Delhi District Court
St. vs . Avadh Bihari on 13 November, 2007
-:1:-
S.C. NO. 06/07
St. Vs. Avadh Bihari
IN THE COURT OF SHRI B. R. KEDIA ; A.S.J.
TIS HAZARI COURTS ; DELHI
S.C. NO. 06/07
FIR NO. 466/06
P.S. Timar Pur
U/Sec. 376/506 IPC
State Versus Avadh Bihari,
S/O Ram Avtar,
R/O Village Khudiya Khaira,
Teh. Tilak Ram, Distt. Hardoi
(U.P.)
Date of institution 15.1.07.
Arguments heard on 3.11.07
Judgment delivered on 7.11.07
J U D G M E N T :-
Accused Avadh Bihari S/O Ram Avtar has been chargesheeted for facing trial in a case bearing FIR NO. 466/06, for offence punishable U/S 376/506 IPC, as registered at P.S. Timar Pur, -:2:- S.C. NO. 06/07 St. Vs. Avadh Bihari Delhi, on the basic allegation of committing rape upon his co-worker's wife and extending threat to her, who is to be referred hereinafter, as "prosecutrix" (The name of the prosecutrix has not been indicated in this judgment by keeping in view the social object of preventing social victimization or ostracism of victim of a sexual offence for which Section 228A of IPC has been enacted and specifically keeping in mind the guidelines of Hon'ble Supreme Court, for not disclosing the name of such victim in the judgment as reflected in the case cited as 2006 II AD (S.C.) 607 Dinesh @ Buddha Vs. State of Rajasthan.) on dt. 4.10.2006 & 5.10.2006 at about 11:30 p.m. in a room at a house near Chetan Behari Mandir, Kamal Pur, Burari, Delhi.
2. The precise case of the prosecution as found reflected from the chargesheet is that on dt. 8.10.2006 at about 8:00 a.m., the prosecutrix alongwith her husband came to the police post Burari and gave her statement, which is EX. PW-7/A as recorded by W/ASI Mithlesh Yadav. As per said statement of the prosecutrix, she is a -:3:- S.C. NO. 06/07 St. Vs. Avadh Bihari house wife and she was brought to Delhi by her husband from her native village on dt. 15.9.2006 and both of them were staying at the house of her husband's brother in law (jija of her husband) and her husband and his friend AvadhBihari were working in the canteen of Haryana Roadways Depot at Dhaka as run by said brother in law of her husband. On 03.10.2006 her husband and said Avadh Bihari left the work from said canteen and her husband started looking for another house for their stay. In the mean time, an information was received from the native village of her in laws about the illness of her mother in law and thereafter said Avadh Bihari took them to a house of his relative near Chetan Behari Mandir, Kamal Pur, Burari, Delhi. Her husband on stating her that he would come back from his native village within 2-3 days and in the mean time she have to stay in the said house and her husband left for his native village. On 4.10.2006 at about 11:30 p.m. while she was sleeping in a room and accused Avadh Bihari was sleeping on the roof, said Avadh Bihari came inside her room and lied upon her and when she tried to raise alarm he gaged her -:4:- S.C. NO. 06/07 St. Vs. Avadh Bihari mouth and after that he removed his pant and underwear and committed rape upon her and extended threat to her not to disclose about the said incident to anyone otherwise he would kill her and her husband. On 5.10.2006 at about 11:30 p.m. said accused Avadh Bihari again committed rape upon her. Thereafter, on 6.10.2006 her husband came back from his native village but out of threat as extended by the accused, she could not inform him about the incident earlier and lodged the complaint ultimately against said Avadh Bihari for taking legal action against him. In pursuance of the said statement of the prosecutrix, F.I.R. bearing no. 466/06, U/S 376/506 IPC was registered at P.S. Timar Pur and further investigation was entrusted to W/ASI Mithlesh. During the course of investigation, prosecutrix was got medically examined, site plan was prepared, relevant case properties were seized by the police, accused Avadh Bihari was arrested and he was also got medically examined, statement of the prosecutrix U/S 164 Cr. P.C. was got recorded, statement of the relevant witnesses were recorded and after conclusion of the investigation charge sheet was -:5:- S.C. NO. 06/07 St. Vs. Avadh Bihari filed against the accused in the court of concerned Ld. M.M., who after compliance of requirements U/S 207 Cr. P.C. was pleased to commit the case to the Court of Sessions. Thereafter, matter was assigned to this court for trial.
