be elicited during her crossexamination. Her version on the core spectrum of the crime has remained intact.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
23. Ld. Counsel for the accused submitted that prosecutrix admitted in her crossexamination that the main door of the house was lying open when accused raped her. Her clothes were not torn when accused forced himself upon her. Ld. Counsel for the accused further submitted that no neighbour was examined or cited as a witness. He further submitted that the house of a prosecutrix was situated in a thickly populated area and further submitted that accused was known to the prosecutrix since last 4/5 years.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix is clear and categorical in her examinationinchief as well as crossexamination as discussed herein before. PW1 - prosecutrix in her examinationinchief has specifically deposed that accused tried hard to open her salwar and managed to open 48 of 52 49 FIR No. 510/11 PS - Sultan Puri it. In answer to the Court question, as reproduced hereinbefore, she has specifically deposed that accused open her salwar and also opened his pant and committed sexual intercourse with her against her wish.
During her crossexamination, PW1 - prosecutrix has clearly and specifically deposed regarding which the plea has been raised by the Ld. Counsel for the accused. The relevant part of her cross examination reads as under : "The accused is residing in the same gali in which my house is situated. There is distance of 6/7 houses between his house and my house. It is correct that the locality in which my house is situated is a congested locality and there are several houses with adjoining walls. "
"I know accused Raj Kishor since last 45 years as he is residing in the same locality. He maintained good relations with everyone and we used to call him Mama. He is not related to our family. Accused was on visiting terms with out family since last about two years, after death of my younger sister."
"The main door of the house was lying opened when accused raped me. My clothes were not torn when accused forced himself upon me. I did not bleed when accused committed sexual intercourse with me. I did not give nail marks or bites to accused to save myself. I had pulled at clothes of accused in anger but none of his clothes get torn. I had raised alarm but none of the neighbours came as it was day of "Chhat Pooja" and songs were playing on Decks put up by person in the locality. I did not go out of the house to inform neighbours about the incident. Vol. I was fearful and shy"
49 of 52 50 FIR No. 510/11 PS - Sultan Puri Inspite of incisive crossexamination of PW1 - prosecutrix, nothing material could be elicited so as to impeach her creditworthiness.
At the cost of repetition, PW1 - prosecutrix has specifically deposed during her crossexamination that she had raised alarm but none of the neighbours came as it was day of "Chhat Pooja" and songs were playing on Decks put up by person in the locality. She did not go out of the house to inform neighbours about the incident.
It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence (Ref. Nirmal Singh & Ors. Vs. State, 2011 III AD (DELHI) 699).
In view of above and in the circumstances, the fact that the house of prosecutrix was situated in a thickly populated area or that she is knowing the accused for 45 years or that door of the house of the prosecutrix was lying opened or that clothes of prosecutrix were not torn or that no neighbour was examined or cited as a witness does not falsify the case of the prosecution which is otherwise proved by clear, cogent 50 of 52 51 FIR No. 510/11 PS - Sultan Puri and convincing evidence on the record.
In the circumstances, there is no substance in the pleas so raised by the Ld. Counsel for the accused.
24. In view of above and in the circumstances, prosecution has thus proved beyond shadows the all reasonable doubts that on 01/11/2011, at about 2:30 p.m. at House No. 960, HG1, Labour Colony, Sultan Puri, Delhi, accused Raj Kishor forcibly committed rape upon PW1 - Prosecutrix aged about 20 years (to be more exact 19 years 5 months and 27 days) by opening her salwar and had also opened his pant and committed sexual intercourse with her without her consent and against her wishes.
I accordingly, hold accused Raj Kishor guilty for the offence punishable u/s 376 IPC and convict him thereunder.
25. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Raj Kishor in the commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the 51 of 52 52 FIR No. 510/11 PS - Sultan Puri ultimate analysis, the prosecution has been able to bring the guilt home to the accused Raj Kishor beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Raj Kishor. I, therefore, hold accused Raj Kishor guilty for the offence punishable u/s 376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 06th Day of May, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 52 of 52