Delhi District Court
State vs Mr.Ramjee Lal on 24 January, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 42 of 2013.
Unique Case ID Number : 02401R0269992012.
State versus Mr.Ramjee Lal
Son of Mr.Nanu Ram,
Resident of C-521, JJ Colony, Hastsal,
Uttam Nagar, Delhi.
FIR Number 105 of 2012.
Police Station Uttam Nagar.
Under sections 342/506/376 of the Indian Penal Code.
Date of filing of the charge sheet before : 28.05.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 08.06.2012.
Date of transfer of the file to this Court : 09.01.2013.
ASJ (SFTC)-01, West, THC, Delhi
Arguments concluded on : 24.01.2013.
Date of judgment : 24.01.2013.
Appearances: Mr. Anil Kumar, Additional Public Prosecutor for the
State.
Accused Mr.Ramjee Lal has been produced from judicial
custody.
Ms. Sadhna Bhatia, Advocate, Amicus Curiae for the
accused.
Ms.Sadhna Singh, counsel for the Delhi Commission for
Women.
***********************************************************
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar.
Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 1 of 51 ::-
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JUDGMENT
1. At the outset, it may be mentioned that this case was decided in fourteen days of its transfer to this Court of Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi i.e. on 09.01.2013 and the judgment has been delivered on 23.01.2013.
2. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. (Reliance on the material on the internet). Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the accused is in fiduciary relationship with the victim (as in the present case since the accused is addressed as "Mama-maternal uncle" of the husband of the prosecutrix), who is subjected to unwanted physical contact by a perverted male adult.
3. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 2 of 51 ::-
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insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
4. Mr. Ramjee Lal, the accused, has been charge sheeted by Police Station Uttam Nagar for the offence under sections 342/506/376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 03.03.2012 between 10.00 am to 10.30 am and again between 2.00 pm to 3.00 pm at A-171, JJ Colony, Hastal, New Delhi within the jurisdiction of Police Station Uttam Nagar, he committed rape upon prosecutrix (name withheld to protect her identity) at her house by confining her wrongfully in her room by bolting the room from inside and both the times after committing rape upon prosecutrix, he criminally intimidated prosecutrix that he would kill her and her husband, if she told the incident to her husband and he had slapped/beaten her.
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 3 of 51 ::-
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CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet filed before the Court of the learned Metropolitan Magistrate on 28.05.2012 and after its committal, the case was assigned to Session Courts vide order dated 08.06.2012 of the learned Sessions Judge, Delhi. Further, the case has been assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi on 09.01.2013 vide order bearing number 20/372-512/F.3.(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
6. Vide order dated 20.07.2012, charge for the offence under sections 342/506/376 of the IPC was framed against the accused Mr.Ramjee Lal to which he pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
7. In order to prove its case, the prosecution had examined as many as 13 witnesses i.e. HC Rattan Lal as PW1; HC Jai Parkash as PW2; the prosecutrix as PW3; Mr. Sanjay as PW4 ; Dr. Preeti Bhadauria as PW5; Dr. Manoj as PW6; ASI Sushma as PW7; Dr. Avnish Bhargava as PW8; Ct.Manoj as PW9; Ct. Amit Kumar as PW10; Lady Ct. Uma Choudhary as PW11 and SI Amit as PW12 .
8. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 4 of 51 ::-
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the prosecutrix have been taken and her evidence had been recorded in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses have been followed.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
9. In his statement under section 313 of the Cr.P.C., recorded on 17.01.2013, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case at the instance of prosecutrix and her husband since the husband of the prosecutrix had borrowed a sum of Rs. 50,000/- from him and to avoid to returning the amount, he has been falsely implicated in this case. His brother in law, Mr.Banwari Lal (Behnoi) had given him Rs.50,000/- which he had given to the husband of the prosecutrix. His brother in law and sister have since expired. Accused has preferred not to lead any evidence in his defence.
ARGUMENTS
10. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 5 of 51 ::-
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11. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 376, 342, 506 and 323 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
12. The amicus curaie for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
13. The allegations against the accused Mr.Ramjee Lal are that on 03.03.2012 between 10.00 am to 10.30 am, and again between 2.00 pm to 3.00 pm at A-171, JJ Colony, Hastsal, New Delhi, he committed rape upon the prosecutrix at her house by confining her wrongfully in her room by bolting the door from inside; criminally intimidating her that her will kill her and her husband if she tells about the incident to her husband; and slapping her after committing rape.
14. The prosecution story unfolds with the lodging of DD No. 54-A dated 03.03.2012 (Ex.PW2/D) whereby information was received at 9.45pm in Police Station Uttam Nagar that the prosecutrix has been raped by a neighbor, Mr. Ramjee Lal, on which SI Amit was assigned the Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 6 of 51 ::-
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case. The statement of the prosecutrix (Ex. PW3/A) rukka (Ex. PW12/A) was prepared on the basis of which FIR (Ex. PW2/A) was lodged and the certificate under section 65B of the Indian Evidence Act (Ex. PW2/B) was issued. The prosecutrix was medically examined at DDU hospital vide MLC (Ex. PW5/A) and the exhibits pertaining to her were seized vide seizure memo (Ex. PW3/C). The site plan (Ex. PW3/B) was prepared at the instance of the prosecutrix. The accused was arrested at the pointing out by the prosecutrix vide arrest memo (Ex. PW3/D) and personal search memo (Ex. PW4/A). The accused was medically examined in the DDU hospital vide MLC (Ex. PW8/A) and the exhibits pertaining to the accused were seized vide seizure memo (Ex. PW10/A). On 04.03.2012, six sealed pullandas and one sample seal in respect of the prosecutrix were deposited in the malkhana vide entry no. 4425 in register no. 19 (Ex. PW1/A); on 14.05.2012 the case property was received from Malkhana by ASI Sushma and deposited with the FSL vide RC no. 96/21/12; on 14.05.2012 ASI Sushma received nine sealed parcels along with two sample seals and deposited the same in the office of FSL vide RC no. 96/21/12 (ExPW1/B) and acknowledgement of the same from the office of the FSL was obtained (Ex. PW1/C). The exhibits were examined vide the reports of the FSL (Ex. PW13/A and Ex. PW13/B).
