Delhi District Court
State vs Laxman Prasad Rai on 10 December, 2014
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 05/2013
Unique ID No. : 02401R0432832012
State versus Laxman Prasad Rai
S/o Sh.Chakkar Dhar Rai
R/o E367B, Greater KailashI,
Delhi.
Case arising out of:
FIR No. : 292/2011
Police Station : Sarai Rohilla
Under Section : 342/376(2)(G) & 506/34 IPC
Judgment reserved on : 29.11.2014
Judgment pronounced on : 10.12.2014
JUDGMENT
CASE OF THE PROSECUTION:
1. The case in hand has been registered on the basis of statement dated 18.08.2011 made by the Prosecutrix 'P' (name withheld in order to protect her identity) wherein she has stated that she is a permanent resident of Balampur Distt. Sant Kabir Nagar, UP and had studied up to Class VII.
She also stated that her family comprises of her mother and brother Mithilesh, who used to work as Mason at Delhi for the last 45 years. She further stated in her complaint that about one year back her brother had brought her to Delhi and got her employed at the residence of accused Laxman Prasad Rai at E367B, PartI, Delhi at a monthly salary of Rs. 3000/. The complainant used to do the work of maid at the house of the accused. The Prosecutrix further stated in her complaint that the accused had two wives namely Reena Rai and Ruchi Jha, who had a quarrel about one month ago and accused shifted Ruchi Jha at House No.779, Vaishali, Sector3, Ghaziabad, UP and had also deployed the Prosecutrix along with her and the Prosecutrix started living there and used to work at a maid.
2. Prosecutrix 'P' further alleged in her complaint that on 17.08.2011, the accused took her from Vaishali in his car to his another house at Sarai Rohilla and asked her to clean that house as the same was lying closed for a long period of time. The accused also picked up two persons from Vaishali in his car by introducing them as his friends and told her that they are also going to Sarai Rohilla.
3. She further stated that after reaching at H.No.19/20/1, West Moti Bagh, Sarai Rohilla at about 10 PM, the lock of the ground floor of the said premises was opened and she cleaned the said floor. After some time accused Laxman Prashad Rai and his friends came inside the house and asked her to bring water. Prosecutrix brought the water and also drank one glass of water out of it. After consuming the same, she felt giddy and that accused Laxman Prashad Rai caught hold of her and asked her to take off her clothes. Out of fear and under the state of intoxication, Prosecution took off all her clothes. Thereafter, accused Laxman Prashad Rai committed rape upon her against her wishes. Complainant further alleged in her complaint that thereafter the other two friends of the accused had also committed rape upon her one by one and she lost her consciousness.
4. Prosecutrix 'P' further stated in her complaint that on 18.08.2011 at about 9 AM, accused Laxman Prasad Rai asked her to wear her clothes and threatened her not to disclose this incident to anyone otherwise she would be killed. She was then taken by the accused and one of his friend in the car and after leaving her at Shastri Nagar Metro Station, they left from there. Complainant also stated in her complaint that she can identify those other two friends if shown to her.
5. Prosecutrix was got medically examined vide MLC No. 5696/11 dated 18.08.2011. During the course of investigation, statement of Prosecutrix was recorded under Section 161 Cr.PC and another statement under Section 164 Cr.PC was recorded before the learned MM. Charge sheet further reveals that during the course of investigation, the Prosecutrix initially pointed out the wrong place as scene of crime i.e. 19/20, West Moti Bagh, Sarai Rohilla, Delhi, but later she correctly pointed out the scene of crime i.e. 19/20/1, West Moti Bagh, Sarai Rohilla, Delhi. The same was inspected by the Crime Team and site plan and pointing out memo was also prepared.
6. As per the charge sheet Ruchi Jha came to the PS and introduced herself to be the second wife of accused Laxman Prashad Rai and further stated that she has got registered two other cases against the accused at PS Neb Sarai and Gazipur. Her statement under Section 161 Cr.PC was also recorded.
7. Accused Laxman Prasad Rai came to the PS on 20.09.2011 and joined in the investigation. He was produced before the learned MM and was also medically examined at Hindu Rao Hospital vide MLC No. 6563/11 and the exhibits so collected from the hospital were sent to the FSL for opinion and consequent upon receipt of its result on 28.06.2012, accused Laxman Prasad was called to the PS and upon interrogation, he was arrested on 04.07.2012. During the course of further investigation it transpired that two other coaccused were also mentioned by the Prosecutrix in her complaint. But, due to nonavailability of Prosecutrix on account of her incomplete residential/native address, their whereabouts could not be ascertained. However, upon completion of investigation qua accused Laxman Prasad Rai, charge sheet was filed before the court. CHARGES:
8. After committal of case, on the basis of material on record, Accused Laxman Prasad Rai was charged for offence under Section 376 (2)(G)/342 and Section 506/34 IPC vide order dated 15.10.2012. Accused pleaded not guilty and claimed trial when the charge was read over and explained to him.
PROSECUTION EVIDENCE:
9. In order to bring home the guilt of Accused, Prosecution examined as many as Eighteen [18] witnesses on record. For the sake of convenience they are categorized as follows:
Public Witnesses :
10. First and foremost, it is relevant to discuss the testimony of the Prosecutrix 'P', at whose complaint instant case has been registered. Upon stepping into the witness box as PW1, Prosecutrix 'P' deposed that she had studied upto VI standard and was residing at Distt. Sant Kabir Nagar, Uttar Pradesh along with her mother, Bhabhi and her children and that her brother Mitlesh was employed at farm house at Delhi of accused prior to 12 years of date of incident. She correctly identified the accused in the court and further deposed that her brother talked to accused about some job for her. At this, accused told her brother that he can call her to Delhi and will get her employed in his house as a maid.
