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Delhi District Court

State vs . on 3 September, 2012

     IN THE COURT OF SH. RAKESH TEWARI  ASJ­VI(OUTER), 
                   ROHINI COURTS, DELHI

SC NO.35/10
FIR NO. 1341/07
U/S 341/354/376/506 IPC
PS Sultan Puri
Unique Case ID No. : 02404R0106042008

               State 

               Vs. 

Brijesh s/o Shiv Shanker

r/o D­9, Harsh Dev Park, 

Budh Vihar Phase II, Delhi.



Date when committed to the court of Sessions :17.02.2009
Date when case reserved for judgment        : 27.08.2012
Judgment pronounced on                        : 03.09.2012

JUDGMENT:

1. The case of the prosecution in brief is that on 22.08.2007, at PP Budh Vihar, PS Sultan Puri, DD No.15 was got recorded from PCR at about 12.30 p.m. and wireless information received that one person (name withheld for secrecy reasons) had informed from telephone no.921024314 that at premises No.B­62, (full particulars withheld for secrecy reasons), Budh Vihar, gali which is coming SC No.35/10 Page 1/56 from rationing office, his wife had been raped by the landlord Brijesh and the said DD was entrusted to ASI Rakesh Kumar through Ct. Bhim Singh and the said ASI and another constable reached at the spot situated at B­52, Harsh Dev Park, Budh Vihar, where the prosecutrix along with her husband met them and she got recorded her statement.

2. As per statement of the prosecutrix, she was permanent resident of District Buland Shehar, UP and she was residing at the said address as tenant along with her three children and husband and her husband was working as a plumber, who had gone at about 9 a.m for his work and she was at her house, when her landlord Brijesh used to come to the tenanted room on one pretext or another and was keeping a bad eye on her and she had asked not to come to her room at the back of her husband and on 22.08.2007, at about 11.30 a.m, the said landlord Brijesh, who was a resident of D­9, Harsh Dev Park, came to her said room on the pretext of checking the electric meter and started asking about her husband, to which she replied that her husband had gone on his work and when she was about to come in the gallery outside her room, said Brijesh caught hold of her hand and blocked her way and started rubbing her breasts on which he raised alarm, on which he ran away after leaving her and she told this fact to her husband on telephone, who came to the house and informed the police and at the said time her SC No.35/10 Page 2/56 children were playing outside in the gali. Thereafter the prosecutrix was sent to SGM hospital for her medical examination along with her husband, where the same was conducted, on which the doctor had written alleged history of sexual assault and no mark of external injury and from there, the IO along with L/HC Nirmala came back at the spot and got recorded an FIR through Ct. Mahesh u/s 341/354 IPC.

3. The investigation was entrusted to said ASI, who prepared the site plan, recorded the statements of witnesses and at the pointing out of the prosecutrix, the accused was arrested in the case and released him on bail as the offence was bailable. On 23.08.2007, the prosecutrix along with her husband again came to PP Budh Vihar and informed that said Brijesh had committed rape upon her and due to the threat extended to her, she had not reported regarding the same earlier but now said Brijesh was again threatening her and accordingly, the further investigation was entrusted to L/SI Nisha and the said prosecutrix got her statement recorded again and besides the said facts, the prosecutrix got recorded that at the said tenanted premises she was residing along with her three children and husband for last about 10 or 12 days and her husband used to go for his work as a plumber at 9 a.m and on the said day and time, the said Brijesh came to her house and started asking about her husband to which she replied that he had gone for his job and thereafter Brijesh SC No.35/10 Page 3/56 closed the door of the gate after coming inside and also closed the door of the room and caught hold of her from behind, on which she started raising alarm when he shut her mouth and thereafter he raped her against her will and while leaving the premises, he threatened to kill her, her husband and three children in case the said incident was told to anyone and she did not disclose this thing on 22.08.2007 due to fear and had only disclosed her husband about her sexual harassment as she did not want the defame of her husband but on 23.08.2007, she had disclosed about her rape as she could not keep the truth hidden for a long time and on the encouraging of her husband, she got recorded her said another statement on the said day and thereafter Section 376/506 IPC were added to the case.

4. During further investigation, prosecutrix was again got medically examined on 23.08.2007 and exhibits given by the doctor were seized and thereafter statement of the prosecutrix u/s 164 Cr.PC was got recorded and accused was released on bail as he obtained his anticipatory bail and accused was also got medically examined and exhibits were seized and the exhibits were sent to FSL and result of the same was placed on the record subsequently and charge sheet was filed against the accused.

