Delhi District Court
Sc No. 146/09 State vs Hari Singh Etc. Page No. 1 Of 27 on 17 May, 2014
IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02403R0665342008
SESSIONS CASE NO. 146/09
FIR NO. 516/06
POLICE STATION : BADARPUR
UNDER SECTION : 376/323/354/511/34 IPC
STATE
VERSUS
1. HARI SINGH RAWAT @ TINKU
S/O SH MAHIPAL SINGH RAWAT
R/O H.NO. 44, GALI NO. 26D, KHAJOORWALA ROAD,
BADARPUR, NEW DELHI.
2. SURAJ S/O SH. SOHAN LAL
R/O E43, GALI NO. 26D, MOLARBAND EXTENSION,
BADARPUR, NEW DELHI.
3. VIRENDER SINGH RAWAT
S/O SH. MAHIPAL SINGH RAWAT,
R/O H.NO. 44, GALI NO. 26D, MOLARBAND EXTENSION,
KHAJOORWALA ROAD, BADARPUR, NEW DELHI.
DATE OF INSTITUTION : 25.07.2008.
DATE OF RESERVING ORDER : 07.04.2014.
DATE OF DECISION : 17.05.2014.
SC No. 146/09 State Vs Hari Singh etc. Page No. 1 of 27
J U D G M E N T
Case of Prosecution:
1. Brief facts of the case of the prosecution are that on 01.07.2006 after receiving DD No. 16A, SI Parveen Vats along with Ct. Bacchu singh reached at the spot i.e. 28E/26D, Molarband Extension, Badarpur New Delhi where complainant Pinki stated that she along with her husband is staying at the aforesaid address. On 01.07.2006 at about 10.30 AM her husband went outside for work. She was alone in her house and her servant namely Kallu @ Ashok was washing car in front of her house in the gali. In front of her house, three boys along with their families reside. Out of them, one was known to her whose name was Suraj. All the three boys started quarreling with her servant Kallu. Accused Suraj slapped him and on hearing voice of her servant Kallu, she came outside. One person out of three accused persons caught hold of her hair and the other person caught hold of her hands and accused Suraj torn her clothes and did wrong acts with her. She suffered injuries during the incident and then she made a phone call on 100 number. On the statement of complainant namely Smt. Pinki a case under section 323/354/34 IPC was registered against the accused persons. Complainant and her driver Kallu were got medically examined. Accused persons Suraj, Virender Singh Rawat and Hari Singh Rawat were arrested. Investigation of the case was handed over to Inspector Virender Singh. Site plan was prepared, photographs of the spot were taken by private photographer. Exhibits were sent to FSL. Thereafter, statement of witnesses were got recorded by the Investigating officer and after SC No. 146/09 State Vs Hari Singh etc. Page No. 2 of 27 completion of investigation, charge sheet under Section 323/354/376/511/34 of IPC was filed against the accused persons in the court.
2. Since the offence under Section 376 of IPC is exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3. Prima facie case under section 323/34 IPC, 354/34 IPC and 376(2)(g) r.w. Section 511 IPC was made out against the accused persons. Charge under Section 323/34 IPC, 354/34 IPC and 376(2)(g) r.w. Section 511 IPC was framed upon the accused persons by my Ld. Predecessor vide order dated 18.11.2009 to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined sixteen (16) witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material witnesses:
5. PW3 is Smt. Pinki, complainant of the case. She deposed that on 01.07.2006 she was present in her house and driver Kallu was washing the car. In the meantime, three boys of the same street came to Kallu and asked Kallu to arrange sex with his owner (Apni Malkin se sex Kara Do). Driver Kallu said something to them and one of those three boys gave slap to Kallu and beat him. On hearing the noise she came downstairs. The accused persons pushed her back in her house and SC No. 146/09 State Vs Hari Singh etc. Page No. 3 of 27 caught hold of her. They then torned her clothes and pulled her hair. She was made nude by the accused persons and accused Suraj hold her hair, Hari singh caught hold of her hands and accused Virender inserted his hand in her private parts. Accused Virender had also removed his clothes. She started crying and raised an alarm. Thereafter, the three accused persons fled away from the spot and also threatened to lift her up and also threatened to kill her husband and children. She called on 100 number but police did not come. After waiting for about 2 hours she went to police station and lodged her complaint. She further stated that accused persons used to threat her and accused Virender had stated that he will have sex with her. She stated that two months back accused Virender threatened her saying "Sali Tujhe Utha Le Jayenge, Balatkar Karenge aur Mar Bhi Denge". The witness has correctly identified the accused persons in the court and has also correctly identified her clothes.