11. She further deposed that in the year 2011, on the asking of her brother, she came to Delhi and was taken to the house of accused in Greater Kailash. She was also informed by her brother that she have been employed as a house maid at salary of Rs. 3000/ per month. Initially, she came to know that Accused Laxman Prasad was having two wives namely Reena Rai and Ruchi Jha. Later on, she came to know that Ruchi Jha was not married to the accused and that he was residing in that house in Greater Kailash along with his wife Reena Rai and his three children i.e two daughters and one son.
12. Prosecutrix 'P' further deposed that after about two months, accused started doing 'galatkaam' with her whenever his wife used to go out of the house. Upon being asked as to what does she meant by 'galat kaam', she replied that Accused used to force her to take off her clothes and also used to take off his clothes and thereafter, raped her. Whenever she tried to refused, he used to slap her and threatened to kill her.
13. PW1 also deposed that when the accused raped her for the first time at his house at Greater Kailash, she was bleeding profusely from her private parts and whenever she tried to complain about the acts of accused to his wife, she failed to take any action or to even say anything to the accused. Rather, his wife used to deliberately go away. 'Woh bhi usshe mili hui thi'. Accused used to threaten to kill her, in case she tried to refuse for his acts and also used to say that he knows many influential people and that she will not be able to do anything.
14. PW1 also deposed that on two occasions, after one month from the first incident, accused Laxman Prasad Rai brought two other persons to his house at Greater Kailash. At that time, Reena Rai had gone out of the house for marketing. The said two persons along with accused Laxman Prasad Rai raped her in the said house at Greater Kailash on two occasions and that she can identify the said two persons, if shown to her. She also deposed that Accused Laxman Prasad Rai used to confine her in the house and she was not permitted to leave the house.
15. She remained in the house at Greater Kailash for about 06 months. Thereafter, accused told her that his second wife, Ruchi Jha is living in a house at Vaishali, Ghaziabad which was taken on rent by the accused recently. PW1 further deposed that she do not know the number of that house but this house was also on first floor and accused told her to accompany him to that house saying that she will have to do the work in this house where his second wife is residing. PW1/Prosecutrix remained in that house for two months.
16. Prosecutrix/PW1 further deposed that after reaching the house at Vaishali, everything remained normal for about 1015 days. Accused and Ruchi Jha used to quarrel with each other constantly and Ruchi Jha used to leave the house in anger. Whenever PW1/Prosecutrix was alone with the accused in that house, the accused used to rape her and that whenever she made any complaint against him to Ruchi Jha, she used to show PW1/Prosecutrix helplessness by saying that 'hum kya kare, hamare sath bhi aise ho raha hai.'
17. PW1 further deposed that on two occasions, two other persons (different from the persons who used to come to the house at Greater Kailash) along with the accused raped her in the house at Vaishali. They used to give her beatings if she tried to resist. About one week prior to registration of this case, PW1/Prosecutrix had gone to her native village along with her brother as she was not well. On 15.8.11, accused made a call on the mobile phone of her brother informing that his second wife Ruchi Jha was not well and directed him to send her to Delhi. Accused send a car to her village which brought her to Vaishali and on reaching there, she found house was locked and no one was present there. She stayed there on the night of 16.08.2011.
18. PW1 further deposed that on 17.08.2011, accused took her in his car to his house at Sarai Rohilla stating that the said house requires cleaning. She do not know the complete address of the said house at Sarai Rohilla but the number of that house is 19/20. Two other friends of the accused who used to come at the house at Vaishali had also accompanied them in that car. On reaching there, he found that the house was locked but it was not very dirty. There was one bed and a table fan in a room. The house consisted of two rooms and a kitchen where wood pieces were lying. On reaching there she was asked to cut 'kheera' which accused persons had taken with them from the car to that house along with liquor. The accused directed her to cut the 'kheera'. When she brought the 'kheera' to the room, she saw all three of them were consuming liquor. Accused Laxman Prasad Rai directed her to remove my clothes. She started crying. Accused threatened her and gave her beatings and told her that no purpose would be served by crying. Out of fear, she removed her clothes. Accused Laxman Prasad Rai asked her to drink something from a glass, which looked like water and forced her to drink the same. After consuming it, she started feeling giddiness. Thereafter, all the three raped her one by one throughout the night. In the morning, they left her in a park. She regained consciousness at about 8 AM. At that time, she was having a mobile phone which she had concealed with her, which was given to her by Ruchi Jha. She made a call at 100 number and after sometime, she received a call from police who enquired about her whereabouts. However, she was not aware of the name of the park or its location. Police somehow located her and reached there after about one hour. She was taken to one hospital by the police where she was medically examined. She also handed over her clothes to the doctor. Police also called Reena Rai to the hospital. From the hospital, she was taken to PS where her recorded which is Ex. PW1/A.
19. PW1/Prosectrix also correctly identified her signatures on the statement under Section 164 Cr.PC which was recorded by learned MM and proved the same as Ex. PW1/B. She further deposed that after her that statement to the Magistrate, she was threatened by the police to settle the matter with accused by taking Rs. 2 lakhs. She was also beaten by the police in the PS. After registration of this case, she was taken by her brother to his house. She was called by the police several times on one or the other pretext but due to fear, she never went to the PS thereafter. Due to the threats, she used to go to PS along with her counsel.
20. PW1 also proved the pointing out memo of place of incident as Ex. PW1/C and PW1/D and had also correctly identified the case property i.e. her one brown colour underwear which were taken by the doctor in the hospital and lateron seized by the police and proved the same as Ex. P1.
21. Ms.Ruchi Kumari Jha was examined as PW2. She deposed that she came to Delhi in the year 2007 and she was brought by accused Laxman Prasad Rai on the pretext that he will get her educated. She correctly identified the accused in the court and further deposed that accused hails from her village and is childhood friend of her father. When she was brought to Delhi by the accused in the year 2007, he made her stay in a hostel at Laxmi Nagar. Thereafter, she was made to stay in another room in Gali No. 11, Laxmi Nagar on rent where another girl was also living. Accused used to ask her to establish sexual relations with him by saying that if she refused for the same, he will not get her admitted for further studies. Despite her refusal and request, he established physical relations with her and she had to undergo abortion twice.
