Delhi District Court
State vs . Imran Hussain, on 13 May, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 18/13.
Unique Case ID No. 02405R0292452012.
State Vs. Imran Hussain,
S/o Sh. Jahid Hussain,
R/o RZ-O-74, Gali No.1,
Chankya Place Part-2,
Near Taj Masjid,
New Delhi.
Date of Institution : 19.11.2012.
FIR No.291 dated 03.8.2012.
U/s. 376/511/506 IPC.
P.S. Dabri.
Date of reserving judgment/Order : 06.5.2013.
Date of pronouncement : 13.5.2013.
JUDGMENT
1. The accused had been sent for trial by the police for having committed the offences punishable u/s.376/506 IPC.
2. According to the prosecution case, the complainant Smt. Gujrati alongwith her daughter i.e. prosecutrix namely 'H' (real name withheld in order to protect her identity) had come to the police station on 02.8.2012 with a complaint that the prosecutrix had been raped by Imran s/o Sh. Jahid. SI Kusum Lata, who was posted at P.S. Sagarpur was summoned to deal with the SC No.18/13. Page 1 of 17 complainant and her daughter. She reached P.S. Dabri and made inquiries from the prosecutrix. She alongwith SI Sodan took the prosecutrix to DDU Hospital and got her medically examined. She also recorded the statement of the prosecutrix wherein the prosecutrix stated that she is 20 years old and doing B.A. Course from Delhi University through correspondence. She also stated that she knew accused Imran for the last one and a half years as his sister Sohalia was working with her in the same company and she had visited the house of the accused many times alongwith Sohalia. Accused had told her that he likes her and wants to marry her but she spurned his offer as they belong to different religions. However, accused Imran used to call her and send her text messages. On 02.8.2012 at about 2 p.m. accused Imran had made a telephonic call to her asking her to meet him at his home. When she reached his home, she found that nobody was present in the ground floor room. As soon as she entered the room, accused closed the door from inside, pushed her on to a cot, gagged her mouth with one hand, opened the string of her Salwar, took off her Salwar and panty, took off his own underwear as well as lower and raped her. Thereafter he threatened her that he would kill her and her family members if she disclosed the incident to anybody and left from there. She came home after sometime and narrated the incident to her mother.
3. On the aforesaid statement of the prosecutrix, FIR was got registered by SI Kusum Lata u/s.376/511/506 IPC. She prepared the site plan of the spot of incident at the instance of the prosecutrix and also seized the exhibits given to her by the doctor after medical examination of the prosecutrix. She recorded SC No.18/13. Page 2 of 17 statement of the witnesses and also sent the exhibits to FSL for forensic examination. She made search for the accused but did not find her. Ultimately, accused surrendered in court on 31.8.2012 and was arrested by SI Kusum Lata. He is stated to have made a disclosure statement admitting his guilt. He was got medically examined in DDU Hospital and exhibits/samples collected by the doctor were seized. The exhibits were then sent to FSL Rohini for DNA profiling and comparison.
4. After the completion of the investigation, Charge Sheet was laid before the concerned Magistrate, who then committed the case to the court of Sessions for trial.
5. Upon committal of the case to the court of Sessions, charges u/s.376 IPC and u/s.506 IPC were framed against the accused on 17.12.2012. The accused claimed not guilty to the aforesaid charges and accordingly prosecution was called upon to lead its evidence. The prosecution has examined 15 witnesses to prove the charge against the accused. The accused was examined u/s.313 Cr.PC on 22.4.2013 wherein he claimed innocence and denied all the incriminating facts and circumstances put to him. He further stated that the prosecutrix used to send him text messages regularly on his mobile phone and used to pressurise him to marry her but he declined and it is for this reason he has been framed by the prosecutrix in this case. The accused however chose not to lead any evidence in defence.
6. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire material on record.