3. On hearing both the sides on the point of charge vide order dt. 15/2/07, charge for the offence punishable U/S 376/506 (II) IPC was framed against the accused to which accused pleaded not guilty and claimed for trial.
4. During the course of trial, prosecution in support of its case got examined 10 prosecution witnesses, namely, Dr. S. Lal, Junior Specialist from Aruna Asaf Ali Hospital, who has medically examined the accused and proved his report as EX. PW-1/A, a formal witness as PW-1, Dr. Anubha, Medical Officer, from Aruna Asaf Ali Hospital, who has medically examined the accused and proved his MLC as EX. PW-2/A and have also examined the prosecutrix and proved her MLC -:6:- S.C. NO. 06/07 St. Vs. Avadh Bihari as EX. PW-2/B, a formal witness as PW-2, HC Khem Singh, Duty Officer, who has proved the copy of F.I.R. as EX. PW-3/A and endorsement on the rukka as EX. PW-3/B, a formal witness as PW-3, Ct. N.C. Joseph, who has deposited the case properties at F.S.L. Rohini, a formal witness as PW-4, Sh. Mahavir, who is the landlord of the husband of the prosecutrix, a formal witness as PW-5, Ct. Girish Kumar, who took rukka and got registered the F.I.R. and partly joined investigation with the I.O. on 8.10.2006, as PW-6, the Prosecutrix, who is the most material witness as PW-7, Sh. Pale Ram, Medical Record Clerk from Aruna Asaf Ali Hospital,who has proved the report of Dr. Madhu Smriti on the M.L.C. of the prosecutrix as EX. PW-8/A, a formal witness as PW-8, W/ASI Mithlesh/I.O. as PW-9 and Ms. Nirja Bhatia, Ld. M.M., who has recorded the statement of the prosecutrix U/S 164 Cr. P.C. and proved the same as EX. PW-7/B, has been examined as PW-10.
5. After examination of aforesaid 10 prosecution witnesses, prosecution evidence was closed. Thereafter, statement of accused -:7:- S.C. NO. 06/07 St. Vs. Avadh Bihari U/S 313 Cr. P.C. was recorded in which the accused denied the allegation of prosecution and claimed to be innocent and have been falsely implicated in this case. He further added that he has been falsely implicated by the prosecutrix at the instance of her husband due to personal enmity. However, accused has not led any evidence in his defence.
6. I have heard Sh. B.K. Sinha, Advocate, Ld. Counsel for the accused, Ld. APP for the state and perused the relevant material as available on case record.
7. It is submitted by Ld. Counsel for the accused that this accused is innocent and has been falsely implicated in this case and hence deserves to be acquitted. It is also submitted by Ld. Counsel that this accused has been falsely implicated at the instance of Dinesh Singh, husband of th prosecutrix due to his personal enmity and the accused deserves to be acquitted. It is also added by Ld. Defence -:8:- S.C. NO. 06/07 St. Vs. Avadh Bihari Counsel that there is delay of 3/4 days in the registration of the F.I.R., which falsify the case of the prosecution and hence accused deserves to be acquitted. It is also added by Ld. Counsel for the accused that the MLC of the prosecutrix reflect no mark of injury on the body of the prosecutrix and the same falsify the commission of rape as against the accused and hence accused deserves to be acquitted. It is also added by Ld. Defence Counsel that the falsity of this case is found reflected from the several discrepancies in the deposition of PW-5 Mahavir, PW-7 Prosecutrix and PW-9 W/ASI Mithlesh/I.O. and hence accused deserves to be acquitted. It is also added by Ld. Defence Counsel that the deposition of the prosecutrix PW-7 being inconsistent cannot be treated as trustworthy and reliable and hence the accused deserves to be acquitted. It is further added that the joint photograph of the accused with the prosecutrix, which are Mark DX and DY also falsify the allegation of rape as against accused and hence the accused deserves to be acquitted.
