Delhi District Court
State vs . Sandeep, on 21 May, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.172/13.
Unique Case ID No.02405R0225472013.
State Vs. Sandeep,
S/o Sh. Satbir Singh,
R/o Village & P.O. Issapur,
Delhi.
Date of Institution : 12.8.2013.
FIR No.119 dated 23.5.2013.
U/s. 376/323/365/506 IPC.
P.S. Baba Haridas Nagar.
Date of reserving judgment/Order : 17.5.2014.
Date of pronouncement : 21.5.2014.
JUDGMENT
1. The prosecution had chargesheeted the abovenamed accused for the offences u/s.323/376/365/506 IPC.
2. As per the case of the prosecution, the prosecutrix namely 'P' (real name withheld in order to conceal her identity) alongwith her mother had appeared in the police station on 23.5.2013 and told lady Const. Rajbai sitting at the Help Desk that she has been raped by one Sandeep. The prosecutrix submitted a written complaint, which was entrusted to ASI Sudesh for suitable action. The prosecutrix in her complaint had stated that on 22.5.2013, when she had left Bhagini Nivedita College, village Kair, SC No.172/13. Page 1 of 25 at 6.15 p.m. four girls studying in first year degree were also accompanying her but she did not know them fully well. They reached the bridge between village Kair and village Mitraon where they found a black colour Honda Civic car. The boy sitting in the car rolled down the windscreen of the car and the prosecutrix found that he was accused Sandeep. Accused called upon the prosecutrix by name but she did not stop. The other girls ran away after hearing the voice of the boy. Thereafter the accused came out of the car and started talking to the prosecutrix in abusive language. He slapped her and hit her with fists. Then he took out wheel pana from the boot of the car and beat the prosecutrix with the same. Then he pulled the prosecutrix inside the car and raped her there. Thereafter accused took the car towards fields in village Mundela and threatened the prosecutrix that he would kill her brother. A boy of village Kadipur came there and made a call at telephone no.100. Accused told him that he belongs to village Issapur and knows the boy from village Kadipur. That boy asked the accused to leave the girl i.e. the prosecutrix and the accused told him that he would leave her. Thereafter, the accused dropped the prosecutrix at Issapur More and she returned home. Next morning, accused made a call at mobile no.9711429012, which was attended by the prosecutrix's mother.
3. ASI Sudesh immediately took the prosecutrix to RTRM Hospital where her medical examination was conducted vide MLC No.2618/13. On the basis of aforesaid complaint of the prosecutrix and the observations of the doctor on her MLC, an FIR was registered u/s.376/323/365/506 IPC. Exhibits handed over by the doctor were seized by the IO. Thereafter, IO alongwith prosecutrix SC No.172/13. Page 2 of 25 reached the spot of incident i.e. bridge between village Kair and village Mitraon and prepared the rough site plan of the same. On 24.5.2013, the prosecutrix was produced before the concerned Ld. Magistrate, who recorded her statement u/s.164 Cr.PC wherein the prosecutrix explained that the accused had taken off her jeans inside the car and inserted his urinary organ into her urinary organ. She felt intense pain and shouted. She also stated that accused had been following her for the last about one week and used to remain outside her tuition classes. She also stated that on one occasion, accused had slapped her in the market, upon which her brother had given beating to him, but even then accused did not reform himself.
4. It is further the case of the prosecution that the accused was arrested on 24.5.2013. He was got medically examined and the exhibits given by the doctor were seized by the IO. The accused pointed out the spot of incident where he had assaulted the prosecutrix physically as well as sexually in the Honda Civic Car bearing registration no.HR-26AM-5949 belonging to his friend Anish Bhardwaj. Sh. Anish produced the aforesaid car in the police station on 26.5.2013 and the IO seized a wheel pana, which was lying in the boot of the car. The same was then shown to Dr. Pravinder in RTRM Hospital, who opined that the injuries mentioned in the MLC of the prosecutrix could have been possible by the said weapon. The prosecutrix also appeared in the police station on the same day i.e. 26.5.2013 and identified the aforesaid car to be the same, in which she had been raped by the accused. The car was then taken to FSL Rohini for forensic examination. The statements of the material witnesses were recorded by the IO. All SC No.172/13. Page 3 of 25 the exhibits were sent to FSL for forensic examination.
