Delhi District Court
State vs . Raju @ Kaju. on 19 March, 2012
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL
SESSIONS JUDGE: (EAST) FTC, E-COURT : KARKARDOOMA
COURTS: DELHI.
SESSIONS CASE No. 35/11
FIR No. 15/11
U/S: 376/279/342/506 IPC
PS Kalyan Puri
State Vs. Raju @ Kaju.
S/o late Sh. Dharam Pal Singh,
R/o 18/7, Kalyan Puri,
Delhi.
Date of Institution : 06.05.2011
Date of Arguments : 06.03.2012
Date of Judgment : 19.03.2012
JUDGMENT
1. The prosecution case is that on 09.01.2011, an information was received at Police Station Kalyan Puri regarding a rape near Kalyan Vaas Mother Dairy. This information was recorded vide DD No. 34-A. On receipt of DD No. 34-A, SI Raj Kumar went to LBS Hospital where ASI Shyam Lal and Constable Kiran met him and produced the MLC of prosecutrix "U" (name withheld). On enquiry, prosecutrix informed SI Raj Kumar that she was raped by Raju @ Kaju. Her statement was recorded wherein FIR No. 15/11 Page 1 of 15 she stated that on 09.01.2011 at about 6.30 pm, she had gone to Kalyanva Mother Dairy to buy milk. Raju @ Kaju came with his car and forcibly made her sit in the car after showing knife and then raped her. On hearing her noise, people gathered at the spot and then Raju @ Kaju sped away his car. Suddenly, a vehicle came from the opposite side due to which the car became imbalanced and turned turtle and she fell down. She was then rushed to hospital by the PCR van. SI Raj Kumar informed Rape Crisis Cell and took the prosecutrix and her husband Mukesh and Lady Constable Poonam to LBS Hospital for detailed gynae examination but the prosecutrix refused her internal examination. DD No. 34-A was kept pending. On 10.01.2011, enquiry was made from the prosecutrix and FIR was registered. After registration of the FIR, investigation was take up by ASI Saubhagya Wati. She prepared the site plan, arrested the accused and got conducted his medical examination. The car was seized and was got checked through FSL team. The exhibits were sent to FSL. On completion of investigation, charge sheet was prepared under Section 279/342/376/506 IPC and under Section 3/181 M.V. Act
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 366/376 IPC was framed against the accused to which he pleaded not guilty.
FIR No. 15/11 Page 2 of 153. In order to prove its case, prosecution examined 12 witnesses. PW-1 is prosecutrix "U". She proved her statement Exbt. PW-1/A. She identified the accused. She stated that site plan Exbt. PW-1/D was prepared by the IO at her instance.
PW-2 is ASI Sukhdev, Duty Officer. He proved the FIR Exbt. PW-2/A. PW-3 is Dr. O.S. Tomar. He had examined the prosecutrix on 09.01.2011 and had also examined the accused on 10.01.2011. He proved their MLCs as Exbt. PW-3/A and Exbt. PW-3/B respectively.
PW-4 is HC Dharmender Kumar. He had recorded DD No. 34-A Exbt. PW-4/A. PW-5 is Dr. Archana from Gynae Department. She proved the second MLC of the prosecutrix which is Exbt. PW-5/A. PW-6 is Nawab Singh, Assistant Ambulance Officer, CAT. He deposed that on 09.01.2011 at about 7.00 pm on receipt FIR No. 15/11 Page 3 of 15 of a call regarding an incident at Mayur Vihar Phase-II bus stand, he reached there and found that a Baleno car was standing being surrounded by 20-25 persons and a PCR was also present at the spot. He found the prosecutrix sitting on the rear seat of the car and she had complained of having sustained injuries. He took the prosecutrix to LBS Hospital in the CATS Amabulance.
PW-7 is Sh. B.S. Rana. He deposed that accused Raju @ Kaju was driver of his company and that on 09.01.2011, he was driving Maruti Baleno car No. DL1Z-1878. He stated that the vehicle remained with the accused for the entire day on 09.01.2011.
PW-8 is ASI Shyam Lal. He stated that on 09.01.2011 on receipt of DD No. 34-A, he along with Lady Constable Kiran reached at the spot i.e. Kalyan Vaas and from there, he came to know that injured had been taken to LBS Hospital. He then went to LBS Hospital and collected the MLC of prosecutrix "U". On the arrival of SI Raj Kumar at the hospital, he handed over her MLC to him.