TESTIMONIES OF THE PROSECUTION WITNESSES
15. PW1 HC Ratan Lal is the Malkhana Moharrar. On 04.03.2012, SI Amit Kumar had deposited six sealed pullandas sealed with the seal of CMO DDU Hospital pertaining to the prosecutrix and Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 7 of 51 ::-
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sample seal and one copy of seizure memo in the Malkhana. On the same day, three sealed pulandas sealed with the seal of CMO DDU Hospital pertaining to the accused, sample seal and copy of seizure memo were also deposited. Entry of the same was made in register number 19 at serial number 4425 (Ex.PW1/A). On 14.05.2012, WASI Sushma received the case property from Malkhana and deposited the same in the FSL Rohini vide RC number 96/21/12 (Ex.PW1/A). On 14.05.2012 WASI Sushma received nine sealed parcels along with two sample seal from FSL form Malkhana and deposited the same in the FSL Rohini (Ex.PW1/B) and acknowledgement of the same from the office of FSL Rohini (Ex.PW1/C).
16. PW2, HC Jai Parkash is the duty officer and recorded the FIR (Ex.PW2/A) on computer through computer operator. The Certificate under section 65 B Evidence Act (Ex.PW2/B) was issued and he made endorsement on the original rukka (Ex.PW2/C).
17. PW3, the prosecutrix, has deposed that on 03.03.2012, she along with her husband were living in a rented accommodation at Uttam Nagar. She did not remember the exact address. Her husband was a labourer doing the work of whitewashing and painting under the contractor. On 03.03.2012, her husband left for his work at about 9.00 am and she was alone in the house at that time. At about 10.00 am, accused Mr.Ramjee Lal came to her house. Prosecutrix had correctly identified the accused Mr.Ramjee Lal. He had opened the main gate of her house Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 8 of 51 ::-
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and took the name of her husband and bolted the door of that room from inside and pressed her mouth with her hand (smothered). Thereafter, he forcibly made her lie on the bed sheet already spread on the floor of the room. She raised alarm saying that she would tell her husband about the same on which he threatened to kill her. She got scared and remained mum. The accused raped her and then left the house. Out of fear of the accused, she did not narrate the incident to anyone as he had threatened to kill her. On the same day, he came again at about 2 pm when she was alone in the house. She had taken a bath and was changing clothes in the room. Accused bolted the room from inside. On seeing him, she told him that she will narrate everything to her husband on which the accused slapped her. Thereafter, he again forcibly made her lie on the same bedsheet already spread on the floor and committed rape upon her. At about 3 pm, he left her room. Due to the threatening by the accused, she did tell the incident to any neighbor. When her husband returned from work at about 9 pm, she told him about the incident. Thereafter, she along with her husband first went to the house of the accused who was living in the same locality but the accused gave beatings to her and her husband. Accused Mr.Ramjee Lal is the maternal uncle (mama) of her husband in a distant relationship. He is not the real mama of her husband. From his house, they went to Police Station Uttam Nagar and lodged a report against the accused and her statement (Ex.PW3/A) was recorded. From there, she was taken for her medical examination. At the time of incident, she was one month pregnant and on the date of evidence she has a seven months pregnancy and her eighth month is running. The police visited her Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 9 of 51 ::-
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house and the site plan (Ex.PW3/B) was prepared. As per the
instructions of the police, she carried to the hospital the clothes she was wearing at the time of incident including the towel and bedsheet. The clothes i.e. one saree, one blouse and petticoat (underskirt) which she was wearing at the time of incident of 10 and and one salwar which she was wearing at the time of incident of about 3 pm were given to the doctor. The same are Ex.P1 to P6. All were seized vide seizure memo (Ex.PW3/C). (One sealed envelop containing one sky coloured underwear was also produced with the case property and the witness had stated that the same did not belong to her.) The accused was arrested vide arrest memo (Ex.PW3/D).
18. In her cross examination, the prosecutrix has deposed that the police recorded my statement in Police Station Uttam Nagar. She did not recollect whether statement of anyone else was recorded by the police in her presence. She has admitted to be correct that she had stated to the police in her statement that accused came inside her house while asking for her husband namely Mr. Sanjay. (Confronted with the statement Ex.PW3/A where the name of Mr.Sanjay has not been mentioned). There are other rooms adjoining to her room occupied by other persons. She could not raise any alarm after the accused left as he had threatened her. She did not inform her husband about the incident as she did not have the mobile phone. She was not talking to her neighbours as they had shifted in the room some days ago that is why she had not informed about the incident to her neighbours. She did not know accused prior to incident. Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 10 of 51 ::-
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Accused was residing near Shani Bazar. Accused is living with his sister and her two sons. Her husband returned from his job at about 9.30 pm and he immediately took her to the Police Station. She is not aware whether her husband had borrowed Rs.50,000/- from the accused. Her brother, Mr.Kanhiya, had brought her to Delhi from Bengal and in Delhi, she was married with Mr. Sanjay. She lived in the house of her brother in Shakur Pur. Her clothes were not torn when accused raped her. She had received injuries that is the scratches on her hand when the accused was raping her. She did not recollect the date of her marriage, however, it took place about 2 years ago. 2-3 police officials visited her house after the lodging of her report. She did not know whether police recorded the statements of her neighbours. Police seized the clothes from her house on the day of incident. She has denied various negative suggestions given to her including the suggestion that accused Mr.Ramjee Lal has been falsely implicated at the instance of her husband as her husband did not want to return the borrowed amount of Rs. 50,000/- from accused.