5. After completion of the investigation, Charge Sheet was prepared and laid before the concerned Ld. Magistrate, who then committed the case to the court of Sessions. Upon committal of the case to the court of Sessions, Charges u/s.365 IPC, u/s.323, u/s.376 and u/s.506 IPC were framed against the accused on 29.8.2013. The accused denied the charges and accordingly trial was held.
6. At trial, the prosecution has examined 14 witnesses to bring home the guilt of the accused. Ld. APP also tendered in evidence the FSL result, which has been marked as Ex.PA, Ex.PB, Ex.PC and Ex.PD. The accused was examined u/s.313 Cr.PC on 24.3.2014 wherein he denied the prosecution case. He stated that in fact, the prosecutrix had given him a call asking him to meet her outside the college on 22.5.2013 and accordingly he had reached there and the prosecutrix sat in the car from the college itself. He further stated that the prosecutrix was in love with him for the last 7 to 8 years i.e. since their school time and they used to meet each other regularly at various places. He further stated that on 22.5.2013, the family members of the prosecutrix came to know that she is in love with him and she was with him on that day and therefore, they pressurized her to lodge a false complaint against him.
7. The accused examined the Nodal Officer of Vodafone Mobile Services Ltd. as DW1, who proved the ownership details and call detail records of mobile nos.8585949452 and 7838855211 SC No.172/13. Page 4 of 25 from 01.4.2013 to 23.5.2013.
8. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire material on record. Needless to say that both Ld. APP and Ld. Counsel for the accused have taken me through oral as well as documentary evidence recorded in this case.
9. Ld. APP submitted that the testimony of the prosecutrix is consistent with her statements recorded during the course of investigation and her version is also corroborated by the testimony of her mother (PW4) and her maternal aunt (PW5). She further submitted that as per the testimony of PW13 Anis Bhardwaj, the Honda Civic Car bearing registration no.HR-26AM-5949 was in the custody of the accused between 21.5.2013 and 23.5.2013. She submitted that there is nothing on record to disbelieve the deposition of the prosecutrix and therefore the accused is liable to be convicted.
10. On the other hand, Ld. Counsel for the accused submitted that there are material variations and contradictions between the testimony of the prosecutrix and her previous statements, which make her an unreliable witness. He further submitted that the prosecutrix has made various improvements in her deposition before this court and therefore, she is not a credible witness. He also submitted that the incident of rape is the imagination of prosecutrix's mind only and in fact, no such incident had taken place. According to him, the prosecutrix had accompanied the accused voluntarily from her college in order to SC No.172/13. Page 5 of 25 spend time with him as both were in love with each other. He submitted that even otherwise also, it is not possible for a man to commit physical assault as well as sexual assault upon a girl in broad day light in a car parked on a public road. According to him, the prosecutrix has lodged a false complaint against the accused on the pressure of her family members and therefore, he is liable to be acquitted. The Ld. Counsel also relied upon the call detail records of mobile no.9711429012 being used by the prosecutrix and mentioned by her in the FIR and 9811531839 being used by the accused to show that regular calls were exchanged between these two mobile numbers on daily basis and therefore, the prosecutrix and the accused were not strangers to each other as claimed by her. The Ld. Counsel also relied upon the call details record of two mobile nos. 8585949452 and 7838855211 and which, according to him, were also being used by the prosecutrix at the relevant time, to show that the calls were exchanged between these two numbers and aforesaid mobile number of the accused on daily basis. The Ld. Counsel also relied upon the FSL results, which shows that no semen was found in the vaginal samples of the prosecutrix, her undergarments seized at the time of her medical examination and the rear seat covers of the Honda Civic car bearing no.HR-26AM-5949. It was the submissions of the Ld. Counsel that the medical evidence as well as forensic evidence also do not support the prosecution case and therefore, the accused is liable to be acquitted.
