Delhi District Court
State vs . Rajender on 14 February, 2017
IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS JUDGE (SFTC), DWARKA COURTS, NEW DELHI. SC No. 440739/16 FIR No. 16/2016 U/s.376/323/506 IPC P.S. Jaffarpur Kalan State Vs. Rajender S/o Sh. Chander Singh R/o Village Kair, New Delhi. Date of Institution : 09.03.2016 Date of arguments : 13.01.2017/25.1.2017 Date of judgment : 14.02.2017 JUDGMENT : 1.
Accused was arrested by the Police of Police Station Jaffarpur Kalan, New Delhi and was challaned to the court for trial for commission of the offences punishable under Sections 376/323/506 Indian Penal Code, 1860 (in short 'IPC').
2. The case of the prosecution, in brief, is that on 18.1.2016 on receipt of DD No.10A regarding rape, ASI Prabhu Dayal along with Constable Sudhir and lady Constable Sushma reached the spot of incident i.e the open fields of village Kair. As the matter related to the incident of rape, W SI Manju was directed by the SHO to attend the said call. In pursuance of the directions so issued, W SI Manju reached the house of the prosecutrix and recorded her statement. The prosecutrix was unmarried girl aged about 21 years at the time of State vs. Rajender Page 1 of 14 (FIR No. 16/2016 PS Jaffarpur Kalan) incident. As per prosecutrix, she was working in a private firm at Uttam Nagar, New Delhi. On 18.1.2016 at about 9.30 a.m she left her house for going to the bus stand at Kair Village. When she was passing through the open fields, the accused, whom she had seen two three times earlier, took her forcibly inside the fields and committed rape on her. Accused also threatened to kill her if the incident of rape was disclosed to anybody.
3. On the complaint of the prosecutrix, FIR was registered and the matter was investigated by the police. During investigation, statement of the prosecutrix was got recorded u/s.164 Cr.PC on 20.1.2016. Accused was arrested. The statements of the witnesses were recorded. The prosecutrix as well as accused were got medically examined. After completing investigation and conducting other necessary formalities, chargesheet was filed in the court.
4. After supplying the copies of the documents to the accused u/s 207 Cr.PC, Ld Metropolitan Magistrate committed the present case to the Court of Sessions.
5. Charge u/ss. 376/506 IPC against the accused was framed to which he pleaded not guilty and claimed trial. He was accordingly put to trial.
6. Trial proceeded and in the course of trial, prosecution in order to substantiate its case against the accused, examined fifteen witnesses in all. PW1 is the prosecutrix who has narrated the incident. PW2 Ms. Neeti Suri Mishra, Ld. Metropolitan Magistrate has proved the statement of the prosecutrix recorded u/s 164 Cr.PC as Ex.PW1/C State vs. Rajender Page 2 of 14 (FIR No. 16/2016 PS Jaffarpur Kalan) and her certificate as Ex.PW2/A. PW3 Abhishek Kumar, Ld. MM has proved the TIP proceedings of the accused. PW4 Dr. A S Yadav has proved the MLC of the prosecutrix as Ex.PW4/A and Ex.PW7/A. PW5 Dr. Vivek has proved the MLC of the accused as Ex.PW5/A. PW6 Dr. Chhitij Mohan has proved his observations on the MLC of the accused as Ex.PW6/A. PW7 Dr. Moni Kanchan has proved the MLC of the prosecutrix as Ex.PW7/A. PW8 Sumit Kumar is a formal witness who deposited the pullandas with sample seal pertaining to the present case in the FSL Rohini. PW9 W Constable Sushma and PW 10 Constable Sudheer joined the investigation with IO. PW11 ASI Prabhu Dayal reached the spot on receiving DD No.10A dated 18.1.2016. PW12 HC Pawan Kumar has proved the relevant entries in Register no.19 as Ex.PW12/A to Ex.PW12/E. PW13 W ASI Sudesh is a formal witness who deposited the sealed exhibits with sample seal of Rao Tula Ram Memorial Hospital (hereinafter referred to as 'RTRM Hospital') in FSL Rohini. PW14 ASI Jai Kishan has proved the copy of the FIR as Ex.PW14/A, certificate u/s 65B of Indian Evidence Act as Ex.PW14/B and endorsement on rukka as Ex.PW14/C. PW15 W SI Manju is the IO of the case.
7. Statement of accused was recorded under Section 313 Cr.P.C when a chance was given to explain the incriminating evidence against him. Accused pleaded that on 16.4.2016 complainant trespassed in his fields. He was taking care of his crops. An altercation took place and the complainant fell down while she was running away. As per accused, no rape was committed by him. He has been State vs. Rajender Page 3 of 14 (FIR No. 16/2016 PS Jaffarpur Kalan) falsely implicated in this case by the police. The accused did not lead evidence in his defence.