SC No.18/13. Page 3 of 177. Ld. APP submits that the prosecutrix has vividly explained the incident of rape in her deposition before this court and nothing contrary to the prosecution case could be elicitated in her cross examination. She further submits that the mother of the prosecutrix appearing as PW4 has corroborated the testimony of prosecutrix. According to her, DNA analysis report also manifest that it is the accused, who had raped the prosecutrix on the date of incident. She submits that accused is liable to be convicted.
8. On the other hand, Ld. Counsel for the accused submitted that the accused is innocent and has been falsely framed in this case. He submits that the printouts of test messages sent by the prosecutrix to the accused (Mark-A colly) demonstrate that the prosecutrix was madly in love with the accused and wanted to marry him. He further submitted that it is the accused, who ignored the prosecutrix and did not respond to her love, which became a matter of annoyance for the prosecutrix and she fabricated a false case against the accused. He submitted that in fact, no such incident took place at all which is evident from the MLC of the prosecutrix which reveals that her hymen was found to be intact. According to the Ld. Counsel, if the accused would have raped prosecutrix and there was penetration, her hymen would have got torn. However, when confronted with the DNA analysis report Ex.PA, he contended that the sexual intercourse between the accused and the prosecutrix was with the consent of the prosecutrix.
9. In cases involving the offence of rape, the testimony of SC No.18/13. Page 4 of 17 prosecutrix is the most vital and material piece of evidence. Her statement if found to be worthy of credence and reliable, requires no corroboration and court may convict the accused on her sole testimony. A prosecutrix of sex offence cannot be put on par with an accomplice. She is in fact a victim of crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtable and competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. In case involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. While evaluating evidence, the court must remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour. At the same time, it is also settled position that if for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in case of an accomplice. If the court of facts finds it difficult to accept the version of the prosecutrix at its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. (See- State of Maharashtra vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658, State of U.P. vs. Pappu @ Yunus and anr., AIR SC No.18/13. Page 5 of 17 2005 SC 1248, State of Punjab vs. Gurmit Singh and Ors., AIR 1966 SC 1393).
10. It would also be useful to keep in mind the following observations of the Supreme Court made in Raju vs. State of M.P., (2008) 5 SCC 133 :
"12. Reference has been made in Gurmit Singh's case to the amendments in 1983 to section 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that sections 113A and 113B too were inserted in Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
11. In this case the prosecutrix has been examined as PW3. She has deposed her age to be 20 years. According to her, SC No.18/13. Page 6 of 17 she knew the accused before the date of incident as his sister Sohalia Khan was her friend and they used to do job together in an insurance company previously. She had seen the accused in his house when she used to go there in the morning, from where Sohalia accompanied her to the office. She further deposed that the accused used to follow and tease her during her school days also and used to pressurise her for friendship but she declined his offer and asked him not to follow her. She further deposed that on the date of incident i.e. 02.8.2012 she received call from the accused on her mobile phone saying that his sister Sohalia Khan is calling her immediately. She thought that there is some serious matter and accordingly she reached their house in 10 - 15 minutes. She found accused and Sohalia sitting in a room on the ground floor. Sohalia asked her to sit and herself rose up and went upstairs to fetch water. When Sohalia went out of the room, accused asked her what she intended to do and she told him that she does not want to talk to him as she has been called here by Sohalia. Accused told her that he has called her and not Sohalia. Thereafter the accused held her hand from behind. She told him that she does not want to talk to him and is going home, but she found that the door of the room was bolted from outside and thus could not go out. The accused beat her mercilessly. She asked him why he was beating her and the accused told her that he loves her and would ruin her. Accused gagged her mouth so that she could not raise alarm and thereafter committed forcible intercourse with her. The accused then told her that he has done whatever he wanted to do and would now defame her. When she rose up to leave, she found that accused has already run away and the door was open. She did not find Sohalia in the house. On return to her SC No.18/13. Page 7 of 17 home, she narrated the incident to her mother. She alongwith her parents reached the house of the accused where they did not find either accused or Sohalia. When they were about to leave, they saw the father of the accused coming inside the house. An altercation started between her father and accused's father. She told father of the accused that accused has raped her and the accused's father requested her with folded hands to marry his son i.e. accused. Her father tried to call the police but for some reason could not contact the number. The father of the accused requested them not to go to the police station and to put an end to the matter there and then, but they did not accede to his request and she alongwith her mother went to the police station whereas her father returned home. In the police station, her statement was recorded by a lady police official, which she proved as Ex.PW3/A. She was then taken to DDU Hospital where she was medically examined. She deposed that her undergarments i.e. Bra and panty were seized by the doctor at the time of medical examination. Next day, she took the police officials to the house of the accused and pointed out to them the spot of incident vide pointing out memo Ex.PW3/B. At that time nobody was present in the house of the accused. She further deposed that at the time of committing intercourse with her, the accused had removed all his clothes and also her Salwar and panty.
