Delhi District Court
State vs . Jai Bhagwan Pandla, on 24 December, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 64/14.
Unique Case ID No. 02405R0220572014.
State Vs. Jai Bhagwan Pandla,
S/o Sh. Jaimal Singh,
R/o H. No.148, Vijay Park Naya Bazar,
Najafgarh,
New Delhi.
Date of Institution : 04.9.2014.
FIR No. 504 dated 14.6.2014.
U/s. 323/354/376/506 IPC.
P.S. Najafgarh.
Date of reserving judgment/Order : 24.12.2014.
Date of pronouncement : 24.12.2014.
JUDGMENT
1. The accused Jai Bhagwan Pandla, a 73 years old person, has been facing trial for the charges u/s.323 IPC, u/s.354 IPC, u/s.376 IPC and u/s.506 IPC. The woman, who has made accusations against the accused Jai Bhagwan, is none other his own daughter-in-law.
2. The police machinery was set in motion in this case on receipt of information in the police station on 14.6.2014 at about 1.05 p.m. from the Control Room to the effect that the sister of the caller is being beaten by her father-in-law at Naya Bazar, Najafgarh. It is thus evident that the call had been made by the SC No.64/14. Page 1 of 27 brother of the prosecutrix 'M' (real name withheld in order to conceal her identity). The information was recorded as DD No.33B in the police station and was entrusted to SI Krishan Chand for suitable action who alongwith HC Rajbala reached the spot and removed the prosecutrix 'M' to RTRM Hospital, Jafarpur, for medical examination. After the medical examination, she was brought back to the police station where her statement was recorded by SI Anita wherein she stated that her father in law i.e. accused Jai Bhagwan had raped her one day about one and a half years ago and thereafter had been continuously raping her and issuing threats to her. She further stated that the accused had tried to sexually assault her on that day also and upon her resistance, he slapped her and beat her with fists as well as kicks. He also touched her private parts.
3. FIR was registered on the aforesaid statement of the prosecutrix and the investigation was entrusted to SI Anita. She recorded the statement of the prosecutrix u/s.161 Cr.PC and thereafter got her medically examined again. The statement of the prosecutrix u/s.164 Cr.PC was also got recorded. An official from the concerned NGO was summoned who counselled the prosecutrix. The IO made local inquiries which revealed that it was a case of family dispute. She recorded the statement of material witnesses. She interrogated accused Jai Bhagwan and got his potency test conducted in RTRM Hospital. The accused obtained anticipatory bail from the High Court and accordingly was formally arrested in this case.
4. After completion of the investigation, Charge Sheet SC No.64/14. Page 2 of 27 was prepared by the IO and submitted to the concerned court.
5. Upon committal of the case to the court of Sessions, Charge u/s.323 IPC, u/s.354 IPC, u/s.376 IPC and u/s.506 IPC was framed against the accused on 01.11.2014. The accused denied the charges and accordingly trial was held.
6. At trial, the prosecution has examined 6 witnesses to bring home the guilt of the accused. The accused was examined u/s.313 Cr.PC on 18.11.2014 wherein he denied the prosecution case and claimed false implication. He further stated that he is not capable of performing sexual act on account of old age and suffering from serious arthritis. He further stated that the prosecutrix has filed a false complaint of rape against him as a counter blast to the petition for divorce filed against her by his son. The accused chose not to lead evidence in defence.
7. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire material on record.
8. The prosecutrix has been examined as PW1. Her examination in chief spans over six pages and I do not find it necessary to reproduce the entire examination in chief. It would suffice if only the material portions of her testimony are discussed herein.
9. She has deposed that her brother in law Rajesh alongwith his family also resides in the same house but on the first floor. Her family alongwith her parents in law were residing SC No.64/14. Page 3 of 27 on the ground floor. However, her husband used to spend most of time alongwith his sister-in-law (Bhabhi) on the first floor and she was not permitted to remain on the first floor. Her father in law i.e. accused used to harass her whenever his wife used to be away. Whenever she touched the feet of the accused to take his blessings, he used to hug her and never gave blessing to her by putting his hand on her head. He used to tease her by touching her chest. When she narrated this to her husband, he did not believe her and told her that she is levelling false allegation upon his father. When she narrated this to her brother in law Rajesh, he gave beatings to her and then she was thrown out of the house. Thereafter, she filed a complaint before CAW Cell, Rohtak. She stated that her parents in law, her husband and her Jeth appearing in CAW Cell sought apology from her and assured her that they would treat her properly in future. Accordingly, she returned to her matrimonial home on 01.9.2005 On account of quarrel with her mother in law, she alongwith her husband shifted to first floor where they shared the kitchen jointly with Rajesh. However, she was again mistreated by her in laws and it continued till the year 2013.