22. PW2 further deposed that after six months, accused made her stay in a rented accommodation at Sangam Vihar which was owned by his friend who was CBI Insp. Ajay Sharma and that a case was got registered by her against the accused at PS Neb Sarai. She was compelled to make false statement in that case before court by the accused under threat and by exerting pressure on her family members. She further deposed that while accused was in jail, wife of the accused and his friends forcibly confined her in the house of accused Laxman Prasad at GK Park I and after he was released from jail, accused sexually exploited Prosecutrix 'P', who was working as housemaid in the house of accused at Greater Kailash. Accused started living in a rented house bearing No. 779, Vaishali, Ghaziabad and brought 'P' and one more girl namely Shobha to that house and also tried to establish sexual relations with Shobha. However, she left from there.
23. PW2 also deposed that accused used to tell everyone that she is his second wife. Thereafter, she started living with her sister at Nangloi. Accused also used to give beatings to 'P', who got registered a case against accused at PS Ghazipur in the month of July, 2011.
24. PW15 Sh.Mani Kumar deposed that he is a registered owner of Flat No.F779, Sector3,Vaishali, Ghaziabad which was given on rent to one Rajesh Pandey in June, 2011 for 45 months at a monthly rent of Rs.7500/ and that Rajesh Pandey was working as Property Dealer. This witness further deposed that he do not know if Rajesh Pandey was himself occupying the said house or whether he had sublet it further. Doctors:
25. Dr.Poonam Rani was examined as PW3, who was deputed by the Medical Superintendent of Hindu Rao Hospital, Delhi to depose in place of Dr.Richa Upadhyay, who had medically examined the Prosecutrix vide MLC No.5696/11 and has now reportedly left the services of the aforesaid hospital. This witness correctly identified the handwriting and signatures of Dr.Richa Upadhyay appearing on the MLC No.5696/11 and proved the same as Ex.PW3/A as she have seen her writing and signing during the course of her duty in the aforesaid hospital.
26. Sh.Dinesh, Medical Record Clerk, Hindu Rao Hospital, Delhi was examined as PW4, who was deputed by the Medical Superintendent of Hindu Rao Hospital, Delhi to depose in place of Dr.Jagjit Kumar Pandey, who had medically examined the Accused vide MLC No.6563/11 and has now reportedly left the services of the aforesaid hospital. This witness correctly identified the handwriting and signatures of Dr.Jagjit Kumar Pandey appearing on the MLC No.6563/11 and proved the same as Ex.PW4/A as he have seen him writing and signing during the course of his duty in the aforesaid hospital.
Police Witnesses :
27. PW5 HC Bimla is Duty Officer who deposed regarding registration of FIR of the case on 08.08.2014 and proved the same as Ex.PW5/A and his endorsement on the rukka as Ex.PW5/B.
28. PW6 is SI Satish Kumar, who deposed regarding his visit at the place of occurrence i.e. H.No.19/201, West Moti Bagh, Sarai Rohilla and inspection of the spot, consequent upon receipt of information on 30.08.2011. He also proved his report in this regard as Ex.PW6/A. This witness also identified the photographs of the spot which were taken by a private photographer in his presence and proved the same as Mark PW6/B1 to Mark PW6/B11.
29. PW9 is W/Ct.Rachna. She deposed that on 18.08.2011 at about 1010:15 AM, on receipt of a call, she along with ASI Nirmala and Sunil Sharma reached at park near Shastri Nagar, Metro station where they saw one girl who was preplexed and told her name as 'P'. She was taken to Hindu Rao Hospital in PCR by PW9 and ASI Nirmala. SI Sunil Kumar remained at the spot. 'P' was medically examined at Hindu Rao Hospital and the sealed exhibits were collected thereafter by the IO which were seized vide seizure memo Ex.PW9/A. PW9 further deposed that 'P' was brought at PS where ASI Nirmala got recorded the FIR on the basis of her statement. This witness also deposed regarding preparation of the pointing out memo as well as pointing out memo of the house i.e. 19/20, West Moti Bagh, Sarai Rohilla at the instance of Prosecutrix 'P' by IO/ASI Nirmala vide memos Ex.PW1/C and Ex.PW1/D respectively.
30. PW10 is HC Anand, who deposed regarding taking of the accused to Hindu Rao Hospital for his medical examination on 20.09.2011 and collection of the exhibits of blood sample with sample seal thereafter, which were seized by the IO vide seizure memo Ex.PW10/A.
31. PW14 is HC Vijay Pal who deposed regarding deposit of the sealed exhibits by ASI Nirmala in the malkhana on 18.01.2011 and 20.09.2011 vide entry Nos.2562 & 2624 respectively. He also deposed regarding sending of the exhibits to FSL on 26.09.2011 and 02.02.2012 through HC Rajender Singh and Ct.Sonu Rana vide RC No.155/21 and RC No.10/21/12 respectively and making of the entries by him to this effect in register No.19 vide Ex.PW14/A (Collectively). This witness also proved the RC register containing RC No.155/21/11, copy of its acknowledgment along with Copy of RC No.10/21/11 and copy of its acknowledgment as Ex.PW14/B, Ex.PW14/C, Ex.PW14/D and Ex.PW14/E respectively.
32. Ct. Sonu Rana and HC Rajender were examined as PW11 & PW13. Both of them deposed regarding taking of the sealed exhibits from Malkhana and depositing of the same in FSL, Rohini vide RC No.10/21/12 (on 02.02.2012) and RC No.155/21/11 (on 26.09.2011) respectively and handing over the receipt to the IO/MHC(M) thereafter.