11. The prosecution has been examined as PW1. She deposed that on 22.5.2013 she had to appear in yearly examination in her college i.e. Bhagini Nivedita College, village SC No.172/13. Page 6 of 25 Mitraon, Najafgarh, New Delhi. After appearing in the examination, when she left college at about 6 p.m., she was accompanied by four girls, who were studying in Ist year B.A. Course. At about 6.15 p.m. they reached upto a bridge on a drain in between their college and village Mitraon. While they were traversing over the bridge, a black colour Honda Civic car came from behind. Accused Sandeep was driving the car. He rolled down the windscreen of his side and called her saying "Pooja stop for a minute". She did not know him but he had been following her for the last five to six days and one day, he had met her in Najafgarh market and had slapped her. However, she ignored him and did not stop. The girls who were accompanying her also heard the voice of accused. They boarded a Maruti Swift car which came by and left. She kept on walking alone. After sometime, the accused stopped his car. He came out of the car and caught hold of her hand and slapped her. Thereafter, he took out the wheel Pana from the boot of the car and hit her with the same all over her body. Then he pulled her inside the car. He rolled up all the windscreens of the car, which were tinted. Then he started the engine of the car and drove towards Mundela village. He had locked the doors of the car. He took the car to some field where he again hit her with the wheel Pana all over her body. He banged her head against the windscreen of the car. Then he took out a roll of black film and hit her with the same also. He hurled abuses upon her and also in the name of her family members. He also threatened her that he would kill her brother and her mother. Thereafter, while inside the car itself, he lowered her jeans and underwear upto the knee level, pulled up her T-shirt upto the level of breasts and also lowered his jeans upto to knee level. Then he committed sexual intercourse SC No.172/13. Page 7 of 25 with her forcibly. The accused then told her not to reveal the incident to anybody. However, soon he added that he does not care for anybody as he is already involved in three criminal cases. He further threatened her that in case he would see her in the company of another person and in case she solemnize the marriage with any other person, he would kill her. Then he took her out of the car and again hit her with the film roll. At that very time, a vehicle came by that road and seeing the headlights of the vehicle, he pushed her into the car again and locked it. It was a motorcycle which came towards them and stopped behind the car of the accused. The accused went upto the motorcycle rider and had some talks with him. The motorcycle rider was about to make a call at telephone no.100 but accused did not permit him to do so and then persuaded him to leave from there. Accordingly, that motorcycle rider left the spot. Accused came back into the car and locked the doors of the car. The accused then started the car and drove upto Issapur More and dropped her there. The accused left in his car. She returned home in a bus and reached there at about 7.30 p.m. Her mother noticed marks and bruises all over my body and asked her what had happened. She did not muster courage to narrate the incident to her and told her that she had fallen to the ground on the way, due to which she suffered injuries. She was not in a position to apprise her mother about her plight and went to sleep straightway. Next morning, she apprised her mother about the incident. Her mother made a call on the mobile number of the accused but accused did not answer the call. After sometime, accused himself called on the mobile phone of her mother. Her mother asked him why he had done so and the accused started abusing her and disconnected the phone. She SC No.172/13. Page 8 of 25 mother made a call to her maternal uncle and narrated the incident to her. Her brother was also in the house of her maternal uncle at that time. Her brother, her two cousins and her maternal aunt reached their home. Thereafter, her mother, her brother and her maternal aunt took her to the police station Jaffarpur. Her maternal uncle also reached the police station. She submitted a written complaint in the police station, which is Ex.PW1/A bearing his signature at point A. From the hospital, she was taken to RTRM Hospital, Jaffarpur, where she was medically examined. Her clothes and her undergarments were taken into possession by the doctor. From the hospital, she was taken to P.S. Baba Haridas Nagar and thereafter, she went to the house of her maternal uncle.
12. She also proved her statement recorded by the Ld. Magistrate u/s.164 Cr.PC as Ex.PW1/B. She further deposed that she had shown the spot of incident to the police officials on 25.5.2013 or 26.5.2013 and IO had prepared the site plan of the spot at her instance, which she proved as Ex.PW1/C. She further deposed that she had identified the Honda Civic car of the accused in P.S. Baba Haridas Nagar, in which she had been abducted and raped by the accused. During the course of her testimony, she was shown a black colour wheel Pana, which she did not identify saying that she was hit by the accused with a white coloured Pana. She identified the Honda Civic car bearing registration no. HR-26AM-5949, in which she had been raped by the accused.