PW-9 is Constable Satbir. He is the witness of investigation. He assisted SI Raj Kumar and ASI Saubhagya Wati FIR No. 15/11 Page 4 of 15 in the investigation of the case. He is the witness of arrest of accused and the seizure of exhibits and Baleno car.
PW-10 is Dr. Vinay Kumar Singh from LBS Hospital. He had examined the accused and gave the opinion that there was nothing to suggest that accused was incapable to perform sexual intercourse. His report is Exbt. PW-10/A. PW-11 is ASI Saubhagya Wati. She is the Second IO. The investigation of the case was entrusted to her after the registration of the FIR. During investigation, she sent the prosecutrix to hospital through Constable Poonam for her medical examination. She then prepared the site plan Exbt. PW-1/D at the instance of the prosecutrix. She had seized the car vide memo Exbt. PW-9/PX2 from the room in front of RSV School, Pandav Nagar. She further stated that while she was returning to the police station, she found accused standing near the gate of the police station and on the identification of the prosecutrix, he was arrested vide arrest memo Exbt. PW-1/B and his personal search was taken vide memo Exbt. PW-1/C. She had also seized the pullandas given to her by Constable Satbir vide memo Exbt. PW- 9/PX1.
FIR No. 15/11 Page 5 of 15PW-12 is SI Raj Kumar, first IO. He stated that after giving information to Rape Crisis Cell, he along with Lady Constable Poonam took prosecutrix to the hospital again for medical examination but she refused her internal examination and on the next day in the presence of a co-ordinator of Rape Crises Cell, prosecutrix was again asked about the facts of the case and she gave the statement on which, he prepared the rukka and sent the same at police station for the registration of the FIR.
4. Statement of accused was recorded under Section 313 Cr. PC wherein he stated that he is innocent and has been falsely implicated in the present case.
5. In his defence, accused examined DW-1 HC Pramod Kumar who produced Roznamcha for the period 15.08.2010 to 30.08.2010 containing DD No. 52, copy of which is Exbt. DW-1/A.
6. Arguments have been heard from Mohd. Iqrar, APP and Sh. Naveen Singhla, advocate for accused. The learned defence counsel has argued that there is a delay in the registration of the FIR for which there is no justified explanation. The testimony of prosecutrix is not trustworthy and finds no corroboration from the medical or forensic evidence. It is argued that prosecution has FIR No. 15/11 Page 6 of 15 failed to prove its case against the accused beyond doubt. The learned APP, however, has argued that in a rape case, delay in the registration of the FIR is not fatal. It is further submitted that accused can be convicted on the basis of uncorroborated testimony of the prosecutrix and corroboration is not essential for holding the accused guilty.
7. In a case under Section 366 & 376 IPC, the age of the prosecutrix is very vital. Admittedly, the prosecutrix in this case is a lady aged about 25 years having four children and therefore she had attained the age of majority.
8. In the present case, there are two MLC of the prosecutrix on record. The first MLC Exbt. PW-3/A was prepared after the prosecutrix was brought to LBS Hospital at 7.15 pm but the alleged history recorded in the said MLC is of road traffic accident. There is no history of commission of rape in the MLC Exbt. PW-3/ A. Dr. O.S. Tomar who proved the MLC Exbt. PW-3/A stated in cross examination that the history on MLC Exbt. PW-3/A was given by patient herself and at that time, she was fully conscious and oriented. Thus, the first version given by the prosecutrix before the doctor is that it was a case of road traffic accident and no history of rape was given.
FIR No. 15/11 Page 7 of 159. The second MLC Exbt. PW-5/A of the prosecutrix was prepared after 11.50 pm when she was brought back to the hospital by the police. The second MLC records the alleged history of rape by known person. As per MLC Exbt. PW-5/A, prosecutrix refused to get her internal examination conducted. In her testimony, prosecutrix "U" (PW-1) tried to give explanation for refusal by stating that she had refused her internal examination at the asking of SI Raj Kumar as he was in a hurry. When asked in cross examination, SI Raj Kumar stated that he had not asked the prosecutrix to refuse her internal examination. In cross examination, prosecutrix admits that her husband was present with her at the time when she refused for her internal examination. The signatures of the husband of prosecutrix are also there on the MLC Exbt. PW-5/A underneath the endorsement of refusal for internal examination by the prosecutrix. Thus prosecutrix was not alone in the hospital and therefore the chances of her getting pressurized are very bleak. Moreover, there is no reason why the IO would pressurize the prosecutrix for not getting her internal examination done.