33. HC Satish was examined as PW12. He deposed regarding arrest of accused Laxman Prasad Rai in CAW Cell on 04.07.2012 vide arrest memo Ex.PW12/A.
34. W/SI Nirmala (Ist IO) was examined as PW16. She deposed that on 18.08.2011, on receipt of DD No.14A (Ex.PW16/A), she along with W/Ct.Rachna and SI Sunil Sharma reached near Shastri Nagar Metro Station, where Prosecutrix 'P' met them. PCR officials were already present there. Prosecutrix informed her that she has been raped.
35. PW16 further deposed regarding taking of the Prosecutrix to HRH Hospital for her medical examination and collection of her MLC and sealed exhibits with sample seal vide seizure memo Ex.PW9/A. She also recorded the statement of the Prosecutrix, prepared rukka Ex.PW16/B and got registered the FIR.
36. PW16 also deposed regarding preparation of the site plan (Ex.PW16/C & Ex.PW16/D), preparation of the pointing out memo (Ex.PW1/C & Ex.PW1/D) at the instance of Prosecutrix, recording of the statement of prosecutrix under Section 164 Cr.PC before the learned MM and collection of the copy thereafter as also production of the accused in Hindu Rao Hospital where his blood sample was obtained and lateron seized vide seizure memo Ex.PW10/A. PW16 lastly deposed that thereafter, the investigation was transferred to another IO namely Insp.Indirawati Rathore of CAW Cell (North).
37. PW17 is Insp.Indrawati Rathore. She deposed that consequent upon assignment of this case to her on 04.06.2012, she called the accused Laxman Prasad Rai in her office and interrogated him. She further deposed regarding arrest of accused vide arrest memo Ex.PW12/A, conducting of his personal search vide memo Ex.PW17/A, recording of statements of witnesses, preparation of the charge sheet and filing the same in the court. This witness also deposed regarding collection of the FSL result regarding biological examination of exhibits and result of DNA examination which is Ex.PW7/A and Ex.PW7/B. Expert Witnesses :
38. Dr.D.S.Paliwal, Sr.Scientific Assistant (Biology), DNA Fingerprinting Unit, FSL, Rohini was examined as PW7. He deposed regarding conducting of DNA examination by him consequent upon receipt of two duly sealed forensic samples on 02.02.2012 and proved his report in this regard as Ex.PW7/A as also his report regarding genotype date of the exhibits as Ex.PW7/B.
39. Dr.Poonam, Sr. Scientific Officer (Biology), FSL, Rohini, Delhi was examined as PW18. She deposed that on 26.09.2011 five sealed parcels were received in their office which were later marked to her for further examination and that all the seals were intact and matched with the provided sample seal. She further deposed that on biological examination, blood was detected on exhibits 1o, 1p1, 3 and 4 and Human semen was detected on exhibit 2B. However, semen could not be detected on exhibits 1d, 1e, 1f, 1g, 1h, 1j, 1k1, 1k2a, 1k2b, 1l, 1m1, 1m2, 1n1, 1n2, 1p2, 2A1, 2A2, 2A3 and 2A4. On Serological examination, exhibit 4 gave A Group. She proved her detailed report as Ex.PW18/A. Other Witnesses :
40. Sh.R.K.Singh, Nodal Officer from Bharti Airtel Limited was examined as PW8. He produced the CDR, CAF, Cell ID Chart pertaining to mobile Phone No. 8527339687 for the period 15.08.2011 to 20.08.2011 and proved the same as Ex.PW8/A (Colly.), Ex.PW8/B (Colly.) and Ex.PW8/C (Colly.). He also brought certificate under Section 65B of Evidence Act and proved the same as Ex.PW8/D.
41. PW8 also produced the summoned record i.e. CDR and CAF of mobile Nos.8130730313, 9810038873, 9810974462, 9871803180 & 8527339687 along with their ID Proof for the period 01.08.11 to 30.08.11 and proved the same as Ex.PW8/D, Ex.PW8/E, Ex.PW8/F, Ex.PW8/G, Ex.PW8/H, Ex.PW8/I, Ex.PW8/J, Ex.PW8/K, Ex.PW8/L, Ex.PW8/M, Ex.PW8/N, Ex.PW8/O, Ex.PW8/P, Ex.PW8/Q, Ex.PW8/R & Ex.PW8/S respectively.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE :
42. In his statement recorded under Section 313 CrPC, accused pleaded innocence and false implication. He stated that he have been implicated in the present case at the instance of Ruchi Jha, who is the real sister of Prosecutrix and that the real name of the Prosecutrix is 'V.K.' They are eight sisters. The Prosecutrix is a resident of village Patwara, Post Office, Jamdaha, District Banka, Bihar. Ruchi Jha kept on visiting him while he was in judicial custody in Tihar Jail in case FIR lodged with PS Neb Sarai and that the purpose of said visit was to extort money from him or to get the transfer of his Greater Kailash house in her name in lieu of withdrawal of the aforesaid FIRs which he did not agree and therefore, he was implicated in the present case as well. He lastly pleaded that no such incident had occurred at his house situated at Sarai Rohilla which is lying locked for more than 15 years now and nobody was residing in the said house.
Accused however did not examine any witness in his defence. ARGUMENTS:
43. I have heard the submissions of Ld. Defence Counsel as well as Ld. Addl. PP for State and have also gone through the detailed written submissions filed on behalf of the accused and considered the relevant case laws cited during the course of arguments. I have also gone through the evidence brought on record during the course of trial, both by the Prosecution as well as the defence.