5. In her statement u/s 164 Cr.PC, the prosecutrix deposed that on 12th day they had taken the room on rent and the landlord had SC No.35/10 Page 4/56 come to fix the electric meter and after fixing the same, he went away and he again came on second day to take water tap and he asked about her husband, to which she replied that he had gone for his work at about 9 a.m and thereafter the landlord asked for the other tenant residing at the upper floor to which she replied that he had gone to his native village, on which the landlord asked as to when he would be coming, to which she showed her ignorance and thereafter he asked her husband as to when he used to go for his work in the morning and return in the evening, to which her husband had replied that he used to go for his work at 9 a.m and return in the evening by 8 p.m but again, he came to the said room on third day at about 11 a.m and at that time her children were playing in the room and she was preparing meal and as soon as he entered, he closed the door where the children were playing, then her children shouted that the landlord had closed the gate, then she turned back and saw that he was also closing the main gate and when she inquired about the same, to which the landlord replied that as he wanted to fix the gate over latrine, he has closed the said gates, but she again questioned him as to when he wanted to fix a gate at latrine, then what was requirement of closing her door and as soon as she went inside to switch off the cooking gas, he came inside and caught hold of her from behind and she called her son asking him to call someone but thereafter the landlord shut her mouth and laid her down at the floor SC No.35/10 Page 5/56 and in order to save her, she kicked him also but he overpowered her and raped her and when he was leaving the said room, he threatened to kill her husband and children in case she disclosed the incident to anyone and thereafter he went away. Out of fear she did not disclose the incident to anyone and called her husband on telephone and asked her husband that she did not want to stay there and wanted to go to the native village on which her husband scolded her to disclose as to what has happened, on which she disclosed the incident to him, to which her husband answered that up to what extent they would remain under fear and he gave a phone to the police at phone number 100 and police reached there and thereafter her husband asked the brother of the said landlord Brijesh that said Brijesh had committed rape with his wife, on which all the females of the house of the landlord along with their husbands came there and started beating her with chappals and also abused her, on which the police people also scolded them on which they ran away and thereafter police officials took her to the police post where the said members of the family of the accused bribed the police and when she insisted for her medical examination, to which police refused, but when she was adamant, then they started removing her for the medical examination and the police officials made her sit in the vehicle of ruffians and when she reached the hospital, the said ruffians made her husband and children sit in their vehicle and she SC No.35/10 Page 6/56 was alone sent for the medical examination and her husband was threatened to make her understand not to go for medical examination, otherwise her husband and her children would be killed and on this threat, she refused for her medical examination and they left the hospital, but police made them sit in the police post and forced her to write that no rape was committed with her, on which, for the safety of her husband and children, she gave in writing and came to her house, but still the said persons from the side of accused threatened her that in case she had taken any action in the matter, she would not be spared and thereafter she along with her family left the house in the morning and at about 3 p.m, gave a telephone call to Women's Commission from where the females came to whom she narrated the incident, on which the further proceedings in the case were conducted and the day before yesterday, she was got beaten by the said ruffians and said landlord is behind the bars and she was being threatened every day to enter into a compromise.

6. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 03.03.2009, framed charge against the accused u/s 341/354/376/506(II) IPC, to which he pleaded not guilty and claimed trial.

7. The prosecution, in order to prove its case, has produced as SC No.35/10 Page 7/56 many as 17 witnesses, relevant of which have been discussed below.

8. The statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and denied the incriminating evidence against him as false and examined Sh. Om Saran Yadav as DW1 in his defence.