6. PW5 is Sh. Ashok @ Kallu, driver of the complainant who deposed that at about 10/10.30 am, he was cleaning the car in front of the said house. At that time, accused Suraj along with his two associates came there and he started using unparliamentary language against her mistress Mr. Pinki, complainant of the case. He asked him not to do so on which he along with his associates started beating him. He raised an alarm at which Mrs. Pinki came down. The accused persons then dragged her inside her house. After about 23 minutes he went inside the house and saw that accused persons has torned her clothes and were catching hold of her arm and hair. Accused Virender was in underwear and had caught hold the legs of Mrs. Pinki and had tried to commit rape with her. He raised an alarm on which the accused persons ran away SC No. 146/09 State Vs Hari Singh etc. Page No. 4 of 27 from the spot. He sustained internal injuries due to beatings given by the accused persons. Mrs. Pinki had also sustained injuries on her body parts. Police came there and thereafter, recorded his statement. He was also medically examined at AIIMS Hospital. The witness had correctly identified the accused persons in the court.
7. PW12 is Sh. Vimlesh, neighbour of complainant who also deposed on the lines of PW5.
8. PW10 is SI Praveen Vats, Initial Investigating officer of the case who stated that he recorded the statement of complainant, prepared the site plan, got the prosecutrix medically examined, arrested the accused persons and proved all the memos etc. in this regard.
9. PW13 is Inspector Rajmal, Investigating officer of the case who served notice upon the witness Vimlesh Kumar, recorded his statement , deposited the MLC of the driver Ashok in AIIMS hospital for taking opinion on the injuries, sent the exhibits to FSL for examination, collected the same and placed on record, prepared the charge sheet and submitted the same in the court concerned.
Formal witnesses:
10. PW2 is ASI Ved Vir Singh, Duty officer who registered the FIR Ex.PW2/A and made endorsement on the rukka Ex.PW2/B. He handed over the rukka and copy of FIR to Ct. Bachhu singh and duly proved all the memos in this regard .
11. PW4 is Sh. Prabhu Dayal, photographer who deposed that he took six photographs of the spot and handed over the said photographs to the Investigating officer and proved on record the same vide SC No. 146/09 State Vs Hari Singh etc. Page No. 5 of 27 Ex.PW4/B1 to Ex.PW4/B6.
12. PW6 is Ct. Sanjeev Kumar who deposed that on the instructions of the IO he reached at the spot, took the prosecutrix and one Ashok to AIIMS Hospital, got them medically examined, collected the MLCs and the same were taken into possession by the IO. The IO had also recorded his statement.
13. PW7 is Ct. Harpal Singh who deposed that on the instructions of the SHO he collected the sealed exhibits from the MHC(M), deposited the same in the FSL, Rohini and handed over the same to the MHC(M).
14. PW8 is HC Bachchu singh who deposed that he along with IO reached at the spot, got the case registered on the instruction of the IO.
He further stated that the IO made efforts to locate the accused and on the instruction of the IO, Ct. Sanjeev took both Ashok and Pinki to the AIIMS Hospital for their medical examination and handed over the sealed pullandas to the IO. The IO prepared the pullanda of the prosecutrix clothes and took the same into possession. On 03.07.2006, he accompanied the IO to the house of accused Suraj, arrested him and conducted his personal search. On 04.07.2006, he joined the investigation of the case with the IO. They went to the house of accused Virender singh and interrogated the accused Virender singh and Hari Singh. They both were arrested and their personal search and arrest memos were prepared. The witness has duly proved all the memos in this regard.
15. PW9 is Ms. Shashi Bala, Sr. Scientific Officer (Biology) from FSL who prepared the Biology report Ex.PW9/A and serological SC No. 146/09 State Vs Hari Singh etc. Page No. 6 of 27 report Ex.PW9/B and duly proved the same on record.
16. PW15 is HC Brij Mohan who made entry in Register No. 19 regarding two pullandas deposited by SI Praveen Vats in the Malkhana vide Ex.PW15/A and duly proved the same on record.