44. The Prosecution vehemently argued that its case stands proved on record by way of testimony of various Prosecution Witnesses and the documents exhibited on record. Much reliance was placed by learned Addl. PP for the State on the deposition of the Prosecutrix/PW1 'P' and PW2 Ruchi Jha. Learned Addl. PP also submitted that the DNA report Ex.PW7/A & Ex.PW7/B also clearly establish that the semen stain found on the underwear of the Prosecutrix tallies with the DNA of the Prosecutrix thereby proving the case of the Prosecution beyond realm of reasonable doubt.
45. On the other hand, learned defence counsel assailed the case of the Prosecution and contended that the Prosecution has failed to establish its case against the accused.
46. The first argument of the defence was that the Prosecutrix filed a false complaint against the accused at the behest of and in connivance with PW2 Ruchi Jha and her so called brother Mithilesh. It was pointed out that PW Mithilesh, who as per the Prosecution case was a material witness, could not be produced by the Prosecution during the entire length of trial. My attention was also drawn to the fact that during the trial, it was also established on record that the Prosecutrix gave her wrong identity, parentage and address.
47. Extending his arguments further, learned defence counsel submitted that the Prosecution itself was unsure of the claim made by the Prosecutrix and thus due to this reason, the Investigation Agency had filed application before the concerned MM on 14.11.2011 for Polygraphic Test of the Prosecutrix in view of the contradictory statement made by her during the course of investigation. He further submitted that vide order dated 17.12.2011 the said application was dismissed by the concerned MM with the observations that no Polygraphic Test of the Prosecutrix could be conducted in view of the fact that she refused to give her consent for any such test.
48. The next argument of the defence is that there is no medical evidence whatsoever with regard to the commission of rape upon the Prosecutrix as alleged by her. Learned defence counsel took me through the testimony of Prosecutrix 'P'/PW1. He contended that as per the deposition of PW1/Prosecutrix, the accused allegedly committed rape upon her in his house at Greater Kailash once. Thereafter, on two occasions after one month from the first incident, accused Laxman Prasad Rai brought two other persons to his house at Greater Kailash when his wife has gone out for marketing and all of them committed rape upon her on those two occasions. It was further pointed out that as per PW1, accused used to commit rape upon her in the house at Vaishali whenever he used to be alone in that house. PW1 also deposed that on two occasions, two other persons along with accused raped her in the house at Vaishali. It is further the claim of the Prosecutrix that the accused and his two other friends raped her on 17.08.2011.
49. Learned defence counsel thus contended that from a perusal of the testimony of PW1, it appears that she was being continuously raped by accused and his associates on various occasions at the house of the accused at Greater Kailash and at Vaishali, besides the incident of 17.08.2011. Learned defence counsel submitted that despite these allegations of continuous rape, as per MLC of the Prosecutrix which is Ex.PW3/A, during the medical examination of the Prosecutrix conducted on 18.08.2011, her hymen was found not having any fresh tears and upon her P/V (per vaginal) examination, it was found that it admitted only tip of a finger. Moreover, no fresh bleeding or any mark of injury was found upon the person of Prosecutrix during her said examination. Learned defence counsel thus contended that the claim of the Prosecutrix and the report of her medical examination are clearly contradictory to each other, thus making the testimony of the Prosecutrix unworthy of reliance.
50. The next argument of defence is that even the alleged place of occurrence where she was raped by the accused and his two friends on 17.08.2011 was wrongly identified by the Prosecutrix during the course of investigation. In this regard, reliance was placed on the statements of PWs Geeta Sharma and Sunil Sharma recorded under Section 161 Cr.PC Ex.PW17/DB & Ex.PW17/DC. Moreover, the report of the Crime Team Ex.PW6/A also clearly shows that no electricity or water was found in H.No.19/20/1, West Moti Bagh, Sarai Rohilla, Delhi i.e. the place where the alleged incident dated 17.08.2011 occurred. Further, as per the said report, no finger prints and foot prints could be gathered from the spot. The house in question was found dirty and at the first floor of the house, no bedding etc. were found and also there was also no sign of removal of any furniture in the room, thus belying the entire testimony of the Prosecutrix.
51. The next ground on which the case of the Prosecution was opposed by the defence is that the Call Detail Records (CDRs) of mobile phone of the Prosecutrix i.e. Mobile No.8527339687 admittedly, given to her by PW2/Ruchi Jha shows that she was in touch with PW2 Ruchi Jha and Mithilesh on his Mobile No.8130730313 immediately before and after the alleged incident of 17.08.2011. Moreover, the location of the mobile phone of the Prosecutrix also shows that she was no where near the alleged place of incident on 17.08.2011, thus demolishing the entire case of the Prosecution.
52. Learned defence counsel also disputed the claim of the Prosecution that the semen stains found on the underwear claimed to be belonging to Prosecutrix can be stated to be that of the accused. My attention was drawn to the report of the Biology Division of the FSL, which is Ex.PW18/B, as per which the semen stains found the underwear Exhibit 2B showed 'No Reaction' implying thereby the blood group of the same could not be identified.
53. Learned defence counsel contended that the DNA report Ex.PW7/A and Ex.PW7/B cannot be said to be conclusive proof of the fact that the semen stains belonged to the accused. He submitted that DNA report Ex.PW7/A & Ex.PW7/B is one sided inasmuch as from the cross examination of PW7 it is also apparent that the Investigating Agency made no query whatsoever as to whether the said underwear contained the DNA of the Prosecutrix or of any other assailant also or not.
54. Learned defence counsel also submitted that there is nothing on record by way of any scientific evidence to establish that the underwear, which though identified by the Prosecutrix, actually belonged to her. It is submitted that the Investigating Agency faulted in not getting the DNA report in respect of the fact that the said underwear was in fact worn by the Prosecutrix at the time of incident or not.