10. She further deposed that one day in the month of October, 2012, the accused called her son Varun, aged 10 years, downstairs, assigning to him some homework and directed him not to move from there till he completes homework. She was present alone on the first floor at that time. As her mother in law had gone to her parental house at Kakrola, accused came upstairs, took off all her clothes and committed sexual intercourse with her against her consent. Accused remains with her on the first floor for about SC No.64/14. Page 4 of 27 half an hour and then went downstairs. When she narrated the incident to her husband at night, he did not believe her. He beat her and also pressed her throat. However, in the morning, her husband expressed regret for his conduct and told her that he would look for a premises on rent and they would shift there. They shifted to a rented accommodation at Roshan Garden, Uttam Nagar, in November, 2013. Accused came to their rented house on 22.3.2014 to wish her on her birthday which had fallen on 21.3.2014. She raised objection to the visit of accused to their rented house, upon which her husband stopped talking to her and went to the house of the accused on 01.5.2014 to reside there. She alongwith her son stayed in the rented house for about 15 days and thereafter went to the house of her uncle at Rohtak on 15.5.2014. A Panchayat was convened at Rohtak on 18.5.2014 which was attended by her husband alongwith his parents wherein they again assured her that she would be treated well.
11. She further deposed that she came to the house of accused on 14.6.2014. Accused alongwith his wife was present in the house at that time. When she went to the kitchen to take water, her mother in law scolded her by saying that she should not touch any utensil in the kitchen. She came back and sat on a Sofa in a drawing room where accused and his wife were also sitting. Accused started taunting her and meanwhile her mother in law went out of the house saying that she would expose her drama to the neighbours. Accused slapped her 5 or 6 times in front of her son and hit her head against a wall. Her son started crying and the accused threw him outside the drawing room on to the stairs and closed the door from inside. She started running away from SC No.64/14. Page 5 of 27 another side of the drawing room but the accused caught hold of her, pushed her on to the bed, took off her Salwar and pulled up her shirt. He touched her breast and private part. She tried to save herself but the accused caught hold of her throat. Her bangles got broken and she received bruises/scratches on her wrist and throat. She somehow pushed away the accused and put on her Salwar again. Meanwhile, her mother in law returned alongwith a person from neighbourhood and she narrated the incident to that person. Thereafter, 2 or 3 old ladies from neighbourhood also came there and they prevailed upon her to settle the matter amicably. She told them that she would not keep silent and would expose the accused. She ran away through the door, through which accused had thrown out his son, went upstairs and made a call to her brother from her mobile phone. Her brother reached there alongwith police officials and took her to the police station. She submitted a written complaint Ex.PW1/A in the police station after which she was taken to RTRM Hospital for medical examination. She was produced before a Ld. M.M. in Dwarka Court on 16.6.2014 who recorded her statement Ex.PW1/B. She further stated that she did not report the earlier molestation incident and the rape incident of October, 2012, to the police as her husband had forbidden her from doing so saying that they would get defamed and it is better to forget about these incidents.
12. She was declared hostile by Ld. APP on certain points and in the cross examination conducted by Ld. APP, she admitted that the accused had threatened her at the time of rape incident of October, 2012 that he would kill her if she narrated the incident to anybody. She also admitted that thereafter accused had been SC No.64/14. Page 6 of 27 committing rape upon her whenever she got time.
