Delhi District Court
State vs Dharmendra Sah on 23 April, 2018
IN THE COURT OF MS. RENU BHATNAGAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
SC No. : 2508/16
FIR No. : 219/2016
PS : Jaitpur
U/s : 376 IPC
State Versus Dharmendra Sah
S/o Sh. Madan Sah,
R/o H.No. D81, Laxmi Park,
Nangloi, New Delhi.
Date of Institution : 13.07.2016.
Judgment reserved for orders on : 22.02.2018.
Date of pronouncement : 23.04.2018.
J U D G M E N T
Brief facts of the case:
1.The case of the prosecution is that on 10.05.2016 complainant 'X' along with her husband came to police station Meethapur and gave her statement to W/Ct. Rekha that she lives with her four children and husband on rent at 463, Gali No. 4, Sai Nagar A Block Meethapur Ext. New Delhi. On 09.05.2016 at around 05.30 PM she was alone at her room when friend of her husband namely Dharmendra along with his nephew (bhanja) came at her room. Nephew (bhanja) of Dharmendra stood at the gate of the room and Dharmendra came in her room and bolted the room and committed rape with her. She resisted the same SC No.2508/16 State Vs Dharmendra Sah Page No. 1 of 29 and also shouted but no one came for her help as nobody heard her voice as there was no tenant in their house. She then came to police station and gave her complaint. On the statement of complainant and DD No. 9A, FIR was got registered and the same was sent through Ct. Rajiv to SI P.K. Jha. Police took complainant to the AIIMS Hospital and got conducted her medical examination vide MLC No. 5069/16. Prosecutrix/complainant refused for her internal check up and at the instance of prosecutrix site plan was prepared. Prosecutrix also produced her 'petticoat' which she was wearing at the time of incident and the same was taken into possession by the police. Statement of Prosecutrix under Section 164 Cr.P.C was got recorded by the police. Thereafter, accused was interrogated and arrested in the case under Section 376 IPC and necessary documents relating to his arrest were prepared. Accused was medically examined and his potency test was also conducted by the police at AIIMS Hospital. Exhibits were taken into possession by the police. Disclosure statement of accused was recorded by the police. Thereafter prosecutrix again came to chowki and again requested for her medical examination whereafter her medical examination vide MLC No. 5543/16 from AIIMS Hospital was got conducted. Exhibits were sent to FSL, Rohini for examination and after completion of investigation, chargesheet was filed in the court under Section 376/506 IPC against the accused. CHARGE :
2. After complying with the requirements contemplated u/s 207 SC No.2508/16 State Vs Dharmendra Sah Page No. 2 of 29 Cr.P.C., the case was committed to this Court. Vide order dated 26.07.2016, prima facie case was made out against the accused for the offence u/s 376 IPC. The charge was framed to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
3. To substantiate its allegations against the accused, prosecution examined the following witnesses: Material Witnesses:
4. PW1 prosecutrix had deposed in the court that she know accused who used to work with her husband. On 09.05.2016 at about 05.30 PM she was present in her room alone. Accused along with his Nephew (bhanja) came at her room. Accused entered at her room and his nephew was standing at the gate of her room. The accused bolted the door of the room from inside and committed rape with her. She resisted the accused and raised alarm but no one came to her help.
The accused gagged her mouth. There are three other rooms in that house where she was residing but at that time those rooms were lying vacant. Her husband came at the house at about 11 PM - 12 midnight from her work and she told him the entire incident. On the next day i.e. 10.05.2016 she along with her husband went to police station Jaitpur and made a complaint Ex.PW1/A against the accused Dharmendra and his Bhanja. Police took her for her medical examination and she was medically examined vide MLC Ex.PW1/B. She refused for her internal examination as she was having pain in her SC No.2508/16 State Vs Dharmendra Sah Page No. 3 of 29 abdomen as she had given birth to a baby two months back. She told the incident in brief to the examining doctor. Police came to her house and inspected the spot and prepared the site plan vide Ex.PW1/A. Police seized her 'peticoat' vide seizure memo Ex.PW1/D. On 11.05.2016 her statement was got recorded before the Magistrate. She correctly identify her signatures on the statement recorded under Section 164 Cr.P.C Ex.PW1/E. She does not remember the exact date but after some day, she along with her husband went to police post Meethapur and requested the police to get her medical examination again whereupon police took her to AIIMS Hospital and got her medically examined vide MLC Ex.PW1/F. At request of Ld. Addl. PP, he was granted permission to put leading questions to the witness as the prosecutrix was not disclosing the complete facts. Thereafter, prosecutrix deposed that there were Rs. 1,000/ to Rs. 1,200/ in her purse. She became unconscious during the incident. She does not remember if she had stated to the Magistrate that the accused threatened her and demanded money from her and that he took her money away with him. She had correctly identified her petticoat Ex.P1, sealed in a parcel, when opened in the court.
