Delhi District Court
St. vs Anup Kumar on 12 November, 2010
St. Vs Anup Kumar
FIR No.183/09, PS: Khyala
U/s 376 IPC
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST04), DELHI
SC No. : 250/1/10
State
Versus
1. Anup Kumar
S/o Ramesh Kumar
R/o P91, Raghubir Nagar
Delhi.
Case arising out of :
FIR No. : 183/09
U/s : 376 IPC
P.S. : Khyala
Date of FIR : 01.09.2009
Date of Institution : 30.10.2009
Date of Final Arguments : 20.10.2010
Judgment reserved on : 20.10.2010
Date of judgment : 28.10.2010
JUDGMENT
1. This judgment shall dispose of the case titled as State Vs Anup Kumar, vide FIR No.183/09, U/s 376 IPC, P.S. Khyala.
2. The case of the prosecution is that on 01.09.2009 at about SC No. 250/1/10 Page 1of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC 12.25 in the night DD no.3A was received at police station Khyala and ASI Manjeet Kaur went to the spot and made enquiries from the public persons about the said incident but no clue has been found. Later on, one girl Seema met to ASI Manjeet Kaur and got recorded her statement. On the basis of the said statement, rukka was prepared and the case under section 376 IPC was registered against the accused Anup Kumar. The complainant Seema in her statement/complaint alleged that she had two children and about two months earlier, Maya wife of Amit Kumar was doing the job in the security in U.P. Earlier she used to work with them. Maya aged 19 years gave birth to a female child and they had taken one room on rent on second floor at property no. P91, Raghuvir Nagar. The house where they were residing was owned by the accused present in the court. Seema and her husband were running a shop of Chowmin at Gopal Dairy, Raghubir Nagar. On 21.09.2009, when they had returned from their shop after closing it at 11:00 PM, she found that her children were sleeping and she could not found Maya. She heard some noise from the adjoining room and she knocked the door, on which the accused SC No. 250/1/10 Page 2of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC came out. She enquired about Maya from the accused but the accused did not tell her anything and closed the room. She heard some noise from the room on which she opened it and went inside. She found that Maya was crying in the room and Maya told her that the accused had raped her. Seema scolded Maya for why not shouting for help or raising alarm on which Maya told her that the accused had closed her mouth and tied her hands with handkerchief. Seema called the police at 100 number on which the police arrived. Police made inquiry and arrested the accused who was sleeping at that time. The police took Maya, Seema and accused to police station. Maya was medically examined in DDU Hospital. Seema made a complaint to the police vide Ex.PW5/A. The accused was arrested in her presence and his personal search was conducted vide memo Ex.PW5/B and Ex.PW5/C. Maya was also examined by the investigating officer and her statement was recorded under section 161 Cr.P.C. as well as 164 Cr.P.C. where she made categorically allegations against the accused that the accused had raped her forcibly without her consent. Accused after arrest was also medically examined and doctor opined that there SC No. 250/1/10 Page 3of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC is nothing to suggest that he is incapable of sexual intercourse. The prosecutrix Maya was also medically examined and found no sign of injuries on her person.
PW14 ASI Manjeet Kaur after preparation of rukka and registration of case, arrested the accused as well as prepared the site plan. The proseuctrix and the accused were also medically examined.
Clothes of the prosecutrix, blood and semen samples were seized vide seizure memo Ex.PW8/A. The ossification test for determining the age of the prosecutrix was got conducted and report to this effect is Ex.PW14/C. Statement of other police officials also recorded by the investigating officer who joined the investigation and after completion of the investigation, the challan was filed in the court.
After completion of the committal proceedings, charge was framed against the accused under section376 IPC vide order dt.
21.11.2009 whereas it has been alleged that on 31.08.2009 at about 11:30PM at room on 3rd Floor, P91, Raghuvir Nagar, New Delhi accused Anup Kumar committed rape upon Maya aged 19 years. The accused pleaded not guilty and claimed trial.
SC No. 250/1/10 Page 4of 29
St. Vs Anup Kumar
FIR No.183/09, PS: Khyala
U/s 376 IPC
3. In order to establish the case against the accused, the prosecution examined 14 witnesses including PW5 Seema who is complainant and PW9 Maya, prosecutrix/victim.
