Delhi District Court
State vs Wasim on 21 April, 2010
IN THE COURT OF SH. RAJ KAPOOR, LD. A. S. J.-1
North- East / KARKARDOOMA COURTS: DELHI.
FIR No. 322/06
State Vs Wasim
Police Station Khajuri Khas
Order on 376 IPC
sentence u / s
Acquitted u/s 363, 366 and 368
IPC
21.04.2010
ORDER ON THE POINT OF SENTENCE:
Pre: Ld. APP for the state.
Accused Wasim is in JC w.e.f. 31.07.06.
Ld. counsel Sh. K K Sharma, Adv. for accused.
ld. APP argued on sentence and submits that a severe
punishment be awarded to the accused so that a strong message be
given in the society that law is very strict to the rapists. He further
submits that offence under section 376 IPC is punishable with not be
less than seven years but which may be for life. He further submits that
if lessor sentence is granted to the accused, the court is required to give
special reasons. Ld. APP again submits the latest case law on the
point of sentence is that court must avoid leniency. On these grounds
ld. APP submits that sentence be awarded not less than 7 years which
FIR no.322/06
State Vs Wasim
1 / 20
is prescribed as minimum. In this regard ld. APP has relied upon the
citation : '2006 1 AD (Cr.) S. C. 201 - Shailesh Jasvanthbhai &
Anr. Vs. State of Gujarat & Ors.'
Contrary to the submissions of ld. APP, Ld. counsel for the
accused argued and submits that accused is young person. He was at
the age of 22 years old at the time of incident. Ld. Counsel further
submits that accused has old age ailing mother and father to look after.
Accused has also four unmarried sister and he is the only bread earner
in his family. He further submits that accused has no previous criminal
history. He again submits that accused deserves benefit under proviso
of Section 376 IPC and 360 Cr. PC. On these grounds ld. counsel
prayed that a lenient view be taken at the time of awarding the sentence
and accused be released for the period as already undergone by him
during the course of proceedings of this case as he is in JC w.e.f
31.07.06.
Keeping in view the reasons mentioned in the judgment in para 28
and also that during the course of whole trial of the case, conduct of
accused remained very good since he has not done any misconduct or
misbehavour in the court. Therefore, court is of the considered view
that ends of justice shall be met if accused is sentenced to undergo 6
FIR no.322/06
State Vs Wasim
2 / 20
years rigorous imprisonment for the offence under section 376
IPC, and he is further sentenced to pay a fine of Rs.500/- in default
further 6 months R. I. Benefit of section 428 Cr. PC be also given to
the accused.
Accordingly, accused is sentenced to
undergo 6 years rigorous imprisonment
for the offence under section 376 IPC, and
he is further sentenced to pay a fine of
Rs.500/- in default further 6 months R. I.
Benefit of section 428 Cr. PC be also given to
the accused. Fine not paid.
ANNOUNCED IN THE OPEN
COURT ON THIS 21.04.2010
( RAJ KAPOOR)
ASJ/NE-1/ KKD/DELHIg
FIR no.322/06
State Vs Wasim
3 / 20
FIR No. 322/06
State Vs Wasim
Police Station Khajuri Khas
Order on 376 IPC
sentence u / s
Acquitted u/s 363, 366 and 368
IPC
20.04.2010
Pre: Ld. APP for the state.
Accused Wasim is in JC w.e.f. 31.07.06.
Ld. counsel Sh. K K Sharma, Adv. for accused,
Vide separate judgment placed along side in the file, I convict accused
Wasim for the offences punishable u/s 376 IPC; and I acquit accused Wasim
for the offences u/s 363, 366 and 368 IPC.
Now, case be fixed for order on sentence for 21.04.2010.