5. PW16 IO/Inspector P.K. Jha had deposed that on 10.05.2016 the prosecutrix came at police post with her husband, one lady namely Pooja and PSI Kafil of PS Badarpur. PSI Kafil told him about DD No. 9A of PS Badarpur Ex.PW9/A. Since the incident had happened SC No.2508/16 State Vs Dharmendra Sah Page No. 4 of 29 within the jurisdiction of PS Jaitpur he produced the prosecutrix in the police post. On his directions, L/Ct. Rekha of PP Meethapur recorded the statement of prosecutrix Ex.PW1/A. He prepared the rukka Ex.PW16/A and sent it to police station through Ct. Rajiv for registration of FIR. He sent the prosecutrix to AIIMS with Ct. Rekha. L/Ct. Rekha handed over the MLC of the prosecutrix Ex.PW1/B to him. He alongwith Ct. Rekha went to the house of prosecutrix. The prosecutrix produced a 'petticoat' of dark brown colour. He converted the same into a pullanda and sealed it with seal of 'PKJ' and seized vide memo Ex.PW1/D. He inspected the spot at the instance of prosecutrix and prepared the site plan Ex.PW1/C. On 11.05.2016 the accused Dharmendra Sah was apprehended by him with the help of Ct. Rajiv from Laxmi Park, Nangloi and brought him to PP Meethapur. After interrogation accused was arrested vide memo Ex.PW13/A and his personal search vide memo Ex.PW13/B was conducted. Accused was sent to AIIMS Hospital for his medical examination qua his potency test with Ct. Sudhir who produced the MLC of accused Ex.PW8/A and his exhibits in sealed condition with sample seal and he seized the exhibits vide seizure memo Ex.PW11/A. He recorded the disclosure statement of accused Ex.PW16/B and exhibits were deposited in the Malkhana. On the same day, ASI Kumher Singh got recorded the statement of prosecutrix under Section 164 Cr.P.C. On 21.05.2016 the prosecutrix was sent to AIIMS on her request with W/Ct. Soni for her medical examination. Ct. Soni SC No.2508/16 State Vs Dharmendra Sah Page No. 5 of 29 produced the MLC of the prosecutrix Ex.PW1/F. On 26.05.2016 the exhibits were sent to FSL Rohini for examination. He recorded the statement of Ct. Rajiv. He completed the investigation and pending the FSL result, prepared the chargesheet and filed the same in Court. The FSL result was collected later and filed the same by the MHC(M) which is Ex.PW16/C. Witness correctly identified the 'petticoat' Ex. P1.
Formal Witnesses:
6. PW2 is the husband of the prosecutrix who had deposed in the court that at the time of incident, he used to live in the house as per record on rent. Vinod is the Landlord of the house. He is a beldar. On 09.05.2016 he had gone to his work at Agwanpur Gaon, Haryana. His wife and children used to live in the said house. When he returned from his work on that night, his wife told her about the incident that accused Dharmendra with his Nephew had come in their house on 09.05.2016 and sent his nephew outside. He locked the room from inside and committed rape with her. She also told him that the accused threatened her. He and his wife then went to police station in the morning to make complaint. Police recorded the complaint. He was brought in the house to prepare the site plan. His wife used to work in the house of Pooja. When his wife told him the incident, he informed Pooja about the incident.
7. PW3 Ms. Ruby Sain had deposed that on 11.05.2016 she was working as Counselor in Shakti Salini Organization. On that day she SC No.2508/16 State Vs Dharmendra Sah Page No. 6 of 29 was called by the IO at Meethapur Police Post of PS Jaitpur where she gave counselling to the prosecutrix and prepared the counselling report Ex.PW3/A.
8. PW4 SI Romi had deposed that on 10.05.2016 she received a call at about 09.51 AM regarding rape at Molar Band Village. She entrusted the call to SI Mohd. Kafeel and L/Ct. Neelam for investigation.
