Delhi District Court
State vs . Kamaluddin on 24 July, 2015
IN THE COURT OF SHRI SANJIV JAIN ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK COURT (SOUTH EAST) SAKET COURTS: NEW DELHI Unique Case ID No. 02406R0198852013 SC No. : 224/13 FIR No. : 189/13 U/s. : 376/506 IPC PS : Jamia Nagar State (Govt. of NCT of Delhi) ................... Complainant Versus Kamaluddin S/o Awwal Miyan R/o Village Piprahni, PS Uchka Gaon, Distt. Gopal Ganj, Bihar .........................Accused Date of Institution : 22.08.2013 Judgment reserved for orders for : 23.07.2015 Date of pronouncement : 24.07.2015 J U D G M E N T
Facts
1. Facts and circumstances which give rise to this case are as under: FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 1 of 30 The prosecutrix was married to Mansoor Alam about one month ago. About 23 days before, accused Kamaluddin, friend of her husband, came at their house to stay with them. On 27.04.2013, at about 9.00 am when her husband had gone for his duty and the prosecutrix was alone, accused knocked at the door and asked "Gulshan darwaja kholo". She, without doubting the intention of the accused, being the friend of her husband, opened the door. He entered her room. When she was cutting vegetables, he caught her hand and said "sabzi bahar se mangwa lenge". When she tried to get her hand released, he strongly caught hold of her and tied her hands. He gagged her mouth with a handkerchief so that she may not cry. He then removed her clothes and committed rape upon her. He then opened her hand and threatened if she would disclose the incident to anyone, he would kill her. He then left the house. When her husband came, she told him the incident, who took her to the police station and lodged the complaint. Investigation
2. On this complaint, case was registered vide FIR no. 189/13 under section 376/506 IPC. Prosecutrix was got medically examined. Accused was arrested on the same day. FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 2 of 30 He was got medically examined. Exhibits of the prosecutrix were sealed, seized and handed over to the police. During investigation, one mat, salwar and handkerchief were taken into possession. Exhibits of this case were sent to FSL. After the investigation, accused was sent for trial for the offences punishable u/s 376/506 IPC.
3. After complying with the requirements contemplated u/s 207 Cr.P.C. the case was committed to this Court. Charge
4. After hearing arguments, vide order dated 12.09.2013, prima facie case was made out against the accused and charge u/s 376/506 IPC was framed.
Prosecution Evidence
5. To substantiate its case, prosecution examined as many as ten witnesses.
PW 1 WCt. Bala, on 26.04.2013 along with the IO visited the room of the prosecutrix, from where, she recovered her salwar, a baby pink colour handkerchief of the accused and a light brown /black colour jute mat. She stated that they were taken in possession by the IO vide memo Ex. PW 1/A after sealing with the seal of FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 3 of 30 SD. She stated that IO prepared the site plan in her presence at the instance of the prosecutrix. On 27.04.2013, IO arrested the accused from H. No. G36, Muradi Road, Batla House, New Delhi. She also took the prosecutrix for her medical examination to AIIMS, where doctor gave her the exhibits pertaining to the prosecutrix, which she handed over to the IO vide memo Ex. PW 1/AA.
PW 2 is the prosecutrix. I will discuss her testimony at the time of appreciation of evidence.
PW 3 Sh. Mansoor Alam is the husband of the prosecutrix. I will discuss his testimony at the time of appreciation of evidence. PW 4 Dr. Hansraj Singh did the medical examination of the accused vide MLC Ex. PW 4/A and found him capable of performing sexual intercourse under normal circumstances. PW 5 Dr. Shreenivas did the medical examination of the prosecutrix vide MLC Ex. PW 5/A after recording the brief history of the FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 4 of 30 incident narrated by the prosecutrix. He found the hymen of the prosecutrix ruptured. He did not find any external injury on the person of the prosecutrix.
PW 6 HC Bhajni Ram recorded the FIR Ex.
PW 6/A on receipt of rukka from WSI Shashi Dixit. He made endorsement Ex. PW 5/B on the rukka and handed over further investigation to SI Shashi Dixit.
PW 7 Ct. Narender Kumar had taken the exhibits to FSL Rohini vide RC Ex. PW 7/B. He stated that so long as exhibits remained with him, they were not tampered with.