17. PW16 is Inspector Virender Singh, Investigating officer who deposed that he got the photographs of the spot clicked by private photographer, prepared the site plan, collected two PCR forms from PHQ and duly proved on record the photographs Ex.PW4/B1 to Ex.PW4/B6. On 29.03.2007, Ct. Jagdish got the accused Hari singh, Suraj and Virender medically examined and handed over the sealed samples to him which he took into possession vide memo Ex.PW16/B. PW16 also recorded the supplementary statement of the complainant. Thereafter, he was transfered from PS Badarpur and he deposited the same to the MHC(R). He had correctly identified the accused persons in the court. Medical witnesses:
18. PW11 is Dr. B.L. Chaudhary, who prepared the detailed MLC of the patient/accused Virender Singh Rawat and duly proved the report Ex.PW11/A on record.
19. PW1 is Dr. Raghvender Kumar who examined patient/accused namely Suraj Chauhan and prepared the MLC report Ex.PW1/A. He had further opined in the report that patient/accused is capable of performing sexual intercourse in normal circumstances.
20. PW14 is Dr. Sanjeev Lalwani who proved on record the detailed MLC of prosecutrix and one Ashok @ Kallu vide MLC Ex.PW14/A and Ex.PW14/B prepared by Dr. Deepika Verma, Dr. SC No. 146/09 State Vs Hari Singh etc. Page No. 7 of 27 Manauwwar Ahmed Khan and Dr. Shailini Girdhar.
Statement and Defence of accused persons :
21. Statement of accused under section 313 Cr.P.C was recorded wherein accused have stated that they have been falsely implicated in the present case. It is stated that allegations of attempt to rape was made after two months of the alleged incident and the prosecutrix had made improvement in her statement before the court just to fill the lacuna of the case. It was also stated that Ashok @ Kallu and Vimlesh were planted and interested witnesses. It is stated by accused Hari Singh and Virender Singh Rawat that they have been falsely implicated as the husband of prosecutrix wanted to purchase the property which was purchased by their father. Prosecutrix's husband was doing the business of builder and at the instance of her husband, prosecutrix made false complaint against him. Prosecutrix's husband gave threats to them and his family for dire consequences if they purchased the above said property. It is stated that number of criminal cases were registered against the husband of the prosecutrix in different police stations and the husband of prosecutrix also made number of complaint case against the local residents of the colony. The local residents of the colony and the associations also made written complaints against the conduct and character of prosecutrix and her husband before the government authorities for taking action and he has been falsely implicated in this case. Accused Suraj had stated that he has been falsely implicated by the prosecutrix because of some money dispute between his uncle Suresh and husband of prosecutrix on which prosecutrix falsely implicated his grandfather, uncle (Tau) and chacha and SC No. 146/09 State Vs Hari Singh etc. Page No. 8 of 27 also gave false complaint at the instance of her husband to falsely implicate him and no such incident took place.
22. Accused persons in their defence had examined three witnesses out of whom DW1 is Sh. Mahipal Singh Rawat who deposed that he had purchased H.No. 44, Gali No.26, Molarband Extension, Badarpur, New Delhi from his retirement money and shifted there on 25.06.2006. Next day, one person namely Tripathi asked him to sell the said flat but he denied the same. After few days, police officials from PS Badarpur visited his house and stated that one Pinki Tripathi had made complaint against his two sons namely Virender Singh Rawat and Hari Singh Rawat. Police released his sons on police bail. After 5/6 days Tripathi met him and asked him to sell the house to him and he will withdraw the case. He also threatened that if he did not sell the flat to him, he will falsely implicate his sons in rape case. On 08.07.2006 and 11.07.2006 he made written complaints to the concerned ACP and DCP. He stated that his sons were falsely implicated by the complainant at the instance of her husband because he did not sell his house to her husband and number of criminal cases are registered against the husband of the complainant.
23. DW2 is Ms. Chandrawati who deposed that one 01.07.2006 white wash work was going on in her house and household articles including furnitures were lying in front of her house in the gali. She has common wall with Pinki Tripathi as they are neighbours. She was sitting in front her house in the Gali from 8 AM to 07.30 PM and no such incident took place. On 01.07.2006 house of Pinki Tripathi and Hari Kant Tripathi was locked. She did not see Pinki Tripathi and Hari Kant SC No. 146/09 State Vs Hari Singh etc. Page No. 9 of 27 Tripathi on 01.07.2006 from 8 AM to 7.30 PM when she remained in gali to look after her household articles lying in the gali. She stated that number of persons have filed complaints against Pinki Tripathi and Hari Kant Tripathi and both had already falsely implicated locality people in number of cases and the husband of Pinki Tripathi always tried to grab the property of locality persons. Witness has duly proved all the exhibits on record.