13. In the cross examination, the prosecutrix deposed that she was not on talking terms with the accused before the date of SC No.172/13. Page 9 of 25 incident and she had never talked to him on phone before that date. According to her, she had met the accused on the date of incident for the second time. She had met him for the first time in the market where he had slapped her. She deposed that very less traffic was plying on the road between village Kair and village Mitraon. A motorcycle or a car could be seen after as late as 15 minutes on that road. She admitted that in her complaint Ex.PW1/A and in her statement u/s.164 Cr.PC Ex.PW1/B, she had stated that the accused took her towards village Mundela after committing rape upon her. She deposed that the car of the accused was having black tinted glasses at that time. She further admitted that the car, which she had seen in the court premises on the day of evidence, was not having that much of black tinted glasses. She deposed that she had cried for help when the accused was committing rape upon her but as there was nobody present in the field, nobody came to her rescue. The accused had threatened her that if she tried to resist anywhere, he would beat her mercilessly and would throw her in the nearby well. The accused committed rape upon her on the rear seat of the car. According to her, the mobile no.9711429012 belongs to her mother, the mobile no.8585949452 belongs to her cousin and both these mobile numbers were being used by her mother. She denied that mobile no.7838855211 belongs to her. She denied that the accused was regularly talking to her atleast 20 to 25 times a day on the aforesaid two mobile numbers. She denied that she was already known to the accused before the date of incident and on that day, she had voluntarily accompanied him in the car. She denied that the accused was her schoolmate.
SC No.172/13. Page 10 of 2514. The mother of the prosecutrix Smt. Santosh has been examined as PW4. According to her, the prosecutrix is studying in B.A. IInd year in BMC College, village Kair, Najafgarh. Her elder son named Ravi usually remain sick and hence stays in the house of her brother at village Mohammadpur as she is not in a position to take care of him. She further deposed that on 22.5.2013, the prosecutrix left home at about 10 a.m. to appear in the last examination paper of B.A. IInd year. She returned home at about 7.30 p.m. and appeared to be intensely distressed and under terrorized state. She asked the prosecutrix what the matter was but the prosecutrix did not tell her anything. The clothes of the prosecutrix had been torn at her shoulder and arms. She helped the prosecutrix to change the clothes and found injury marks on her arms, back and legs. The prosecutrix kept on weeping the whole night but did not tell her anything. In the morning, she again asked the prosecutrix what the matter was, but the prosecutrix remained silent that time also. She made a telephonic call to her sister-in-law (Bhabhi) apprising her about the condition of the prosecutrix. Her Bhabhi Sumitra alongwith her two sons and Ravi reached their home. Sumitra made inquiries from the prosecutrix in her presence and the prosecutrix told Sumitra that when she left college after the examination and was walking towards home alongwith some girls, accused Sandeep came from behind in a car and asked her to stop. She first ignored him but the accused stopped the car near her, pulled her into the car, beat her inside the car and then took the car to secluded fields where he raped her. She further deposed that Sumitra made a call to her husband and narrated the incident to him. Thereafter, they took the prosecutrix to P.S. Jaffarpur. From there, prosecutrix was taken to SC No.172/13. Page 11 of 25 RTRM Hospital where her medical examination was conducted. Thereafter they were taken to P.S. Baba Haridas Nagar where her statement also was recorded. She alongwith the prosecutrix had again visited P.S. Baba Haridas Nagar on 26.5.2013, on which date the prosecutrix had identified the car in the police station, in which she had been raped by the accused. It was a black colour car having Haryana registration number with word "Bhardwaj" written in white colour paint on its front windshield. In the cross examination, she reiterated that the prosecutrix was having injury marks on her arms, legs, feet and back and was wearing a T-shirt on that day. She deposed that she was using mobile no. 9711429012. She denied that she knew accused Sandeep already and used to talk to him even before the date of incident. She also denied that the prosecutrix used to talk to the accused from the aforesaid mobile number and that when she became aware about the love affair between her daughter and the accused, she gave beatings to her daughter, as a result of which, she sustained injuries. She denied that the prosecutrix was using mobile nos. 8585949452 and 7838855211.