55. Evenotherwise, the defence challenged the claim of the Prosecution that PW7 Dr.D.S.Paliwal is an expert witness within the meaning of Section 45 of Evidence Act. My attention was drawn to the crossexamination of PW7 wherein he deposed that he has done M.Sc. in Zoology. It was contended that PW7 cannot be stated to be an "expert" witness and consequently his report cannot be read in evidence as being opinion of an expert witness within the parameters of Section 45 of Evidence Act. Learned defence counsel relied upon the case of State of H.P. vs. Jai Lal & Ors., (1999) 7 SCC 280 in support of his said argument.
56. It was further contented that even otherwise the report of the expert witness only has corroborative value and if the said opinion is contrary to ocular evidence, it is the ocular evidence which must be given precedence over such opinion. In this regard reliance has been placed on the following judgments :
a) Umesh Singh vs. Stae of Bihar, (2013) 4 SCC 360.
b) Darbara Singh vs. State of Punjab, (2012) 10 SCC 476
c) Gajoo vs. State of Uttarakhand, (2012) 9 SCC 532
d) Ramanand Yadav vs. Prabhu Nath Jha & Ors., (2003) 12 SCC 606 &
e) Dayal Singh & Ors. vs. State of Uttranchal, (2012) 8 SCC 263
57. Lastly, it was submitted that it has been brought on record during the course of trial that PW2 Ruchi Jua and her sister Kalpana had visited the accused in jail on several occasions, apparently to extort money from him and it was contended that the instant case has been registered in order to extort money from the accused who is innocent and has been falsely implicated only for this reason.
ANALYSIS : FINDINGS : REASONS:
58. The testimony of the Prosecutrix in the present case, like all other rape cases, is without doubt, the most vital piece of evidence brought on record during trial by the Prosecution. It is well settled law that a victim of sexual assault is not an accomplice of the crime and the conviction of an accused can be based solely on the basis of the testimony of the victim, provided the same is found to be credible and trustworthy and is not require to be corroborated by any other independent evidence. At the same time, it is also equally well settled law that the statement of a victim of sexual assault cannot be taken as gospel truth.
59. In case of Rajoo & Ors. vs. State of M.P. AIR 2009 SC 858, the Hon'ble Apex Court held as under:
"The evidence of Prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth."
60. Similarly, in case of Tameezuddin @ Tammu vs. State of (NCT) of Delhi , 2009 [4] JCC 2809 the Hon'ble Delhi High Court has also laid down as under: "It is true that in a case of rape the evidence of the Prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
61. Thus, keeping in mind the aforesaid legal proposition, it is the testimony of the Prosecutrix/PW1 which needs to be looked into at the outset, before analyzing the remaining evidence brought on record during trial.
62. Prosecutrix 'P' upon stepping into the witness box as PW1, claimed to be the daughter of one Sh.'R.L.' (name withheld), resident of Village Dhanora Post Office Chapda, PS Balampur, Distt. Sant Kabir Nagar, UP. PW17 IO/Insp. Indrawati Rathore admitted in her cross examination that on the orders of the court, she deputed HC Umesh Kumar and Ct.Ravinder Kumar to visit the native village of Prosecutrix. They recorded the statements of the various witnesses which are Ex.PW17/DA1 and Ex.PW17/DA2 and also obtain the certificate from 'Mukhia' of village which is Mark PW2/DA. They also got verified the photographs of the Prosecutrix and obtained the certificate from the member of 'Panchayat Samiti' of village Panchayat Jamdaha which is Ex.PW17/DA3. A perusal of the aforesaid would reveal that the Prosecutrix 'P' was found to be resident of village Patwara (Jamdaha) Post Jamdaha vide certificate Ex.PW17/DA4. She was also found to have studied at Madhya Vidhalaya, Jamdaha vide certificates Ex.PW17/DA5 and Ex.PW17/DA6 and transfer certificate Ex.PW1/DA. The statements of residents of native village of Prosecutrix viz., Neeraj Kumar and Bhola Mandal Ex.PW17/DA1 and Ex.PW17/DA2 recorded by HC Umesh reveal that infact the name of person seen in photograph Mark PW1/P1 and Mark PW1/P2 (admitted by Prosecutrix to be her photographs), is Veena Kumari D/o Sh.Rudreshwar Jha R/o Village Patwara (Jamdaha), Post Jamdaha PS Katoria, Distt. Banka, Bihar. It is thus clear at the very outset that the Prosecutrix 'P', for reason best known to her, gave her false name and identity since very inception of the case i.e. since the time of registration of the FIR. Incidently, Prosecutrix 'P' gave some other address to the examining doctor as is apparent on going through her MLC Ex.PW3/A. She also claimed that her brother namely Mithilesh, got her employed at the house of accused Laxman Prashad Rai. However, during the entire length of trial the Prosecution was unable to produce Mithilesh in the witness box and it was reported that he is not traceable.
63. During trial, Prosecutrix 'P' deposed before the court that besides the alleged incident of alleged rape on 17.08.2011, the accused Laxman Prasad Rai had committed rape upon her, sometimes alone and sometimes along with his two other associates at his house at Greater Kailash and also at Vaishali, Ghaziabad on various previous occasions.
64. The aforesaid claim of the Prosecutrix becomes difficult to believe in view of the admitted fact that she was having mobile phone with her, despite which she never made any complaint about this conduct of accused to anyone except her brother Mithilesh, who as aforesaid, did not appear during trial to support this version. Moreover, the MLC of the Prosecutrix Ex.PW3/A does not lend any support to her claim that she was being raped by the accused and his two associates, as deposed by her in the court.
65. I also find myself in agreement with the submissions of defence that the Prosecutrix initially identified the house of Geeta Sharma i.e. H.No. 19/20, West Moti Bagh, Sarai Rohilla, Delhi as the place of incident and it is only subsequently that she identified the house of the accused to be H.No. 19/20/1, Sarai Rohilla, Delhi, claiming it to be the place of incident where she was allegedly raped by the accused and his two other associates on the night of 17.08.2011.