24. DW3 is Nawab Singh Patwari who had brought the summoned record and deposed that on 04.07.2006 a complaint was received from one Suraj Chauhan which is received at serial number 2870 in the diary register, photocopy of which is Ex.DW3/A and the copy of said complaint is Ex.DW3/B and the said complaint was forwarded to Ilaka SHO for taking appropriate action.
25. DW4 inadvertently mentioned as DW3 is Ms. Savita Garva, Assistant Ahlmad who brought the judicial file of FIR No. 498/05 under section 341/354/323/34 IPC which is pending before the court of Sh. Anuj Aggarwal, Ld. MM Saket Courts, New Delhi. Certified Chargesheet copies along with documents are Ex.DW3/A collectively from Page No.1 to 32.
26. I have heard Ld. Defence counsel for accused as well as Ld. APP for state and have carefully perused the record. Arguments of Ld. APP for state:
27. Ld. APP for the state has argued that PW3 , PW7 and PW 12 are the witnesses to prove the offence against the accused persons in this case. Initially FIR was registered under section 354/323 IPC. The SC No. 146/09 State Vs Hari Singh etc. Page No. 10 of 27 complainant made complaint to the higher police officials whereafter section 376(2)(g)/511 IPC were added. DW1 is father of the accused and DW2 is his Bua and as such, they are interested witnesses. It is stated that statement of prosecutrix is corroborated by the statement of the driver PW5 Ashok @ Kallu. It is also stated that as per the FSL report the semen was found on the petticoat of the prosecutrix which shows that the accused had tried to commit rape upon the prosecutrix hence the prosecution has proved his case and the accused persons be convicted. Arguments of Ld. Defence Counsel for accused persons:
28. It is argued by the counsel for accused that incident in this case had occurred on 01.07.2006 at around 10.30 AM but the information to the police was given through DD No. 16A at 5.40 PM. It is stated that FIR was lodged on the statement of the prosecutrix which was recorded on 01.07.2006. However on 28.03.2007 a new statement was made by the prosecutrix whereafter sections were altered from 354/323 IPC and section 376(2)(g) IPC was added. The prosecutrix, witness PW Vimlesh and Witness Kallu all have stated that they made the complaint to the police at 100 number. There is discrepancy in the statement of PW3, PW5 and the IO with regard to the place of recording of their statement. She has stated in her statement that accused has inserted his hand in her private part whereas the MLC does not speak about the same and no injuries were found on the private part of the prosecutrix. It is stated that prosecutrix has improved upon her statement which was firstly recorded on 01.07.2006, on which the FIR was recorded. As per the statement of PW5 in the cross examination he has stated that his statement was SC No. 146/09 State Vs Hari Singh etc. Page No. 11 of 27 recorded at 12 noon. Then how the FIR is registered in the evening is not clear. It is also argued that there is discrepancy in the time of the police reaching the spot. PW5 states that PCR came after about 1 ½ hour of the incident whereas PW3 has stated that she gave her statement after the police officials visited her house around 67 PM but they reached at the PS Badarpur at about 12.30 PM . It is also argued that the statement of PW6 was recorded after about 11 months of the incident. The name of the PW6 is not mentioned by the complainant in her first statement recorded on 01.07.2006. His name/presence is also not mentioned by PW
5. As per the statement of PW6 he was called in the police station by the IO. When his name was not there in the statement of the prosecutrix it is not clear how the police had called him. PW6 even does not know the name of the neighbour of the adjoining room showing that he was not residing at the given place. He was not having any mobile phone from which he made a call at 100 number is also not clear. As per the statement of PW8 he reached at the spot at around 6.15 PM and his statement was recorded at 10 PM though PW3 says that her clothes were seized at 11 PM. This shows a discrepancy as to how the statement of PW8 was recorded prior to seizing of clothes. PW8 says that clothes were sealed with seal of 'PK' though the clothes were sealed with the seal of 'TR'. PW3 prosecutrix does not say that the site plan was prepared at her instance though IO say so. No public witnesses was joined. There are contradictions in the statement of PW10 with regard to the place of recording of the statement, seizure of the case property, time when property was seized or deposited. It is stated that husband of the prosecutrix is working as property dealer and he is having so many cases SC No. 146/09 State Vs Hari Singh etc. Page No. 12 of 27 against him for cheating where he wanted to grab the properties of others. There is one similar case of molestation lodged by the prosecutrix against the father of the accused Suraj showing that she has a tendency of falsely implicating other persons. From the statement of the witnesses produced by the accused persons it is proved that the father of the other two accused persons Hari Singh and Virender had shifted to the house near the house of the complainant only on 28.06.2006 and they were not even known in the locality. How the incident can happen on 01.07.2006 only after two days of their shifting to the said place. Within two days they could not have developed any enmity with the complainant. In fact the house which was purchased by the father of the accused, the husband of the prosecutrix wanted to purchase the said house and had even threatened the father of the accused persons that if they do not sell their house to the husband of the prosecutrix, they are going to falsely implicate his sons in this case. It is also stated that the FSL has not corroborated the statement of the prosecutrix hence, seeing these discrepancy and exaggerations in the statement of the prosecutrix accused persons are liable to be acquitted.