13. In the cross examination, she was confronted with her complaint Ex.PW1/A, statement u/s.161 Cr.PC dated 14.6.2014 and statement u/s.164 Cr.PC Ex.PW1/B wherein she had not mentioned that the accused used to harass her and used to hug her when she touched his feet to take his blessings and used to tease her by touching her chest; that when she narrated the rape incident of October, 2012 to her husband, he did not believe her, beat her and pressed her throat; that the accused had visited their rented accommodation on 22.3.2014 to wish her on her birthday and there was a quarrel on this issue between her and her husband on which her husband left her alone. She further admitted that Ex.PW1/D1 is the certified copy of the complaint u/s.12, 17 & 22 of the Domestic Violence Act filed by her in Rohtak Court. She deposed that her uncle Sushil, her son Rahul and two other friends of Sushil had accompanied her to the police station on 14.6.2014 when she submitted the complaint Ex.PW1/A. She stated that the complaint was written by one of those friends of her uncle on her dictation in the police station. She deposed that on 14.6.2014 she had reached her matrimonial home at about 11.30 a.m. Her brother Rahul accompanied her from Rohtak upto Subzi Nandi, Najafgarh, from where he went to the house of his parental aunt (Bua) which is nearby. After the incident dated 14.6.2014, she had made first call to her brother Rahul from her mobile phone no. 87503800460. She did not recollect the mobile number of Rahul. She stated that she had saved the mobile number of Rahul in her mobile phone but it got erased later on. She could not tell the time when she had made call to Rahul or when the police had reached SC No.64/14. Page 7 of 27 her matrimonial home on that day. However, she stated that the police reached there in the afternoon. She had told her brother Rahul on phone that her father in law is molesting her and they are threatening to kill her. She did not know what her brother Rahul had told the police officials in the police station. She had entered her matrimonial home through the rear door. She had not informed her parents in law that she will be coming there on 14.6.2014. She further deposed that the accused had hit her head against a wall with force but she did not bleed and only got swelling on her head. Her son was outside the drawing room at the time when the accused molested her. She stated that her mother in law returned alongwith neighbours after about 10 - 12 minutes. Her mother in law had also gone out through the rear door and thereafter the door was bolted from inside by the accused. Her mother in law did not ask the accused why had he bolted the door from inside. She stated that she had narrated all the incidents of molestation etc. to the Panchayat members in the Panchayat held on 18.5.2014 at Rohtak and it was settled in the Panchayat that she would continue staying in her uncle's house at Rohtak and later on her husband would come to take her back and they would shift to in her matrimonial home alongwith the accused. She denied all the suggestions put to her in the cross examination.
14. PW2 is Dr. Rajesh, who had conducted the potency test of the accused in RTRM Hospital, Jafarpur, and proved his MLC as Ex.PW2/A. In the MLC, he has noted that there was no evidence to prove that the accused cannot perform sexual intercourse. In reply to the court questions, he deposed that he only conducted physical examination of the accused and did not perform any test SC No.64/14. Page 8 of 27 upon him. He had touched the accused's private part and observed cremastric reflex (contraction of dartos muscle i.e. layer of scortum) and from this, he concluded that accused's spinal activity is normal. He however stated that it cannot be said that whether accused can get erection of his male organ or not. He did not conduct any test to see whether or not the accused got erection of his male organ. He admitted that it is very difficult to say on the basis of physical examination conducted by him that the accused can perform sexual act and to ascertain this, he was to be referred to forensic department where different tests are conducted in this regard but in this case the accused was not referred to forensic department for these tests.
15. PW3 is the doctor, who had conducted medical examination of the prosecutrix on 14.6.2014 in RTRM Hospital and proved her MLC as Ex.PW3/A. She deposed that she did not find any external injury or mark on the body of the prosecutrix except 6 to 7 scratch marks of nail over her left forearm. According to her, prosecutrix was mensurating at that time and had an old tear in the hymen. She obtained various samples of the prosecutrix and also took into possession her clothes which she handed over in sealed condition to the IO. In the cross examination, she deposed that nail scratch marks on the forearm of the prosecutrix could be self inflicted.
16. PW4 was the Duty Officer in P.S. Najafgarh on 14.6.2014 who had registered the FIR in this case which she proved as Ex.PW4/A. She proved her endorsement on the rukka as Ex.PW4/B. SC No.64/14. Page 9 of 27
17. PW5 WHC Rajbala. She deposed that she was posted as Head Constable in P.S. Najafgarh and was on duty at Women Help Desk on 14.6.2014. She further deposed that in the evening of that day, a lady named 'M' i.e. the prosecutrix came to the police station saying that she had a quarrel with her husband and was having bruise marks on her hands etc. She produced the prosecutrix before ASI Krishan and on his direction took her to RTRM Hospital where her medical examination was conducted. Thereafter, she produced her back to the police station and handed over to her to SI Anita. After about half an hour, she again took the prosecutrix to RTRM Hospital, Jafarpur, for medical examination on the direction of SI Anita. Certain sealed pullindas were handed over to her by the doctor which she brought to the police station and handed over to SI Anita who seized those vide seizure memo Ex.PW5/A. In the cross examination, she deposed that her duty hours were from 8 p.m. on 14.6.2014 to 8 a.m. on 15.6.2014. She also stated that the prosecutrix had come to the police station alongwith her 10/11 years old son.