PW5 Seema is the complainant who entered into the room of the accused and got recovered the victim from accused' s room and soon after the incident, the victim has narrated all the happening with her and alleged about the forcible rape committed by the accused upon the prosecutrix Maya. The allegations of rape is also corroborated by the deposition of PW9 Maya in her statement before the trial court as well as statement before the Ld. MM under section 164 Cr.P.C.
PW14 ASI Manjeet Kaur also reached at the spot soon after receiving the information of the alleged incident of rape committed upon the prosecutrix by the accused on 31.08.2009 at 11:30 PM.
Rukka Ex.PW14/A was prepared on 01.09.2009 on her statement of PW5 Seema complainant. The accused in his statement under section 313 Cr.P.C. admitted that Seema and Maya were living as tenants at P91, Raghuvir Nagar and came to the premises on 31.08.2009 and the complaint was lodged to extort money, he is innocent and falsely SC No. 250/1/10 Page 5of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC implicated by the police in the present case.
4. The accused also examined in his defence DW1 Sanjay who is also living in the same premises on second floor who stated in his deposition that no incident had taken place in the night of 31.08.2009. He did not hear any cry of Maya and he did not notice any incident or any circumstances of rape on 31.08.209 at 11:30PM.
He used to sleep around 12:30 mid night till that time he did not notice any incident. He also examined DW2 Sunil Kumar, Ahlmad who brought the summoned judicial file in respect of case FIR No.253/09, police station Ashok Vihar under section 376 IPC against one Chotu Dada. In this case Maya daughter of Babloo registered similar case against Chotu Dada vide photocopy of FIR Ex.DW2/A and statement of prosecutrix Ex.DW2/B. Later on the said FIR was cancelled by the Ld. MM vide Ex.DW2/C.
5. Having heard the submissions of the Ld. APP for state and the Ld. defense counsel and carefully gone through the material placed on record.
Ld. APP for state submitted that the prosecution has proved SC No. 250/1/10 Page 6of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC its case against the accused beyond all reasonable doubts by examining all the material witnesses as cited in the list of witnesses.
There is no inconsistency and contradictions in the depositions of the prosecution witnesses. The testimony of all the prosecution witnesses inspire confidence. The prosecutrix has made specific allegations against the accused Anup Kumar that the accused has forcibly committed sexual assault upon her. In these circumstances, the accused Anup Kumar is liable to be convicted as per the charges framed against him.
6. On the contrary, Ld. counsel for the accused submitted that the both the PW Maya and Seema made contradictory statements with respect to the antecedent of prosecutrix, on 12.12.2009 Maya her sister Seema and one Tank Bahadur made statement before the magistrate that she has a lodged a false case under some misimpression. Maya further stated that the child in her womb belonged to Tank Bahadur.
PW9 Maya also falsely implicated one Chotu Dada with similar allegations, later on she betrayed from her statement and that FIR was cancelled on her statement. The ulterior motive of the complainant SC No. 250/1/10 Page 7of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC and prosecutrix is to extort money from the accused as they had also taken huge amount from Chotu Dada in FIR No.253/09, police station Ashok Vihar under section 376 IPC. The prosecutrix was also got medically examined but there is no sign of fresh external or internal injuries on her person. On the basis of the medical examination, since there is no abrasion or any kind of injury on external or internal part of the body of the prosecutrix as such it easily be ruled out the possibility of physical assault or rape. During the investigation, the vaginal swab, blood group of the accused was also seized and sent for forensic expert opinion. There is no semen or blood group of the accused detected on the clothes seized by the police. The prosecutrix and the accused are fully grown up, if there had any sexual assault upon the prosecutrix Maya there would have been mark of injuries on the person of the prosecutrix as well as accused. As per the MLC Ex.PW3/A and Ex.PW4/A there was no injury on the person of the prosecutrix as well of the accused.
It is further contended by the Ld. Counsel for the accused that there was no delay in medical examination which took place at SC No. 250/1/10 Page 8of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC 02:45 AM on the same day, till then the prosecutrix has not taken any bath nor washed her clothes or her private parts. In any case, the FSL report would have spoken against the accused but the negative report of the FSL also shown that the accused did not commit any offence of rape upon the prosecutrix. PW5 Seema is prime witness of the prosecution who lodged the FIR. She stated in her examination in chief that on 31.08.2009 when she found that her children were sleeping, she could not find Maya. She heard some noise in the adjoining room and knocked the door by which the accused came out.