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St. Vs. Avadh Bihari
8. To the contrary it is submitted by Ld. APP for the State that by examining 10 prosecution witness, prosecution have successfully established its case as against accused for the charged offence and therefore the accused deserves to be convicted accordingly.
9. The first question that arises having significant bearing on the fate of this case is, "What was the age of the prosecutrix on the date of incident?" So far as this aspect is concerned, from the statement of the prosecutrix as recorded U/S 164 Cr. P.C. by the concerned Ld. M.M. on 13.10.06, which is EX. PW-7/B, the age of the prosecutrix is found mentioned as 20 years. Further more, from the perusal of the MLC of the prosecutrix, which is EX. PW-2/B, the age of the prosecutrix is found reflected as 20 years. Besides that from the perusal of the police statement of the prosecutrix, which is EX. PW- 7/A, forming the basis of the F.I.R., the age of the prosecutrix is found reflecated as 21 years. It is also reflected from the case record that the prosecutrix is a married lady and is a house wife. -:10:- S.C. NO. 06/07
St. Vs. Avadh Bihari In the light of the aforesaid material as found available on the case record, I have no hesitation to safely conclude that the age of the prosecutrix was about 20 years at the time of the incident.
10. Now, the next question that arises having significant bearing on the fate of this case is, "Whether this accused Avadh Bihari can be held liable for offence punishable U/S 376 IPC for committing rape upon the prosecutrix?" So far as this aspect is concerned, the prosecutrix who has been examined as PW-7 has deposed in the court that she was brought by her husband from her native village to Delhi on 15.9.2006 and they stayed at the house of her Nandoi Om Vir at village Dhaka and her Nandoi was running a Canteen at Haryana Roadways Depot. She further added that her husband Dinesh Singh and accused Avadh Bihari (accused was correctly identified by the witness in the court) used to work in said Canteen of her Nandoi. She further added that on receiving information about illness of her mother in law from the native village her husband got ready to go to village to -:11:- S.C. NO. 06/07 St. Vs. Avadh Bihari see his mother. Accused Avadh Bihari arranged a room on the First Floor at the house of one Mahabir in a colony at Chetan Bihari Mandir, Kamal Pur, Delhi and her husband left her in the said house on dt. 3.10.06 and went to his native village to see his ailing mother. House owner Mahabir and his family were residing at the ground floor of the said house. She further added that on 3.10.06 at about 11:30 p.m. while she was sleeping in the room at First Floor and accused Avadh Bihari was sleeping on the roof of said room, accused Avadh Bihari came inside her room and lied upon her, when she tried to raise alarm, he gaged her mouth and took off his pant and underwear and committed rape upon her and thereafter ran away from the room. She further deposed that accused threatened her not to disclose about the incident to anyone. So, she did not disclose about the incident of rape to anyone till arrival of her husband. Her husband came back on 7.10.2006 and she narrated about the incident to him. She further deposed that she and her husband went to P.P. Burari, where her statement was recorded by police, which is EX. PW-7/A, bearing her -:12:- S.C. NO. 06/07 St. Vs. Avadh Bihari signature at point-A. She also added that she had gone to the spot alongwith the police and accused Avadh Bihari was arrested by police at her instance from the said house. She also deposed that her statement was recorded before the Ld. M.M. and identified the same as EX. PW-7/B, bearing her signature at point-A. She further deposed that she was taken to hospital by lady police, where she was medically examined and her wearing petticoat was taken into possession by the concerned doctor and she identified her red colour petticoat as EX. P-
1. The material part of the deposition of the prosecutrix regarding commission of rape by the accused is also found corroborated from her earlier statement U/S 164 Cr. P.C. as recorded by PW-10 Ms. Nirja Bhatia, Ld. M.M. and said statement has been proved as EX. PW-7/B. Further more, the material part of the deposition of prosecutrix as regards the commission of rape upon her by the accused Avadh Bihari is also found corroborated from her earlier police statement, which is EX. PW-7/A, forming the basis of the F.I.R. Further more, PW-1 Dr. S. Lal, who has medically examined the accused and proved his report -:13:- S.C. NO. 06/07 St. Vs. Avadh Bihari as EX. PW-1/A, wherein, he has opined as under :-
"After going through the examination, I was of the opinion that there was nothing to suggest that the aforesaid patient was not capable of performing sexual intercourse/act/sodomy."