15. PW5 is Smt. Sumitra, the maternal aunt (Mami) of the prosecutrix. She deposed that in the morning of 23.5.2013, she received a call from Santosh asking her to reach their home immediately as the condition of the prosecutrix was very bad. Accordingly, she alongwith her two sons and Ravi reached the house of Santosh. She found the prosecutrix lying in a bed in her room and weeping bitterly. She also noticed injury marks on her arms and legs. She asked the prosecutrix what the matter was and how did she sustain injuries. Prosecutrix told her in front of her SC No.172/13. Page 12 of 25 mother that the previous day when she was walking home from her college after finishing examination paper, the accused Sandeep came near her in a black colour car and asked her to stop. She was accompanied by some other girls also who immediately ran away. She ignored the call of accused Sandeep but he pulled her inside the car, beat her mercilessly inside the car and then took her to an isolated fields where he raped her inside the car. He also threatened her that if she raised alarm or narrated the incident to anybody, he would kill her by throwing her into the well. Prosecutrix further told her that thereafter accused dropped her at some place on the way and then she came home. After hearing the details of the prosecutrix, she made call to her husband and narrated the incident to him. Thereafter they took the prosecutrix to police station where prosecutrix gave her statement. From the police station, prosecutrix was taken to RTRM Hospital for medical examination. In the cross examination, she reiterated that the prosecutrix was having injury marks all over her feet, arms and back.
16. The MLC of the prosecutrix has been proved as Ex.PW10/A. It shows that there was a contusion present over upper lateral part of her arm 5 cm X 5 cm in size, a contusion present over upper lateral part of both thighs 10 cm X 10 cm in size, multiple abrasions present over the back and abrasion present over the right eyebrow. The gynaecological examination of the prosecutrix was conducted by PW7, who had collected her vaginal swab, pubic hair sample, nail clippings, scalp hair sample, urine sample, vulvul swab, blood sample and anal swab and also took into possession the undergarment as well as other clothings SC No.172/13. Page 13 of 25 of the prosecutrix. She handed over all these to the IO in sealed condition.
17. PW12 is Ld. M.M., who had recorded the statement u/s. 164 Cr.PC of the prosecutrix Ex.PW1/B. She proved her certificate attached to the statement as Ex.PW12/A.
18. PW11 is the Nodal Officer of M/s. Vodafone Mobile Services Limited. He proved the details in respect of mobile no. 9711429012 and 9811531839. As per the records produced by him, mobile no. 9711429012 was allotted in the name of Sh. D.P. Tokas and the mobile no. 9811531839 was allotted in the name of Sh. Satbir Singh, the father of the accused. He proved the call detail records of these two mobile numbers from 15.5.2013 to 23.5.2013 as Ex.PW11/C and Ex.PW11/G respectively alongwith the certificates u/s.65B of the Evidence Act as Ex.PW11/D and Ex.PW11/H respectively.
19. PW13 is Sh. Aneesh Bhardwaj, the friend of the accused and the owner of Honda Civic car bearing registration no.HR-26AM-5949. He deposed that the accused had demanded his aforesaid car on 21.5.2013 for attending a marriage function and accordingly, he handed over the said car to the accused. The accused returned the car to him on 23.5.2013. He further deposed that the said car was later on seized by the police on 26.5.2013.
20. IO ASI Sudesh has appeared as PW14. As per her testimony, the Duty Officer had recorded DD No.25A on 23.5.2013 in her presence and asked her to make inquiries from the SC No.172/13. Page 14 of 25 prosecutrix. The prosecutrix, during inquiry, told her that she has been raped by a person named Sandeep. The prosecutrix handed over to her a written complaint Ex.PW1/A. She took the prosecutrix to RTRM Hospital and got her medically examined. She seized the two sealed pullindas and sample seals given to her by the doctor after medical examination of the prosecutrix. She prepared rukka and got the FIR registered in P.S. Baba Haridas Nagar as the spot of incident fell within the territorial jurisdiction of that police station. Thereafter, the prosecutrix showed her the spot of incident which fell on the road between girls college, Kair and village Mitraon. She prepared site plan of the spot Ex.PW1/C at the instance of the prosecutrix. On 24.5.2013, she produced the prosecutrix before the concerned Ld. M.M. in Dwarka Court, who recorded her statement u/s.164 Cr.PC. On the same day, she arrested the accused in front of Hanuman Mandir in Baba Haridas Nagar vide arrest memo Ex.PW14/B. She recorded his disclosure statement as Ex.PW14/D. She got the accused medically examined. She summoned the accused's friend Aneesh to police station on 26.5.2013 alongwith her Honda Civic car. On that day, the prosecutrix also came to the police station alongwith her mother and identified the said car by the word "Bhardwaj" written in white colour on a black strip on its front windscreen. She seized the car vide memo Ex.PW14/G. She took out a Pana from the boot of the car, which also was identified by the prosecutrix to be the same, with which the accused had hit her and seized it vide memo Ex.PW13/A. She had later on sent the Honda Civic car to FSL Rohini for forensic examination. She also sent all the exhibits of the case to FSL on various dates.