9. PW5 SI Mohd. Kafeel had deposed that on 10.05.2016 he was posted at PS Badarpur and he received DD No. 9A Ex.PW4/A regarding rape at Molar Band Village. He took Ct. Neelam with her and went to the spot. He met the complainant at the Police Booth Molar Band Village. SHO and Division Officer SI B.D. Meena also came there. He came to know that husband of the prosecutrix raped the prosecutrix on 09.05.2016 at about 05.30 PM at Meethapur. Since the place of incident was in the jurisdiction of PS Jaitpur, they reached the police post Meethapur, Jaitpur where he handed over the prosecutrix to local police for further investigation.
10. PW6 ASI Shoaib Alam had deposed that on 10.05.2016 he was posted as Head Constable at PS Jaitpur and was working as Duty Officer. On that day at about 06.30 PM SI P.K. Jha sent rukka of this case for registration of FIR through Ct. Rajiv Kumar on the basis of which he recorded the present FIR. Copy of FIR Ex.PW6/A and Endorsement on the rukka Ex.PW6/B sent to IO. He also gave a certificate under Section 65B of the Indian Evidence Act Ex.PW6/C. SC No.2508/16 State Vs Dharmendra Sah Page No. 7 of 29
11. PW7 Ct. Rekha had deposed that on 10.05.2016 she was posted as Constable at PP Meethapur, PS Jaitpur. One SI of PS Badarpur brought the prosecutrix at PP Meethapur and produced before SI P.K. Jha. On the directions of SI P.K. Jha, she took the prosecutrix to AIIMS and got her medically examined. SI P.K. Jha recorded statement of prosecutrix and got the FIR registered through Ct. Rajiv. One lady Pooja was also present in the police post at that time. She along with IO and prosecutrix reached the house of prosecutrix. The prosecutrix produced one 'petticoat' of orange colour stating that she was wearing it at the time of incident. IO prepared the pullanda of 'petticoat' sealed it with the seal of 'PK' and seized it vide seizure memo Ex.PW1/D. IO prepared the site plan and recorded her statement. She can identify the 'petticoat' already exhibited as Ex.P1 if shown to her.
12. PW8 Ms. Pooja who had deposed that she know prosecutrix who was working as maid in her house. She had left the job about a year ago. She does not remember the exact date, month and year. One day prosecutrix had come to her while weeping. She told her that one boy has committed wrong act with her . She made a call at 100 number and the police came at the police booth near Molarband. She revealed the name of the assailant as Dharmender. Police took the prosecutrix to the police post. Police did not record her statement. During examination, at request of Ld. Addl. PP, permission was granted to put leading question to the witness as to when the SC No.2508/16 State Vs Dharmendra Sah Page No. 8 of 29 prosecutrix told her about the incident and when the incident was committed. PW9 deposed that prosecutrix had told her on 10.05.2016 on phone at about 09.30 AM that on 09.05.2016 Dharmender had committed rape upon her.
13. PW11 Ct. Sudhir had deposed that on 11.05.2016 on the instructions of IO he took the accused Dharmendra Sah to AIIMS for his medical examination and thereafter doctor handed over seven sealed exhibits of the accused with sample seal and MLC to him which he handed over to IO/SI P.K. Jha. IO seized the exhibits with sample seal vide seizure memo Ex.PW11/A and so long the exhibits remained in his custody, the same were not tampered with in any manner.
14. PW13 Ct. Rajeev Kumar had deposed that he received a call from SI P.K. Jha whereafter he reached at the Police Post Meethapur where prosecutrix, her husband and a girl were there. Ct. Rekha took the prosecutrix to the hospital for medical examination. He took the rukka to the police station and got the case registered. He came back with the copy of the FIR and original rukka and gave it to SI P.K. Jha. On 11.05.2016 at about 12.15 PM they went to Laxmi Park, Nangloi where they apprehended the accused at the instance of husband of the prosecutrix. They brought him to the police post. IO interrogated the accused and arrested him vide arrest memo Ex.PW13/A, his personal search vide memo Ex.PW13/B was conducted and was sent to the hospital for medical examination with Ct. Sudhir. On 26.05.2016 he SC No.2508/16 State Vs Dharmendra Sah Page No. 9 of 29 took the exhibits in sealed condition along with the sample seal from the MHC(M) and deposited the same with the FSL, Rohini vide RC 81/21/16 and proved on record copy of RC as Ex.PW13/C. He received its acknowledgment from the FSL and gave the same to MHC(M) and deposed that so long as the exhibits remained with him, their seals were intact and no one tampered with it.