Further more, from the perusal of the F.S.L. Report EX. PW-9/F, it is clearly reflected that human semen was detected on Ex. '1' (petticoat of the prosecutrix) and EX. '5a' and '5b' (which are vaginal swab slides of the prosecutrix).
11. The substantive part of the deposition of the PW-7, the prosecutrix could not be demolished in her cross-examination. No doubt some sort of discrepancies have been brought on record in the cross-examination of PW-5 Sh. Mahavir, PW-6 Ct. Girish Kumar, PW- -:14:- S.C. NO. 06/07
St. Vs. Avadh Bihari 7, the prosecutrix and PW-9 W/ASI Mithlesh/I.O. but I am of the considered view that the said discrepancies are bound to occur in the deposition of various witnesses being usual and natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution. In the case reported as, "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by Hon'ble Supreme Court of India as under :-
"In the depositions of witnesses
there are always normal discrepancy,
however, honest and truthful they may be.
Such discrepancies are due to normal errors of observation, normal errors of memory due to laps of time, due to mental disposition such as shock and horror at the time of occurrence, and the like."
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St. Vs. Avadh Bihari It was further observed in the said judgment as under :-
"The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
In recent case reported as, "JT 2006 (1) SC 645 "Surender Singh Vs. State of Haryana", it was observed by Hon'ble Supreme Court of India as under :-
"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
No doubt, from the perusal of record, it is reflected that PW-7 Prosecutrix deposed in the court that her husband left her on the -:16:- S.C. NO. 06/07 St. Vs. Avadh Bihari room at First Floor of house Mahavir as got arranged by accused Avadh Bihari on 3.10.06 and went to his native village to see his ailing mother and on said night at about 11:30 p.m. accused committed rape upon her. But, from the statement of prosecutrix U/S 164 Cr. P.C., EX. PW-7/B as well as her police statement, EX. PW-7/A, it is reflected that her husband dropped her at said room and went to his native village on 4.10.07 and same is also found corroborated from deposition of PW-5 Mahavir, Landlord of the husband of prosecutrix. Therefore, said discrepancy about date as 3.10.06 in place of 4.10.06 in the deposition of prosecutrix cannot be ever emphasised as the prosecutrix is making statement in the court after about 1 year of the incident.
12. I also do not find any force in the submission of Ld. Defence Counsel that no external injury was found on the private part of the prosecutrix and same negate the allegation of the commission of rape as against the prosecutrix. As I am of the considered view that -:17:- S.C. NO. 06/07 St. Vs. Avadh Bihari mere absence of external injury on person of prosecutrix cannot be treated as conclusive ground to falsify the stand of commission of rape as against prosecutrix. I do not find any reason to disbelieve the deposition of the prosecutrix about the commission of rape upon her by this accused. My view in this regard is also found supported from the judgment as rendered by Hon'ble Supreme Court of India in the case reported as 1998 (8) SCC 635, "Ranjit Hajarika Vs. State of Assam." While dealing with similar aspect it was observed by Hon'ble Supreme Court of India as under :-
"Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake."-:18:- S.C. NO. 06/07
St. Vs. Avadh Bihari Similar view was also held by Hon'ble Supreme Court of India in the case reported as 2006 VI AD (SC) 115, "State Tamil Nadu Vs. Ravi @ Nehru."