SC No.172/13. Page 15 of 2521. DW1 is the Nodal Officer from M/s. Vodafone Mobile Services Limited and proved the call detail records regarding mobile no.8585949452 and 7838855211. As per the record produced by him, mobile no.8585949452 was allotted in the name of Ashwani Tokas and mobile no.7838855211 was allotted in the name of one Sunil. She proved the call detail records of these two mobile numbers from 01.4.2013 to 23.5.2013 as Ex.DW1/B and Ex.DW1/E respectively alongwith certificates u/s.65B of the Evidence Act as Ex.DW1/C and Ex.DW1/F respectively.
22. Ex.PA is the FSL result in respect of cold drink bottle alongwith its contents and a strip of 15 omeprazole capsules which had been seized from the boot of the Honda Civic car by the IO. It shows that no poison or tranquilizer could be detected in the cold drink.
23. Ex.PB is the report of Seema Nain, Sr. Scientific Officer (Biology), FSL, Rohini, in respect of inspection of Honda Civic car bearing registration no.HR-26AM-5949. As per the report, blood could not be detected in the said car. She took three suspected dirty cuttings from the seat of the car for semen examination and handed over the same to the IO to be forwarded to the FSL for further examination.
24. Ex.PC is the FSL result in respect of pubic hairs, scalp hair, nail clippings, vaginal swab, anal swab, urine samples, vulvul swab, brassier, underwear, Kurta, Sameez and jeans pant of the prosecutrix and it shows that the semen or blood could not be detected on any of these.
SC No.172/13. Page 16 of 2525. Ex.PD is the FSL result in respect of the three suspected dirty cuttings taken from the back seat of the Honda Civic car and the T-shirt underwear and one sock lifted from its boot by Dr. Seema Nain. As per the report, neither blood nor semen could be detected on any of these.
26. Before analyzing the evidence led by the prosecution, I may note that in cases involving the offence of rape, the testimony of prosecutrix is the most vital and material piece of evidence. Her statement if found to be worthy of credence and reliable, requires no corroboration and court may convict the accused on her sole testimony. A prosecutrix of sex offence cannot be put on par with an accomplice. She is in fact a victim of crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtable and competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. In case involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. While evaluating evidence, the court must remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour. At the same time, it is SC No.172/13. Page 17 of 25 also settled position that if for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in case of an accomplice. If the court of facts finds it difficult to accept the version of the prosecutrix at its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. (See- State of Maharashtra vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658, State of U.P. vs. Pappu @ Yunus and anr., AIR 2005 SC 1248, State of Punjab vs. Gurmit Singh and Ors., AIR 1966 SC 1393).
27. In the instant case, it is evident that the testimony of the prosecutrix before this court is consistent with her statements recorded during the course of investigation and she has not made any significant departure from those statements. Her testimony does not suffer from any kind of embellishments or prevarications. I do not find anything in her testimony to suggest that she is not a credible and trustworthy witness. Nothing contrary to the prosecution case has been elicited in her cross examination. It is her consistent statement right since the lodging of FIR that accused Sandeep way laid her in Honda Civic car bearing registration no.HR-26AM-5949 on 22.5.2013, when she was returning home on foot after appearing in the examination paper in her college in village Kair and the accused pulled her inside the car, beat her with a wheel Pana, issued threats to her and committed rape upon her inside the car. He also threatened her that he would kill her in case he would see her in the company of any other person or in case she solemnized marriage with any SC No.172/13. Page 18 of 25 other person.
28. The deposition of the prosecutrix finds corroboration from the testimonies of PW4 and PW5, her mother and her maternal aunt. Ld. Counsel for the accused has failed to point out any contradiction between the deposition of prosecutrix and that of PW4 as well as PW5. I see no reason to doubt the deposition of PW4 & PW5. Their testimony is in sync with that of the prosecutrix and they seem to be truthful witnesses.