29. Ld. Counsel for accused has cited the following judgments:
1. Shashi Chaudhary Vs Ram Kumar and another 2011 (1) JCC 520.
2. Madan Lal Vs State of Delhi 2013 (1) JCC 365.
3. Ashok Kumar Vs State 2013(1) JCC 374.
4. State (Govt of NCT of Delhi) Vs Krishan Kumar Rao 2013 (5) LRC 377(Del).
5. State Vs Vickey etc. 2012 (2) JCC 1147.
SC No. 146/09 State Vs Hari Singh etc. Page No. 13 of 27
6. Devu Samal Vs State 2012(2) SCC 1039.
7. Tameezuddin @ Tammu Vs State of NCT of Delhi 2009 (4) JCC 2809.
Conclusion:
30. The present case is related to attempt to gang rape the prosecutrix. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will.
31. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will.
32. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The court, therefore, shoulders a great responsibility SC No. 146/09 State Vs Hari Singh etc. Page No. 14 of 27 while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity."
33. Section 375 IPC defines rape. This Section requires the essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
34. So far as the attempt to rape is concerned the law on the point of attempt to rape is well settled in the case of Nirmal Singh @ Papla and others Vs State of Haryana and Omprakash Vs Nirmal singh and others Crl.Revision No. 597/2002 and 23 SB of 02 decided on 24.05.2010 (supra) wherein the court had referred to the observation of Justice Patterson in Rex Vs James Lloyd (1836) 7C and P 817 : 173 ER 141 wherein it was observed that : " In order to find the prisoner guilty of an assault with intent to commit rape, you must be satisfied that the prisoner , when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part."
35. In the case of Impress Vs Sarkar ILR 5 Bombay, 403 it was observed : " We believe that in this country in recent assault are magnified into attempts at rape and even more often into rape itself; and we think that the conviction of an SC No. 146/09 State Vs Hari Singh etc. Page No. 15 of 27 attempt at rape could not be arrived at unless the court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance. "
36. Following these observations, in the case of Nirmal Singh @ Papla ( supra), the Punjab and Haryana High court has held that it cannot see from the prosecution case that the accused was determined to have sexual intercourse at all events because as soon as he saw the uncle of the prosecutrix he ran away. The prosecution must establish that it had gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in greater degree of determination.
37. A similar case was decided by Mirza and Broomfield JJ. Of the Bombay High Court in Ahmed Asalt Mirkhan ( Criminal Appeal No. 161 of 1930, D/1261930 reported in Ratanlal's Law of Crimes, p.922). In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused's house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over her mouth to prevent her crying and places his private parts against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up , unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit SC No. 146/09 State Vs Hari Singh etc. Page No. 16 of 27 rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her."
38. In Jai Chand Vs State ( Supra), the Hon'ble High Court has held that for the offence of attempt of rape it must be shown that the act has gone beyond the stage of preparation and the difference between the preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. In this case, the accused had forcibly laid the prosecutrix on bed, broke her strings, torned her underwear and gave her a tooth bite but made no attempt to undress himself. The prosecutrix managed to push the accused and escaped and it was held that only the assault falling under section 354 of IPC is made out.