8. I have heard Ms. Satwinder Kaur, Ld. APP for the State and Sh. Ajay Raghav, Ld. Legal Aid Counsel for the accused. I have also perused the material on record.
9. Ld. Counsel for accused has contended that accused has been falsely implicated in this case. No rape was committed by the accused. There was strong motive of the prosecutrix to implicate the accused. It was on account of altercation that took place on 16.1.2016, the prosecutrix implicated the accused in false case to take revenge. He has submitted that when the forcible assault is committed on a girl, one would expect some sort of injury on any part of her body, but the prosecution story is totally concocted as it is unbelievable that inspite of all the alleged forcible rape, the prosecutrix did not sustain any injury. Lastly, it is contended that there are several anamolies and improvements in the evidence, no corroboration of certain important statements of prosecutrix with the medical evidence and the prosecution has failed to prove its case against the accused and, hence, accused is liable to be acquitted.
10. On the other hand, Ld. APP for State has contended that there is not an iota of doubt in coming to the conclusion that the accused has committed the grievous offence and, therefore, he is liable to be convicted in this case.
11. PW1 (Prosecutrix) is the star witness in this case. She has deposed that she was working as Beauty Advisor in a company (name State vs. Rajender Page 4 of 14 (FIR No. 16/2016 PS Jaffarpur Kalan) and place of the company withheld). Her working hours were from 11 a.m to 8 p.m. On 18.1.2016, as usual, at about 9.30 a.m she left her house for going to office. She used to take a bus from Kair Village Bus Stand, Najafgarh. It was about 15 to 20 minutes distance on foot from her house to the bus stand. It was a secluded area and there were fields in the said area. On that day there was fog while she was going by the said route. Accused came from behind and caught hold of her. He gagged her mouth and dragged her into the fields. She raised an alarm but nobody came for her help as it was a foggy day. She wept and asked for mercy from the accused. She even tried to run away and while running away she fell down on the ground and sustained injuries on her palms, legs etc. However, the accused chased her and dragged her in the fields and committed rape upon her. He also threatened to kill her if the incident of rape was narrated to anyone. From the spot she returned to her house and informed her mother about the incident. The police was informed. She has proved her complaint to police as Ex.PW1/A. She has further deposed that she was taken to hospital for her medical examination on the same day in the afternoon. Her clothes were seized vide seizure memoEx.PW1/B and her statement u/s 164 Cr.PC was also got recorded. She has proved her clothes i.e green colour panty, grey colour inner, jacket, black pant, mehroon colour lead as Ex.P1 to Ex.P5 respectively. She also got the portrait of the accused prepared. She has further deposed that on 15.2.2016 when she had gone to Dwarka Court for some work, she saw the accused with IO and identified him.
State vs. Rajender Page 5 of 14(FIR No. 16/2016 PS Jaffarpur Kalan)
12. During her cross examination, PW1 has deposed that there were two routes for reaching the bus stand of Kair village. One was through fields of Kair village and other was through main road. She took the route via fields of village Kair for going to bus stand as it was the shortest route. It was admitted that no call was made by her from her mobile phone to the police from the spot. She has further deposed that she had seen accused on two or three occasions at the bus stand of Kair village and on one occasion he had uttered some indecent words to her. She has denied that on 31.1.16 accused was shown to her in police station for identification.
13. PW4 Dr. A S Yadav was posted as Casuality Medical Officer in RTRM Hospital, Jaffarpur Kalan, New Delhi. On 18.1.2016, prosecutrix was brought before him for her medical examination with the alleged history of sexual assault upon her. He examined the prosecutrix and found injuries i.e abrasion over left palm and tiny abrasion around upper lip. He has proved the MLC of the prosecutrix as Ex.PW4/A. The prosecutrix was referred for her gynecological examination.
14. PW7 Dr. Moni Kanchan examined the prosecutrix on 18.1.2016 at RTRM Hospital where she was taken for her gynecological examination. She found her hymen torn. She took her anal/rectal swab, vulvul swab etc and all these exhibits were sealed with the seal of hospital and were handed over to the police. The UPT test of the prosecutrix was found to be negative. She has proved her abovesaid observations on MLC Ex.PW4/A as Ex.PW7/A. State vs. Rajender Page 6 of 14 (FIR No. 16/2016 PS Jaffarpur Kalan)
15. PW5 Dr. Vivek examined the accused on 31.1.2016. He did not find any external injury on the person of the accused. The accused was referred to Surgery Department by him. He has proved the MLC of the accused as Ex.PW5/A.