10. No vaginal swab of the prosecutrix was taken. The clothes of the prosecutrix were also not seized. The seat cuttings of the car were sent for semen analysis but the FSL report has remained inconclusive. The report does not confirm the presence FIR No. 15/11 Page 8 of 15 of semen on the car seat. Thus, the medical and forensic evidence is not supporting the version given by the prosecutrix.
11. The court is conscious that it is a settled legal position that even an uncorroborated testimony of the prosecutrix can be held to be sufficient to sustain conviction of an accused of rape but then such testimony should be unflinching, consistent and infallible and inspire confidence of the court to believe her version. However, where such sole testimony of the prosecutrix is inconsistent then the same by itself cannot be relied upon unless it is corroborated by the other circumstantial evidence including medical evidence, otherwise it will be difficult for the court to sustain conviction for the offence of rape. Before dwelling any further, it would be appropriate to deal with the testimony given by the prosecutrix.
12. Prosecutrix in her testimony as PW-1 deposed that on 9th January at about 6.30 am, she was going to Kalyan Vaas to buy milk. Accused was standing there with his Baleno car. He showed her the knife and forcibly pushed her in the vehicle and then sped up the vehicle and took it at an isolated place and after removing her salwar, he raped her. In her statement Exbt. PW-1/A, prosecutrix stated that when she was going to Mother Dairy Kalyan Vaas, suddenly accused Raju brought his car and showed FIR No. 15/11 Page 9 of 15 her knife.
13. While in her examination in chief, prosecutrix stated that accused was already standing there with his Baleno car, in cross examination she stated that accused was not already standing there but reached there in his vehicle. In her statement Exbt. PW- 1/A to the police, prosecutrix stated that after forcibly pushing her in the car, accused forcibly raped her but in her testimony in court, prosecutrix stated that accused sped up the vehicle and took it at an isolated place where she was raped. Thus, she has changed the place of commission of rape. Prosecutrix deposed that vehicle overturned in front of Neelam Mata Mandir but IO ASI Saubhagya Wati denied that the car had overturned. In this regard, it is also useful to mention that no public person, who may have witnessed the accident, were either cited or examined by the police.
14. Prosecutrix deposed that a chowkidar came there and started beating the glass of the vehicle but there is no mention in the statement Exbt. PW-1/A that any chowkidar had reached there. The police has also not cited or examined any chowkidar in this case. In her testimony, PW-1 deposed that chowkidar hit the front window glass of the vehicle due to which, glass broke from the center but in cross examination, she stated that chowkidar had broken the left rear glass of the car. She deposed that she FIR No. 15/11 Page 10 of 15 became unconscious and regained her consciousness at LBS Hospital but PW-6 Nawab Singh, Assistant Ambulance Officer, CATS, who rushed her to the hospital, stated that the prosecutrix was conscious. The first MLC Exbt. PW-3/A also shows that the prosecutrix was fully conscious and oriented. Prosecutrix deposed that she was discharged from the hospital at 1.00 am and that on the next day, she was again called at the hospital where she was medically examined. Thus, if the testimony of PW-1 is to be believed, she was discharged from the hospital for the first time at 1.00 am but SI Raj Kumar stated that he had brought the prosecutrix to the police station from the hospital at 10.30 pm.