39. It is held in the case of Aman Kumar(supra), the offence of Rape is established by proving that some part of virile member/male organ of the accused was within the labia of the pudendum of the women, no matter how little. The attempt to commit rape must also be an act in that direction only. In the present case, the prosecutrix has not stated that the accused has also undressed himself or made any attempt to penetrate his male organ within the labia majora or the vulva or pudenda of the prosecutrix. As per her statement,he had undressed the prosecutrix and was rubbing/touching her vagina with his fingers when the friend of the prosecutrix brought other persons who had beaten the accused.
40. Now let us consider whether the offence of attempt to commit gang rape is proved against the accused persons or not. In the present case the most material witnesses are PW3, SC No. 146/09 State Vs Hari Singh etc. Page No. 17 of 27 complainant/prosecutrix 'P', PW5 Sh. Ashok @ Kallu, driver of the complainant and PW12 Sh. Vimlesh, neighbour of the complainant who are stated to be the eye witnesses of the incident.
41. Before appreciating the testimony of prosecutrix 'P' & other witnesses it is pertinent to mention here that in the present case earlier the FIR was registered under Section 354/323/34 IPC only but thereafter the supplementary statements were made two times by the prosecutrix after many months whereupon section 376(2)(G)/511/34 IPC was added.
42. The FIR is registered on the complaint of the prosecutrix. The incident is of 01.07.2006 at about 10.30 AM. As per the rukka, the prosecutrix has stated that at around 10.30 AM on 01.07.2006 her husband had gone for his work and she and her servant/driver Sh. Ashok @ Kallu were at the house. PW5 Ashok @ Kallu was cleaning the car of the complainant in front of her house when three persons one of them was Suraj, known to the prosecutrix, started quarreling with him and had also slapped him. PW5/driver Ashok @ Kallu was shouting and hearing her voice the prosecutrix 'P' came out then one boy had caught hold of her hairs, the other accused had caught hold of her hands and accused Suraj had torned her clothes and molested her due to which she received injuries. On this complaint, the FIR under Section 354/323/34 IPC was registered which was later on altered to Section 376(g)/511 IPC after recording supplementary statement of prosecutrix. The prosecutrix was also medically examined on 01.07.2006 itself at about 09.53 PM wherein same history of assault was given to the doctor. In supplementary statement recorded on 02.09.2006 she has stated that all three accused entered her house. Accused Suraj and Hari caught hold of her hand and SC No. 146/09 State Vs Hari Singh etc. Page No. 18 of 27 Virender tried to commit rape upon her again.
43. In the statement before the court prosecutrix has stated that on hearing the noise of Ashok @ Kallu, who was beaten by the accused, she came down stairs. The three accused persons had pushed her back in her house and they caught hold of her and also entered in her house. She further stated that three accused persons torned her clothes and her hairs were pulled and she was made nude by the accused persons. It is also stated by her that Suraj caught hold of her hairs and Hari Singh @ Tinku caught hold of her hands and the accused Virender inserted his hand in her private part. Accused Virender also removed his clothes. She started crying and raised an alarm whereupon the three accused fled away from spot after giving threats to her and her husband and children. She further stated that she rang up at 100 number after wearing fresh clothes, but police did not turn up. She waited for two hours and then went to police station and thereafter police came and recorded her statement.
44. Perusal of the statement made by the prosecutrix in the court, her supplementary statements and the rukka show that the allegations of attempt to commit rape by the accused were firstly made by the prosecutrix before the police on 02.09.2006 without giving specific details of insertion of hand by Virender, removal of his clothes etc. when again a supplementary statement was recorded by the later Investigating officer on 28.03.2007. There is no explanation on the record as to why she did not narrate the entire incident earlier in the rukka. She has certainly improved upon her earlier statement on which the FIR was recorded. The statement of the prosecutrix in so far as the allegations to commit rape is concerned appears to be exaggeration and improvement SC No. 146/09 State Vs Hari Singh etc. Page No. 19 of 27 for many reasons as mentioned below:
1. In the statement before the court all these improvements were put to the prosecutrix and she had stated that she had told the factum to the police in her statement but the police did not record the same. If this version of the prosecutrix is believed that police has not recorded the correct statement of the prosecutrix then why she did not raise any objection at that time. As per her statement in the cross examination when the rukka was recorded, at that time one Aparna madam of Prayas NGO and two lawyers namely Madhulika and Banj were present from Delhi Commission for Women. If the police had not recorded her statement correctly then before signing the same she could have raised the objection before the NGO officials which is not being done by the prosecutrix. Moreover, even to the doctor the prosecutrix has given history of assault by three accused persons. She has not given any history to the doctor of sexual assault/attempt to commit rape or insertion of hand by the accused in her private part. It is not believable that even the doctor would not record the correct history if the same was given to him by the prosecutrix.