13. Further more, I am of the considered view that in criminal trial, the finding of conviction can be based even on the strength of deposition of single PW, in case it is found trust worthy and reliable as it is quality and not quantity of the evidence that count and my said view is found supported from the judgment as rendered by Hon'ble Supreme Court of India, In the case reported as JT 1999 (8) S.C. 537, "Sheelam Ramesh and another Vs. state of A.P." it was observed by Hon'ble Supreme Court of India as under :-
"Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on a sole evidence of a witness, if it inspire -:19:- S.C. NO. 06/07 St. Vs. Avadh Bihari confidence."
Further more, in "State of M.P. Vs. Dayal Sahu, VII (2005) SLT 364 = IV (2005) CCR 101 (SC) = 2005 Crl.L.J. 4375, the Hon'ble Apex Court had an occasion to deal with the question as to whether the testimony of the prosecutrix, before it could be acted upon, require corroboration or not and while considering the said question, it was held as under :-
"Once the statement of prosecutrix inspires confidence and accepted by the Court, as such, conviction can be passed only on 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. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of -:20:- S.C. NO. 06/07 St. Vs. Avadh Bihari prudence under the given facts and circumstances. Non - examination of doctor and non - production of doctor's report would not be fatal to the prosecution case, if the statement of the prosecutrix and other prosecution witnesses inspire confidence."
Further more, in (2004) 1 SCC 421, "State of Punjab Vs. Ramdev Singh," it was held by Hon'ble Supreme Court of India as under :-
"Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only -:21:- S.C. NO. 06/07 St. Vs. Avadh Bihari causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman ie. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in "Bodhisattwa Gautam Vs. Subhra Chakraborty" (1996) 1 SCC 490 : 1996 SCC (Cri) 133 : AIR 1996 SC 922 the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely, the right to life contained in Article 21 of the Constitution of India (in short "the constitution"). The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially -:22:- S.C. NO. 06/07 St. Vs. Avadh Bihari sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions.
14. Besides that, in a recent case, 2006 II AD (S.C.) 607, "Dinesh @ Buddha Vs. State of Rajasthan" in para-11, it was observed by Hon'ble Supreme Court of India as under :-
"In the Indian Setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face -:23:- S.C. NO. 06/07 St. Vs. Avadh Bihari of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case."
15. I also do not find any force in the submission of Ld. Defence Counsel, who has pointed out certain lapse on the part of the I.O. I am of the considered view that mere lapse on the part of the I.O. cannot be treated as fatal for the case of the prosecution specifically when the deposition of prosecution witnesses are found trustworthy -:24:- S.C. NO. 06/07 St. Vs. Avadh Bihari and reliable. In the case reported as "State of U.P. Vs. Hari Mohan and Anr." 2000 (VIII) AD (SC) 389, it was observed by Hon'ble Supreme Court to the effect that, "failure of the I.O. cannot be allowed to become escape route for release of the accused." To the similar effect there is another decision of Hon'ble Supreme Court of India in case reported as "Ambika Prasad Vs. State." 1997 (V) AD (SC) 467. In another case reported as "Manoj @ Mannu Vs. State of Delhi" 2000 (I) AD (DELHI) 67, it was observed by our Hon'ble High Court as under:-
"That the criminal justice should not be made a casualty for wrong committed by the I.O. and therefore the prosecution case cannot be thrown out on account of lapse committed by the I.O."
In another case as rendered by Hon'ble Supreme Court of -:25:- S.C. NO. 06/07 St. Vs. Avadh Bihari India in a case reported as (2003) 1 SCC 534, it was observed by Hon'ble Supreme Court of India as under :-
"Mere faulty investigation cannot be a ground for acquittal of the accused. For the fault of the prosecution, the perpetrators of a ghastly crime cannot be allowed to go scotfree."