Raj Kapoor/ ASJ-1/NE
KKD/Delhi /20.04.2010
FIR no.322/06
State Vs Wasim
4 / 20
Arguments on sentence were heard. Vide separate order on
sentence placed along side in the file, accused Wasim is sentenced
to undergo 6 years rigorous imprisonment for the offence under
section 376 IPC, and to pay a fine of Rs.500/- in default further 6
months R. I. Benefit of section 428 Cr. PC be also given to the
accused. Fine not paid. Copy of the order judgment and order on
sentence be supplied to the accused at free of cost forthwith.
File be consigned to record room.
Raj Kapoor/ ASJ-1/NE
KKD/Delhi /21.04.2010
FIR no.322/06
State Vs Wasim
5 / 20
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - I : North- East / KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0543602006
Sessions Case No. 20\09
Assigned to Sessions. 22.12.06
Arguments heard on 12/04/10
Date of order. 20.04.10
FIR No. 322/06
State Vs Wasim s/o Mohd. Shamim
R/o E-1430, Gali no.15, Sri Ram
Colony, Sonia Vihar, Delhi.
Police Station Khajuri Khas
Under Section 363/366/368/ 376 IPC
JUDGEMENT
1. Briefly facts of the case are that on 28.07.06 in gali no.18, Sri Ram Colony, Sonia Vihar, Delhi, accused Wasim kidnapped Preeti from lawful guardianship of her father Sh. Mahesh Chand for the purpose of having illicit intercourse with her. Further, accused wrongfully confined / concealed prosecutrix Preeti at Pooja Colony on 29.07.06 and 30.07.06, knowing that she had been kidnapped and committed rape upon her without her consent.
2. In this regard on 30.07.2006 a DD No.28B vide Ex.PW2/A regarding missing of prosecutrix Preeti aged about 16 years was got lodged by her father namely Mahesh Chand at police station Khajuri Khas. This DD was marked to SI Kashmira Singh for investigation. Complainant Mahesh Chand made a FIR no.322/06 State Vs Wasim 6 / 20 statement to the IO vide Ex.PW2/B and he showed his suspicion upon accused Wasim in missing of her daughter. On the basis of said statement IO made endorsement vide Ex.PW7/A and got the FIR registered vide Ex.PW6/A and SI Ramanand Yadav who recorded the FIR proved the same.
3. On 30.07.2006 prosecutrix was apprehended by the police when she was accompanying with accused Wasim in a street of C and D block of Sri Ram Colony vide recovery memo Ex.PW2/C. She was got medically examined from GTB Hospital. Lady Ct. Poonam handed over sealed pullanda after medical examination of the prosecutrix to the IO who seized the same vide seizure memo Ex.PW5/A. Accordingly, accused Wasim was arrested in the present case vide arrest memo Ex.PW2/D and Personal Search Memo Ex.PW2/E. Thereafter, accused was also got medically examined at GTB hospital. Ct. Padam Singh handed over sealed pullanda to the IO after his medical examination which was seized vide seizure memo Ex.PW7/B.
4. I.O. had moved an application for recording of statement of prosecutrix vide Ex.PW7/C and thereafter, the then Ld. MM recorded the statement of prosecutrix Preeti u/s 164 Cr.P.C. on dated 03.08.2006 vide Ex.PW1/A. In the said statement prosecutrix made allegations that accused Wasim had taken her to the house of his friend situated in Pooja Colony and there he committed rape upon her forcibly and also threatened her not to give statement otherwise he would ruin her family members. I.O. sent sealed pullandas to CFSL Office at Kolkata and obtained report vide Ex.PW11/A.
5. This case was committed to the Sessions Court on 22.11.2006. After FIR no.322/06 State Vs Wasim 7 / 20 hearing arguments the Predecessor of this Court framed a charge for the offences u/s 363/366/368/376 IPC against accused to which accused did not plead guilty and claimed trial vide court order dated 08.02.07.