19. PW4, Mr.Sanjay, the husband of the prosecutrix, has deposed on oath that on 03.03.3012 when he returned home from work at about 9 pm, the door was bolted from inside and his wife was not opening the door saying "Main darwaja nahi kholungi tum mejhe yahan kyo le kar aaye" and she was weeping. On his again asking her to open the door, she opened it and started crying holding him. On asking her the reason for crying, she replied "your mama Ramjee Lal (accused) had come to the house in the morning and he asked about you, thereafter bolted the door Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 11 of 51 ::-
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of the room from inside and committed rape upon me and thereafter he visited again in the afternoon and again committed rape upon me and threatened to kill me." After hearing the incident, he along with his wife went to the house of the accused Mr.Ramjee Lal (correctly identified) who was living in the same locality at a walking distance of about 5-7 minutes from his house. The accused was drunk at that time and on enquiry, he said "Maine kara hai to tu mera kya kar lega" and slapped him. One sister of the accused who was present gave beating to his wife. Thereafter, he did not say anything to the accused and from his house he along with his wife went to Police Station Uttam Nagar and lodged the complaint against the accused. Two-three police officials along with him and his wife went to the house of accused Mr.Ramjee Lal and on the identification of his wife, the accused was arrested vide arrest memo (Ex.PW3/B) and personal search memo (Ex.PW4/A). Then they came to their house where the site plan was prepared at the instance of his wife. His wife was taken to one hospital for her medical examination.
20. In his cross examination, PW4 has deposed that accused Mr.Ramjee Lal is the brother in law (sala) of chachia saur of his aunt (bua). He knows the accused for last 3-4 years. His wife belongs to Bengal. He got married to her in the year 2010 when she was brought from Bengal to Shakurpur, Delhi by her brother. He has denied the suggestion that he had taken Rs.50,000/- from the accused on the pretext to marry the prosecutrix with the accused. He had admitted that accused is unmarried.
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 12 of 51 ::-
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21. PW5, Dr.Preeti Bhadauria, has deposed that on 04.03.2012 at 12.45 am, she had medically examined the prosecutrix vide MLC No. 3982 (Ex.PW5/A). At that time of examination the patient was having pregnancy of about one month. The samples were collected after medical examination of the patient and same were handed over to the police. The clothes as well as towels, bed sheets etc had been brought by the police official and the same were also sealed by me.
22. PW6, Dr.Manoj, has deposed that on 03.03.2012, he had medically examined the prosecutrix was brought by W Ct.Uma Choudhary with the alleged history of sexual assault vide MLC No.3982 (Ex.PW5/A). Thereafter patient was further referred to Gynae Department for further management and treatment.
23. PW7, ASI Sushma, has deposed that on 10.05.2012, the investigation of the present case was marked to her by the order of SHO, Police Station Uttam Nagar. She inspected the case file. On 14.05.2012, she deposited 09 pullandas and two sample seals at FSL Rohini. She recorded statement of MHCM. Thereafter, she prepared the challan and file was put up before SHO.
24. PW8, Dr. Avnish Bhargava, has deposed that on 04.03.2012 at 10.45 am, Dr.Nitin Seth under his supervision had medically examined Mr. Ramjee Lal vide MLC No.3933 E No.46205 (Ex.PW8/A). Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 13 of 51 ::-
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25. PW9, Ct. Manoj, has deposed that on 04.03.2012, the duty officer handed over to him copy of FIR and rukka in original for delivery of the same to SI Amit at the spot i.e A-171, J.J.Colony, Hastaal and he handed over the same to the IO.
26. PW10, Ct. Amit Kumar, has deposed that on 03.03.2012,he joined the investigation of the present case with SI Amit Kumar and prosecutrix and her husband and reached the spot i.e. A-171, J.J.Colony, Hastaal where the IO prepared the site plan of the place of occurrence at the instance of prosecutrix. Thereafter, the police team along with prosecutrix and her husband went to the house of accused i.e. house no. C-521, Hastaal, J.J.Colony, Uttam Nagar, Delhi. He has identified the accused. The accused met them at his house and he was apprehended on the identification of prosecutrix. He was interrogated and arrested in the present case vide arrest memo (Ex.PW3/D) and his personal search memo (Ex.PW4/A). Thereafter, the accused was taken to the DDU hospital for medical examination and the doctor handed over three sealed pulendas along with one sample seal which he handed over to the IO, who seized the same through seizure memo (Ex.PW10/A). Thereafter, accused was brought to PS and put into lock up. My statement was recorded by the IO regarding aforesaid facts.
27. PW11, Lady Ct. Uma Choudhary, has deposed on oath, that on 03.03.2012 at night, he joined investigation of the present case with SI Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 14 of 51 ::-
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Amit and reached the DDU Hospital along with prosecutrix and she was got medically examined. After her medical examination, the doctor handed over 06 sealed parcels and one sample seal which she handed over to the IO, who seized the same through seizure memo (Ex.PW3/C).