The accused has committed the rape after closing of the door and the accused was arrested while he was sleeping. If the accused had committed any rape while he was taking sound sleep in his room and when PW5 Seema got recovered Maya from the room of the accused and made hue and cry, the accused should not go to sleep in the room and he must have run away from the house. As such, since there is no question of the said incident, the accused had not absconded from his room.
It is further contended by Ld. Counsel for the accused that SC No. 250/1/10 Page 9of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC PW9 Maya in her examination denied the previous incident as alleged against Chotu Dada wherein she involved him in case of rape on the deposition of the prosecutrix Maya. However, DW2 Sunil Kumar, Ahlmad brought the relevant record and proved the previous FIR and the statement of the prosecutrix as well as the closure report of the Ld. MM vide Ex.DW2/A and Ex.DW2/C which shows the maneuover and character of the prosecutrix as she was in the habit of entangling the innocent persons to extort money. Counsel for the accused relied upon AIR 1983 (SC) 911, wherein the Hon'b le Supreme Court held that evidence of a victim of a rape is to be treated like evidence of accomplice. Nature and extent of corroboration necessary for such evidence. With these submission, it is prayed that the accused is liable to be acquitted from the charges as levelled against him.
7. In view of the aforesaid submissions made by the Ld. Counsel for the accused persons and Ld. APP for state and the material placed on record, The relevant provisions of the Indian Penal Code, namely section 375 and section 90 which read as follows. : " 375 Rape A man is said to commit "ra pe" who, except in the case hereinafter excepted, has sexual intercourse with a woman under SC No. 250/1/10 Page 10of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC circumstances falling under any of the six following descriptions :
(i) Against her will.
(ii) Without her consent.
(iii) With her consent,when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(iv) With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(v) With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or though another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(vi) With or without her consent, when she is under sixteen years of age.
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Section 90: 'Co nsent' known to be given under fear or misconception. A consent is not such a consent as it intended by any section of this code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear of misconception;
SC No. 250/1/10 Page 11of 29
St. Vs Anup Kumar
FIR No.183/09, PS: Khyala
U/s 376 IPC
Or 'con
sent' of insane person, if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent;
Or 'con sent' of child, unless the contrary appears from the context,if the consent is given by a person who is under twelve years of age."
8. In view of the submissions of Ld. Counsel and material placed on record, the Counsel for the accused draw the attention of the court towards the conduct of the prosecutrix Maya and her sister Seema PW5 by the previous involvement with other person Chotu Dada in FIR No.183/09, police station Khayala, under section376 IPC wherein on the basis of the statement of Maya, the then prosecutrix cancellation report was filed and the same was accepted by the magistrate and further submitted that the present one is also of similar circumstances. Wherein the accused has been falsely implicated with the motive to extort money. To this effect the contentions of the Ld. Counsel for the accused do not serve the purpose since whatsoever the conduct of the prosecutrix that cannot rule out the offence as alleged by the prosecution. If the prosecutrix is even a prostitute no one can forcibly intercourse or rape with her unless she has given her free consent.
In case titled as State Vs Madhukar AIR 1991 SC 207:
1991 SCC (Cri) 1, it is held that a woman of easy virtue also could SC No. 250/1/10 Page 12of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC not be raped by a person for any reason. Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground. It has, however, to be cautiously appreciated.
Nonresistance on the part of the prosecutrix does not amount to consent. An inference as to consent can be drawn if only based on evidence or probabilities of the case. The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent or else the testimony of prosecutrix be such as would be inherently improbable.
The prosecutrix is a fully grown up lady and delivered a child, 25 days before the incident. It is stated by PW5 Seema that when she had not found Maya available in the said room, the accused initially refused the presence of the prosecutrix Maya in the room. Later on, the prosecutrix was found and got recovered from the room of the accused. The prosecutrix herself has categorically stated that the accused dragged her in another room and forcibly raped her. She shouted for help but nobody came for the help. The accused forcibly raped her against her consent. Accused has drunk at that time. He has SC No. 250/1/10 Page 13of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC tied her hands and mouth with clothe and removed her clothes as well as his own clothes and raped her. Seema did not see the accused while committing the rape. Soon after raping the prosecutrix, the accused came out from his room. After the incident, the prosecutrix narrated the whole incident to PW5 Seema.