15. PW14 ASI Kumher Singh had deposed that on 11.05.2016 the case file was assigned to him for getting recorded the statement of the prosecutrix u/s164 Cr.P.C. He had moved an application Ex.PW14/A before the Magistrate for recording the statement of prosecutrix which was got recorded on the same day. He received the copy of the statement and handed over the case file to IO/SI P.K. Jha.
16. PW15 Lady Ct. Soni had deposed that on 21.05.2016 on the directions of IO she took the prosecutrix to AIIMS for her medical examination and thereafter the examining doctor handed over the MLC of the prosecutrix which she handed over to IO.
17. PW17 Ms. Manisha Tripathi had deposed that on 11.05.2016 an application Ex.PW14/A was assigned to her by Ld. Link MM for recording the statement of prosecutrix u/s164 Cr.P.C. On the same day, she recorded the statement of prosecutrix Ex.PW1/E. Before recording the statement of prosecutrix, she had put certain questions to her to ascertain her voluntariness to make the said statement which contains true accounts of the statement made by the prosecutrix. She had also appended the certificate to this effect at point 'C' to 'C' on the SC No.2508/16 State Vs Dharmendra Sah Page No. 10 of 29 statement Ex.PW1/E. After recording the statement, copy of statement was supplied to the IO. Ahlmad was directed to send the proceedings in a sealed envelope to the concerned court. Medical Witnesses:
18. PW8 Dr. Suraj Ohal had deposed that on 11.05.2016 at about 7 PM accused Dharmendra Sah was brought by Ct. Sudhir of PS Jaitpur for his medical examination qua his potency. On examination, he did not find any external injury or congenital anamoly over external genitlia. He found him capable of performing sexual intercourse under ordinary circumstances. He took his blood in gauze, underwear, nail clippings of both hands, penile swab, pubic hair, control swab and sealed them with the seal of the hospital and handed over to Ct. Sudhir along with sample seal. MLC is exhibited as Ex.PW8/A.
19. PW10 Dr. Ruchi Verma had deposed that she had been deputed to depose for Dr. Chithira who has left the hospital and prepared MLC Ex.PW1/F of the prosecutrix. She deposed that as per the MLC she was brought on 21.05.2016 by W/Ct. Soni. The history of the incident has been recorded from point A to A. She identified the handwriting and signatures of Dr. Chithira as she has seen her signature and handwriting from the record maintained in the office.
20. PW12 Dr. Manpreet had deposed that he had been deputed to deposed for Dr. Aijaz Ahmed as he has left the hospital and he has worked with him and that he has seen him writing and signing. He deposed that he has seen the MLC Ex. PW1/B and as per the MLC on SC No.2508/16 State Vs Dharmendra Sah Page No. 11 of 29 10.05.2016 at 4.04 PM the prosecutrix was brought at AIIMS by Ct. Rekha. There was no fresh external injury nor smell of alcohol. She had refused for her internal examination.
Statement of accused and Defence taken by accused:
21. Statement of accused was recorded under Section 313 Cr.P.C wherein accused deposed that he had given loan to the husband of the prosecutrix. He contacted the husband of the prosecutrix on phone. He asked him to go to his house and take the money from the prosecutrix. He went there. Prosecutrix asked him to sit and gave him water. She started arguing with him and abused him. He then left her house and went to Nangloi. He did not commit any offence and that no such incident took place and that she had made the false allegations against him and has also made false history to the doctor.
22. Accused in his defence had produced one witness i.e. DW1 Sh. Sumit who had deposed that accused is his maternal uncle. On 09.05.2016 the accused returned to Delhi from his native village in Bihar. He told him that he had to vacate his rented room at Badarpur and he requested him to accompany him. They both went to the room of the accused. During this period, accused received several calls of the prosecutrix. He know the prosecutrix since the accused and prosecutrix had affair with each other. The accused told him that the prosecutrix is calling him for returning his money which he had given as loan to her husband. They both went to the house of prosecutrix. The prosecutrix asked me to sit outside saying that she had to talk with SC No.2508/16 State Vs Dharmendra Sah Page No. 12 of 29 the accused personally. He came out of the room. After about 1015 minutes the accused came out of the room. The prosecutrix came with him to wish him and they came from there. The accused lifted his articles from his room.