PW 8 HC Rukhmana Ram was the MHC(M) PS Jamia Nagar. He made the relevant entries in the register no. 19 regarding deposit of the exhibits and sending them to FSL Rohini. PW 9 WSI Shashi Dixit was the Investigating officer of this case. She stated that pursuant to the direction of ACP, NFC, she went to the police station Jamia Nagar and met the prosecutrix. She recorded her statement Ex. PW FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 5 of 30 2/A, made endorsement and got the case registered. She got the prosecutrix medically examined through lady Ct. Bala and collected the exhibits vide memo Ex. PW 9/A. On 26.04.2013, she arrested the accused at the instance of the husband of the prosecutrix vide memo Ex. PW 3/A. On the same day, she took into possession the salwar of the prosecutrix, baby pink colour handkerchief and one light brown and black chatai from the place of incident vide memo Ex. PW 1/A. She stated that accused was got medically examined through Ct. Bhushan Kumar vide MLC Ex. PW 4/A. He handed over her the exhibits pertaining to the accused in sealed condition along with the sample seal, which she seized vide memo Ex. PW 9/B. On 27.04.2013, she got the statement of the prosecutrix recorded u/s 164 CrPC. She also sent the exhibits of this case to FSL Rohini through Ct. Narender vide RC Ex. PW 7/B. She collected the exhibits from FSL and tendered the FSL report Ex. PW 9/G. FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 6 of 30 PW 10 HC Sher Mohammad brought the original register no. 19 and 21 where the relevant entries were made.
As per the FSL report Ex. PW 9/G, human semen was detected on the exhibits i.e. salwar (Ex.1) and vaginal smear (Ex.3) of the prosecutrix and pajama/ lower (Ex.8) of the accused. Semen was not detected on the other exhibits i.e. handkerchief (Ex.2) and carpet/ chatai (Ex.4). No blood was detected on the exhibits. DNA profiling was performed on the source of Ex. 1, Ex. 4 and Ex. 7. It was concluded that DNA profile of Ex. 7 is not similar with DNA profile of Ex. 1 and 4. Statement of the accused under section 313 CrPC.
6. After the evidence of prosecution, statement of the accused under section 313 CrPC was recorded wherein, he denied all the incriminating evidence against him. He stated that he wanted to go to Saudi Arab as his tickets had already been booked. He had given Rs. 10,000/ to the husband of the prosecutrix as loan. When he asked him to return, he FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 7 of 30 refused and lodged a false complaint against him. Defence Evidence
7. The accused did not examine any witness in his defence.
Arguments and contentions
8. I have heard the arguments advanced by Ld. Addl. PP for the State and Sh. S. Haq, Ld. Counsel for accused.
9. Ld. Counsel for the accused vehemently argued that the accused has been falsely implicated. The prosecutrix did not support the prosecution case. Besides there are material contradictions in the testimony of the prosecution witnesses. No neighbour was examined by the prosecution. FSL Report also negates the incident.
10. Ld. Addl. PP on the contrary argued that there is consistency in the complaint, medical history given by the prosecutrix to the doctor, statement of the prosecutrix recorded under section 164 CrPC and the examination in chief of the prosecutrix recorded on 06.11.2013. Her further examination was deferred for want of case property, since not received from the FSL. When she was examined on 25.09.2014, she took somersault and introduced a new story so the possibility of wining over the prosecutrix during the intervening period cannot be ruled out. Ld. Addl. PP further FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 8 of 30 submitted that husband of the prosecutrix has supported the case of prosecution. The report was lodged immediately after the incident. The defence of the accused is afterthought and unworthy of belief. Findings
11. I have considered the arguments and gone through the entire material on record.
12. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape"
if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 9 of 30 First against her will.
Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 .............."
13. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
Age of the prosecutrix
14. Before appreciating the evidence on record, it would be appropriate to determine the exact age of the prosecutrix. In FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 10 of 30 the statement given to the police Ex. PW 2/A, the prosecutrix has stated her age as 20 years. During her medical examination vide MLC Ex. PW 5/A, she had given her age as 20 years. The prosecutrix in her testimony has given her age as 20 years. Thus, from the testimony of PW2/prosecutrix, her MLC Ex. PW 5/A and the complaint Ex. PW 2/A, I find that the prosecutrix was above 18 years of age, thus major and was capable of giving consent. Whether the accused is guilty of the offences punishable u/s 376/506 IPC or not?