6. To prove and substantiate its case the prosecution has examined 11 witnesses namely PW1 Preeti - prosecutrix, PW2 Mahesh - father of prosecutrix, PW3 Smt. Rani - mother of prosecutrix, PW4 Dr. Anil Yadav, CMO, GTB hosptital, PW5 Lady Ct. Poonam, again PW5 Dr. Sandhya, PW6 SI Ramanand Yadav, PW7 SI Kashmira Singh - I.O., PW8 SI R.K. Tyagi, PW9 HC Padam Singh - he had accompanied the I.O. , PW10 Ms. Poonam Choudhary, ld. ASJ and PW11 M.K. Majumdar, Sr. Scientific Assistant, CFSL Kolkatta.
7. In this case PW1 Preeti, now 19 years of age, is the most material witness being victim. She appeared in the court and deposed that she knows accused Wasim. He was residing near her house in the year 2006. She deposed that she had married in January, 2007 with Vishnu. This witness categorically stated that on 28.07.2006 at about 7/8 P.M. when she was at her home accused Wasim came there. She further clarified that at that time, she was sitting on chabutra. Accused asked her to accompany him as he would marry her. On this, she declined. She further stated that on being annoyed accused Wasim threatened her to kill her parents. She further deposed that accused told that he had taken loan of Rs.50,000/- or Rs.60,000/- because of her. She further stated that under threat she accompanied accused Wasim who took her to a house but the owner of the house did not give the key of the house. Thereafter, accused Wasim had FIR no.322/06 State Vs Wasim 8 / 20 taken her to a house of his friend in Pooja Colony but his friend was also not present there. Then accused took her to Kalyanpuri in a house of his friend where at that time, some relatives of his friends were present at that house. This witness further deposed that in the night of 28.07.2006, she along with accused Wasim remained in the LNJP hospital during the whole night. Thereafter, at about 4:00 a.m. on the same night early in the morning i.e. 29.07.2006 he again took her to Pooja Colony to the house of his another friend he kept her for two days. Accused committed rape upon her twice there. She further deposed that accused took her to the house of his Taai near Kacchi Khajoori where in the evening time, mother of accused came there with police. She further deposed that accused Wasim also threatened her to give statement in his favour. She was got medically examined by the police in GTB Hospital. Police apprehended accused. She affirmed the fact that she gave statement before the Magistrate. This witness correctly identified her signature on Statement recorded u/s 164 Cr.P.C. and got exhibited the same vide Ex.PW1/A. This witness further identified her underwear which was seized at the time of her medical examination as Ex.P1. This witness has been cross-examined at length by defence counsel. I have perused the same. I do not find any material contradiction which can suggest this witness is telling a lie. Rather it has come on record in the cross-examination that accused had committed rape upon her forcibly after kidnapping her under threat.
8. PW2 Mahesh is the father of prosecutrix he appeared in the witness box and affirmed the fact with regard to missing of his daughter. This witness got exhibited the missing report as Ex.PW2/A i.e. DD no.28B, his own statement FIR no.322/06 State Vs Wasim 9 / 20 as Ex.PW2/B, recovery memo of his daughter as Ex.PW2/C, arrest memo of accused as Ex.PW2/D and personal search memo as Ex.PW2/E. This witness has affirmed the fact of recovery of his daughter from accused. Ld. defence counsel cross-examined him at length. In the cross-examination it again has been affirmed that prosecution was recovered from accused on 30.07.06.
9. PW3 Smt. Rani, mother of prosecutrix came to the witness box and deposed that prosecutrix left the house around 8:00 p.m. on 28.07.2006 and when she did not come back, she went to the house of accused Wasim and accused was also found missing from his house. This witness affirmed that her husband lodged a report with the police in this regard and prosecutrix was recovered by the police on 30.07.2006 from the company of accused Wasim. This witness has also been cross-examined at length. I have perused the same. In the cross-examination no contrary evidence has come on record which can suggest that this witness is false one. Though, I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
10.PW4 Dr. Anil Yadav, came to the witness box and got exhibited the MLC of accused vide MLC Ex.PW4/A, which was prepared by Dr. Ashok Kumar as Dr. Ashok had left the service from the hospital. This witness has not been cross-examined.