12. In her cross examination, the prosecutrix deposed that she did not take it seriously when the accused was following her and pressurising her to marry him about two years before the incident and therefore she did not lodge any complaint in that regard. She further deposed that accused had sent her various SC No.18/13. Page 8 of 17 test messages on her mobile phone on the night intervening between 21.5.2012 and 22.5.2012 as it was her birthday on 22.5.2012. She saw these messages in the morning and ignored them. According to her, accused used to call her on her mobile phone. Most of the time, she did not answer his calls and whenever she answered the call, accused used to talk about his girlfriends. She did not complain to the police as there was nothing to complain for the reason that accused neither issued any threat to her nor committed any kind of illegal act. She further denied that she had received any call from the accused before 11 a.m. on the date of incident. She however admitted that the accused had sent an SMS to her which she replied but she did not recollect the contents of the SMS as well as her reply. She also deposed that when accused started committing intercourse with her forcibly, she was not in a position to show any resistance on account of severe beatings given to her by the accused before that act. She further denied all the suggestions put to her by the Ld. Counsel for the accused; that she had been proposing to the accused to marry her and he used to reject the proposal saying that they belong to different communities; that Sohalia had complained to her parents that she has been proposing the accused to marry her and that for this reason she was sent by her parents to native village so that she would not remain in contact with the accused or that she continued to contact the accused after return from the village also; that she had been threatening the accused to implead him in a false case if he does not marry her; that she had sent an SMS to the accused on 02.8.2012 at 9.42 a.m. conveying the aforesaid threat of false implication in a criminal case; that she herself had excited the accused at the SC No.18/13. Page 9 of 17 time of incident and despite excitement the accused could not do the act as he was not able to penetrate and he ejaculated without penetration. She was shown printouts of mobile phone text messages by the Ld. Cross examining Counsel (total 18 in number) and she admitted that she had sent these messages but added that the timings mentioned therein have been manipulated. She also stated that some messages were sent by Aarti, the girlfriend of the accused, from her mobile phone.
13. I find nothing in the aforesaid deposition of the prosecutrix, which would persuade me to hold that she is not a trustworthy witness. Even though it is indicated that there was some sort of friendship between the prosecutrix and the accused before the date of incident as they used to call each other and exchange text messages on mobile phone yet it cannot be countenanced that either no such incident had taken place or the sexual act between the two had taken place with the consent of the prosecutrix. In my opinion, the version of the incident given by the prosecutrix in her testimony inspires confidence and nothing contrary to the prosecution case has been elicited in her cross examination. The arguments of the Ld. Counsel for the accused that the prosecutrix has fabricated a false story of rape in order to implicate the accused falsely in this case for the reason that he had rejected her proposal for marriage, is too far fetched and hence not acceptable. Even if it is assumed that the prosecutrix was madly in love with the accused and wanted to marry him at any cost, she would have continued the friendship/love relationship with the accused in the hope that the prospect of marriage may ripen in near future and would not have slapped SC No.18/13. Page 10 of 17 false charge of rape upon the accused. It is commonly understood that no self respecting woman, much less an unmarried girl, would come forward with a false allegation of rape as in our conservative Indian society, it is almost impossible for a rape victim to find a suitable match. Therefore it is very difficult to believe that an unmarried Hindu girl would put her future at stake and mar her prospects of marriage by coming up with a false story of having raped. Moreover while in deep love with a man, the girl can go to any extent except to level false charges of rape against that man whom she loves intensely.