18. PW6 is the Ld. M.M., who had recorded the statement u/s.164 Cr.PC Ex.PW1/B of the prosecutrix.
19. It was submitted by Ld. APP that it is evident from the testimony of the prosecutrix that the accused has been continuously raping her for the last one and a half years before the registration of the FIR and there is nothing in her cross examination to disbelieve her. On the other hand, Ld. Counsel for the accused vehemently argued that the prosecutrix has lodged a SC No.64/14. Page 10 of 27 false complaint of rape against the accused i.e. her father-in-law, as a counter blast to the petition for divorce filed against the prosecutrix by her husband. He argued that the prosecutrix is not a trustworthy witness and has made material improvements upon her statements recorded during the course of investigation and therefore, her deposition lacks in credibility and reliability. He further argued that it is not possible for an old and infirm person like the accused, who is in his 70s to commit rape upon a lady in her mid 30s and without having any disability. He submitted that all the incidents mentioned by the prosecutrix are the imagination of her mind only and no such incident had ever taken place. It was also vehemently argued by Ld. Counsel that the accused being 73 years old, is incapable of performing sexual intercourse and the prosecution has failed to establish that he is fully capable of performing the sexual act. He urged this court to acquit the accused.
20. Undoubtedly, in cases involving offence of rape, the accused may be convicted on the basis of sole testimony of the prosecutrix provided the same appears to the court to be credible, trustworthy and inspiring confidence. The court must be satisfied that the prosecutrix qualifies as a sterling witness and her deposition is free from embellishments and prevarications. If for certain reasons, the court is not willing to place implicit reliance upon the testimony of the prosecutrix, it may look for corroboration of her version from other evidence on record. However, it is to be kept in mind by the court that like in all criminal cases, in the cases of rape also, it is the duty of the prosecution to establish the guilt of the accused beyond SC No.64/14. Page 11 of 27 reasonable doubt by legally admissible evidence and it is not for the accused to explain why the witnesses have lied against him.
21. In the instant case, the prosecutrix is stated to have been raped by the accused for the first time about one and a half years before registration of the FIR and thereafter she continued to be raped by the accused regularly and on 14.6.2014 also, accused molested her and attempted to rape her but on account of her fierce resistance, she saved herself and made a call to her brother, who informed the police. I may note here that the accused is the father in law of the prosecutrix.
22. In her written complaint to the police Ex.PW1/A, on the basis of which FIR has been registered in this case and in her statement u/s.164 Cr.PC Ex.PW1/B, the prosecutrix has not mentioned the date, month and year when she was raped by the accused for the first time. It is in her examination in chief that she stated for the first time that the accused raped her firstly one day in the month of October, 2012. In the complaint Ex.PW1/A, she has stated that the accused committed sexual intercourse with her against her consent about one and a half years before and threatened her not to narrate the incident to anybody and thereafter had been continuously raping her after issuing threats to her. In her statement u/s.164 Cr.PC Ex.PW1/B, she has stated that the accused had been touching her body inappropriately despite her resistance and had committed forcible sexual intercourse with her several times after issuing threats to her that if she did not engage in sexual intercourse with her, he would not provide her the house and would bring her to the road as she is an SC No.64/14. Page 12 of 27 orphan. When she told him that she would narrate these incidents to the family members, he told her that he would see who would come to her rescue.
23. In her deposition before this court, she has narrated the first rape incident in following words :
"One day in the month of October, 2012, the accused called my son Varun, aged 10 years, downstairs. He assigned some homework to him and directed him not to move from there till he completes the homework. I heard the accused saying so to my son. I was present alone on the first floor. My mother in law had gone to her parental house at Kakrola. Accused came upstairs. He took off all my clothes and committed sexual intercourse with me against my consent. Accused remained with me on the first floor for about half an hour and then went downstairs. When I narrated the incident to my husband at night, he did not believe me. He beat me and also pressed my throat. I told him that I would not reside in this house to face such kind of assaults. He told me that I cannot go anywhere as I have nowhere to go for the reason that I had already lost my parents. In the morning, my husband expressed his regret for what he had said to me the previous night. He requested me not to defame them by narrating the incident of rape to anybody. He told me to wait for one month during which period he would look for a premises on rent and we would shift to that rented accommodation."