28. PW12, SI Amit, has testified that on 03.03.2012, the complainant/prosecutrix along with her husband came in Police Station Uttam Nagar around 9.45 pm. Her husband met duty officer and narrated about the incident of rape with her. Duty officer sent prosecutrix as well as her husband to him as he was working as Emergency officer in the night hours. He interrogated prosecutrix and she told me that she had been raped by Mr. Ramjee Lal (so called maternal uncle). Lady Ct. Uma Choudhary called from PS Mayapuri. When she reached at the PS, prosecutrix along with her husband were taken to DDU Hospital for her medical examination. After medical examination, lady Ct. Uma handed over 06 sealed parcels and one sample seal to me. Thereafter, prosecutrix was brought to PS accompanied by her husband. He recorded her statement and made endorsement upon the same (Ex.PW12/A) for registration of FIR under sections 342/376/506 of the IPC. He handed over rukka to the duty officer for registeration of FIR. I along with Ct.Amit and prosecutrix accompanied by her husband reached at the place of occurrence i.e. A-171, J.J.Colony, Uttam Nagar, Delhi. On the pointing out of the prosecutrix, he prepared the site plan of the place of occurrence (Ex.PW3/B). Thereafter, police team along with the prosecutrix and her husband went in search of accused at C-521, Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 15 of 51 ::-
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J.J.Colony, Delhi i.e. house of accused. Accused Ramjee Lal met them at his house. On the pointing out of the complainant, he was apprehended and arrested in the present case. The arrest memo and personal memos of accused (Ex.PW3/D and Ex.PW4/A) were prepared by him. Accused was brought to Police Station and was sent to medical examination at DDU Hospital along with Ct. Amit who handed over three sealed pulendas and one sample seal to him which he seized vide seizure memo (Ex.PW10/A). He also seized the six pulendas and one sample seal handed over to him by Lady Ct. Uma Choudhary through seizure memo (Ex.PW3/C). All the pulendas were deposited in the Mal Khana. On 04.03.2012, the accused was produced in the Court and sent to judicial custody up to 17.03.2012. On 15.04.2012, the case file was transferred to ASI Sushma, who conducted further investigation in the present case at the directions of SHO.
29. PW13, Ms.Seema Nain, has testified that vide a letter no. 3875/SHO/Uttam Nagar dated 14.05.2012, 09 parcels in connection with FIR No.105/2012 dated 04.03.2012 under section 342/376/506 IPC PS Uttam Nagar were received in the office of FSL on 14.05.2012. The same were examined by her vide her detailed report (Ex.PW13/A) and the serological report (Ex.PW13/B).
30. The accused and the amicus curiae have preferred not to cross examine PWs 1, 5, 8, 9 and 13. Their evidence remains Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 16 of 51 ::-
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uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.
DISCUSSION, ANALYSIS AND OBSERVATIONS
31. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 17 of 51 ::-
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case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
32. Under this sphere, I now proceed to test the submissions of both the sides.
DEFENCE OF THE ACCUSED
33. The accused has claimed in his defence that he has been falsely implicated in this case. In his statement under section 313 of the Cr.P.C., recorded on 17.01.2013, the accused has claimed that he has been falsely implicated in this case at the instance of prosecutrix and her husband since the husband of the prosecutrix had borrowed a sum of Rs. 50,000/- from him and to avoid to returning the amount, he has been falsely implicated in this case. His brother in law, Mr.Banwari Lal (Behnoi) had given him Rs.50,000/- which he had given to the husband of the prosecutrix. His brother in law and sister have since expired. Accused has preferred not to lead any evidence in his defence.
34. However, the accused has not led any evidence in his defence to substantiate his claim. Even the suggestions he has given to the prosecutrix are different to the extent that he has suggested to the Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 18 of 51 ::-
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prosecutrix that the accused has been falsely implicated at the instance of her husband as her husband did not want to return the borrowed amount of Rs.50,000/- while to the husband of the prosecutrix, it has been suggested that he has been falsely implicated when the accused demanded his Rs.50,000/- from PW4 then PW4 and his wife falsely implicated him in this case. It has also been suggested to PW4 that he had taken Rs.50,000/- from the accused on the pretext to marry the prosecutrix with the accused. These facts indicate that he is putting up a false defence on an after thought. The accused has only attempted unsuccessfully to mislead the Court.
35. The accused has also failed to show any motive or malafide intention on the part of the prosecutrix and her husband for implicating him in a false case. The accused failed to assign any malafide motive to PWs 3 and 4 that they would get him falsely implicated in a rape case. The defence of the accused does not appear to be probable.
IDENTITY OF THE ACCUSED
36. There is no dispute regarding the identity of the accused. He has been named in the FIR.
37. It may be observed here that the parties were known to each other even prior to the incident and therefore, there can be no question of doubt being raised with regard to the identity of the accused who has also Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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been correctly identified in the Court by the prosecutrix (PW3) and her husband (PW4).
STATEMENT OF THE PROSECUTRIX
38. The Additional Public Prosecutor has argued that the evidence of the prosecutrix does not suffer from any inconsistency and is blemish free while the amicus curiae for the accused has argued that no reliance can be placed upon her evidence as there are many variations.
39. It may be observed here that it is a general handicap attached to all eye witnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if the speak to all events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed with broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witness was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone. Similar observations have also been made by the Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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Supreme Court in the judgment reported as Bhag Singh and Oths. v. State of Punjab, 1997 VII AD SC 507.
40. When an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
41. However, I find that the prosecutrix, in her evidence before the Court as well as her statement to the police, is consistent with regard to the role of the accused and the manner in which he committed the offence by raping her twice on the same day. She has categorically deposed that on 03.03.2012, after her husband left for his work at about 9.00 am and she was alone in the house at that time. At about 10.00 am, accused Mr.Ramjee Lal came to her house, asking for her husband and bolted the door of the room from inside and pressed her mouth with her hand (smothered). Thereafter, he forcibly made her lie on the bed sheet already spread on the floor of the room. She raised alarm saying that she Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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would tell her husband about the same on which he threatened to kill her. She got scared and remained mum. The accused raped her and then left the house. Out of fear of the accused, she did not narrate the incident to anyone as he had threatened to kill her. On the same day, he came again at about 2 pm when she was alone in the house. She had taken a bath and was changing clothes in the room. Accused bolted the room from inside. On seeing him, she told him that she will narrate everything to her husband on which the accused slapped her. Thereafter, he again forcibly made her lie on the same bed sheet already spread on the floor and committed rape upon her. When she said that she will tell about the incident to her husband, he slapped her and threatened to kill her. At about 3 pm, he left her room. Due to the threatening by the accused, she did tell the incident to any neighbor. When her husband returned from work at about 9 pm, she told him about the incident. At the time of incident she was one month pregnant.