Arguments of Ld. Addl. PP for State:
23. It is argued by the Ld. Addl. PP for the State that the testimony of the prosecutrix is consistent and cogent. There is no ground of false implication of the accused. The FSL result is positive. It is argued that the defence of the accused is that relations were consensual as are revealed from the suggestion given to prosecutrix. If for the sake of arguments this defence of the accused is accepted then there was no ground for the prosecutrix to disclose the incident to her husband in the night, if the relations were consensual. The other defence of the accused that she wanted to extort money from him is contradictory. It is stated that one of the child of the prosecutrix who was in the room where she was raped by the accused, was only aged two months and as such, she could not respond. It is stated that the accused has admitted in his defence that he has gone to the place of incident and DW1, his bhanja also proves that he had accompanied the accused to the place of incident (house of prosecutrix), which is the case of the prosecution. The defence of the accused that prosecutrix was not satisfied with her husband and wanted to marry him is also belied from the fact that the prosecutrix is having four children from the relations with her husband and this submission is having no SC No.2508/16 State Vs Dharmendra Sah Page No. 13 of 29 substance. It is stated that accused has admitted the FSL result. He also admits his presence and making of physical relations. Hence, the case of prosecution stands proved. Hence, the accused be convicted. Arguments of the Ld. Counsel for accused:
24. Ld. Counsel for accused has filed written arguments and also advanced oral arguments. It is argued by the counsel for accused that there are various contradictions in the statement of the prosecutrix as made to the police, to the Magistrate u/s 164 Cr.P.C as well as to the court with regard to the receiving of telephone of the accused prior to the incident, with regard to the time when she disclosed the incident to the husband in the night. The prosecutrix is an adult mature lady. She is married but she did not try to raise alarm when she was raped by the accused which shows that the allegations are false. Further as per the allegations of prosecutrix the police never visited her house but a site plan prepared by the police is placed on record. Hence, the making of site plan by the police is doubtful. Prosecutrix states that she had given the clothes to the police in the police station but PW7 says that the same were given in the house. Hence, the seizure of the clothes which is the basis of FSL, becomes doubtful. As per the MLC of the prosecutrix there is no report that she complained of extreme pain in her abdomen due to which she refused for her medical examination and as such, her refusal for medical examination raises an adverse inference against her. As per statement of IO, the 'petticoat' was of brown colour whereas PW Rekha says the colour of 'petticoat' to be of SC No.2508/16 State Vs Dharmendra Sah Page No. 14 of 29 orange colour. The police seized the petticoat on 10.05.2016 but the same was sent to FSL on 26.05.2016. The police did not seize the phone or CDR of accused and the prosecutrix nor examined 'bhanja' of the accused. There are no injury marks on the person of the prosecutrix which belies her statement that she was raped. The investigation of this case was not done by the lady police officer. The children of the prosecutrix are not made witness in this case. Husband of the prosecutrix states that his wife was having no phone at the time of incident whereas DW1 'bhanja' of the accused had deposed that the accused was receiving phone calls from the prosecutrix on 09.05.2016 and the police did not make any investigation with regard to the mobile phone. Hence, it is prayed that in view of the contradictions the accused be acquitted. Ld. Counsel for accused has cited judgments of (1) Narender Kumar Vs State of NCT of Delhi 2012 (5) LRC 137 (SC), (2) Chander Bahadur Vs State 66 (1997) DLT, 570, (3) Jasbir Singh @ Javri Vs State of 2015 (2) 130 Crimes (SC), (4) Harvir Singh & Ors Vs Shishpal and Ors. 2016 (4) Crimes 114 (SC), (5) Bhagwan Jagannath Markad and Ors. Vs State of Maharashtra 2016(4) Crimes 246 (SC) (6) Raghunath Vs State 1991 JCC 426, (7) Kuldeep S Mahto Vs State of Bihar 1998 (3) Crimes 151 (SC), (8) Shivaji Surya Bhau Gira Vs State of Maharashtra 1991 (1) Crimes 512 (Bombay High Court).
25. I have heard the submissions and have perused the record. Conclusion: SC No.2508/16 State Vs Dharmendra Sah Page No. 15 of 29
26. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence of rape by resorting to the provisions of section 375 read with section 376 IPC. Section 375 IPC provides as under: "375. Rape. A man is said to commit "rape" if he (a) penetrates, his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body or a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions : First. against her will.