16. PW6 Dr. Chhitij Mohan examined the accused and found that there was nothing to suggest that accused was incapable of performing sexual intercourse. He proved his observation in this respect as Ex.PW6/A.
17. PW9 W Constable Sushma has deposed that on 18.1.2016 on receipt of a call, she along with ASI Prabhu Dayal and Constable Sudheer reached the spot i.e fields of village Kair, New Delhi. ASI Prabhu Dayal sent a message to Police Station to send a lady officer. After sometime WSI Manju came to the spot. She has deposed that after leaving Constable Sudhir at the spot, she along with SI Manju and prosecutrix went to RTRM Hospital. After the medical examination of prosecutrix, SI Manju handed over a rukka which she took to Police Station. After the registration of the FIR, she handed over the copy of the FIR and rukka to SI Manju.
18. PW10 Constable Sudhir and PW11 ASI Prabhu Dayal have corroborated the testimony of PW9.
19. PW13 W ASI Sudesh has deposed that she recorded the supplementary statement of the prosecutrix on 15.2.2016. After recording the statement of other witnesses who remained associated with the investigation of the present case, she filed the chargesheet in the Court.
State vs. Rajender Page 7 of 14(FIR No. 16/2016 PS Jaffarpur Kalan)
20. PW15 W SI Manju is the IO of the case. She corroborated the testimony of PW9, PW10 and PW11. She has further deposed that she recorded the statement (Ex.PW1/A) of the prosecutrix and also prepared the site planEx.PW15/A at the instance of the prosecutrix. As per PW15, she took photographs of the spot and has proved the same as Ex.PA1 to Ex.PA3. The prosecutrix was taken to RTRM Hospital for her medical examination. Nine sealed pullands along with sample seal were seized vide seizure memo Ex.PW9/A. She made an endorsementEx.PW15/B and sent lady Constable Sushma to Police Station for registration of FIR. She has further deposed that she tried to search for the accused but he could not be traced. On 19.1.2016 she got prepared the portraitEx.PW15/C of the accused with the assistance of the prosecutrix. The said portrait was prepared by Constable Sanjay of Crime Branch. On 31.1.2016 on receipt of a secret information, accused was apprehended on the pointing of the secret informer. Thereafter, the accused was brought to the Police Station and was arrested vide memoEx.PW15/C. His personal search was conducted vide memoEx.PW15/D. The accused made a disclosure statementEx.PW15/E. The accused was sent to RTRM Hospital for his medical examination and the sealed exhibits along with sample seal were seized vide memoEx.PW15/F. On 1.2.2016 the accused was produced for his TIP but he refused to join the same.
21. During her crossexamination, PW15 has deposed that she had recorded the statements of the prosecutrix and her mother State vs. Rajender Page 8 of 14 (FIR No. 16/2016 PS Jaffarpur Kalan) while no statement of father and the sister of the prosecutrix were recorded. She has further deposed that the jacket and pant of the prosecutrix were not found torn but they were having mud stains only. She has denied the suggestion that she did not conduct the investigation of this case fairly and properly or the accused was falsely implicated at the behest of the prosecutrix and her family members.
22. On 3.10.2016 Ld. APP for State tendered in FSL result and the same was exhibited as Ex.PA. This report is per se admissible u/s 293 Cr.PC. Ld. Legal Aid Counsel for the accused chose not to crossexamine the FSL expert and, as such, the expert was not called for his crossexamination.
23. The relevant portion of the FSL resultEx.PA is reproduced herein below :
" RESULT OF ANALYSIS
1. xxx
2. xxx
3. Human semen was detected on exhibits '1e', '1f1', '1f2', '1k' and '1l'.
4. xxx Note : 1e = One dirty cotton wool swab on stick, kept in tube described as 'Cervical mucus collection. 1f1 = One cotton wool swab on stick, described as 'Vaginal secretions'.
1f2 = Two microslides having faint smear described as 'Vaginal secretions'.
1k = One dirty Underwear 1l = One dirty Lower DNA EXAMINATION Exhibits '1e, '1f1', '1f2' (Microslides/Swabs of victim), '1j1' (Blood sample of victim), '1k' & ll' (Underwear & Lower of victim) and State vs. Rajender Page 9 of 14 (FIR No. 16/2016 PS Jaffarpur Kalan) '4a' (Blood sample of accused) of accused) were subjected to DNA isolation. DNA was isolated from the source of exhibits 'le', 'lf 1', 'lf2 (Microslides/swabs of victim), '1j1' (Blood sample of victim), 'lk' & '11' (Underwear & Lower of victim) and '4a' (Blood sample of accused). Identifiler plus amplification (STR) kt was used for each of the exhibit and data was analyzed by GeneMapper Idx Software.