42. It has been argued on behalf of the accused that the prosecutrix could have raised alarm and called the neighbours but I am of the considered opinion that it is not unusual for neighbours to be oblivious to the happenings in the adjoining quarters. It is to be noted that in the present case victim was facing sexual assault by a known person and in these circumstances there could be hardly in struggle when the accused has threatened the victim and beaten her as soon after the incident.
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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43. It has also been argued on behalf of the accused that it is not possible to commit rape upon the prosecutrix while the neighbours were also in the viscinity. However, I am of the opinion that this contention is not tenable especially in view of the testimony of PW3 when she has deposed that the accused had bolted the door from inside, there was no occasion for the neighbours to notice anything unusual.
44. The contention of the advocate, amicus curie for the accused that the details of the incidents of morning and evening have not been furnished by the prosecutrix also does not hold any force as much importance cannot be given to this contention as it must be remembered that the shock of this defilement must have been so great and she must have been overtaken by the trauma of the incident, she cannot be expected to know exactly what was happening around her and what were the exact details. Even otherwise, she has given all the details which are necessary to constitute the offence.
45. Nothing material has come forth in her lengthy cross examination on behalf of the accused. It has not been controverted that at the time of incident, she was one month pregnant and on the date of evidence she has a seven months pregnancy and her eighth month is running. The police visited her house and the site plan (Ex.PW3/B) was prepared. One saree, one blouse and petticoat (underskirt) which she was wearing at the time of incident of 10 am and one salwar which she was wearing at the time of incident of about 3 pm, one bedsheet and one towel Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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were given to the doctor. Even this fact has not been controverted. All the material aspects of the offence have also not been controverted and rebutted.
46. The evidence of the prosecutrix has been most inconsistent in so far as the allegations against the accused are concerned, on the following aspects:
1.That the accused Mr.Ramjee Lal was known to her and her husband.
2. On 03.03.2012, after her husband left for his work at about 9.00 am and she was alone in the house at that time. At about 10.00 am, accused Mr.Ramjee Lal came to her house, asking for her husband and bolted the door of the room from inside and pressed her mouth with her hand.
3. Thereafter, he forcibly made her lie on the bed sheet already spread on the floor of the room. She raised alarm saying that she would tell her husband about the same on which he threatened to kill her. She got scared and remained mum.
4.The accused raped her and then left the house.
5.Out of fear of the accused, she did not narrate the incident to anyone as he had threatened to kill her.
6.On the same day, he came again at about 2 pm when she was alone in the house. She had taken a bath and was changing clothes in the room. Accused bolted the room from inside. On seeing him, she told him that she will narrate everything to her husband on which the accused slapped her.
7.Thereafter, he again forcibly made her lie on the same bed sheet already spread on the floor and committed rape upon her.
8.When she said that she will tell about the incident to her husband, he slapped her and threatened to kill her. At about 3 pm, he left her room.
9.Due to the threatening by the accused, she did tell the incident to any neighbor. When her husband returned from work at about 9 Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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pm, she told him about the incident.
47. On behalf of the accused, it has been vehemently argued that in her statement before the court, the prosecutrix has improved upon her earlier statement regarding the name of her husband being asked by the accused on coming to her house at about 10 am. In this regard, it may be observed that a valid explanation is forthcoming for the same as the fact that he was asking for her husband (without his name) is mentioned.
48. It is apparently clear from the above that the allegations are specific and consistent. There is no reason why the accused would have been falsely implicated. It is also evident that the prosecutrix is a married woman and had a one month pregnancy at the time of incident. She could have suppressed the incident without any person having come to know of it, which she did not do and rather chose to inform her husband about the same on which the present case was registered and there is no reason for her why she would expose herself to this situation under the given scenario. No plausible explanation is forthcoming on behalf of the accused as to why the prosecutrix would falsely implicated him. Rather, the only defence of the accused is that the husband of the prosecutrix had borrowed Rs.50,000/- from him and to avoid returning, the accused has been falsely implicated in this case. This defence remains unsubstantiated due to lack of evidence. The explanation of the accused is highly improbable. No person worth the name would expose his wife to this kind of allegation only to avoid repaying the alleged borrowed amount. The Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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defence so raised by the accused is neither probable nor acceptable. There is no reason to disbelieve of what the prosecutrix has stated.
49. It has been argued that the prosecutrix had made false allegations of rape against the accused since there were sufficient opportunities for the prosecutrix to have raised an alarm as a large number of persons are staying in the area and the testimony of the prosecutrix cannot be relied upon. It may be observed that in this regard the prosecutrix has explained her circumstances and has specifically deposed that due to fear she could not say anything and she told her husband on his return.
50. The manner in which the events have unfolded and the surrounding circumstances, reflect the truthful character of the deposition made by the prosecutrix.
51. No Indian woman would put her reputation to stake by making false allegations against a man outside the marriage nor any Indian male would expose his wife to come up with such an allegation against his distant relative only for not returning the borrowed amount. Reliance can be placed upon the judgment of the hon'ble Supreme Court of India reported as Om Prakash v. State of Uttar Pradesh, AIR 2006 SC 2214 wherein the following observations were made:
".... The Indian women has tendency to conceal such offence (of rape) because it involves her prestige as well as prestige of her Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instance case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after staking her own prestige and honour......"
52. The Courts must, while evaluating evidence, 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 such as is involved in the commission of rape on her. 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. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook.
53. The contention of the accused that there is only the evidence of the prosecutrix against him without any corroborative evidence, I am of the considered view that in criminal trial, the finding of conviction can be based even on the strength of deposition of single witness, in case it is found trust worthy and reliable as it is quality and not quantity of the evidence that count and my view is strengthened by the judgment of the Supreme Court of India, in the case reported as Sheelam Ramesh and Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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another v. State of A.P., JT 1999 (8) S.C. 537, wherein it is observed that Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on a sole evidence of a witness, if it inspire confidence.