Secondly. Without her consent Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
SC No.2508/16 State Vs Dharmendra Sah Page No. 16 of 29 Sixthly. With or without her consent, when she is under eighteen years of age.
Seventhly. When she is unable to communicate consent. Explanation 1. For the purpose of this section, "vagina" shall also include labina majora.
Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specified sexual act;
Provided that a woman who does not physically resist to the act of the penetration shall not be the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
27. Rape is the act of physically forcing a woman to have sexual intercourse; an act of sexual intercourse i.e. forced upon a woman against her will. 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. 130b); 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. Section 375 IPC defines rape. This Section requires the following essentials" SC No.2508/16 State Vs Dharmendra Sah Page No. 17 of 29
1) Sexual intercourse by a man with woman.
2) The Sexual intercourse must be under circumstances falling under any of the seven clauses in Section 375 IPC.
28. Section 90 of the IPC defines consent. It reads: a consent is not such a consent as it intended b y any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
29. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance the good and evil on each side. Consent is rape covers states of mind ranging widely from actual desire to reluctant acquiescence. Consent within penal law, defining rape, requires exercise of intelligent based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to the understand and appreciate the nature of the act committed, its moral character, and the probable or natural consequences which may attend it.
30. In the case of Rao Harnarain Singh Sheoji Singh Vs. The State, AIR 1958 P H 123, the High Court while holding the accused liable for the offence of rape has distinguished between the word ' consent' and 'submissions' as shown below: SC No.2508/16 State Vs Dharmendra Sah Page No. 18 of 29 " (1) A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be " consent" as understood in law.
(2) Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
(3) Submission of her body under the influence of a fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and mere act of submission does not involve consent.
(4) Consent of the girl in order to relieve an act, of a criminal character, like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
(5) A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wants. Consent implies the exercise of a free and untrammeled right to forbid or without what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by SC No.2508/16 State Vs Dharmendra Sah Page No. 19 of 29 the former."
31. The essence of rape is absence of consent. The consent means intelligent and positive concurrence of woman. A woman is said to consent, only when she freely agrees to submit herself while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under influence of fear or terror or false promise is not consent. If the physical relations are made with consent, that cannot be termed as rape.
32. To prove the offence the most material witness examined by the prosecution is prosecutrix/PW1 who in her statement before the court categorically deposed that the accused, who used to work with her husband, came to her house on 09.05.2016 at about 05.30 PM along with his nephew (bhanja) when the prosecutrix was alone in her house. The accused entered her house whereas his nephew was standing at the gate, accused bolted the door of the room from inside and committed rape upon the prosecutrix. She resisted and raised alarm but no one came to her help. She states that there are three rooms in that house where she was residing but at that time those rooms were lying vacant.
33. The DNA of the accused and the prosecutrix matched. During proceedings the accused had also admitted the FSL result and its contents and stated that he does not want to examine or cross examine the FSL expert. Hence, since the FSL result has been admitted by the accused, the FSL expert was not called by my Ld. Predecessor and the SC No.2508/16 State Vs Dharmendra Sah Page No. 20 of 29 report was proved by the IO.
34. Further, the accused had himself admitted making of relations with the prosecutrix and in this regard the various suggestions put by the accused to the prosecutrix and denied by her are required to be taken into consideration. Same are mentioned below: "It is wrong to suggest that accused had come to my house on my asking. It is wrong to suggest that I made relations with the accused voluntarily since I was not satisfied with my husband............"
35. The accused had also given a suggestion to the prosecutrix that he has given number 8802452709 to the prosecutrix and from that number she used to talk to him.
36. Though in his statement recorded under Section 313 Cr.P.C accused tried to wriggle out of suggestion given to prosecutrix that the relations were consensual but even the witness of accused DW1 speaks about their affair.
37. In the defence the accused has produced DW1 his nephew and in his testimony DW1 has deposed that the accused and prosecutrix were having affair and that accused as well as DW1 had gone to the house of the prosecutrix on that day and DW1 had stayed outside the room of the prosecutrix whereas the accused remained inside the room and came out of the room after 1015 minutes. The prosecutrix has also deposed that after the incident of rape the accused left within 10 15 minutes. Hence, this statement of DW1 proves the presence of the accused as well as DW1 on the place of incident and rather it SC No.2508/16 State Vs Dharmendra Sah Page No. 21 of 29 corroborates the version of the prosecutrix that the accused along with his nephew came to her room and left within 1520 minutes.