2. In the present case the DD No. 16A dated 01.07.2006 Ex.PW10/A was recorded at around 5.40 PM to the effect that the police of PS Badarpur was not recording the complaint of attempt to commit rape upon the prosecutrix. It is pertinent to mention that after recording of this DD, rukka was prepared by the Investigating officer at 06.45 PM. In this rukka on which the FIR was registered, the complainant/prosecutrix could have mentioned the attempt of committing rape upon her by the accused Suraj and his friends but she has not made SC No. 146/09 State Vs Hari Singh etc. Page No. 20 of 27 any such complaint at that time and had only given the version of assault by the accused. It is not believable that the police will not record the correct statement of the prosecutrix when NGO officials were also present.
3. As per statement of the prosecutrix made in the court accused Suraj caught hold of her hair, Tinku @ Hari Singh caught hold of her hands and the all the three accused torned her clothes but in the rukka she has stated that one of the accused out of the three caught hold of her hair, the other caught hold of her hands and Suraj torn her clothes. But in the supplementary statement of 28.03.2007 this act is attributed to accused Virender.
4. The most material contradiction which makes the testimony of prosecutrix and other eye witnesses unbelievable is that there is contradiction in the statement of the prosecutrix and the scientific evidence. At the time of medical examination of the prosecutrix doctor had taken vaginal swab, sealed the same which were also sent to FSL for examination. The vaginal swab/two micro slides having whitish smear were also sent to FSL along with clothes of the prosecutrix. The microslides of vaginal swab are exhibited as Ex.1a to Ex.1b in the FSL result Ex.PW9/A. As per the seriological report, human semen was detected in the vaginal smear of the prosecutrix Ex.1a and Ex.1b as well as on the petticoat of the prosecutrix. It is not the case of the prosecutrix that accused Virender had inserted his private part in her vagina. He only fled away when she raised noise. If this is the position then how the semen was found present in the vaginal smear of the prosecutrix. The semen which was found in the vaginal smear as well as on the petticoat SC No. 146/09 State Vs Hari Singh etc. Page No. 21 of 27 Ex.2b has not matched with the accused persons. The accused Virender could not be held responsible as it is not the case of complete rape on his part. Hence, the scientific evidence also belies the statement of the prosecutrix. Further, as per the statement of eye witness PW5 Ashok @ Kallu , accused Virender had removed his pant and was in his underwear when he tried to commit rape. If this is the position there is no scope of falling of his semen on the petticoat of the prosecutrix as well.
5. Further, in the court prosecutrix has stated that accused Virender inserted his hand in her private part and removed his clothes where upon she started crying and raised alarm upon which accused fled. However, in rukka she has not attributed these acts to accused Virender. Further the other two eye witnesses PW5 Ashok @ Kallu and PW12 Vimlesh have not stated that accused Virender has inserted his hand in the private part of the prosecutrix though as per the statement of PW5 Ashok @ Kallu he immediately went inside the house within 23 minutes. No injuries were found on her private parts so as to corroborate that such an act had happened.
6. Neither the prosecutrix nor her driver/Ashok @ Kallu/PW5 in their statement before the police had named PW Vimlesh to be present at the spot of incident. PW12 Vimlesh was later on inserted in this case by the Investigating officer. I have seen the case diary wherein it is specifically mentioned by the Investigating officer that he asked for the other witness from the husband of the prosecutrix and it is he who later on produced PW12 Vimlesh in the police station on 28.05.2007 on which day the statement of PW Vimlesh was recorded SC No. 146/09 State Vs Hari Singh etc. Page No. 22 of 27 after about 11 months of the incident. PW Vimlesh submits that he has visited the police station on the very same day but the police did not record his statement. But none of the two other witnesses have named him to be present at the spot of the incident. This makes the statement of the PW Vimlesh doubtful.