54. There is nothing on the record to indicate that the evidence of the prosecutrix is false or motivated. Her evidence appears to be completely reliable and trustworthy.
CONSENT OF THE PROSECUTRIX
55. Consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent.
56. It has been held in the judgment reported as Sadashiv Ramrao Hadbe v. State of Maharashtra and another, (2006) 10 SCC 92 that absence of injuries on the body of the prosecutrix improbabilise the prosecution version that she has been raped. Similar opinion was also observed in Radhu v. State of Madhya Pradesh, JT 2007 (11) SC 91 and Vinay Krishna Ghattak v. State of Rajasthan, 2004 (1) RCR Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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(Cri.) 565 wherein it was held that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was a consenting party.
57. In the present case, no plea has been raised that the prosecutrix (who has injuries) was consenting party as the incident, as such, has been denied by the accused.
58. Section 114 A of the Indian Evidence Act provides that in a prosecution for rape under sub section 2 of Section 376 of the Indian Penal Code where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the Court shall presume that she did not consent.
59. Applying the settled principles of law to the facts of the present case it is evident that the prosecutrix has all through been very consistent in her testimony and stated that she had not consented to any kind of relations with the accused.
60. Therefore, under these circumstances, I hold that once the prosecutrix has stated that she did not consent, there is no reason to disbelieve her statement.
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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61. Further, the husband of the prosecutrix (PW4) has deposed that when he returned in the night, he was told by the prosecutrix about the incident. It is a case where the accused had committed the act upon the prosecutrix without her consent and it was for this reason that she informed her husband about the same. It is unbelievable that the prosecutrix would have told her husband about the entire details in case if she was a consenting party to the act and therefore, her testimony to that extent is liable to be believed and the accused is unable to successfully rebut the presumption in favour of the prosecutrix.
62. The manner in which the events have unfolded and the surrounding circumstances, reflect the truthful character of the deposition made by the prosecutrix.
THREATS AND BEATING BY THE ACCUSED
63. In her testimony before the Court, the prosecutrix has stated that she had been threatened by the accused that he shall kill her and her husband. He has beaten her when he had come in the afternoon when he again committed the rape. The argument that the details of the threats and beatings are not given is not tenable as due to suddenness of the offence, the mental faculty of such a victim cannot be expected to be attuned to observe the details like the words used in the threats, the exact place of beatings, etc.. The deposition regarding the threat and beating is also consistent.
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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EVIDENCE OF PW4
64. It has been argued on behalf of the accused that the husband of the prosecutrix as PW4 made several improvements from his statement under section 161 of the Cr.P.C.
65. On careful perusal of the evidence of PW4, it transpires that his evidence is corroborative to the evidence of PW3, the prosecutrix, on material points that she had told him about the incident on his return at night.
66. In the judgment reported as, State of H.P. v. Lekhraj and another, JT 1999 (9) SC 43, it was observed by the Supreme Court of India as under :-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
67. In the judgment reported as, Surender Singh v. State of Haryana, JT 2006 (1) SC 645, it was observed by the Supreme Court of India as under :-
"It is well-established principle of law that every discrepancy in Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
68. The Supreme Court had an opportunity to guide as to why discrepancies arise in the statements of witnesses. In the judgment reported as Bharwada Boginbhai Hijri Bhai v. State of Gujarat, 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a)By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b)Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c)The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d)By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e)In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f)Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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time span. A witness is liable to get confused, or mixed up when interrogated lateron.
(g)A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
69. As far as minor inconsistencies or improvements are concerned in the statement of PW4 it can be said that minor variations in the accounts of a witness are often the hallmark of the truth of his testimony. When the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the deposition. In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
70. Therefore, there is no reason to throw out the testimony of the husband of the prosecutrix.
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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MEDICAL AND FORENSIC EVIDENCE
71. The MLC of the prosecutrix (Ex.PW5/A) has been duly proved by Dr.Preeti Bhaduria (PW5) and Dr.Manoj (PW6).
72. Her examination has revealed that she has multiple linear superficial abrasions on forearm and wrist and this fact corroborates the evidence of the prosecutrix that she received scratches on her hand while resisting the accused.
73. The prosecutrix is a married woman and her medical examination revealed that the hymen is old torn which is very natural sine since was married about two years earlier to the incident and was one month pregnant.
74. The FSL reports (Ex.PW13/A and Ex.PW13/B) also indicate that human semen was detected on the cervical swab, cervical slide, vaginal swab, vaginal slide, one dirty salwar, one dirty petticoat, one dirty bedsheet, one dirty towel and one dirty underwear. There is nothing to suggest that the reports are not genuine.
75. The presence of semen on the above mentioned exhibits, all pertaining to the prosecutrix, show that physical relationship has been made with her.
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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76. The MLC of the accused (Ex.PW8/A) is proved by Dr.Avnish Bhargava (PW8) and it is clear from the same that there is nothing to suggest that the accused cannot do the sexual act.
77. The medical and forensic evidence is corroborative to the evidence of the prosecutrix.
INVESTIGATION
78. The investigation conducted in the present case has been deposed by PWs 1,7, 9, 10, 11 and 12. The FIR has been proved by PW2. The MLCs of the prosecutrix have been proved by PWs 5 and 6. The MLC of the accused been proved by PW8. The FSL reports have been proved by PW13. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
79. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the first and the second IOs. They have clearly deposed that they were informed about the rape of the prosecutrix, the accused as well as the prosecutrix were taken to the hospital for their medical examination, accused was arrested, documents pertaining to his arrest were prepared, underclothes of the accused and the prosecutrix were seized, medical documents were preaped, parcels were collected from the doctor and sent to the FSL for examination, etc. There is nothing on the record to show that their testimonies are false or not reliable. Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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80. It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of PW1, then the investigation becomes less important as PW1 has not only deposed regarding the manner of commission of the crime but has also elaborated all the details and has assigned a clear and specific role to the accused.
81. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
82. It may also be observed here that the accused has also failed to show that he is not the person who had confined, raped, threatened and beaten the prosecutrix. He has also failed to lead any evidence to substantiate his claim or falsify the prosecution version or show that the evidence of the prosecution witnesses is not reliable and credible.
CONCLUSION
83. It is clear from the above discussion that the prosecution has been able to successfully prove that on 03.03.2012 between 10.00 am to Sessions Case Number : 105 of 2012.
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10.30 am and again between 2.00 pm to 3.00 pm at A-171, JJ Colony, Hastal, New Delhi within the jurisdiction of Police Station Uttam Nagar, he committed rape upon prosecutrix (name withheld to protect her identity) at her house by confining her wrongfully in her room by bolting the room from inside and both the times after committing rape upon prosecutrix, he criminally intimidated prosecutrix that he would kill her and her husband, if she told the incident to her husband and he had slapped/beaten her.
84. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
85. Applying the above principles of law to the facts of present case, it is evident that the evidence of the prosecution especially the Sessions Case Number : 105 of 2012.
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prosecutrix is reliable, believable and trustworthy and the prosecution has established the case of wrongful confinement, rape, threat and simple hurt. The facts of the case are consistent with the hypothesis of guilt of the accused.
86. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLC, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witnesses of the prosecution have been able to build up a continuous link. The only fact which the prosecution has not been able to prove is that the accused had knowledge that the prosecutrix was pregnant at the time of incident. Rest all the facts relevant in respect of the offences punishable under sections 376, 342, 506 and 323 of the IPC have been properly proved.
87. In view of the foregoing reasons, the conscience of this Court is completely satisfied that the prosecution has been able to successfully bring home the charge against the accused Mr.Ramjee Lal regarding the commission of offences under sections 342, 376, 506 Sessions Case Number : 105 of 2012.
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and 323 of the IPC.
88. Accordingly, the accused, Mr.Ramjee Lal, is hereby convicted for having committed offences punishable under sections 342, 376, 506 and 323 of the IPC.
89. Let him be heard of the point of sentence.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 24th day of January, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 42 of 2013.
Unique Case ID Number : 02401R0269992012.
State versus Mr. Ramjee Lal
Son of Mr. Nanu Ram,
Resident of C-521, JJ Colony, Hastsal,
Uttam Nagar, Delhi.
FIR Number 105 of 2012.
Police Station Uttam Nagar.
Under sections 342/506/376 of the Indian Penal Code.
Date of filing of the charge sheet before : 28.05.2012. the Court of the Metropolitan Magistrate Date of receipt of file after committal : 08.06.2012. Date of transfer of the file to this Court : 09.01.2013.
ASJ (SFTC)-01, West, THC, Delhi Date of judgment : 24.01.2013. Date of conclusion of arguments on sentence : 24.01.2013. Date of order on sentence : 24.01.2013.
Appearances: Mr.Anil Kumar, Additional Public Prosecutor for the State.
Convict Mr.Ramjee Lal has been produced from judicial custody.
Ms. Sadhna Bhatia, Advocate, Amicus Curiae for the accused.
Ms.Sadhna Singh, counsel for the Delhi Commission for Women.
*********************************************************** Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 40 of 51 ::-
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ORDER ON SENTENCE
1. In pursuance of judgment dated 23.01.2013 as passed by this Court convicting the accused namely Mr.Ramjee Lal for offence punishable under sections 342, 376, 506 and 323 of the Indian Penal Code (hereinafter referred to as the IPC), I have heard the Additional Public Prosecutor for the State as well as the advocate, amicus curie for the convict on the point of quantum of sentence to be awarded to the convict and also perused the case record.
2. It has already been observed in the judgment that this case is a glaring example of the growing menace of sexual abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the accused is in fiduciary relationship with the victim (as in the present case since the accused is addressed as "Mama-maternal uncle" of the husband of the prosecutrix), who is subjected to unwanted physical contact by a perverted male adult.
3. "The psychological harm on the victim is massive as it evokes doubts, raises questions for which answers are not easy to get. The victim may suppress emotions or be filled with feelings of rage, guilt and shame. It is difficult for such victims to trust others later on in life. The victim needs to stand up for himself/herself and not allow the trauma to make them psychologically and socially weak. Active social support from family, friends, guidance centres and counselors can bring the victim's Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 41 of 51 ::-
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faith in the goodness of human beings back." ---Dr.Sanjay Chugh, Senior Consulting Psychiatrist.
4. The victim lacks self-confidence and is always under a sense of guilt and denial. It's not about the body. It's more about the mind. Sexual abuse is a rape of the mind and thought processes.
5. The Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him.
6. The convict and the amicus curiae, on the other hand, have requested for a lenient view to be taken against him and for his release on probation as the convict hails from poor family. He is an unmarried man, aged about 35 years. He was working as a carpenter prior to his arrest and since then he is in custody w.e.f. 04.03.2012. He is a first offender and has never committed any offence earlier. It is also submitted that he shall not commit any offence in future.
7. Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider it proper to award a substantive sentence upon the convict. Rape in itself is abominable and ghastly and it worsens and becomes inhuman and barbaric when the accused is in fiduciary relationship with the victim Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 42 of 51 ::-
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(as in the present case since the accused is addressed as "Mama-maternal uncle" of the husband of the prosecutrix), who is subjected to unwanted physical contact by a perverted male adult.
8. Keeping in view the offence committed by the convict, I am not inclined to take a lenient view against him and release him on probation. He has raped a young woman who was helpless, defenceless, vulnerable and an easy prey. She also had a one month pregnancy at the time of incident. The fact that the accused was not aware about her pregnancy does not make her any less pregnant at the time of incident. He has violated the very sanctity of the fiduciary relationship with the husband of the prosecutrix since the accused is addressed as "Mama-maternal uncle"
of the husband of the prosecutrix. His abominable, perverted and ghastly act worsens and becomes inhuman and barbaric as the prosecutrix, who was pregnant at the time of incident, has been subjected to his unwanted physical contact.