38. Ld. Counsel for accused has argued that there are various contradictions with regard to seizure, colour and washing of petticoat which prosecutrix was wearing at the time of incident and as such the FSL result is also not believable and authentic. Investigation shows that her petticoat was seized by the IO but as per the MLC, the prosecutrix had washed her clothes. As per the MLC prosecutrix stated that she washed her clothes though the prosecutrix has denied this fact in her statement before the court but the doctor PW10 has testified in the court that she told in the history given to the doctor that she washed her clothes. There are also contradictions in the statement of the prosecutrix with regard to the colour of the petticoat which was given by the prosecutrix to the police and the place where it was seized in as much as PW7/Ct. Rekha had mentioned the colour of the petticoat, handed over by the prosecutrix to the IO as 'Orange' whereas IO and prosecutrix stated the same to be of 'Brown' colour and that IO states that the petticoat was handed over to her at the house of the prosecutrix whereas prosecutrix states that the same was given in the police station, but since the accused has admitted the making of physical relations and FSL result, these contradictions are of no value. The testimony of the prosecutrix with regard to sexual intercourse by accused is corroborated by the DNA report besides various suggestions put by the accused to the prosecutrix.
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39. Now the question to be decided is whether the relations were made without consent or will of prosecutrix or not.
40. Prosecutrix was allegedly raped on 09.05.2016. She went on 10.05.2016 to police station and lodged the complaint against the accused. However when she was taken for her medical examination, she refused for the same. As per her cross examination, she refused for her medical examination as she was having pain in her abdomen as she has given birth to a child two months back. The MLC of the prosecutrix Ex.PW1/F nowhere mentions this fact that she refused for her medical examination as she was having pain in abdomen. Moreover, as per the MLC Ex.PW1/B she was fit for giving statement and there was no complaint with regard to pain in her abdomen as told by her otherwise it would have been mentioned in MLC. As per the MLC of the prosecutrix Ex.PW1/B, there was no external or internal injury on her body or private part to corroborate the statement of the prosecutrix that she resisted the accused but he gagged her mouth. The prosecutrix is a quite mature and grown up lady. She is a mother of four children. If she would have offered resistance to the accused there must have been some injury on her person.
41. In the case of 1) Raghunath Vs State 1991 (JCC) 426, 2) Kuldeep K. Mehto Vs State of Bihar 1998 (3) Crimes 151 Supreme Court, 3) Shivaji Suryabhau Gire Vs State of Maharashtra Crimes 1991 (1) 513 the Delhi High Court, Apex Court as well as Bombay High Court respectively have categorically held that lack of injuries SC No.2508/16 State Vs Dharmendra Sah Page No. 23 of 29 on the person including the private part of the prosecutrix show that she was a consenting party to the sexual intercourse.
42. In the case of Shivaji Suryabhau Gire Vs State of Maharashtra (Supra) the court has held that: "The medical evidence does not support the testimony of Shantabai of any resistance. In other words, it is undisputed that no marks of violence were noticed on other parts of her body except some abrasions on her breasts. The prosecutrix is a grown up lady. Had there been resistance on her part, obviously she would have received various injuries on her back, legs or face especially when she was forcibly layed down in the sugarcane field. Surprisingly enough, her version as regards resistance on her part has not been supported by other attending circumstances. As seen above, except testimony of Kadubai, there is no evidence to lend support to the infirmed testimony of the prosecutrix. It is, therefore, unsafe to rely upon uncorroborated testimony of the prosecutrix who is a grown up lady. In this context, it is important to account to a total silence on the part of the prosecutrix in answering a pointed question, if she was unhappy about sex with her husband when he is older by 15 years than her. Silence on her part to answer that question suggests 'consent' on her part to the act of sexual intercourse".
43. The prosecutrix again went for her medical examination of her own on 21.05.2016 but as the offence was committed on 09.05.2016 no exhibits were collected.