24. As already noted herein-above, the prosecutrix has not mentioned the first rape incident in detail in her complaint Ex.PW1/A and in her statement u/s.164 Cr.PC Ex.PW1/B. Therein she has simply stated that she was raped by the accused about one and a half years before. It is not discernible how the details of rape incident came to her mind at the time of her deposition SC No.64/14. Page 13 of 27 before this court and how did she recollect that the incident took place in the month of October, 2012. She has made clear improvements upon her earlier statements and has nowhere explained why did not she mention these details in her complaint and in her statement to the Ld. M.M. Further, in the complaint Ex.PW1/A and the statement Ex.PW1/B, she has mentioned that the accused threatened her not to disclose the rape incident to anybody. She has even mentioned these threats also differently. In the complaint Ex.PW1/A, she stated that the accused threatened to kill her. If she disclosed the incident to anybody, whereas in the statement Ex.PW1/B, she states that the accused threatened her that he would not give her the house and would bring her to the road as she is an orphan. She does not mention about any of these threats in her testimony before this court. In fact, she has deposed that she narrated the first rape incident to her husband at night, who did not believe her and beat her. This has not been mentioned by her either in the complaint or in the statement to the Ld. M.M.
25. The deposition of the prosecutrix makes it manifest that the accused had not issued any threats to her at any point of time. She was free to narrate the incident to any of her wellwishers or to report the same to the police. Though she claims to have narrated the first rape incident to her husband, who did not believe her yet there is no evidence on record that she has been complaining to her husband about the later rape incidents also as, according to her, she was being continuously raped by the accused. There is no evidence on record to suggest that she has complained about the activities of the accused to her mother in SC No.64/14. Page 14 of 27 law or to her bother or to her uncle at Rohtak. She did not report any of these rape incidents to the police. She had gone to her parental house for couple of days in January, 2014 but that time also, she did not tell her bother or her uncle that she is being raped by the accused. She has deposed that her husband brought her parental aunt (Bua) to their rented house in May, 2014, who tried to have reconciliation between them. However, she did not tell her also about the rape incidents. She again went to her uncle's house at Rohtak on 18.5.2014 and remained there till 14.6.2014. That time also, she did not complain to her uncle or her brother that the accused has been continuously raping her. Though she has deposed that she had narrated the incidents in the Panchayat held at Rohtak on 18.5.2014 yet it does not appear so. The panchayat members have not been examined as witnesses. Even the uncle of the prosecutrix did not come to depose in this regard. Further, if she would have disclosed rape incidents to the panchayat members, they would have either reported the matter to police or taken some action against the accused.
26. The conduct of the prosecutrix, as noted herein-above, does not indicate even remotely that she was being subjected to rape by the accused. Even otherwise also, she appears to be a well built and having sound body. There is no evidence to suggest that she is suffering from any ailment. On the other hand, the accused is a 73 years old person having fragile and infirm body. It is very difficult to believe that a person like the accused would succeed in committing forcible sexual intercourse upon a lady like the prosecutrix and that too repeatedly. The testimony of the SC No.64/14. Page 15 of 27 prosecutrix does not inspire any confidence and lacks in credibility or reliability.
27. It was vehemently contended by the Ld. Counsel for the accused that the accused, on account of his very old age and severe arthritis is not capable of performing sexual intercourse even in congenial condition not to speak of forcible sexual intercourse. He further argued that the prosecution has failed to prove that the accused was competent to perform sexual act despite his old age. In this regard, the Ld. APP relied upon the testimony of PW2, the doctor, who had conducted potency test of the accused and noted in the MLC that there was no evidence to suggest that the accused cannot perform sexual intercourse. She argued that the deposition of PW2 establishes undoubtedly that the accused is capable of performing sexual intercourse despite his old age.
28. I feel unable to countenance the submissions of the Ld. APP. I am of the opinion that the evidence of PW2 is grossly insufficient to hold that the accused is capable of performing sexual intercourse. PW2 has, in reply to the court questions, stated that he only conducted physical examination of the accused and did not perform any test upon him. He has candidly stated that it cannot be said that on the basis of mere physical examination as to whether or not the accused can get erection of his male organ and that he can perform sexual act. He stated that to ascertain these facts, the accused had to be referred to forensic department where different tests are conducted in this regard but this was not done.