Even in the cross examination, the prosecutrix/victim Maya had denied to work in house no. D26, Satyawati Nagar, Ashok Vihar. It is also denied that she has worked in the house of Radhey Shyam Gupta. She further stated that she has never got any case made against Chotu Dada son of Radhey Shyam Gupta. She had not appeared on 12.12.2009 before any court in any case and further categorically stated that the accused has tied her mouth with handkerchief and used his two handkerchief to tied his hands and mouth. It is denied that the accused had not raped her and accused has been falsely implicated in this case to extort money. It is also denied that Seema also implicated Chotu Dada and compromised after extorting the money. The statement of the prosecutrix was also recorded by PW2 Ashish Aggarwal, Ld. M.M. under section 164 Cr.P.C. on 10.09.2009 vide Ex.PW2/A which told that ".. . when all of a sudden he held my hand and pulled me to another room. He was heavily drunk. He tied my mouth with a cloth. He removed my clothes and he raped me forcibly. My sister arrived. Thereafter he ran away from the room. Seeing me in that condition, she called the police. I can identify him when I see him..." The said statement was recorded SC No. 250/1/10 Page 14of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC through an interpreter Sh. U.K. Sharma. PW U.K. Sharma being News Reader in All India Radio, Akaswani Bhawan, having knowledge of Hindi, English, Nepalese, Bengali and Assami languages. He after taking oath translated the statement of the prosecutrix from Nepali to English language. U.K. Sharma undertaken to translate the evidence of the prosecutrix correctly and completely without concealing any part or adding anything to the same.
9. It is settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. A plethora of decisions by the Supreme Court would show that once the statement of the prosecutrix inspires confidence and is accepted by the courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for corroboration of her statement. There is no rule of law that her testimony cannot be acted without corroboration in material particulars.
In the present case, PW9 Maya has made categorically allegations against the accused that the accused was in drunk condition, who took her in his room, tied her hands and thereafter committed rape upon her. The prosecutrix was got recovered from the room of the accused by PW5 Seema. The testimony of the prosecutrix Maya has been corroborated as per the provision of section 157 of the Indian Evidence Act during the deposition of PW5 Seema, as the victim has, soon after the incident, narrated the incident to PW5 SC No. 250/1/10 Page 15of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC Seema regarding the offence committed by the accused with the prosecutrix Maya. It is not necessary that the neighbourer who living in the same vicinity must be known or the victim should tell them about the atrocities happened with her since it will damage her dignity and later on everybody would want to take advantage of the incident of rape as took place with her. The prosecutrix Maya has never been a consenting party nor she seduced the accused.
10. As regarding to the injuries on the person of the prosecutrix, the absence of any injury mark on the person of prosecutrix Maya alleged to have been raped may go a long way to indicate that the alleged intercourse was a peaceful affair and the story of a stiff resistance put up by the prosecutrix is false or an afterthought. But in absence of such injury, it cannot be concluded that the incident had not taken place or that the sexual intercourse was committed with the consent of the prosecutrix. In the present case, the prosecutrix had delivered a child 25 days before the incident. Therefore, her uterus and private organs has already been enlarged and as per the MLC No.17527 dt. 01.09.2009 Ex.PW3/A examined by Dr. Suruchi Singhla who found no external injury on the body of the patient and also observed that the patient has some fresh injuries on the posterior fourchette. These injuries were due to delivery of child and have not been sustained during the course of rape. The injuries on the posterior fourchette may be of birth of child but it was 25 days earlier. Injuries have opined to be fresh one. Therefore, medical evidence to this effect SC No. 250/1/10 Page 16of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC has also supported that there was a forcible rape on the victim.
In Parikh's Textbook of Medical Jurisprudence and Toxicology, it is observed that " 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."
The Supreme Court in Harpal Singh AIR 1981 SC 361, 1981 Cri LJ 1 (SC), held that absence of injuries on the private parts of the prosecutrix would not rule out her being subjected to rape.
11. Ld. Counsel for the accused further contended that there was no injuries on the genital male organ of the accused. In this context, Modi in Medical Jurisprudence and Toxicology, 21st Edition, P 380, states that injuries to the genital parts may result from force exerted by the accused or from forces applied by the victim. In addition to scratches or lacerations on the penis caused by the finger nails of the victim during a struggle, an abrasion, or a laceration may be discovered on the prepuce or glans penis, but more often on the fraenum, due to forcible introduction of the organ into the narrow vagina of a virgin, especially of a child, but it is not necessary that there should always be marks of injuries on the penis in such cases.