44. On close scrutiny of the testimony of the prosecutrix, it is revealed that there are various omissions and variations. Though the SC No.2508/16 State Vs Dharmendra Sah Page No. 24 of 29 Ld. Defence Counsel had not put the contradictions of 164 or complaint to her, but if there is major variations, the Court should take the same into consideration. As per the statement of the prosecutrix given to the Magistrate under Section 164 Cr.P.C, on 09.05.2016 the accused called her telephonically and asked as to who is present in the house. She stated no one then accused asked her when her husband will come, she stated that he will not come before 78 PM and in the meantime the accused entered the house, closed the door, sent all the children outside her house. This statement is not made by the prosecutrix when she appeared in the court that the accused had rang her up before coming to her house or that she had sent her children outside the house. Rather as per her version, her two children had gone out for tuition and one had gone out to play and her two months old daughter was sleeping in the room. As per her statement given in the court, prosecutrix has stated that she never talked to the accused on phone on the date of incident nor did she see the person who was allegedly with the accused. If that is so, her statement that the accused accompanied with her nephew/Bhanja becomes doubtful. In the cross examination the prosecutrix stated that she told the incident to her husband in the night of 09.05.2016 and on the same day she went to the police station to lodge the report but the police asked her to bring her husband and when she went to the police station with her husband, the police asked them to come again in the morning. This version of the prosecutrix is missing in the complaint made by her to the police SC No.2508/16 State Vs Dharmendra Sah Page No. 25 of 29 or in 164 Cr.P.C statement. Prosecutrix stated that the accused called her by mobile but in the cross examination she stated that she does not know how to operate mobile phone. On the one hand in the cross examination the prosecutrix stated that she did not know the accused whereas in further cross examination she admitted that accused used to come to her house along with her husband.
45. As per the cross examination of prosecutrix, her children who came from tuition got her woke up but the police did not examine her children. As per the statement of PW2, he was brought in the house by the police to prepare the site plan after they lodged the complaint with the police but the site plan bears signatures of the prosecutrix and not of PW2.
46. As per the version of the prosecutrix in her cross examination she received the call of the accused on the mobile of her husband which he had left in the house and her husband used to have only one phone whereas the husband of the prosecutrix had deposed that the phone which he was using at the time of incident was not in working condition. He also deposed that there was no phone with his wife on the day of incident. PW2 has failed to provide his mobile phone number which he was using on the day of incident. Hence a very vital evidence is being concealed in this case. IO has also not collected the CDRs of the mobile phone number of the prosecutrix or the accused nor seized the mobile phones.
47. The court, while evaluating the facts of a case, is supposed to SC No.2508/16 State Vs Dharmendra Sah Page No. 26 of 29 form an opinion about the credibility of the witnesses examined in a case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on the credibility of the witnesses. 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 the context of other facts of the case. Law recognizes following ways in which evidence of a witness can be termed unreliable:
a) the witness's 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.
48. It is for the court to consider in each case whether as a result of cross examination, the witness stands discredited or can still be believed in regard to any party of his testimony. In appropriate cases, the court can rely upon a part of the testimony of a witness if the said deposition is found to be credit worthy. The law even recognizes to SC No.2508/16 State Vs Dharmendra Sah Page No. 27 of 29 rely upon the part of the testimony of a hostile witness if the same inspires confidence. A part of the testimony of a witness can be incredible but the other part can be credible on a careful scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence can be relied upon if the testimony is found to be credible.
49. In Sada Shiv Ram Rao Hadbe Vs. State of Maharashtra and Anr., 2006 (10) SCC 92, Apex Court has observed :
"It is true that in rape case, the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or "the whole surrounding circumstances" are highly improbable and belie the case, the case set up by the prosecutrix, the court shall not act on the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
50. In Raju Vs. State of Madhya Pradhesh, (2008) 15 SCC 133, the Supreme Court stated that the testimony of the victim of rape has to be tested as if she is an injured witness, but cannot be presumed to be gospel truth. The court observed : "It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim, but at the same time, a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, SC No.2508/16 State Vs Dharmendra Sah Page No. 28 of 29 be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailant, but there is no presumption of any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
51. Seeing the various contradictions in the statement discussed above, the testimony of the prosecutrix does not inspires confidence. Lack of injuries on the body or private part of the prosecutrix show that she was a consenting party to the sexual intercourse. Hence, prosecution has failed to prove its case beyond reasonable doubt against the accused. Giving Benefit of doubt to the accused, accused Dharmendra Sah is acquitted of the offence punishable under Section 376 IPC.
52. In view of the Section 437A of Cr.P.C., accused is directed to furnish bail bond in a sum of Rs. 30,000/ with one surety of like amount for the period of six months with the condition that he shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any. File be consigned to Record Room.
Announced in the open
court today i.e. 23.04.2018 ( Renu Bhatnagar)
ASJSpl. FTC / SED/Saket Courts
New Delhi
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