29. The medical evidence also supports the prosecution case. As already noted hereinabove, the MLC of the prosecutrix Ex.PW10/A shows that the contusions and abrasions were found on her arms, thighs, back and eyebrow. These findings confirm the version of the prosecutrix that she was beaten by the accused by a wheel Pana before being raped. PW4 & PW5 have also deposed that they noticed injury marks on the arms, back and legs of the prosecutrix. PW4, the mother of the prosecutrix, was the first person to see her when she returned home after the incident. She has very clearly mentioned in her examination in chief and also reiterated in her cross examination that the prosecutrix was having injury marks on her arms, legs and back. PW5 had the occasion to see the prosecutrix on the subsequent day after the day of incident and she also noticed injury marks on her arms and legs.
30. It is therefore proved beyond doubt that the prosecutrix had suffered injuries all over her body on 22.5.2013. Accused has admitted in his statement u/s.313 Cr.PC that the SC No.172/13. Page 19 of 25 prosecutrix had boarded his car from her college on 22.5.2013 and thereafter she was with him. Therefore, it was for the accused to explain how and in what circumstances did the prosecutrix suffer injuries all over her body. The alibi put forward by the accused that the prosecutrix had sustained injuries on account of beatings given to her by her mother when she had become aware about the love affair of prosecutrix with him, does not seem to be convincing and believable. It has not been put to the prosecutrix in her cross examination that she suffered injuries on account of beatings given to her by her mother, when she had clearly reiterated in her cross examination also that she had received injuries all over her body on account of beatings given by the accused. A suggestion in this regard has been given to PW4 in her cross examination which she has denied.
31. In the absence of any convincing evidence to the contrary on record, it is manifest beyond doubt that the accused had beaten the prosecutrix severely with a wheel Pana, on account of which she sustained injuries all over her body. In view of the same, the contentions of the accused that the prosecutrix had voluntarily boarded his car from her college gets falsified for the reason that if the meeting between the two was peaceful, as suggest by the accused, there was no occasion for the accused to beat her. The conduct of the accused in giving severe beatings to the prosecutrix supports the version of the prosecutrix that she was pulled inside the car forcibly by the accused and raped there. Apparently, it seems that the accused had beaten the prosecutrix in order to terrorize her so that she does not raise any alarm and would not be in a position to offer any resistance to his evil acts.
SC No.172/13. Page 20 of 2532. It cannot be disputed that there is a delay of about one day in reporting the matter to police. The incident had taken place on 22.5.2013 whereas the FIR has been registered on 23.5.2013. However, I feel that the prosecution has explained the delay satisfactorily. The prosecutrix has deposed that the accused had threatened her not to reveal the incident to anybody. He also terrorized her further by saying that he is already involved in three criminal cases and also issued threats to her that he would kill her if he see her in the company of any other person or in case she solemnize marriage with any other person. The aforementioned statement and threats of the accused are sufficient to create immense fear in the mind of any girl, who has been victim of rape and in such circumstances, no victim can be supposed to reveal her ordeals to anybody. It has been deposed by PW4 that the prosecutrix did not tell her how she sustained injuries despite her repeated questioning and only kept on weeping the whole night. This amply demonstrates the trauma and terror, which the prosecutrix was having in her mind and she cannot be blamed for not disclosing the incident to her mother immediately on her returning home. It appears that when the prosecutrix saw her maternal aunt (PW5), her two cousins and her brother in the house, she must have felt comfortable to some extent and mustered courage by narrating the incident to PW5. Thus the delay of one day is absolutely justified in this case and it does not dent the prosecution case in any manner.
33. The accused in his defence has proved the call detail records of mobile nos.8585949452 and 7838855211, which have SC No.172/13. Page 21 of 25 been allotted in the name of Ashwani Tokas and Sunil respectively vide customer application forms Ex.DW1/A and Ex.DW1/D respectively. The prosecutrix has deposed in her cross examination that mobile no. 7838855211 does not belong to her. Therefore, it cannot be said that this mobile number was being used by the prosecutrix. This mobile number has not been allotted in her name and there is no evidence on record that it was being used by her. So far as the mobile no. 8585949452 is concerned, the prosecutrix has admitted in her cross examination that it belongs to her cousin i.e. the son of her maternal uncle. Perusal of the call detail records of this mobile number Ex.DW1/B shows that no call was made from this mobile number on the mobile no. 9811531839 of the accused or received from the said mobile number of the accused. Therefore, the call detail records of this mobile number do not advance the case of the accused at all.