16. I also do not find any force in the submission of Ld. Counsel for the accused that the accused has been falsely implicated in this case by the prosecutrix at the instance of her husband Dinesh Singh due to his earlier enmity with the accused. I do not see any reason as to why the prosecutrix would go to the extent to falsely lodge such complaint of serious nature nor her husband would go to the said extent by guiding his wife to lodge such complaint of serious nature. I am of the considered view that a lady in the tradition bound non- permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever -:26:- S.C. NO. 06/07 St. Vs. Avadh Bihari occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Further more, the accused has not led any evidence in support of his said stand to establish the existence of any prior enmity with the husband of the prosecutrix. PW-7 Prosecutrix has specifically denied the suggestion of Ld. Defence Counsel that the relation between the accused and her husband were inimical. She further deposed that accused was in talking term with her husband and both had been working in same canteen as run by her Nandoi Ombir and accused had arranged a room for them near Chetan Bihari Mandir, Kamal Pur, Delhi and said fact also falsify the stand of the accused regarding any prior enmity of the accused and husband of the prosecutrix.
17. That I also do not find any force in the submission of Ld. Defence Counsel that as there is delay of 3/4 days in the registration of the FIR, same is fatal for the case of the prosecution. As from the -:27:- S.C. NO. 06/07 St. Vs. Avadh Bihari deposition of PW-7 Prosecutrix as well as her police complaint, EX. PW-7/A, forming the basis of the F.I.R., it is reflected that the husband of the prosecutrix had gone to his native village to see his ailing mother and was not present in Delhi at the time of incident and it is further reflected that being given threat by the accused, the prosecutrix out of fear had not disclosed about the incident to anyone earlier and after her husband came to Delhi, she went to the police and lodged the complaint EX. PW-7/A, on the basis of which the F.I.R. in this case was registered. In view of the same, I have no hesitation to safely conclude that the delay for registration of the F.I.R. relating to the present case cannot be treated as fatal for the case of the prosecution and my said view is found supported from the following judgment as rendered by Hon'ble Supreme Court of India:-
1) 1991 Supp (1) SCC 372, "Zahoor & Ors. Vs
State of U.P."
2) 1991 Supp (1) SCC 536, "Tara Singh & Ors Vs
State of Punjab."
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18. I also do not find any force in the submission of Ld. Defence Counsel that the joint photograph of accused and prosecutrix which are Mark-DX and DY falsify the allegation of rape by accused upon the prosecutrix. As prosecutrix on seeing said photograph deposed that said photograph had been got obtained at the instance of the accused Avadh Bihari by threatening her. Prosecutrix have specifically denied the suggestion of Ld. Defence Counsel that she was having illicit relation with the accused Avadh Bihari.
19. In the light of the aforesaid material as found available on the case record and keeping in mind the deposition of prosecutrix, PW- 7 coupled with her earlier statement recorded U/S 164 Cr. P.C. by concerned Ld. M.M., which is EX.PW-7/B and other connected attending evidence, I have no hesitation to safely conclude that this accused can be held liable for commission of rape upon the prosecutrix on the night of 4.10.2006 inside the room upon the prosecutrix at First Floor of the house near Chetan Behari Mandir, Kamal Pur, Burari, -:29:- S.C. NO. 06/07 St. Vs. Avadh Bihari Delhi. Consequently, this accused Avadh Bihari is held guilty for offence punishable U/S 376 IPC and is convicted accordingly.
20. Now the next question arises having significant bearing on the fate of this case is, "Whether this accused Avadh Bihri can be held liable for offence punishable U/S 506 (II) IPC for which he was charged with for extending criminal intimidation against the prosecutrix?" So far as this aspect is concerned, the prosecutrix in her deposition have deposed that the accused had committed rape and threatened her not to disclose anything about this incident, so she did not disclose about the rape to anyone till arrival of her husband. In the cross-examination by Ld. Defence Counsel, the prosecutrix further added as under :-
"It is correct that police officials had asked for about the delay in recording my statement and I had replied that accused Avadh Bihari threatened me to kill my -:30:- S.C. NO. 06/07 St. Vs. Avadh Bihari husband, if I disclose anything about this incident and due to fear, I did not disclose anything to anyone. On the day of incident my husband was not in Delhi."