11.PW5 Lady Ct. Poonam appeared in the witness box and deposed that on 30.07.2006 she accompanied IO along with prosecutrix Preeti to the GTB FIR no.322/06 State Vs Wasim 10 / 20 Hospital where she was got medically examined. She received sealed pullanda from the doctor which she had handed over to the IO, who seized the same vide Ex.PW5/A. This witness has not been cross-examined.
12.Dr. Sandhya Jain who has also appeared as PW5 deposed that she examined prosecutrix Preeti d/o Mahesh Chander aged about 18 years brought by Lady Ct. Poonam from Police Station Nand Nagri with the alleged history of running away with a boy namely Wasim two days ago. She was examined vide MLC Ex.PW5/A. There was no fresh injury marks on the body of prosecutrix. The hymen was found torn. Two vaginal slides and one underwear of prosecutrix duly sealed by her and handed over to lady Ct. Poonam. The pregnancy test of prosecutrix was found negative. This witness has also not been cross-examined.
13.PW6 SI Ramanand Yadavh is a formal witness in this case being duty officer. This witness deposed that on 30.07.06 he was posted as duty officer in Police Station Khajuri Khas. He affirmed the fact that SI Kashmira Singh handed over a rukka to him and on the basis of said rukka he recorded FIR of the present case. This witness got exhibited the carbon copy of FIR as Ex.PW6/A. This witness has not been cross-examined.
14.PW7 SI Kashmira Singh is the most material witness being Investigating Officer. He deposed that a DD No.28B was got recorded at Police Station Khajuri Khas by the father of prosecutrix namely Preeti (minor) and same was marked to him for investigation. Thereafter, he recorded statement of prosecutrix's father and got registered an FIR under section 363 IPC. He FIR no.322/06 State Vs Wasim 11 / 20 further deposed that he along with complainant went to the house of accused Wasim where his father met him. Father of accused was also got joined in the investigation. This witness further deposed that accused Wasim along with prosecutrix met the police team in a street in C and D block of Sri Ram Colony. Prosecutrix was identified by her father. He further testified that accused was arrested and recovery of prosecutrix was made. Both were got medically examined and he seized the pullandas after their medical examination. He further deposed that the statement of prosecutrix was got recorded from the then Ld. MM. Thereafter, the present file was transferred to DIU, Unit, North East District on 09.08.2006. This witness has been cross-examined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
15.PW8 SI R.K. Tyagi, part IO of the case deposed that 10.08.2006 he received the investigation of the present case while in DIU Unit, he recorded statement of witnesses. During investigation he also seized photocopy of date of birth certificate of prosecutrix issued by MCD and as per said certificate age of prosecutrix was 24.07.1989. He prepared challan and file was put before SHO. The exhibits were sent to CFSL. This witness has not been cross-examined.
16.PW9 HC Padam Singh deposed that on 30.07.2006 he joined investigation with SI Kashmira Singh. He affirmed the fact that accused Wasim was arrested from C&D Block, Sri Ram Colony and prosecutrix was also with him. IO prepared recovery memo of prosecutrix and recorded her statement u/s FIR no.322/06 State Vs Wasim 12 / 20 161 Cr.P.C. This witness has also testified that accused Wasim was arrested in the present case and got medically examined. After medical examination, he handed over sealed pullandas to the IO. However, testimony of this witness cannot be read in evidence since his cross- examination was deferred but he did not turn up for his cross-examination.
17.PW10 Ms. Poonam Chaudhary, Ld. ASJ, came to the witness box and got exhibited the proceedings conducted by her u/s 164 Cr.P.C. regarding recording of statement of prosecutrix vide already Ext.PW1/A. This witness has also not been cross-examined by defence counsel.