34. It is admitted case of the prosecution that the mobile no. 9711429012 was being used by the prosecutrix. The prosecutrix has admitted in her cross examination that this mobile number belongs to her mother. The call detail records of the same from 15.5.2013 to 23.5.2013 have been proved as Ex.PW11/C which shows that several calls had been received on this mobile number from mobile no.9811531839 of the accused during the aforesaid period. However, no call or SMS has been exchanged between these two mobile numbers on the date of incident i.e. 22.5.2013. This falsifies the contention of the accused in his statement u/s.161 Cr.PC that the prosecutrix had given him a call on that day asking him to meet her outside the college. The aforesaid CDR Ex.PW11/C further shows that four calls had been SC No.172/13. Page 22 of 25 made from mobile number of the accused 9811531839 upon the aforesaid mobile number of the prosecutrix 9711429012 on 23.5.2013 at 8 a.m., 8.41 a.m., 9.07 a.m. and 1.44 p.m. respectively. This supports the deposition of the prosecutrix that on hearing about the rape incident, her mother made a call to accused but he did not take the call and later on called back on her mother's mobile phone.
35. The aforenoted call detail records of the mobile no. 9711429012 of the prosecutrix Ex.DW1/A demonstrate that she was on talking terms with the accused even before the date of incident and the accused was not a complete stranger to her but that cannot be taken to mean that the accused had not beaten and raped the prosecutrix on the date of incident. It is noteworthy that all the calls were made by the accused on the mobile number 9711429012 of the prosecutrix's mother and no call had originated from no. 9711429012. It also needs note that as per deposition of prosecutrix, accused had been stalking her for about a week before the date of incident. Therefore, in my opinion, the calls made by accused to the prosecutrix do not, in any way, dent the prosecution case.
36. There appears to be a minor discrepancy in the testimony of the prosecutrix wherein she states that the accused after pulling her inside the car drove it towards Mundela village, took it to a field where he again beat her and raped her inside the car, whereas in FIR as well as in the statement u/s.164 Cr.PC Ex.PW1/B she has stated that the accused drove the car towards village Issapur after the commission of rape upon her inside the SC No.172/13. Page 23 of 25 car. In my opinion, the said discrepancy is too trivial to be taken seriously and it is not of fatal nature. The site plan Ex.PW1/C prepared by the IO at the instance of the prosecution also shows that she was raped by the accused on the road between village Kair and village Mitraon. It has been held by the Supreme Court in various judgments right since the judgment delivered in State of Punjab vs. Gurmeet Singh, AIR 1996 SC 1393 that in cases involving sexual molestation supposed considerations, which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise, reliable prosecution case.
37. Much weight was given by the Ld. Counsel for the accused to the FSL result to contend that the prosecutrix was not subjected to rape on the date and time as stated by the prosecution. It was submitted that if in fact, the prosecutrix had been subjected to intercourse on the given date and at given time, semen could have been found in her vaginal swab or undergarments or on the rear seat covers of the Honda Civic car, on which she is stated to have been raped. As already noted in the foregoing paragraphs of this judgment, no blood or semen was detected on any of the samples of the prosecutrix including her undergarments as also the rear seat covers of the Honda Civic car. In my considered opinion, the absence of semen or spermatozoa in the vaginal smear or slide does not cast any doubt on the creditworthiness of the prosecutrix when her deposition has remained uncontroverted. As observed by the Supreme Court in State of Himachal Pradesh vs. Lekh Raj and another, AIR SC No.172/13. Page 24 of 25 1999 SC 3916, the presence or absence of spermatozoa is ascertained for the purpose of corroboration of the statement of the prosecutrix. If the prosecutrix is believed to be truthful witness, no further corroboration is to be insisted upon. Corroboration is only a rule of prudence. In the case at hand, not only has the prosecutrix been held to be a credible and trustworthy witness but also her testimony finds corroboration from that of PW4 & PW5 as well as from her MLC Ex.PW10/A. Therefore, even if no semen at spermatozoa was detected in her vaginal swab or undergarment or on the rear seat covers of the car, it does not create any doubt in the prosecution case.
38. In the light of aforesaid discussion, it is amply clear that the prosecution has proved the guilt of the accused beyond any reasonable doubt and the accused is liable to be convicted.
39. Thus the accused is hereby convicted for having committed the offences punishable u/s.365 IPC, u/s.323 IPC, u/s. 376 IPC and u/s.506 IPC.
Announced in open (VIRENDER BHAT)
Court on 21.5.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
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