RESULT OF DNA ANALYSIS
1) Male DNA Profile was generated from the source of exhibits 'le', lf1', lf2' (Microslides/Swabs of victim) and 'lk' & ll' (Underwear & Lower of victim).
2) However, DNA Profile was generated from the source of exhibits '1j1' (Blood sample of victim) and '4a' (Blood sample of accused).
Conclusion : DNA profile generated from the source of exhibit '4a' (Blood sample of accused) is similar with the DNA profile generated from the source of exhibits '1e', 1f1', '1f2', 1k' and '11'."
24. The Apex Court has held that if, upon consideration of the prosecution case in its entirety, the testimony of prosecutrix inspires confidence in the mind of the Court, the necessity of corroboration of her evidence may be excluded. Though not referred to or relied upon, the Apex Court in Rajender v. State of Himachal Pradesh, (2009) 16 SCC 69 has observed as under:
"This Court, in State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384 made the following weighty observation in respect of evidence of the victim of sexual assault: (SCC pp.395396, para
8).
"8. ... The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no selfrespecting 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 State vs. Rajender Page 10 of 14 (FIR No. 16/2016 PS Jaffarpur Kalan) 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. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled byher, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a part with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be selfinflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.State vs. Rajender Page 11 of 14
(FIR No. 16/2016 PS Jaffarpur Kalan)
19. In the context of Indian culture, a womanvictim of sexual aggressionwould rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."
25. Ld. Counsel for the accused laid stress to show that there is no offence committed by the accused on the ground of (i) medical evidence, and (ii) false implication by the prosecutrix. To appreciate his contention I have perused the evidence of PW7 Dr. Moni Kanchan who examined the prosecutrix at RTRM Hospital on the same day of the incident of rape and the FSL result Ex.PA. The human semen was detected on private parts of the prosecutrix and also on her underwear and lower. In addition to this, as per evidence of Dr. A S Yadav (PW4), there were injuries i.e abrasion over left palm and tiny abrasion around upper lip. PW7 Dr. Moni Kanchan found prosecutrix hymen torn apart from abovesaid injuries. All the injuries support the version of the prosecutrix who has deposed that on the day of incident accused came from behind and caught hold of her. He gagged her mouth and dragged her into the fields. As per prosecutrix, when she tried to run away she fell down on the ground and received State vs. Rajender Page 12 of 14 (FIR No. 16/2016 PS Jaffarpur Kalan) injuries on her person. In addition to this, the Doctor Chhitij Mohan (PW6) also stated that he found nothing which suggested that accused could not perform sexual intercourse. It is not expected that every rape victim should have injuries on her body to prove her case. The FSL resultEx.PA has established that the sample of semen found on the garments and cotton wool swabs was sufficient to link the same with the accused. The findings of the medical expert clearly establish that there was a rape committed on the prosecutrix.
26. The other ground taken by the Ld. Counsel is that the prosecutrix has falsely implicated the accused as an altercation had taken place on her trespassing the fields of the accused. The accused did not examine any witness in his defence to prove that any such altercation had taken place on 16.1.2016. The prosecutrix and the accused were not known to each other. Accused refused to take part in TIP proceedings and was correctly identified by the prosecutrix during trial. It is not believable that a girl would falsely implicate any innocent person in a grave offence like rape just for the reason that an altercation had taken place with her.
27. Ld. Counsel for the accused has further contended that after the alleged occurrence, the girl straight away went to her house and only thereafter a report was lodged with the police and, hence, the story of rape cannot be believed. I find nothing unusual in the prosecutrix going to her house first. One cannot expect every rape victim to straightaway go to the Police Station and lodge complaint.
28. I have perused and analyzed the evidence of the State vs. Rajender Page 13 of 14 (FIR No. 16/2016 PS Jaffarpur Kalan) prosecution witnesses and, in particular, the evidence of PW1. In my opinion the testimony of the said witness is not only reliable but also trustworthy. The credibility of PW1 could not be shaken during her crossexamination. Prompt FIR was lodged by her. The version of the prosecutrix stands corroborated by medical evidence.
29. Taking into consideration the totality of circumstances and on appreciation of entire evidence, supported by doctors's opinion and chemical examination report, in my considered opinion, there is nothing to disbelieve the prosecution story that the accused has committed the offence of rape and criminal intimidation. Hence, the accused is convicted for the commission of offences punishable under Sections 376/506 IPC.
Announced in open Court (PRAVEEN KUMAR) today i.e. on 14.02.2017. Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.
State vs. Rajender Page 14 of 14(FIR No. 16/2016 PS Jaffarpur Kalan)