SC No.64/14. Page 16 of 2729. Any person accused of rape is subjected to potency test in a Govt. Hospital. Potency test is an examination conducted to ascertain whether the person is physically capable of committing sexual intercourse. There are various types of potency tests which are usually conducted upon a man accused of rape. These are :
(i) Blood test : This is done to know whether the person is not suffering from diabetes or kidney related disorders that may affect his potency;
(ii) Nocturnal penile tumescence or rigiscan monitoring:
This test involves measuring the number of spontaneous erections that occur at night. This is done to check whether the person gets nocturnal erection during sleep as a physiological response and is thus capable of getting spontaneous erection;
(iii) Serum testosterone level : Testosterone, the male harmone, plays a very small role in letting a man get an erection. By this test, testosterone level is measured biochemically in a laboratory;
(iv) Penile Doppler Scan : This test shows how much and how well blood flows in and out of the penis.
(v) Visual Erection Examination : During the visual examination, the doctor examines the penis in both states, aroused and flaccid. This is done to check for any sort of dysfunction or damage. It also tests morning erection.
30. This court has observed that none of these tests are SC No.64/14. Page 17 of 27 performed upon persons accused of rape. Whenever a rape accused is brought before a doctor for potency test, he just conducts physical examination of the accused and opines that "there is nothing to suggest that he cannot perform sexual act". This is the standard procedure followed for conducting potency test of a rape accused and the standard form of opinion rendered by the doctor. This court has not come across any case where any of the aforementioned tests had been conducted upon the accused. It is another matter that normally the rape accused, being of young age or knowing that they are sexually potent, don't dispute the opinion of the doctor. However, in case of a person being more than 70 years of age, mere physical examination wouldn't be enough and that too when the penis is in flaccid state, without checking whether it can get erection.
31. It is thus evident that PW2 had recorded on the MLC of the accused Ex.PW2/A in a routine manner on the basis of mere physical examination that there is no evidence to prove that he cannot perform sexual intercourse. I wonder why it did not come to the mind of PW2 or his seniors in the hospital that the accused brought before them for potency test is a 73 years old person and it would be absolutely improper and against the canons of professional ethics to opine without conducting any detailed tests upon the accused that he can perform sexual act.
32. It is elementary that for both women and men, sexual desire or drive decreases gradually with age. A man's sexual life changes with age even as the desire may be maintained. In their 20s, men are less likely to experience wet dreams. Some men in SC No.64/14. Page 18 of 27 their late 20s and 30s notice that their penises are not as erect as they once were and that they may require direct stimulation to get hard. The men aged 40 - 50 may require direct stimulation to get erection and the erection may not be as full or firm as before. He may find it easier for his penis to loose its hardness and, once lost, more difficult to regain. Man's angle of erection may also change. A penis that once pointed up may just stick straight out; one that once pointed straight out may now still to be stiff, but point slightly down. The force of ejaculation may be less, as is the amount ejaculated. As men reach their 50s, 60s and 70s, physical and mental arouser becomes much more critical to erection. It may take longer to ejaculate and some men find that they do not need to ejaculate any time.
33. Medical studies have shown that the men over 40 start to notice that arousal takes more time. Erection becomes balky; slower to rise, less firm and increasingly prone to falling due to minor distraction. After 50s, especially after 60s, these changes intensify and erection problems increase, as a result of which it becomes difficult and almost impossible to engage in sexual intercourse i.e. the penal vaginal intercourse, though it may be possible to make love and enjoy orgasm with the help of sex toys etc.
34. Although the sex act is a continuous process, it has six stages and almost all are affected by age:
(i) Sexual desire or libido The normal sex drive is a prime example of the unity SC No.64/14. Page 19 of 27 of mind and body. It requires both right mind set and enough testosterone, the male harmone; For older men sexual interest is still there but it is generally a far cry from preoccupation with sex which is so common in youth. Many older men think about the sex but don't have the drive to put theory into practice and even when their spirit is willing, the flesh may be weak.
(ii) Arousal Sexual activity begins with arousal. It is the result of the combination of erotic thought and sensory stimulation that may be touch, sight, scent or taste or hearing. An area of the brain called the hypothalamus coordinates erotic images and transmits the impulse of desire through spinal cord to the pelvis. Sensory nerves from the skin of the penis and other erogenous zones also are connected directly to the pelvic nerve and all this happens involuntarily. The penile responsiveness to sensory stimulation slows with age. In addition penial blood flow may decrease as men grow older even if they stay healthy. Even when erection develops, most men in their 60s report that they are more difficult to sustain it and it is not as hard or rigid. The erection also tends to become briefer and less rigid with age.
(iii) Plateau This stage usually lasts from 30 seconds to 2 minutes.SC No.64/14. Page 20 of 27
Heart rate and blood pressure increases and more blood is pumped to the body's tissues. The prostate and semenial glands begin becomes to discharge fluid to prepare for ejaculation. There are no reported changes in plateau phased with age.