15. For deciding this question, it is relevant to appreciate the testimony of the prosecutrix and other witnesses with the relevant record.
16. PW 2/ prosecutrix in her testimony when examined on 06.11.2013 has stated that she along with her husband had come to Delhi six months ago. Accused was the friend of her husband. On 26.04.2013 i.e. Friday, at about 10 am, when she was alone in her rented house since her husband had gone for work, accused came, got opened the door of the house and committed rape upon her. He caught hold of her hands and also tied her both legs with her chunni while committing rape. She stated that before the incident, FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 11 of 30 accused had gone to buy air tickets for Saudi Arabia and after coming from there, he entered her house on the pretext that he wanted his Icard, which was lying in the bag of her husband, kept in her house. She stated that accused bolted the door from inside, gagged her mouth with a handkerchief and committed rape upon her. She stated that accused had threatened her not to reveal the incident to her husband, otherwise he would teach her a lesson. He thereafter, took out his Icard and left the spot. She stated that when her husband came for taking lunch at about 12:00 noon, she narrated him the incident, who took her to the police station, where she made the complaint Ex. PW 2/A. She also pointed out the place of occurrence to the police. She stated that during investigation, she had given her statement under section 164 CrPC Ex. PW 2/B and she was also medically examined, where also she had narrated the incident to the doctor. She stated that she had handed over her salwar, handkerchief and light brown colour mat to the police, which were taken into possession PW 1/A. Her further examination was deferred as the case property was not received from FSL. She was further examined on 25.09.2014.
FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 12 of 30 She has stated that when the accused made her laid on the mat and committed rape, she did not raise alarm. She then took somersault and stated that she had not got recovered the handkerchief and mat nor had given the salwar. She was shown the salwar Ex. P1, handkerchief Ex. P2 and mat Ex. P3 but she stated that salwar does not belong to her, she does not know anything about the handkerchief and it is not the same chatai on which the rape was committed upon her.
She was declared hostile by the prosecution. On being cross examined by Ld. Addl. PP, she denied that at the time of pointing out of the place of occurrence, she got recovered the handkerchief Ex. P2 and mat Ex. P 3 from the room where the rape was committed or it was the same handkerchief Ex. P2 with which accused had gagged her mouth or that it was the same chatai Ex. P3 on which the accused had committed rape or that she had handed over the salwar Ex. P1 to the police. She also denied that accused had gagged her mouth with a handkerchief and due to that reason, she could not raise alarm at the time of commission of rape. She also denied having stated the said facts in her statement under section 164 CrPC Ex. PW 2/B. FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 13 of 30 On being cross examined by defence counsel, she admitted that none of the articles belong to her; she had not told the incident to her landlord; neither she nor her husband made call at 100 number after the incident; statement Ex. PW 2/A was not written by her nor was read over to her by the police. She stated that she had sexual relations with the accused with her own accord as she used to love him and at the time of said physical relations, her husband had spotted her with the accused and for this reason, this FIR was registered. She stated that police did not visit the room, where the incident took place. She was reexamined by Ld. Addl. because of the inconsistency coming in her testimony to which she stated that the statement which she has given on 25.09.2014 is correct and she has not been won over by the accused. She was further cross examined. She stated that she was not threatened by the accused.
17. PW 3 has testified on oath that he with his wife had come to Delhi about eight months ago. He had been living in a rented house at Muradi Road, Khirjabad Colony, Batla House, Jamia Nagar, New Delhi. After 15 days of their arrival, on 26.04.2013, he left his house at about 7 am for FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 14 of 30 work. When he returned to take lunch at about 1 pm, her wife narrated him the whole incident. He took her to the police station Jamia Nagar where her statement was recorded. He stated that his wife was sent for medical examination and they led the police to their room. He stated that accused was arrested at his instance from the house. He stated that accused belongs to his village. He had been living at Batla house but had kept some of his belongings including Icard etc in his room. He stated that accused had got opened the door of his room on the pretext of taking back his Icard.
On being cross examined, he stated that the accused used to live in the same building on the third floor and they had been living on the first floor. He denied that accused had given him Rs. 25,000/. He rather volunteered that accused had given him Rs. 11,000/. He stated that his wife had appended thumb impression on the statement but he himself did not go through the statement but it was read over to them by the police. He stated that they reached the police station at about 6 pm. He denied that he had a quarrel with the accused on 25.04.2013. He denied that on account of his dealing with the accused with regard to exchange of money, FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 15 of 30 he got him falsely implicated through his wife in this case.