18.PW11 M.K. Majumdar, Senior Scientific Assistant, CFSL, Kolkata came to the witness box and deposed that on 25.09.2006 he was posted as Senior Scientific Assistant at CFSL, Kolkata. On that day, four cloth parcels duly sealed and specimen seal impression tallied with the specimen seal impression forwarded. He testified that Parcel No.1 was found containing Vaginal Swab slide given as Ex.1. Parcel No.2 was found containing one underwear which was given Ex.2. Parcel No.3 was found containing some liquid blood in a test tube (blood sample) given Ex.3. Parcel No.4 was found containing some liquid semen in a test tube (semen sample) which was given Ex.4. After examination of the aforesaid exhibits, he gave his detailed report vide Ex.PW11/A dated 29.12.2006 which bears his signature at point A. No semen could be found in Ex.1 and 2. Blood was detected in Ex.3. Human semen was detected in Ex.4. Since no semen could be detected in Ex.1 and 2 hence, serological examination could not be carried out of Ex.3 and 4. After the examination, the remnants of the exhibits were FIR no.322/06 State Vs Wasim 13 / 20 resealed and returned with the report. This witness has not been cross- examined.
19.After completion of statements of prosecution, Statement of accused u/s 313 Cr. PC was recorded. Accused has denied all the allegations leveled against him by the prosecution by submitting that prosecutrix accompanied him with her consent as she was known to him. He has also stated that he had not committed any rape upon her. He further submitted in his statement that he has been falsely implicated in this case and witnesses are interested witnesses. However, he could not lead any defence evidence despite asking him.
20.Arguments were heard at length. During the course of arguments, ld. legal aid counsel sh. K K Sharma drew the attention of this court to the Ex.PW1/DB which is alleged to be a love letter written to Sameer who happens to be the name of accused. He further argued and submitted that prosecutrix is consenting party. Ld. counsel further argued and submitted that accused is innocent and he has been falsely implicated in this case by the prosecution. Witnesses are interested witnesses. Contrary to the submissions of ld. counsel for accused, ld. APP argued and submitted that it is a crystal clear case for conviction since prosecutrix has clearly deposed that accused had committed rape upon her after confining her at different places under threat. Ld. APP further argued and submitted that medical evidence is also available on record in which it has come on record that vagina of prosecutrix was found torn.
FIR no.322/06State Vs Wasim 14 / 20
21.In citation 'Verumalla Vs State (2006) 9 SCC 713' it has been held by Supreme Court where the evidence of prosecution is belied by the medical evidence the accused is entitled to acquittal.
22.In another judgment 'Sadashiv Vs. State (2006) 10 SCC -92' it has been observed by Supreme Court if the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances and highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix.
23.Again in, 'Tukaram Vs. State AIR 1979 SC 185' it has been observed by Supreme Court where the victim girl failed to appear to her companions who were none other than her near relations and meekly followed the accused appellant and allowed him to have his way with her to the extent of satisfying his lust in full it was held that the consent of the victim could not be brushed aside and the victim girl had actually consented.
24.In 'Khelleher Vs. Queen 1974 (3) Common Wealth law reporter 534', it has been said that "Rape is an accusation easily to be made and hard to be proved and yet harder to be defended by the party concerned" and accused who is young married boy.
25.The relevant sections with regard to the kidnapping from lawful guardianship are 361 IPC & 363 IPC and for the sake of convenience both sections are reproduced as under :-
Section 361 IPC:-
"Whoever takes or entices any minor under sixteen years of age if a male,or under eighteen years of age if a female, or any person of FIR no.322/06 State Vs Wasim 15 / 20 unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
Section 363 IPC:-
"Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
It has been defined in section 361 IPC that whoever takes or entices any minor under (18) years of age if a female, out of the keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. In a judgment titled as 'Prakash Vs State of Haryana AIR 2004 SC 227: (2004) 1 SCC 339' it has been observed that:
"The object of this section seems as much to protect the minor children from being seduced from improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards"
In the present case this court is of the considered view that prosecutrix is under the age of 18 years at the time of incident she was above the age of 17 years. PW8 SI R.K. Tyagi, part IO of the case during investigation seized the photocopy of date of birth certificate of prosecutrix issued by MCD. As per said certificate the age of prosecutrix was 17 years and 5 days at the time of incident since her date of birth is 24.07.1989.