9. I have heard Ld. APP for the State, Sh. Rajan Bhatia, Advocate for the accused and perused the record.

10. PW4, the prosecutrix, deposed that about three years back, she along with her husband and children was residing at Budh Vihar Phase II as tenant in the house of accused Brijesh, present in the court, and the said house was taken on rent 8 days prior to the incident, which took place on 22.08.2007 and on that day, at about 11.30 a.m, she was cooking food in the kitchen and her children were playing in the room and her husband had gone to his duty and accused present in the court came in the house on the pretext of taking tap lying in the room of the other tenant and that two days prior also, he came in her room on the pretext of fixing the electricity meter and on that day also he inquired from her the duty hours of her husband and that immediately after coming in the house, accused closed the main gate of the room where her children were playing and her son called her as to why accused was closing the gate of the said room and when she took turn, she saw that SC No.35/10 Page 8/56 accused was closing the main gate of the house and when she inquired from the accused as to why he was closing the main gate, on which he replied that as he wanted to fix the gate of latrine upstairs, he has closed the gate, on which she asked him to open the main gate of the house and the accused was pretending that he was going upstairs and she went inside the kitchen, but he followed her in the kitchen and hugged her and she cried for help and asked her son to call someone from the window for help and that her children got scared and when she tried to raise alarm, he put his handkerchief on her mouth and made her to lie on the floor near the kitchen and that she tried to give a kick from her leg to the accused but he overpowered her in such a manner that she could not escape and the accused committed rape upon her without her consent and forcibly and the accused threatened her to kill her husband and children in case she disclosed the said fact to anyone and thereafter accused went away and she did not tell the fact to anyone and gave a ring to her husband after 1 or 1½ hour from STD booth, who came to the house after 10/15 minutes, to whom she narrated the incident and asked him to shift to the native village from there and that her husband called the police at phone no.100 and police of PS Sultan Puri also came at her residence and recorded her statement on 22.08.2007 which is Ex.PW4/A and that she had narrated the incident of rape with her to the police officials at PP Budh Vihar on SC No.35/10 Page 9/56 22.08.2007 but as the brother of the accused was a local political leader and under his influence the true facts, as narrated by her with regard to rape by the accused, were not recorded by the police in her said statement and that on 23.08.2007, she had gone to the PS Sultan Puri along with the media persons and then only her statement was recorded truly by the police which is Ex.PW4/B and the police took her for medical examination to the hospital and her statement was also got recorded before the Magistrate which is Ex.PW4/C and that wife and other family members of the accused came at her room and gave her beatings with chappals when she lodged the complaint against the accused.

11. In her cross examination on behalf of the accused, she replied that she did not remember the exact date of her marriage but it was 13 or 14 years back and previously her husband was working at Delhi, but at present, he is working at native village and was self employed as plumber and her elder child is ten years old, second is nine years old and third is seven years old and at the time of incident, all her children were not studying in any school and that they were residing in their native village before coming to Delhi and she came to Delhi for the first time when the incident took place and that house of accused was taken on rent by her husband with the help of one boy of their village who was also residing in the said locality. She further replied that there was no electricity connection SC No.35/10 Page 10/56 in the tenanted room when it was taken on rent and the same was installed after two days and she did not know if the electric connection was installed by NDPL officials, but the persons who installed the same were brought by the accused and that there was no water connection or any other water fittings in the said tenanted house. She replied that her husband used to go for his work at 9 a.m and used to return at 7 p.m and he used to come back to home for lunch and he used to leave and come to the house as per availability of the work and at the relevant time, she was the only tenant in the said house as the other tenant had gone to his native village and he took the house on rent after their taking the said house on rent. She denied the suggestion that said tenanted house was surrounded by many other houses and she volunteered that on one side of the house, there was vacant land and she could not say if it was towards left or right but on one side of the tenanted premises there were other houses where people were residing. She admitted that in front of her tenanted premises across the gali, there were residential houses and she did not know if people were residing in those houses or not. She answered that the said gali was frequented by the public persons. She answered that in the tenanted room there was only one window which opened towards the said gali and that there was one kitchen on rent besides the said room and that the tenanted room and the kitchen were fitted with doors. She admitted that door of the SC No.35/10 Page 11/56 kitchen opens towards the main gate of the said house towards gali and that the door used to be closed by her when her husband was away for his work, but sometimes it remained open due to children being playing outside and that at the back side of the said tenanted room there was no window and it was a closed wall and that her children were not naughty so as to frequently go outside and come inside the said premises and that toilet was situated at the upper floor which could be approached by going on a staircase and at the time the said premises was taken on rent, there was no door on the said toilet and that her husband or she did not ask the accused for fixing a door at the said toilet and that neither her family nor the family of the accused ever came and went to each other's house. She replied that she had stated to the police in her statement that on the day of incident, her children were playing inside the said tenanted room and she was confronted with her statement Ex.PW4/A where it was not found so recorded. She further stated to have told the police that as the accused came inside, he closed the door of the tenanted room and thereafter he closed the main gate of the said premises and that her son had told her as to why the accused was closing the gate of the said room and when she turned back, she saw accused closing the door of the main gate of the premises and that when she inquired from the accused as to why he was closing the door of the main gate of the premises, he answered that as he was going to fix the door of SC No.35/10 Page 12/56 the toilet, he was closing the door of the main gate and all the said facts were confronted with her previous statement Ex.PW4/A where the same were not found so recorded. Again the facts in her deposition that she asked the accused to open the main gate and accused showed as if he was going to upper floor but he entered the kitchen and accused had talked about installing the door of the toilet, on confrontation were not found recorded in her previous statements Ex.PW4/A and Ex.PW4/B, but same were found recorded in her statement before the Magistrate Ex.PW4/C. She replied that she stated to the police in her statement that she cried for help and asked her son to call someone for help through the said window, but the said fact was not found so recorded in her statement Ex.PW4/A but it was found so recorded in Ex.PW4/C. Similarly, the fact that she had gone to the kitchen to switch off the gas was not found so recorded in her statement Ex.PW4/A but was found recorded in her statement Ex.PW4/C.