18. On an analysis of the testimony of the prosecutrix/ PW 2 and PW 3, I find that the accused was the friend of PW 3. He used to live in the same building, where the prosecutrix lived but on different floor. He had left his Icard with PW
3. He had to go to Saudi Arabia and for that he had purchased air tickets. He entered the house of the prosecutrix on the pretext that he wanted to take his Identity card.
The prosecutrix/ PW 2 when examined on 06.11.2013, has categorically stated that on 26.04.2013 at about 10.00 am, when she was alone in her house, accused got opened the door of the house on the pretext that he wanted to collect his Icard. He caught hold of her hands, gagged her mouth with the handkerchief, tied her both legs with chunni and committed rape upon her. She has also stated that the accused had threatened her not to reveal the incident to anyone. After the incident, he took out his Icard and left the spot. When her husband came to the house to take lunch, she narrated him the whole incident, who took her to the police station where her statement Ex. PW 2/A was recorded. She has stated that her statement under section FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 16 of 30 164 CrPC Ex. PW 2/B was also recorded and during her medical examination she had narrated the incident to the doctor. She had also handed over her salwar, handkerchief and mat to the police.
I find her testimony consistent and cogent with the complaint/ statement Ex. PW 2/A, statement under section 164 CrPC Ex. PW 2/B and the history narrated by her during her medical examination vide MLC Ex. PW 5/A. PW 5 in his testimony has stated that during the medical examination, the prosecutrix had given the history of sexual assault by her husban friend, alleging that she was forced for sexual activity at about 9 am on 26.04.2013. No suggestions were given to PW 5 by the accused that the prosecutrix did not give any history of incident to doctor and this history was manipulated by the doctor at the behest of the police.
19. Testimony of PW 3 would show that on 26.04.2013 at about 1 pm, when he came back to take lunch, PW 2 narrated him the incident that accused Kamaluddin has committed rape upon her in his absence. He took his wife to the police station where her statement was recorded. She was also subjected to medical examination. They had taken FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 17 of 30 the police to their room, where the incident took place. He stated that accused was arrested at his instance. He stated that the accused belongs to his village. He stated that the accused had kept some of his belongings including Icard in his house and on the day of incident, he got opened the door of his room on the pretext of getting back his Icard. He has categorically denied that he had to give Rs. 25,000/ to the accused, rather he himself has stated that the accused had given him Rs. 11,000/. He has also stated that the statement given by his wife to the police was read over to them by the police. He denied that he had a quarrel with the accused on 25.04.2013 or that he got the accused falsely implicated through his wife. It is pertinent to mention that no such suggestions were put during the cross examination of PW 2 that the accused had given her husband Rs. 25,000/ and her husband got the accused falsely implicated through her in this case.
20. It is true that prosecutrix/ PW 2 during her cross examination (on 25.09.2014) has stated that she had sexual relations with the accused with his own accord as he used to love him and that at the time of said physical relation, her husband had spotted her with the accused and for that FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 18 of 30 reason the present FIR was registered. But perusal of the statement of the accused recorded under section 313 CrPC would show that the accused never took such plea that he had established sexual relations with the prosecutrix with her consent as she used to love him or that at the time of said physical relations, her husband had spotted her with him, which made the prosecutrix lodged this complaint. Rather the plea of the accused is that PW 3 had to pay him money and when he asked him to return his money, he refused and lodged this false complaint against him. It is pertinent to mention that during the cross examination of PW 3, the accused had alleged that he had given Rs. 25000/ to PW 3 but in his statement under section 313 CrPC he has stated that he had given Rs. 10,000/ to PW 3 as loan. In view of the contradictory versions coming from the side of the accused, the defence of the accused appears to be afterthought and unworthy of credence.