(iv) Ejaculation During this 4th stage, the muscles in epididynis vas deferens, semenial vesicles and prostrate contract automatically. This propels semen forward and at the same time, nerve impulses tighten muscle in neck of the bladder so the semen is forced out through uthera instead of flowing back into the bladder. The pleasurable sensation of orgasm usually occurs with ejaculation. Heart rate reaches its peak during ejaculation. However, with the age, the muscular contraction or orgasm is less intense, ejaculation is slower and semen volume declines.
(v) Detumescence Detumescene is when penis reverts to flaccid stage. It usually follows ejaculation but it can occur prematurely if sex act is interjected by a intrusive thought or event. There are no reported changes in this phase due to aging.
(vi) Refractory period The final age in the sex act is the quietest. It lasts from 30 minutes (in younger man) to 3 hours (in older SC No.64/14. Page 21 of 27 man). The penis cannot respond to sexual stimulation during this phase.
(Source : Study and research on the internet).
35. At any age, however worry, stress or depression can interfere with sexual interest, activity and satisfaction even if a man's physical apparatus remains intact.
36. Therefore, generally speaking, the sexual desire or drive in a man decreases gradually with age and once the age of 50 is crossed, the physical as well as mental arouser becomes critical for reaction. After reaching 60s, it becomes difficult and almost impossible to engage in penial vaginal intercourse even in normal circumstances where the female partner would be a consenting as well as cooperating party, not to speak of forcible sexual intercourse. Even if the erection of penis develops, the men in their 60s and afterwards find it difficult to sustain the same and tend to lose erection as also the sexual drive on least possible interference and diversion of attention.
37. Hence in case of a person having already crossed 70s, the general impression would be that he is incapable of committing forcible sexual intercourse, though he may have sexual urge and may be able to perform consensual sexual act for a brief period. The duty upon the prosecution, in these cases where the accused is more than 70 years of age and disputes his ability to perform sexual act, is very heavy and onerous to prove that the accused is mentally as well as bodily fit to engage in forcible sexual intercourse i.e. rape. In the instant case, the SC No.64/14. Page 22 of 27 prosecution has miserably failed to establish that the accused is bodily and mentally fit as well as capable to perform sexual act in normal circumstances or in hostile circumstances i.e. rape. It is evident that PW2 has given his opinion in a very casual and off hand manner. He has acted against the professional ethics and gave his opinion without conducting any test upon the accused knowing fully well that he is 73 years old person. Hence his testimony does not have any value and deserves to be rejected per-se.
38. Even otherwise, it is highly inconceivable and improbable that the accused, a 73 years old person, would be able to overpower a young and able bodied female like the prosecutrix and continuously rape her for a period of one and a half years, that too in his own house where his wife as well as his son (prosecutrix's husband) also resided.
39. It may also be noted that the prosecutrix in her complaint filed in the court of Ld. Magistrate at Rohtak under various provisions of Domestic Violence Act in July, 2014 has nowhere mentioned that the accused had raped her at any point of time. The complaint has been proved as Ex.PW1/D1 wherein it is only mentioned that the accused was having bad eye upon her and used to harass her by touching her body without her consent. No rape incident has been narrated in the said complaint.
40. So far as the incident dated 14.6.2014 is concerned, the same also appears to be an imagination of the mind of the prosecutrix only. The prosecutrix has herself deposed that she SC No.64/14. Page 23 of 27 alongwith her husband had shifted to a rented accommodation at Roshan Garden, Uttam Nagar, in November, 2013 and were residing there when her husband went back to his parental house i.e. house of accused on 01.5.2014 on account of some quarrel and she herself went to her uncle's house at Rohtak on 15.5.2014. In that event, it is not discernible why did she visit the house of the accused on 14.6.2014. There had been no communication between her, her husband and the accused till that date. She was expected to go straightway to her rented accommodation. In her examination in chief, she has not mentioned the time when she reached accused's house on that day, when she made a call to her brother and when her brother reached there alongwith police officials. However, in her cross examination, she has deposed that she reached the accused's house on 14.6.2014 at 11.30 a.m. and the police reached there in the afternoon. She could not tell the time when she had made call to her brother Rahul. However, the testimony of PW5 indicates that the police officials had not gone to the house of the accused on that day but the prosecutrix alongwith her minor son had herself come to the police station in the evening saying that she had a quarrel with her husband. PW5 had produced the prosecutrix before ASI Krishan in the police station and then on his direction took her to RTRM Hospital, Jafarpur, where her medical examination was conducted. Therefore, PW5 was the first police official whom the prosecutrix had met on that day but she did not tell her that the accused had attempted to commit rape upon her. She even did not tell her that the accused had beaten her.