12. In the present circumstances, the victim is a young lady and delivered a baby few days back as already been consumated a marriage with her husband. In such circumstances, the victim capable SC No. 250/1/10 Page 17of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC of sexual intercourse. The absence of the injuries on the private parts of the victim or on the penis of the accused would not be treated as fatal for the case of the prosecution.
In Rahim Beg, AIR 1973 SC 343, 1972 Cri LJ 1260 (SC), the presence of injuries on the male organ may lend support to the prosecution case, but their absence is not always fatal. Rahim Beg case was based on its peculiar facts and the observations made therein were in a totally different context and cannot advance the case of the accused.
In the present case, the accused was young man and in drunken condition and was capable of sexual intercourse and his organ is well developed which is proved by his MLC prepared by PW4 Dr.Kumar Narender Mohan. Therefore, on this ground, the prosecution brought home the guilt of the accused.
13. So far as with respect to the investigation, there are some minor defects in the investigation as brought by the counsel for the accused.
14. Defective investigation may discredit the prosecution, but prosecution evidence may not necessarily be discarded on that ground. If the evidence is otherwise reliable and trustworthy, the court may convict the accused. Reminiscence of investigating officer will not ipso facto weaken the case of the prosecution. Courts should not be influenced by suspicious roles played by the investigation officer during investigation and criminal justice should not be made a SC No. 250/1/10 Page 18of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC casualty for wrongs committed by investigating officers.
In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
15. In case titled as Akbar & Anr. Vs State 2010 III AD (Delhi) with reference to the decisions of the Supreme Court reported as Tahsildar Singh Vs State of UP AIR 1959 SC 1012, Bharwada Bhoginbhai Hirjibhai Vs State of Gujarat AIR 1983 SC 753 and Leela Ram Vs State of Haryana AIR 1997 SC 3717, 13 principles to be followed while evaluating evidence of eye witnesses were culled out being :
(i) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(ii) If the court before whom the witness given evidence had the opportunity to form the opinion about the general tenor of SC No. 250/1/10 Page 19of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(iii) When eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
(iv) Minor discrepancies on trivial matters not ouching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(v) Too serious a view to be adopted on mere variations falling in the in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(vi) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(vii) Ordinarily it so happens that a witness is overtaken by SC No. 250/1/10 Page 20of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(viii) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(ix) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(x) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(xi) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(xii) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused SC No. 250/1/10 Page 21of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC regarding sequence of events,or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnesses by him.
(xiii) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
The courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in mind. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
16. Therefore, the discrepancies as pointed out by Ld. Counsel for the accused do not go to the root of the case of the prosecution.
SC No. 250/1/10 Page 22of 29
St. Vs Anup Kumar
FIR No.183/09, PS: Khyala
U/s 376 IPC
Ld. Counsel for the accused contended that the prosecutrix has deposed in her statement that she does not want to proceed against the accused. The prosecutrix Maya in her examination in chief as well as in cross examination on behalf of the accused categorically made specific allegations for forcible committing of rape upon her by the accused, after forcibly taking from her room. The testimony of the prosecutrix inspire confidence to prove the guilt of the accused and her testimony is duly corroborated by PW5 Seema as well as by other prosecution witnesses.
Hence, in view of the aforesaid discussion as well as facts and circumstances of the case, the prosecution succeeded to prove the offence punishable under section 376 IPC against the accused. Hence, the accused Anup Kumar S/o Ramesh Kumar is hereby convicted for the offence punishable under section 376 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court ADDITIONAL SESSIONS JUDGE
today i.e. on 28.10.2010 (WEST04):DELHI
SC No. 250/1/10 Page 23of 29
St. Vs Anup Kumar
FIR No.183/09, PS: Khyala
U/s 376 IPC
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST04), DELHI SC No. : 250/1/10 State Versus
1. Anup Kumar S/o Ramesh Kumar R/o P91, Raghubir Nagar Delhi.
Case arising out of :
FIR No. : 183/09 U/s : 376 IPC P.S. : Khyala Order on Sentence 12.11.2010 Present: Sh. Subhash Chauhan, Ld. APP for state.
Convicted with counsel.
Having heard the submissions and gone through the material on record. The accused Anup Kumar is convicted for the offence under section 376 IPC, vide separate judgment dt. 28.10.2010.