7. There are other discrepancies in the statement of the PW12 Vimlesh and PW5 Ashok @ Kallu and the prosecutrix. PW Vimlesh has stated that he made the call at 100 number to the police. The prosecutrix has stated that she made a call at 100 number to the police. Further, PW5 as well as the prosecutrix has stated that they raised alarm due to which accused persons ran away from the spot. They have not stated that PW Vimlesh was present at that time. PW Vimlesh was not even aware of the persons residing in his neighbourhood. The recording of his statement after about 11 months also raises suspicion on the testimony of PW12 Vimlesh.
45. In view of the discrepancies mentioned above, the statement of the prosecutrix which was later on recorded appears to be improved and exaggerated. However it is settled law that even the testimony of the hostile witness can be made basis of conviction of the accused if it is corroborated by the other evidence on record.
46. In Gura Singh Vs State of Rajasthan AIR 2001 SC 330 it has been held that: "It is misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. In a criminal trial where a prosecution witness is cross examined and contradicted with the leave of the court SC No. 146/09 State Vs Hari Singh etc. Page No. 23 of 27 by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record together. It is for the court of the fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be credit worthy."
47. It has also been held in Crl. A. 589/2010 and Crl. A. 822/2010, Vijay Kumar @ Vijay and Others Vs State 2011 VIII AD (Delhi) 610 that: "18. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. ( Vide:
Bhagwan Singh Vs The state of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey Vs State of Orissa, AIR 1977 SC 170; Syad Akbar Vs State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari Vs State of Madhya Pradesh, AIR 1991 SC 1853."
48. The court while evaluating facts of the case is supposed to form opinion about the credibility of the witness examined in the case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion about the credibility of the witness. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence, taken in context of other facts of the case. Law recognizes following ways in which the evidence of SC No. 146/09 State Vs Hari Singh etc. Page No. 24 of 27 a witness can be termed unreliable:
a) the witness statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and,
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
49. In the present case the testimony of the prosecutrix so far as molestation is concerned also corroborated by the injuries which were received by the prosecutrix on her person and which are mentioned in the MLC of the prosecutrix. As per the statement of doctor PW14 Sanjeev Lalwani these injuries could not be self inflicted as it is unlikely. In the history given to the doctor the prosecutrix has specifically given the history of assault by the accused persons. The accused Suraj has been named and the other accused were later on arrested on the identification of the prosecutrix. The statement of the prosecutrix with regard to the receiving of male injury, scratch marks all over the body, face, breast region is corroborated by the MLC Ex.PW14/A, tearing of her clothes by the accused is also corroborated by other witness PW5 Ashok @ Kallu and the seizure memo of the clothes Ex.PW3/B which clothes of the prosecutrix were seized immediately after the incident and the seizure memo shows that the buttons (hook) of blouse were broken and petticoat SC No. 146/09 State Vs Hari Singh etc. Page No. 25 of 27 was also torned. Hence, the statement of the prosecutrix so far as the fact that the accused had outraged her modesty by tearing her clothes and had also caused injuries to her is duly proved on record and the statement of the prosecutrix is credible on this account.
Defence of the accused:
50. It is an admitted fact between the parties that previous litigation/enmity was going on between the prosecutrix and father of one of the accused. The other accused persons had taken the defence that since husband of the prosecutrix, who is a property dealer, wants to purchase the property prosecutrix has falsely implicated them in this case. But this defence does not appear to be sound to the court as previous enmity between the parties is a double edged weapon. It can be a cause / malafide intention for one person and a motive for the other to falsely implicate.
51. As I have already mentioned that statement of the prosecutrix so far as the incident of sexual assault, tearing of her clothes and molestation is concerned sound trustworthy and corroborated by the evidence however, her testimony with regard to the attempt to commit gang rape by the accused persons seems to be exaggeration. Accordingly in view of the above discussion from the testimony of the prosecutrix and other witnesses and with reference to the FSL result, the allegations of attempt to commit gang rape are not proved against the accused persons. However, it is proved that all the three accused persons had entered the house of the prosecutrix and torned her clothes, molested her and outraged her modesty and also caused hurt to her. Hence, all the three SC No. 146/09 State Vs Hari Singh etc. Page No. 26 of 27 accused persons are held guilty and convicted for the offence under Section 354/323/34 IPC. However, all the three accused persons are acquitted of the offence under Section 376(2)(g) r.w. Section 511 IPC. ANNOUNCED IN THE OPEN COURT ON 17.05.2014.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 146/09 State Vs Hari Singh etc. Page No. 27 of 27