12. She further replied in her cross examination that there was no bathroom in the said premises and there was no one with the accused in the premises on the day of incident and that she was wearing a saree when accused came inside the said tenanted premises on the day of incident. She replied that she stated before the Magistrate that she raised alarm, but the said fact was not found so recorded in her previous statement Ex.PW4/C but the fact was mentioned in the SC No.35/10 Page 13/56 statement that she called her son to call someone for help and thereafter accused gagged her mouth. A question was put by the Ld. Defence Counsel as to whether the accused was having any equipment/implement at the time when he came inside the said premises, to which she replied that accused was having a knife in his hand. She replied that accused had come to check the electric meter inside the premises but she could not say as to whether he stayed for half an hour or one hour at that time. She answered that her saree and blouse remained in the same position in which she was wearing till the time the accused had stayed for checking the said meter for half or one hour and accused was wearing pant and shirt at that time and she admitted that accused went away after checking the meter wearing his pant and shirt intact. She answered that the accused left her house at about 11.30 a.m and she did not meet any neighbour after the accused had left her house nor she disclosed about the incident to anyone in the neighbourhood. She did not know the name of the PCO booth owner from where she called her husband nor she disclosed the incident to the said PCO owner. She admitted that she herself personally did not call any police official. She did not remember the mobile number of her husband on which she had called him. She did not know on which site her husband was working at that time. She answered that she was present in the room along with her children when her husband came back and that her SC No.35/10 Page 14/56 husband had discussed about the incident with some of the neighbours after calling the police at phone number 100 from his mobile but she did not know their names. She did not know if all the relatives of the accused were residing in the same locality in the neighbourhood. She replied that her husband did not talk with any of the relatives of the accused before calling the police and after coming to know of the incident from her nor her husband talked to any of the relatives of the accused before the arrival of the police and none from the neighbourhood gathered at her house. She further replied that none from the neighbourhood came at her house after arrival of the police and it took about one hour when inquiries were made immediately after coming to the spot by the police. Her statement was also recorded by the police at the spot, as per her answer and at that time her husband was not with her but her children were with her and her husband was present outside the house at that time. She replied that in her presence statement of her husband was not recorded on that day and that police also made inquiries from her elder son aged about ten years, but his statement was not recorded. She replied that after her statement was recorded by the police, she was taken to the police post but she could not tell the name of the police post as her statement was not recorded at the police post. She replied that she was taken to the police post in a separate vehicle by the police officials and her husband and children SC No.35/10 Page 15/56 were taken in a separate vehicle. She replied that from the police post, they came back to their house at about 9 or 10 p.m and the statement of her husband was recorded at the police post. She replied that initially she was not got medically examined and that after returning from PP she along with her husband and children did not stay in the said tenanted house in the night and they stayed at a house in a gali nearby called Malik Wali Gali and in the said house her husband had worked. She replied that she did not change her clothes nor she took bath on the said night nor she changed the clothes on the following day. She replied that in the said house at Malik Wali Gali, the police did not meet her but members of the Women Commission met them there. She further answered that she had visited the said tenanted premises along with the police after the said night when they stayed in the said house at Malik Wali Gali after she was medically examined and second report was lodged. She answered that she was medically examined twice and that first time she was medically examined on the day of incident and second time on the following day of the night when they stayed at Malik Wali Gali and that her husband was not with her at the time of her first medical examination and at the time of second medical examination, her clothes were taken by the doctor and after that she had put on the clothes which were purchased from the market on the same day of second medical examination and at the instance of the SC No.35/10 Page 16/56 doctor, one petticoat was purchased for her to change the same and that after second medical examination she met the police at the PS where further inquiries were made from her and thereafter also she met the police which had come to see the spot and the police continued to visit for 2/3 days after the incident and inquiries were made from her in the presence of her husband and her statement was recorded by a Magistrate after her second medical examination but she did not make any statement to the police after her second medical examination. She replied that the persons from Women Commission were called by the person in whose house they stayed at Malik Wali Gali and that police did not make inquiries from the person in whose house they stayed at Malik Wali Gali and officials of Women Commission were 4 or 5 in number, out of which name of one female was Ms. Kumkum and the said persons of the Women Commission got recorded her complaint and statement and the said officials of Women Commission also accompanied her to the hospital at the time of second medical examination along with the police officials but she did not know if the police had recorded the statement of any member of the said Commission. She replied that when she had come for her statement before the Magistrate, she was accompanied by her husband and one male who is not known to her by name but he was the husband of one of the members of the Women Commission. The said tenanted premises was on rent of SC No.35/10 Page 17/56 Rs.1,000/­ per month. She denied the suggestion that at the time of negotiations for obtaining the premises on rent, it was agreed that Rs.20,000/­ would be paid as security and the said security would be given after the supply of electricity in the said premises, but even after the supply of electricity they did not pay the rent and after denying the suggestion she volunteered that same was paid in advance. She further replied that except her complaint to the local police, she did not make any complaint to the higher police officials. She denied the suggestion that as they did not pay the security and rent or that the accused asked them to vacate the premises on that account, he has been falsely implicated in the present case. She denied the suggestion that she obtained the services of Women Commission or that at their instance she got recorded her false statement before the Magistrate in order to falsely implicate the accused.