Ld. APP for state argued that the prosecution proved its case against the accused Anup Kumar beyond all reasonable doubts. The testimony of PW9 Maya prosecutrix, PW5 Seema complainant and SC No. 250/1/10 Page 24of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC other material witnesses are trustworthy, corroborated and believable. There is no rebuttal to the deposition of the prosecution witnesses. The prosecutrix Maya categorically deposed against the accused Anup Kumar that he forcibly raped her and her deposition has been corroborated by PW5 Seema as well as by medical expert and other circumstantial evidence. The prosecutrix was recovered from the house of the accused Anup Kumar. Under these circumstances, the convicted may be awarded maximum sentence.
Ld. counsel for convicted submitted that convicted Anup Kumar is innocent and falsely implicated in this case and PW9 Maya also falsely implicated one Chotu Dada with similar allegations. The ulterior motive of the complainant and prosecutrix is to extort money from the accused as they had also taken huge amount from Chotu Dada in FIR No.253/09, police station Ashok Vihar under section 376 IPC. There is no semen or blood group of the accused detected on the clothes seized by the police. Therefore, they may be released on undergone imprisonment and also relied upon AIR 1983 SC 753 & AIR 1983 SC
323. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. The criminal law adheres in general to the principle of proportionality in SC No. 250/1/10 Page 25of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentence are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, cannot be lost sight of and perse require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offence will be resultwise counter productive in the long run and against social interest which needs to be cared for an strengthened by string of deterrence inbuilt in the sentencing system.
In view of the aforesaid submission of Ld. APP for state and Ld. defence counsel, I am of the view that it has been very aptly indicated in Dennis Councle MCG Dautha Vs State of California (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may SC No. 250/1/10 Page 26of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of " order" should meet the challenges confronting the society. Friedman in his " Law in Changing Society" stated that, "St ate of criminal law continues to be as it should be decisive reflection of social consciousness SC No. 250/1/10 Page 27of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 " It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. 2008 X AD SC 648, in this case, the accused' s lustful acts have indelible scar not only physically but also emotionally on the victim. No sympathy or leniency is called for.
To consider the facts and circumstances of the present case and the authorities cited, the punishment for the rape shall be imprisonment for not less than seven years but which may extend for life or for a term for ten year, provided that the court may find adequate and special reason to be mentioned in the judgment, impose sentence of imprisonment for not less than seven years. In case titled as Kamal Kishore Vs State of H.P. (2000) 4 SCC 502: AIR 2000 SC 1920: 2000 Cr. L.J.2292, it is held that reasons must be adequate as well as special. The fact that occurrence took place ten years ago and the accused might have settled in life or that prosecutrix got married are not special reasons.
Once it is held that possibility of consent cannot be ruled out, this may have some bearing on the question of sentence though conviction can be based on the evidence of prosecutrix. When the case of the prosecution stands fully proved and there is no reason to discard the evidence of the prosecutrix, particularly when the said statement is SC No. 250/1/10 Page 28of 29 St. Vs Anup Kumar FIR No.183/09, PS: Khyala U/s 376 IPC fully corroborated by medical and ocular evidence and the relevant circumstances, sentence awarded being less than the minimum, which is seven years under section 376 (1) IPC, there is no scope for further reduction of the sentence. Similar view was observed in case titled as Prem Vs State of Haryana, 2003 Cr.L.J. 962 (P&H).
In the present case, the convicted Anup Kumar has already remained in judicial custody for more than six months and there is no adequate or special reason assigned for reducing of minimum sentence as prescribed except having family and only male bread earning member in his family. Hence, the convicted Anup Kumar S/o Ramesh Kumar is sentenced to rigorous imprisonment for a period of seven years and fine of Rs.5,000/ in default of payment of fine, he shall further undergo three months simple imprisonment for the offence punishable under section 376 IPC.
Benefit of section 428 Cr.P.C. be also given to the convicted. The period already passed by him in the judicial custody be set off from the sentence awarded.
I think the sentence awarded will meet the end of justice and also have a deterrent as well as reformatory way in the mind of the convicted too.
Copy of this order and judgment be given to the convicted free of cost forthwith.
Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court today ADDITIONAL SESSIONS JUDGE i.e. on 12.11.2010 (WEST04):DELHI SC No. 250/1/10 Page 29of 29