14. From the cross examination of the prosecutrix conducted on behalf of the accused, it is evident that the accused admits that the prosecutrix had come to his house on the date of incident and there had been an attempt of sexual intercourse between the two, which could not be accomplished. This is indicated from the suggestion given to the prosecutrix that she had excited the accused for the sexual act and despite excitement, the accused could not do the act and was not able to penetrate and he ejaculated without penetration. The fact that the accused had ejaculated during the act is also evidenced from the DNA report (Ex.P3), as per which, the DNA isolated from the stains found on the underwear of the prosecutrix matched substantially with the DNA of the accused isolated from his blood sample. Once the accused admits this fact that he and the prosecutrix had made an attempt to engage into a sexual act which somehow could not be accomplished as he was not be able to penetrate and his semen stains were found on the underwear of the prosecutrix, it was for him to demonstrate as to why and in what circumstances SC No.18/13. Page 11 of 17 had the prosecutrix come to his home and in what manner, she had excited the accused to perform the sexual act and what was the reason for which he was not able to penetrate. The accused could have done so either by eliciting answers in this regard during the cross examination of the prosecutrix or by offering some plausible explanation in his statement u/s.313 Cr.PC or by leading evidence in defence. The accused has done none of the three. The prosecutrix has not been cross examined in this regard. The accused, in his statement u/s.313 Cr.PC, has admitted that he had called the prosecutrix on the date of incident and that the prosecutrix had reached his home but he denied that any sexual encounter took place between the two. He is totally silent about any excitement on the side of the prosecutrix and about any unaccomplished sexual act. More importantly, he has not led any evidence in defence to establish that the prosecutrix was a consenting party to the sexual encounter and in fact, the sexual act also could not be completed. Since there is no explanation coming forth from the side of the accused and there is no evidence on record to contradict the version of incident given by the prosecutrix, I see no reason to disbelieve her testimony which otherwise also appears to be convincing and trustworthy.
15. The contentions put forward on behalf of the accused is that there was no penetration of his penis into the vagina of the prosecutrix and that he had ejaculated outside the vagina of the prosecutrix is belied by the medical evidence on record. From the observations of PW2, the doctor, who had conducted gyanecological examination of the prosecutrix, on the MLC (Ex.PW2/A), it is manifest that there was a small abrasion of 0.5 SC No.18/13. Page 12 of 17 cm X 2 cm at posterior fourchette (posterior part of perineum). There could not have been such abrasion on the fourchette, had there been no penetration howsoever slight. Further the result of the medical examination of the accused, as contained in MLC Ex.PW10/A, shows that there was nothing to suggest that he is not able to perform the sexual act. In view of the aforesaid medical evidence on record and in absence of any plausible explanation from the side of the accused as to why he was not able to penetrate into the vagina of the prosecutrix, as contended by him, it is very difficult to hold that there was no penetration and that it was only an attempt to rape.
16. It would be also pertinent to mention here that to constitute the offence of rape as defined u/s.375 of the Indian Penal Code, neither the said section nor the explanation attached thereto requires that there should necessarily be complete penetration of penis into the private part of the prosecutrix. In other words, it is not at all necessary to constitute the offence of rape that there should be complete penetration of the male organ into female organ with emission of semen, rupture of hymen. Even partial or slightest penetration of male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the prosecutrix would be enough for the purpose of section 375 and section 376 of the IPC. Therefore it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving behind any semenial stains. But in the present case there is medical evidence demonstrating injury to the perineum of the prosecutrix and ejaculation of semen by the SC No.18/13. Page 13 of 17 accused and therefore, no doubt can be entertained that the prosecutrix was subjected to sexual assault.