9. I am of the considered opinion that the convict should be awarded a substantive, stern and firm sentence because he has defiled her. As per social morality which attaches highest importance to the chastity of a woman, the outrage and breach of her privacy and modesty is a heinous offence. Keeping into consideration the fact that the act of rape is an act of a perverted man, the minimum sentence provided of seven years or a lesser imprisonment should not be awarded to the convict.
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 43 of 51 ::-
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10. The object of sentence should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The welfare and interest of other women in the society also needs to be protected for the reason that if the convict is released, they may be subjected by him in a similar offence with them.
11. It has been held in the judgment reported as State of Karnataka v. Raju, 2007 (11) SCC 490, as follows:
"The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused . It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. ? To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence."
12. Undue sympathy to impose inadequate sentence would do more Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 44 of 51 ::-
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harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats.
13. In AIR 2000, Supreme Court, 1470, the Supreme Court held has under:
Socio-economic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court.
14. In the judgment reported as Shri Bodhisattwa Gautm v. Miss Subhra Chakraborty, AIR 1996 SC 922, the Hon'ble Apex Court observed that:"
The entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 45 of 51 ::-
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clauses of penal provisions, containing complex exceptions and provisions."
15. In the present case, the convict has committed rape on a pregnant young woman. Due to her medical condition and the threat extended to her by the convict, she was in a position to offer much resistance to the convict. The convict has taken advantage of a helpless and defenceless vulnerable prey. She must have undergone immense physical pain and agony when the offence was committed. The convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating her person and giving her a lifelong trauma.
16. Sexual violence apart from the being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the Constitution) the Courts, are Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 46 of 51 ::-
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therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A society sensitized judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions (Reliance can be placed upon 2004 IX AD (S.C.) 5 and Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC 922).
17. Recently, crime against women generally and rape in particular is on the increase and the society also appears to be concerned for the honour of women. In this backdrop, this Court is required to treat the issue with more sensitivity. The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent.
18. In the present case, the act of the convict is most deplorable, both legally and morally. It is time for realization that certain category of sexually depraved behaviour is totally unacceptable in the Indian Socio- Legal System which seeks to protect the chastity the first virtue of a woman and eying the wife of another can prove to be costly as has happened in the present case. The victim is a hapless and one month pregnant woman.
19. Keeping in view the ghastly and inhuman act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 47 of 51 ::-
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also serves as an example for the others who might also venture on the same forbidden path. The convict does not deserve any leniency.
20. Therefore, considering these aggravating facts, I hereby sentence Mr.Ramjee Lal, the convict as follows:
(a)for offence under section 376 of the IPC to rigorous imprisonment for life and a fine in the sum of Rs.50,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of one year;
(b)for offence under section 342 of the IPC to rigorous imprisonment for a period of one year and a fine in the sum of Rs.1,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of one month;
(c)for offence under section 506 of the IPC to rigorous imprisonment for a period of two years and a fine in the sum of Rs.10,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of three months; and
(d)for offence under section 323 of the IPC to rigorous imprisonment for a period of six months and a fine in the sum of Rs.1,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of one month.
21. All the sentences shall run concurrently, in the event of the fine not being realized.
Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 48 of 51 ::-
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22. Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules. The convict is in judicial custody. He is sent to judicial custody for serving the remaining sentence.
23. The entire amount of fine, if realized, is awarded to the prosecutrix as compensation for the benefit of the prosecutrix.
24. Further, this Court directs that the State shall pay to the prosecutrix/victim a sum of Rs.3 lacs as victim compensation in terms of Rules 3 and 5 read with Entry 2 to the schedule of the Delhi Victims Compensation Scheme 2011 (notified on 02.02.2012) read with section 357-A of the Cr.P.C. The terms of the scheme entitle every rape victim to minimum compensation of Rs.2 lacs and a maximum compensation of Rs.3 lacs. Having regard to the facts of the case and the circumstances of the prosecutrix/victim, the Government of NCT is directed to pay the said maximum amount of Rs.3 lacs to the victim. 75 % of the amount shall be deposited in a fixed deposit, in terms of Rule 7 of the Scheme, in a nationalized bank for a period of three years and the remaining 25 % shall be available for utilization and initial expenses by the victim/prosecutrix.
25. These directions shall be complied within six weeks. The Delhi Legal Services Authority, which is the designated body under the said Scheme, shall oversee the implementation of these directions. The State Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 49 of 51 ::-
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shall ensure that the victim is duly informed within one week. The victim shall appear the Delhi Legal Services Authority on 05.02.2013 for the said purpose.
26. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
27. A copy of the judgment dated 24.01.2013 and a copy of the order on sentence dated 24.01.2013, duly attested, besides the complete set of copy of the relevant case record, in compliance of directions of the High Court, be given to the convict, namely, Mr.Ramjee Lal, free of cost im- mediately. Another set be attached with his jail warrants.
28. A copy of the judgment dated 24.01.2013 and a copy of the order on sentence dated 24.01.2013 also be given to the Additional Public Pros- ecutor, as requested.
29. Before parting, I would also like to observe that Mr.Anil Kumar, Additional Public Prosecutor as well as Ms.Sadhna Bhatia, advocate, who has been appointed as amicus curiae in this case have made very sincere and laborious efforts in this case with their very able assistance Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 50 of 51 ::-
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and regular appearance, thereby enabling the Court to dispose the matter expeditiously.
30. After completion of the formalities and expiry of the period of limitation, the ahlmad is directed to consign the file to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 24th day of January, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number : 105 of 2012.
Unique Case ID Number : 02401R0269992012 .
FIR Number 105 of 2012; Police Station Uttam Nagar. Under sections 342/506/376 of the Indian Penal Code.
State versus Ramjee Lal. -:: Page 51 of 51 ::-