66. The incident of 17.08.2011 also, in the light of the evidence on record, does not stand proved as per the case of the Prosecution. It may be noted that in her testimony PW1 claimed that when she along with accused and two other friends of accused reached his house at Sarai Rohilla, it was found locked, but it was not very dirty. There was one bed and a table fan in a room. The house consisting of two rooms and a kitchen where wood pieces were lying. She further deposed that on reaching there she was asked to cut 'kheera' which accused persons had taken with them from the car to that house along with liquor. The accused directed her to cut the 'Kheera' and when she brought the 'kheera' to the room, she saw all three of them were consuming liquor. Accused Laxman Prasad Rai thereafter directed her to remove her clothes and asked her to drink something from a glass, which looked like water. He forced her to drink the same and after consuming it, she started feeling giddiness and thereafter she was allegedly raped by all three of them throughout the night. In the morning when she regained her consciousness at 8 AM she made a call at 100 number from her mobile phone given to her by Ruchi Jha i.e. mobile number bearing No. 8527339687.
67. It would be noticed on going through the report of the Crime Team Ex.PW6/A and the deposition of PW6 SI Satish Kumar, Incharge Crime Team that the description of the alleged place of incident as given by the Proecutrix PW1 is totally contrary to what was found at the alleged scene of crime. PW6 deposed that on seeing the condition of the house, it seemed that no one was residing there continuously. The floor of the house was dirty and grass was grown on the floor and garbage was lying scattered over the floor. PW6 further deposed that there were no signs of footprints on the floor of the room where the incident had occurred as stated by the Prosecutrix. The report of the Crime Team Ex.PW6/A also shows that no fan and no electricity was found in the house in question and that no finger prints and foot prints could be gathered from the spot. The house in question was found dirty and at the first floor of the house, no bedding etc. were found and also there was also no sign of removal of any furniture in the room.
68. The claim of the Prosecutrix thus stands completely belied on considering the Crime Team Report and from the factual position as found at the place of occurrence at the time of inspection by PW6 SI Satish Kumar. The Prosecutrix claimed that she was raped by the accused and his associates, on a 'chaddar' which, as aforesaid was not found at the place of occurrence.
69. The crossexamination of PW1 also reveals that she deposed before the court that admittedly for the first time that after committing raping upon her, accused and his two other friends washed her body below the waist and the accused had taken water with him in a white colour plastic 'dabba', which was used by them to wash her. In her crossexamination, she also admitted that she had deposed about the table fan and battery allegedly taken by the accused along with him for the first time before the court.
70. Thus, a careful perusal of her crossexamination reveals that the Prosecutrix has clearly improved upon her earlier versions and her testimony in these circumstances cannot be said to be reliable and trustworthy.
Call Detail Records:
71. A perusal of Call Details Record (hereinafter referred to as CDR for the sake of brevity) of the mobile phones of Prosecutrix 'P', PW2 Ruchi Jha and Mithilesh also reveal that the Prosecutrix 'P' was in constant touch with PW1 Ruchi Jha and her so called brother Mithilesh immediately before and after the alleged incident of rape dated 17.08.2011.
72. As aforesaid, mobile phone No.8527339687 was admittedly being used by the Prosecutrix 'P' at the relevant time. It is also not in dispute that the said number was given to her by PW2 Ruchi Jha. The CDR of mobile phone No.8527339687 being used by Prosecutrix 'P' was exhibited during the course of trial as Ex.PW8/A. The said CDR for 17.08.2011 revealed that the Prosecutrix was in constant communication from her mobile phone at different numbers up to 23:37:48 hrs. A careful perusal of the CDR Ex.PW8/A would reveal that at the time when the incident of rape dated 17.08.2011 allegedly took place, the Prosecutrix 'P' was in conversation from her aforesaid mobile phone with Mithilesh on mobile No.8130730313. It may be noted that as per statement of PW Mithilesh recorded by the Investigation Agency under Section 161 Cr.PC, the said mobile phone No. i.e. 8130730313 was being used by PW Mithilesh. The CDR Ex.PW8/A pertaining to period 17.08.2011 shows the call being made by Mithilesh from his mobile No. 8130730313 on the mobile phone of the Prosecutrix at 18:46:38 hrs and then again at 19:31:07 hrs and thereafter Prosecutrix called him at 19:32:57 hrs. The Prosecutrix again made a call from her mobile phone on the mobile number of Mithilesh at 19:58:21 hrs, Mithilesh called her at 19:58:40 hrs, Prosecutrix called Mithilesh at 21:13:18 hrs, Mithilesh again called her at 21:46:36 hrs, 23:25:14 hrs & 23:37:48 hrs on 17.08.2011. The CDR shows that the duration of these calls was substantial in most of the cases.
73. In these circumstances, considering the CDR Ex.PW8/A, it is apparent that the case of the Prosecution that Prosecutrix 'P' was raped by the accused and his two other associates throughout in night of 17.08.2011 stands completely demolished. Moreover, the Cell Id Chart Ex.PW8/C also reveals that on 17.08.2011, the mobile phone of the Prosecutrix and Mithilesh were in the area of Azadpur and Mukundpur, which is also contrary to the case of the Prosecution that she was being raped by the accused on that day in his house at Sarai Rohilla.
74. It is also noteworthy that though the Prosecutrix has deposed that on 18.08.2011 when she found herself in a park in the morning where she was being left by the accused, she made a call from her mobile No. 8527339687 at 100 number, CDR Ex.PW8/A however, does not indicate any call made in the morning at about 8 AM at 100 number from the said mobile phone of the Prosecutrix.
75. It also apparent on going through the CDR Ex.PW8/A that from 01.08.2011 onwards the Prosecutrix 'P' was constantly using her mobile phone and there is no reason as to why she did not make any complaint against the alleged rape committed by the accused and his two associates even prior to 17.08.2011 to anyone. The CDR also completely belies her claim that she had gone to her native village on 15.08.2011 or that the accused called on her phone on 16.08.2011.