17. Ld. Counsel for the accused has vehemently stressed that in no circumstances can it be said that the prosecutrix was raped by the accused as during her medical examination, her hymen was found intact. He submits that the hymen of the prosecutrix could not have been intact if she had been subjected to forcible sexual intercourse by the accused and the accused had inserted his private part into her private part. The submissions of the Ld. Counsel though attractive, yet are sans any merit. As noticed herein-above, even a slightest penetration of the penis into the vulva or labia majora or pudenda would constitute the offence of rape and therefore the rupture of hymen is not an essential condition or the ingredient of the offence of rape. This issue has been considered and discussed by the Supreme Court in Tarkeshwar Sahu vs. State of Bihar, (2006) 8 SCC 560, and it has been held as under :
"13. In order to constitute rape, what Section 375 IPC requires is medical evidence of penetration, and this may occur and the hymen remain intact. In view of the Explanation to Section 375, mere penetration of penis in vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC.
14. Position of law in England is the same. To constitute the offence of rape, there must be a penetration. Even the slightest penetration will be sufficient. Where a penetration was proved, but not of such a depth as to injure the hymen, still it was held to be sufficient to constitute the crime of rape. This principle has been laid down in R. vs. M'Rue and R. vs. SC No.18/13. Page 14 of 17 Allen. In R. vs. Hughes and R. vs. Lines, the Court has taken the view that proof of the rupture of the hymen is unnecessary." In R. vs. Marsden, the Court has laid down that "it is now unnecessary to prove actual emission of seed; sexual intercourse is deemed complete upon proof of penetration only."
15. In paragraph 21 of the said judgment, it has also been held that in view of the catena of judgment of the Indian and English courts, it is abundantly clear that slight degree of penetration of the penis in the vagina is sufficient to hold the accused guilty for the offence under Section 375 punishable under section 376 IPC. The most important and most appropriate observation may be read from paragraph 10 of the said judgment in the following lines :
".............. other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt of penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Sections 375 and 376 IPC."
18. Therefore, the position of law which emerges from the aforesaid decision of the Supreme Court is that even an attempt to penetrate the penis into the vagina by force with mere vulval penetration without rupture of hymen is enough for convicting an accused u/s.376 IPC. It is immaterial whether penis penetrated fully or partially into victim's vagina and it is not at all material whether the hymen had ruptured or not. What is material is just vulval penetration and not vaginal penetration. In the instant case, there is a categorical statement of the prosecutrix that the accused first beat her mercilessly and then gagged her mouth, so that she could not raise alarm and thereafter committed intercourse with her forcibly and against her wishes. The SC No.18/13. Page 15 of 17 statement of the prosecutrix when read alongwith the medical evidence showing injury mark on her posterior fourchette and the fact himself admitted by the accused that he had ejaculated during the act makes it limpid that there was atleast vulval penetration, even if not vaginal penetration, thus amounting to offence of rape. It is not the defence of the accused that ejaculation was because of resort to masturbation by his own hand or by using the hand of the prosecutrix.
19. The conduct of the prosecutrix after the incident also indicates that she had been ravished by the accused. She went home straight and told her mother that accused has raped her. Thereafter she alongwith her parents went to the accused's house and told the father of the accused that she has been raped by his son. Accused's father requested them to settle the matter amicably and not to report it to police. There has been no cross examination of the prosecutrix on these points and have to be taken as true.
20. The assessment of the overall evidence on record leads to the only irresistible conclusion that accused has committed rape upon the prosecutrix. The charge u/s.376 IPC stands proved against the accused beyond reasonable doubt. However there is no evidence on record to support charge u/s.506 IPC. The prosecutrix has nowhere deposed that the accused had issued any threats to her during or after the commission of offence. Therefore charge u/s.506 IPC fails.
21. Resultantly, accused is convicted for having SC No.18/13. Page 16 of 17 committed offence u/s.376 IPC. He is, however, acquitted of the charge u/s.506 IPC.
Announced in open (VIRENDER BHAT)
Court on 13.5.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.18/13. Page 17 of 17