The material part of the aforesaid deposition of the prosecutrix regarding extending threat by accused to kill in case she disclosed about the incident of rape, is also found corroborated from her statement U/S 164 Cr. P.C., which is EX.PW-7/B and her police complaint EX.PW-7/A, forming the basis of the FIR and I do not see any reason to disbelieve the same. I do not find any force in the submission of Ld. Defence Counsel that the allegation of extending threat as against accused by the prosecutrix is an afterthought and baseless as accused was not having any weapon by that time. Considering the aforesaid material as found available on the record, I have no hesitation to safely conclude that this accused has also been found guilty for offence punishable U/S 506 (II) IPC and is convicted accordingly.
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St. Vs. Avadh Bihari
21. The net result of the aforesaid discussion is that this accused Avadh Bihari has been found guilty for offence punishable U/S 376/506(II) IPC and is convicted accordingly. Let, this convict be heard separately on the point of sentence.
ANNOUNCED IN THE OPEN COURT (B.R. KEDIA)
On 7 November, 2007.
th
Addl. Sessions Judge
Tis Hazari Courts
Delhi.
-:32:-
S.C. NO. 06/07
St. Vs. Avadh Bihari
IN THE COURT OF SHRI B. R. KEDIA ; A.S.J.
TIS HAZARI COURTS ; DELHI
S.C. NO. 06/07
FIR NO. 466/06
P.S. Timar Pur
U/Sec. 376/506 (II) IPC (Convicted)
State Versus Avadh Bihari,
S/O Ram Avtar,
R/O Village Khudiya Khaira,
Teh. Tilak Ram, Distt. Hardoi
(U.P.)
ORDER ON SENTENCE :-
In pursuance of judgment dt. 07.11.07 as passed by this court whereby convicting the accused Avadh Bihari for offence punishable U/S 376/506 (II) IPC, I have heard Sh. B.K. Sinha, Advocate, Ld. Counsel for the convict, Sh. Zenul Abedeen, Ld. APP for the State and perused the case record for passing this order on sentence.
2. It is submitted by Ld. Counsel for the convict that this -:33:- S.C. NO. 06/07 St. Vs. Avadh Bihari convict is a bachelor, aged about 25 years and hails from a poor family. It is further added that this convict is the only son of his old aged parents. It is also added that this convict is in custody for the last more than one year and hence urged for taking lenient consideration.
3. To the contrary, it is submitted by the Ld. APP for the State that since this convict is found to have criminally intimidated and committed rape upon the wife of his co-worker and hence the convict does not deserve any leniency and adequate sentence be awarded against him.
4. Considering the aforesaid submissions from both the sides and perusing the case record, I consider it appropriate to impose upon this convict R.I. for 7 years besides fine of Rs. 1000/- and in default of payment of fine, additional R.I. for 1 month for his conviction for offence punishable U/S 376 IPC and R.I. for 3 years besides fine of Rs. 1000/- and in default of payment of fine, additional R.I. for 1 month in -:34:- S.C. NO. 06/07 St. Vs. Avadh Bihari pursuance of his conviction for offence punishable U/S 506 (II) IPC. However, it is made clear that both the sentences of R.I. shall run concurrently and the convict will be entitled for the benefit U/S 428 Cr. P.C. and the period of his earlier detention which is reflected from the case record (from 08.10.06 till date) shall be set off against the aforesaid substantive sentence period. Concerned Jail Superintendent, Central Jail, Tihar be intimated accordingly.
5. Let, a copy of the judgment dt. 07.11.07 and copy of this order on sentence be given free of cost to the convict Avadh Bihari immediately.
ANNOUNCED IN THE OPEN COURT (B.R. KEDIA) On 13th November, 2007. Addl. Sessions Judge Tis Hazari Courts Delhi.