41. As per the testimony of the prosecutrix, when her SC No.64/14. Page 24 of 27 mother in law went out to call neighbours, the accused laid her on to the bed and tried to commit forcible sexual intercourse with her. It is totally unbelievable and improbable that the accused, knowing that his wife would return to the house alongwith neighbours any moment, would resort to such humiliating act. Moreover, the prosecutrix has deposed that she had narrated the incident to the neighbours, who had come to the house alongwith her mother in law. These neighbours namely Chandan Singh Sharma, Roshni Devi, Suman, Balbir Singh and Jaivir Gulai have been cited as witnesses in the Charge Sheet but were not examined during the trial of the case, probably for the reason that they had not stated anything regarding the incident in their statements u/s.161 Cr.PC. It is when Ld. APP realized that they are not going to support the prosecution case, she dropped them. Therefore, adverse inference has to be taken against the prosecution holding that none of these witnesses would have supported its case and therefore the version of the prosecutrix gets falsified.
42. There is no evidence on record to show that the prosecutrix had made call to her brother Rahul from the house of the accused on 14.6.2014 or that Rahul had brought police officials to the house of the accused pursuant to the said call. The investigating officer has neither recorded the statement of Rahul u/s.161 Cr.PC nor has he been produced as a witness during the trial. The call detail records of the mobile phone of the prosecutrix and that of Rahul have neither been produced nor proved. Prosecutrix did not even mention the mobile number of Rahul, when asked in the cross examination. Prosecutrix has deposed that her uncle Sushil and his two friends were present in the police SC No.64/14. Page 25 of 27 station when she submitted the complaint Ex.PW1/A. It is not discernible from the evidence on record as to who informed them about the incident and when did they reach the police station. This lends credence to the argument raised on behalf of the accused that the prosecutrix alongwith her brother, uncle and his friends had come to Delhi on 14.6.2014 with a definite plan to implicate the accused, her father in law, in a false rape case.
43. On overall scrutiny of the evidence led by the prosecution, it is manifest that the prosecutrix had lodged a false complaint of rape against her own father in law i.e. accused herein. There is no credible or trustworthy evidence on record to suggest that the accused had committed rape upon the prosecutrix at any point of time or that he was capable of performing sexual act. The prosecutrix appears to be a prevaricate. Her testimony is replete with embellishments and prevarications. No other evidence on record supports her version. Her overall conduct during all these years also does not indicate that she has been subjected to rape by the accused at any point of time or that the accused had attempted to commit rape upon her on 14.6.2014. It is patently evident that the accused has been falsely implicated in this case by the prosecutrix merely on account of matrimonial dispute between her and her husband. It appears that the prosecutrix had come to Delhi on 14.6.2014 alongwith her brother, uncle and his two friends pursuant to a well hatched plan to lodge a false complaint of rape against the accused.
44. Resultantly, the accused is hereby acquitted.
SC No.64/14. Page 26 of 2745. Since this court has come to conclusion that the prosecutrix had filed a false complaint of rape against the accused and has give false evidence before this court to ensure that the accused is convicted on false rape charges, she is liable to be proceeded against for having committed the offence punishable u/s.193 IPC. It is ironical to note that even old and infirm father in law, a fatherly figure, has not been spared of the false rape accusations. The accused, who has already seen 73 summers of his life and had an unblemished career as an army man, had to face the ignominy as well as ridicule of being a rape accused. This court would be failing in its duty if appropriate proceedings are not initiated against the prosecutrix for giving false evidence against the accused.
46. Therefore, the Reader of the court is directed to file an appropriate complaint against the prosecutrix in the court of Ld. C.M.M., Dwarka Courts, New Delhi.
47. Further, it also appears that there are no guidelines for the doctors regarding the manner in which potency test of the rape accused is to be conducted. Therefore, let a copy of this judgment be sent to the Secretary, Department of Health, Govt. of India, with the directions to circulate it amongst all the Doctors in Delhi who are assigned the task of conducting potency test of the rape accused and also to frame proper guidelines in this regard, if found necessary.
Announced in open (VIRENDER BHAT)
Court on 24.12.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.64/14. Page 27 of 27