26.The other relevant sections are also re-produced verbatim which as under:
Sec. 366 IPC "Kidnapping, abducting or inducing woman to compel her marriage, etc - Whoever, kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely she FIR no.322/06 State Vs Wasim 16 / 20 will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
Sec. 368 IPC "Wrongfully concealing or keeping in confinement, kidnapped or abducted person.- Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
Definition of rape has been given under section 375 IPC. For the sake of clarity section 375 IPC is being re-produced verbatim which is as under:-
" 375. Rape - A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- 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.
Fourthly.- 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.
Fifthly.- 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 through another of any FIR no.322/06 State Vs Wasim 17 / 20 stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Explanation.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
For the sake of clarity let Section 376 IPC on rape be also re-produced which spells out as under:-
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever, -
(a)being a police officer commits rape -
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b)being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or FIR no.322/06 State Vs Wasim 18 / 20
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
Explanation 2 - "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 - "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] In AIR 1973 Supreme court 469 - Madho Ram and Another Vs The state of U.P. that:-
"The only rule of law is the rule of prudence, namely, the advisability of corroboration should be present in the mind of the judge or the jury, as the case may be. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."
Again ld. APP pointed out the observation made in AIR 1996 Supreme Court 1393 (1) that:
".......It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex of crimes. We must remember that a rapist not only FIR no.322/06 State Vs Wasim 19 / 20 violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal in nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecution inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration, required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
27.Hon'ble Supreme Court again in case titled as '2001 Cri. L.J. 4721 - Dilip and Anr. Vs State of Madhya Pradesh' observed that :
"In the circumstances the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her cannot be accepted in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory. Since, the testimony of the prosecutrix cannot be relied upon, the accused in the circumstances would be entitled to acquittal."
"12. The law is well-settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. v. Gian Chand, (2001) SCC 71, on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. This Court further held:FIR no.322/06
State Vs Wasim 20 / 20 "If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
14. The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing truthfulness of the explanation offered by the prosecutrix that because of being over-awed by the two accused persons she was not able to resist, the fact remains that the 'probabilities factor' operates against the prosecutrix. The gang rape is alleged to have been committed at about 2 p.m., in her own house, situated in a populated village by the side of the main road where people were moving on account of Holi festival. The prosecutrix did raise hue and cry tot he extent she could and yet none was attracted to the place of the incident.
The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of story, is not only not corroborated by the medical evidence, is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix as given in the Court. The learned counsel for the State relied on Section 114A of Evidence Act, 1872 which provides that in a trial on a charge under Section 376(2)(g) of IPC on the prosecutrix stating that she was not a consenting party, the Court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not misunderstood as recording a finding that the prosecutrix was a willing party to sexual intercourse by the accused persons. The court is finding it difficult to accept the truthfulness of the version of the prosecutrix that nay sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evid and the report of forensic science laboratory. The defence has given suggestion in cross-examination for false implication of the accused persons which however have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of story as told by the prosecutrix. We find it FIR no.322/06 State Vs Wasim 21 / 20 difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed."