21. The instant case was registered on the same day of the incident. The accused no where disputed that he had left his Icard with PW 3 and for that he had gone to the house of the prosecutrix to collect. The complaint was lodged on 26.04.2013. The prosecutrix was medically examined on the FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 19 of 30 night of 26.04.2013 at 12.38 am. The statement of the prosecutrix was recorded under section 164 CrPC on 27.04.2013. Although there are minor contradictions as in her statement to the police Ex. PW 2/A, PW 2 has stated that her husband had come in the evening but in the testimony of PW 2 and PW 3, it has come that her husband had come in the afternoon to take lunch and at that time, she had told him the whole incident. In her statement under section 164 CrPC, she has stated that when the accused entered her house, she was cutting vegetables, accused tied her hands and committed sexual intercourse with her but in her testimony, she has stated that she was cooking rice; the accused had tied her both legs with chunni while committing the rape. On appreciating the evidence as a whole with the documents, I do not find these contradictions material touching the root of the case. They do not in any manner falsify the prosecution case, so no overmuch importance can be attached to these minor contradictions. 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 is replayed on the mental screen. It is well settled law that the discrepancies which do FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 20 of 30 not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance.
22. It was held in State of UP vs. M. K. Anthony, AIR 1985 SC 48 as follows: "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 of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise 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 evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and 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.
Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Crossexamination is an unequal dual between a rustic and refined lawyer."
23. In the instant case, when the evidence of the prosecutrix FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 21 of 30 was recorded on 06.11.2013, she has stated that she had handed over salwar, handkerchief and light brown colour mat which fact has also come in the seizure memo Ex. PW 1/A so no much weight can be given to her further examination on 25.09.2014, wherein she has stated that she did not get recovered the handkerchief, mat and salwar. In the instant case, PW2 on 25.09.2014 at the time of exhibiting the case property has stated that it was not the same chatai, on which the rape was committed upon her which itself shows that rape was committed upon her. Although, during cross examination on 25.09.2014, PW2 turned hostile and stated that she used to love the accused and had sexual relations with her own accord and at that time her husband had spotted her with the accused and for that reason, this FIR was registered but looking into the complaint Ex. PW 2/A, the history on the MLC Ex. PW 5/A and the statement under section 164 CrPC, possibility of winning over the prosecutrix subsequently after examination in chief recorded on 06.11.2013 by the accused cannot be ruled out. Facts and circumstances clearly go to show that the accused in the absence of her husband entered her house, gagged her mouth and committed forcible rape FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 22 of 30 upon her and also threatened her of dire consequence not to reveal it to her husband.
24. In the case of State of UP Vs. Chetram, AIR 1989 SC 1543 it was held that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration. In the case of Sayed Akbar Vs. State of Karnataka, AIR 1979 SC 1843 it was held that the evidence of the prosecution witness cannot be rejected wholesale merely on the ground that prosecution had dubbed him 'hostile' and had cross examined him. In Rabinder Kumar Dey Vs. State of Orissa, AIR 1977 SC 170, it was held that mere fact that witness is declared hostile by the party calling him and allowed to be cross examined does not make him unreliable evidence so as to exclude his evidence from consideration all together. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. In the case of Bhe Ram Vs. State of Haryana, AIR 1980 SC 957, the trial court had rejected whole of the testimony of the witness on the ground that one of his statements was proved to be false. The Supreme Court held that the evidence was wrongly rejected. The FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 23 of 30 principles of falsus in uno falsus in omnibus does not apply to criminal trials and it is the duty of the court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds. It was held in Khujji @ Surendra Tiwari vs The State Of Madhya Pradesh, 1991 AIR 1853 that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In Alma Vs. State of MP, AIR 1991 SC 1519, it was held that reliance could be placed upon the hostile witness in reference to the accused about whom his testimony was truthful and natural. The testimony of a hostile witness requires closer scrutiny because he is contradicting himself and that portion of his statement which is consistent with the prosecution or defence may be accepted.
25. Keeping in mind the above principles, on closer scrutiny, I find that, the testimony of PW 2 (recorded on 06.11.2013) is well corroborated by PW 3 and the MLC Ex. PW 5/A as FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 24 of 30 to the incident. It is consistent and cogent with the complaint Ex. PW 2/A, statement under section 164 CrPC Ex. PW 2/B and the history narrated by her during her medical examination vide MLC Ex. PW 5/A. Her examination was deferred for want of FSL report and exhibits. She was further examined on 25.09.2014, wherein she took a somersault and made certain improvements. She tried to give colour to her testimony by stating that she had sexual relations with the accused with her own accord as she used to love him, although the accused no where said that he used to love PW 2 and he had physical relations with her with her consent. That being the position, the possibility of winning over the prosecutrix by the accused during the intervening period cannot be ruled out. So the portion of her statement which she had given on 06.11.2013, which is consistent with the prosecution case, can be accepted and relied upon.