DNA Report : Its Admissibility and Evidentiary value:
76. As discussed above, the Prosecution laid much stress on the DNA reports Ex.PW7/A and Ex.PW7/B, as per which the DNA lifted from the semen found on the underwear of the Prosecutrix Ex.P1 was found matching with the DNA of accused. This piece of evidence has been strongly opposed by the defence on the ground that there is no evidence whatsoever, except the bald statement of the Prosecutrix, to show that the underwear Ex.P1 belonged to the Prosecutrix. It is submitted that the Investigation Agency made no effort whatsoever to seek any scientific opinion to establish that the said underwear contained the DNA of the Prosecutrix and there is nothing to link with that of the Prosecutrix and it would thus be ruled out that this piece of evidence is planted one.
77. I also find myself in agreement with the submissions of learned defence counsel that PW7 Dr.D.S.Paliwal cannot be stated to be an "expert" witness within the meaning of Section 45 of Evidence Act. It has come on record during the course of trial that PW7 has done M.Sc. in Zoology. There is nothing on record to suggest that he is having expertise on the subject on which he gave his report Ex.PW7/A and Ex.PW7/B. While dealing with the question of admissibility of the report of an expert witness as per Section 45 of Evidence Act, Hon'ble Apex Court in case of State of HP vs. Jai Lal & Ors. (Supra) wherein it has been held as under:
"17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, on in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject."
78. Moreover, the opinion of an expert witness, being merely of corroborative nature cannot be sole ground for convicting the person charged for any offence. It has been laid down by the Hon'ble Apex Court in catena of judgments that the opinion of an expert witness is merely of an advisory character and in this regard reliance may again be placed on case of Jai Lal (Supra), wherein it has been held as under :
"18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions."
79. Similarly, in Vishnu @ Undrya vs. State of Maharastra, (2006) 1 SCC 283, the Hon'ble Supreme Court held that opinion of the expert witness (i.e. Medical Officer in that case) is to assist the court as he is not a witness of fact and his evidence is really of an advisory character and not binding on the witness of fact.
80. Further, in Umesh Singh vs. State of Bihar (Supra), the Hon'ble Apex Court also laid down that ocular evidence must be given preference over medical evidence where two sets of evidence do not go hand in hand. Similar view has been taken by Hon'ble Supreme Court in Darbara Singh vs. State of Punjab reported as (2012) 10 SCC 476.
81. Applying the aforesaid principle to the present case, it is apparent that the mere fact that the underwear Ex.P1 stated to be of the Prosecutrix, was found containing the semen stains whose DNA tallies with the DNA of the accused, is not sufficient per se to conclude that the accused committed rape upon the Prosecutrix, as alleged. The entire factual matrix of the case as brought out during the course of trial runs contrary to the DNA report Ex.PW7/A and Ex.PW7/B. Not only the Prosecution was unable to establish the correct identity of the Prosecutrix, but also the report of her medial examination i.e. MLC Ex.PW3/A also failed to show any sign of continuous sexual assault upon her as alleged by her. Further, the place of alleged incident i.e. H.No.19/20/1, West Moti Bagh, Sarai Rohilla, Delhi did not match with the description given by the Prosecutrix to the Investigating Agency and to the court during her deposition. The Crime Team report Ex.PW6/A also showed no signs of electricity, water and removal of furniture from the place where the Prosecutrix could have been sexually assaulted. Her claim that she brought water and served it to the accused or that she cut 'kheera' on the directions of the accused, also find no support from the circumstances as proved from the inspection of the alleged scene of crime. Moreover, the claim of the Prosecutrix 'P' that the accused allegedly washed her body from below her waist after committing rape emerged for the first time during the course of trial which also was not supported by any sign on the body of the Prosecutrix having been washed at the place of occurrence.
82. The Prosecutrix 'P' was also found to be in touch with different persons on her mobile phone on the night of the alleged sexual assault i.e. on 17.08.2011 and there is nothing on record to show that she made a call at 100 number from her mobile phone on the next morning. Moreover, there is also sufficient evidence on record to show that PW2 Ruchi Jha and her sister Kalpana visited the accused on numerous occasions during the period he was confined in Jail, thus lending support to the claim of the defence that the accused has been implicated in this case only for the purpose of extortion.
83. The Prosecution, in the light of the evidence on record and above discussion has clearly failed to prove its case against the accused. Consequently, accused Laxman Prasad Rai S/o Sh.Chakkar Dhar Rai stands acquitted for the charges for which he has been facing trial. File be consigned to record room.
Announced in the Open Court on 10th December, 2014 (Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.
State Vs. Laxman Prasad Rai FIR No. : 292/2011 PS : Sarai Rohilla SC No. : 05/2013 10.12.2014 Present : Sh. Mohd. IqrarLd. APP for State.
Accused on bail with proxy counsel.
Vide separate judgment announced today in open court, accused Laxman Prasad Rai S/o Sh.Chakkar Dhar Rai stands acquitted for the charges for which he has been facing trial. File be consigned to record room.
The accused is however directed to furnish bail bond to the tune of Rs.10,000/ (Ten Thousand) with one surety in the like amount under the provisions of Section 437A Cr.PC. At this stage, accused has furnished personal bound only and seeks time to furnish surety. At request, his personal bond is accepted till 11.12.2014.
(Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.
10.12.2014 State Vs. Laxman Prasad Rai FIR No. : 292/2011 PS : Sarai Rohilla SC No. : 05/2013 11.12.2014 Present : Sh. Mohd. IqrarLd. APP for State.
Accused in person with proxy counsel.
Bail Bond furnished and accepted.
File be consigned to record room.
(Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.
11.12.2014