28.In the present case it has come on record that prosecutrix Preeti was already married as per her version deposed in the court. In her medical examination her hymen was found torn but no injury was found vide her MLC Ex.PW5/A as per testimony of PW5 Dr. Sandhya Jain. The pregnancy test of prosecutrix was found negative. As per MLC Ex.PW5/A she was 18 years of age at the time of alleged incident. CFSL Result is also not in favour of prosecution vide report Ex.PW11/A. Contention of ld. counsel for accused is not tenable that a love letter vide Ex.PW1/DB, produced before the court, was written by prosecutrix to accused precisely for the reasons that prosecutrix has denied to have written this letter to accused. She clarified that this letter was got written by Tarana for boy Sameer. So long as the fact of kidnapping of prosecutrix is concerned, it is on record that in the statement of prosecutrix that accused took her under threat on 28.07.2006. This part of the testimony of the prosecutrix that accused took her under threat bears some shadow of doubt precisely for the reasons that neither the threat was coupled by any coercion or any material object in the hands of accused. Besides it has also come on record in the statement of prosecutrix that accused Wasim and she stayed in LNJP hospital during whole night, which is a public place and again it has come on record that thereafter, at about 4:00 a.m. on the same night early in the morning i.e. 29.07.2006 accused again took her to Pooja Colony to the house of his another friend where he kept her for two days. No where in her deposition has come on record that she had resisted the company of accused either at LNJP hospital or at the house of accused's friend which impacts the element of kidnapping FIR no.322/06 State Vs Wasim 22 / 20 at the instance of accused. In view of these facts and circumstances of the case, it can be easily inferred that prosecutrix and accused proceeded on their own, otherwise she might raise an alarm at LNJP hospital since she is of quite mature understanding and hospital is a public place. Therefore, prosecution has failed to prove its case against the accused for the offences punishable under section 363/ 366/368 IPC. Therefore, in light of the above discussion I acquit the accused from the offences u/s 363/366/368 of IPC.
29.So long as the offence u/s 376 IPC is concerned, I am of the view that in the catena of judgments delivered by the Apex Court it has been number of times reiterated that conviction can be safely awarded to the accused on the sole testimony of the prosecutrix but the rule of prudence required that the testimony of prosecutrix is to be examined/ scanned with great caution and circumspection. The contention of ld. counsel for accused that there was consent of prosecutrix to have intercourse does not come to rescue of accused since he did not produce any defence to discharge this onus. Therefore, the element of consent does not come to rescue of the accused for committal of rape as in the catena of judgments it has been reiterated at number of times by Hon'ble Apex Court that truthful testimony of the prosecutrix is alone sufficient to prove that the offence of rape has been committed by the accused. 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 or being looked down by the society including by her own family members, relatives, friends, and neighbours, she would face the risk of losing the love and FIR no.322/06 State Vs Wasim 23 / 20 respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.
30. Therefore, as a matter of caution to my view in the present state of affairs as deposed by prosecutrix reveals that incident of rape had taken place. On this point the Hon'ble Supreme Court in case titled as 'B.C. Deva Vs. State of Karnataka 2007 VII AD (S.C.) 143= 2007 12 SCC 122 has observed that merely because no injury was found on the private parts of the prosecutrix would not negate her testimony about the rape committed on her.
"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
31.In light of my observations made in the preceding paras of this judgment and judgment B.C. Deva Vs. State of Karnataka 2007 (supra), to the best of my knowledge and understanding of law and morals I hold accused guilty for the offence punishable under section 376 IPC relying upon the statement of prosecutrix Ex.PW1/A recorded u/s 164 Cr. P.C. and the version given in the court that accused has committed rape upon her against her 'will' and in the cross-examination of prosecutrix nothing appeared which should result in disbelieving her deposition. It is well settled law that the believable and truthful testimony of the prosecutrix is alone sufficient to prove that the offence of rape has been committed by the accused. The medical FIR no.322/06 State Vs Wasim 24 / 20 examination of the prosecutrix is only for the purpose of additional corroboration and it is not conditioned sine qua non to establish the commission of offence of rape. Such like offences can only be established by the prosecutrix herself alone and I do not find anything on record contrary to the statement of the prosecutrix as court is not to count and weigh the evidence but the probability of the occurrence of the offence through preceding and succeeding circumstances of each and every case.
Accordingly, I convict accused Wasim for the offences punishable u/s 376 IPC; and I acquit accused Wasim for the offences u/s 363, 366 and 368 IPC for the reasons as discussed in the preceding paras.
ANNOUNCED IN THE OPEN COURT ON THIS 20.04.2010 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-I/NORTH EAST KARKARDOOMA COURTS: DELHI FIR no.322/06 State Vs Wasim 25 / 20