15. According to the prosecutrix, after she regained her consciousness at LBS Hospital, her statement Exbt. PW-1/A was recorded by the police but if the testimony of SI Raj Kumar is to be believed, her statement was recorded on the next day in the presence of coordinator of Rape Crises Cell. Prosecutrix stated that after her discharge from the hospital, she was again called the next day at the hospital and was got medically examined but as per Exbt. PW-5/A, the second MLC was also prepared on the same day i.e. 09.01.2011 at 11.50 pm. In cross examination, prosecutrix denied that after the first MLC, she went to the police station and then returned back to LBS Hospital at 11.50 pm. FIR No. 15/11 Page 11 of 15
16. In the MLC Exbt. PW-3/A, only one abrasion of 1 cms x .2 cms has been found on the upper part of the left leg of the prosecutrix. No other external injury was found. The second MLC Exbt. PW-5/A which was prepared only after few hours, does not show even the abrasion, what to speak of any other external injury. Prosecutrix admits that she was fully conscious at the time when the doctor treated her for the first time. If the prosecutrix had been raped, it is but natural that she would have stated so before the doctor.
17. Thus, it is evident that the testimony of prosecutrix is not such that would inspire confidence. Besides this, there are also other inconsistencies in the prosecution case. SI Raj Kumar deposed that he had recorded the statement of prosecutrix next day i.e. 10.01.2011 but Exbt. PW-1/A is dated 09.10.2011. ASI Saubhagya Wati deposed that on 10.01.2011 at about 9.30 am, she was called at the police station and investigation was entrusted to her and that SI Raj Kumar handed over the rukka and copy of FIR to her but the endorsement on the rukka shows that it was prepared at 2.45 pm on 10.01.2011. If that is so, how the copy of FIR could have been delivered to ASI Saubhagya Wati at 9.30 am on 10.01.2011.
18. There is also considerable delay in the registration of the FIR No. 15/11 Page 12 of 15 FIR. The alleged incident occurred on 09.01.2011 at 6.30 pm. SI Raj Kumar deposed that when he reached at the hospital, prosecutrix had made allegations of rape before him. There is no explanation why the statement of prorsecutrix was not recorded then and there and why DD entry was kept pending till the next day upto 2.45 pm. In a rape case, delay in registration of the FIR is not fatal in cases where prosecutrix or her family members are reluctant to report the matter to police which concerns the reputation of the prosecutrix and the honour of her family, however, in the present case, according to SI Raj Kumar, prosecutrix had complained of rape to him on 09.01.2011 itself when he met her in LBS Hospital. Still neither her statement was recorded on that day nor the FIR was registered. Thus, the delay in the registration of the FIR smells of manipulation.
19. Accused has taken the defence that prosecutrix had a liking for him and wanted to run away with him and her husband suspected that she was having illicit relations with accused and when accused refused to run away with her, she got him falsely implicated in the present case. In order to prove his defence, accused proved DD No. 52 dated 21.08.2010 of PS Pandav Nagar which shows that the husband of prosecutrix had suspected that she was having illicit relations with the accused. Thus, the possibility that prosecutrix while going with accused in FIR No. 15/11 Page 13 of 15 his car, met with an accident and to save her honour, got the accused falsely implicated, cannot be ruled out. Accused has also taken the defence that prosecutrix and her husband and his two friends had called him at Mother Dairy where he was beaten up with dandas due to which, he sustained injuries on his person and to save himself, he ran away from there in his car and on the way, his car met with an accident and when he went to the police station to lodge a complaint against the prosecutrix and her husband, instead of taking action against the prosecutrix and her husband, the police detained him at the police station. The defence taken by the accused is proved from the cross examination of PW-1 Urmila who deposed that accused met her in the police station on 10.01.2011 in the morning time although, as per arrest memo, he was arrested on 10.01.2011 at 5.00 pm. Thus, it appears probable that accused was detained at the police station since 09.01.2011 when he went there to make a complaint and was arrested on the next day at 5.00 pm.
20. Hence, in view of my aforesaid discussion, I find that the testimony of prosecutrix does not inspire confidence, her testimony does not find any support or corroboration from the medical or forensic evidence, there is delay in the registration of the FIR and therefore under these facts and circumstances, in my opinion, it shall be highly unsafe to convict the accused on the FIR No. 15/11 Page 14 of 15 basis of sole testimony of the prosecutrix. I accordingly give benefit of doubt to the accused. He is acquitted,. His bail bond is cancelled. Surety is discharged. He is directed to furnish a bond in the sum of Rs. 10000/- with surety of the like amount for a period of six months under Section 437-A Cr. PC. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL.SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI.
ANNOUNCED IN THE OPEN COURT ON 19.03.2012.
FIR No. 15/11 Page 15 of 15