26. In this country, it is rare to come across the testimony of a witness which does not have fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 25 of 30 only where the testimony of a witness is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence in toto State of UP vs. Shanker, AIR 1981 SC 897.
27. In the case of Krishna Vs. State of Karnatka, 2010 Crl. L. J. 1515, the witness had fully supported the prosecution case in his examination in chief as to any material and relevant fact but turned hostile to the prosecution in his cross examination made on behalf of the accused on a later date and stated contrary to his evidence in his examination in chief as to the said fact. It was held that evidence of such hostile witness in his examination in chief has to be accepted as true if it is not shown that what he stated in his examination in chief was not stated by him at the earliest opportunity in his statement recorded under section 161 CrPC by the investigating officer.
28. The facts of the present case are similar to the case, supra as in the present case, the prosecutrix has fully supported the prosecution case in her examination in chief but turned hostile to the prosecution during further examination/ cross examination on later date and has stated contrary to her evidence in her examination in chief as to FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 26 of 30 the said fact. It is not shown that what she has stated in her examination recorded earlier was not stated by her at the earliest opportunity in her statement recorded during investigation.
29. In the instant case the exhibits of this case were sent to the FSL. The FSL report Ex. PW 9/G shows that human semen was detected on the salwar, vaginal smear and pajama/ lower of the accused. All these exhibits were taken on the same day of incident. Although, DNA profile shows that the blood sample of the accused was not similar with the salwar and micro slides of the prosecutrix but the report shows that human semen was detected on those exhibits. Further, DNA is not the conclusive proof of evidence. It has only the corroborative value. There is a direct evidence i.e. the testimony of PW 2, MLC which clearly show that accused at about 9 am after entering into the premises of the prosecutrix committed rape upon her. It is also to be noted that PW 2/ prosecutrix at no stage has stated that accused did not have sexual / physical relations with her on the day of incident. Earlier she had stated that it was without her consent but later she took uturn and stated that it was with her consent. Further, there was presence of FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 27 of 30 human semen on her salwar and vaginal smear and on the pajama of the accused. So no much emphasis can be given to the DNA analysis report when the accused never denied having physical relations with PW 2 on the day of incident during the testimony of PW 2. Ordinarily, the value of scientific evidence is only corroborative. If direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical scientific evidence.
30. The Apex Court in the pronouncement reported at 2007 Crl.L.J. 4704 Radhu vs. State of Madhya Pradesh succinctly laid down the principles thus: "It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent.
31. In the instant case, the prosecutrix had reported the FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 28 of 30 matter immediately after the incident. Had there been consent from the side of the prosecutrix for having sexual intercourse with the accused, she would have not reported the matter to her husband immediately after the incident. She was medically examined on the same day. She had given the history of the incident to the examining doctor. Her statement under section 164 CrPC was recorded on the next day, wherein she had reiterated the facts as alleged in the complaint that it was the accused who had committed rape upon her. In State of Punjab Vs. Gurmit Singh & Ors., 1996 AIR SC 1393, the Apex Court made the following observations:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.
Conclusion
32. Facts and circumstances of the present case show that the accused fully knowing that husband of the prosecutrix was not at home and she was alone in her house, entered her house on the pretext of taking his Icard, though intended to have sexual relations with her. He with that intention, FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 29 of 30 gagged her mouth and committed sexual intercourse with her forcibly. He thereafter, threatened the prosecutrix with dire consequence not to report the matter to anyone. In the instant case, no weapon was used by the accused while extending threats so this case would fall under section 506 part I. I am of the view that prosecution has successfully proved the guilt of the accused beyond reasonable doubt and brought home all the ingredients of the offences for which the accused has been charged with.
33. In the light of what has been stated above and considering the case laws supra, I hold the accused guilty for the offences punishable under section 376/506I IPC and convict him thereunder.
Announced in the open court today i.e. 24.07.2015 (Sanjiv Jain) ASJSpl. FTC / South East Saket Courts, New Delhi FIR No. : 189/13 State Vs. Kamaluddin PS : Jamia Nagar Page No. 30 of 30