13. PW6 Dr. Renu Gupta deposed that on 22.08.2007, she medically examined the prosecutrix and the patient refused to undergo for internal examination and that her husband also refused for the internal medical examination of his wife and the patient was having alleged history of sexual assault, as per request forwarded to them and the doctor made her endorsement to that effect on the MLC Ex.PW5/A. In her cross examination on behalf of the accused, the doctor replied that the patient did not disclose any reason as to SC No.35/10 Page 18/56 why she was refusing for her internal medical examination and that she had also advised the patient to undergo the medical examination since she was having the alleged history of sexual assault, but despite that the patient refused for her internal medical examination. The doctor refused to comment upon the suggestion and replied that it is difficult to give such an opinion that the patient refused for her internal medical examination because that may go against her allegation of alleged sexual assault.

14. PW9 is the husband of the prosecutrix who deposed that he left his home for his duty at about 8.30 or 9 a.m on 22.08.2007 and on that day, he received a phone call of his wife at about 11 or 11.30 a.m and called him at home immediately as the accused present in court, who was his landlord, had misbehaved with her and that he came back to his house where his wife narrated the entire incident and he called the police at number 100 and the police took them to the police post and they were made to sit in a Kothri type room and in the police post, brother of the accused, who was a BJP leader of the area, along with many other persons reached and started talking with the police and that he (the witness) refused to accept the offer given by them for closing the case and not to go for medical of his wife and that when he insisted, the police took his wife to the hospital in a separate vehicle and he along with his three small children was taken to hospital by the brother of the accused along SC No.35/10 Page 19/56 with other persons and that on the way to the hospital he was threatened by those persons to kill his only son, in case he insisted for medical examination of his wife or to get the case registered. He further deposed that in the hospital he asked his wife that she should not go for hospital as his son was made to sit by those persons in the same vehicle and as such, they came back without medical of his wife and that in the night, he assured the police officials and those persons, who were threatening them, that he should leave Budh Vihar for ever and would go to his village. He testified that on the following day he decided to go to the higher authorities for getting the case registered with the intervention of DCP and Women Commission, on which the police recorded the statement of his wife and medical examination of his wife was got conducted by the police and the police went to the house of the accused but it was found locked and later on, accused was apprehended from his house and brought to the PP and was arrested vide memo Ex.PW9/A and that his statement was also recorded by the police.

15. In his cross examination on behalf of the accused, he replied that he was working as a plumber for the last 6/7 years and he came to Delhi 20 or 25 days prior to the incident, when he stayed with his friend at Budh Vihar and thereafter he took house on rent of the accused at the said place through his co­villager, who was selling butter­milk in the area. He answered that at the time of deposition SC No.35/10 Page 20/56 he was residing at his in laws house at Badayun and initially he came alone to Delhi and after making said arrangement of house of accused on rent, he called his family members to Delhi to reside at the said rented premises and that he took the said premises on rent 12 days prior to the date of incident and the rent of the house was Rs.600/­ per month. He denied the suggestion that rent of the house was Rs.1,000/­ p.m besides a security amount of Rs.20,000/­ and that he had met the accused for the first time on the day of incident because earlier he used to go for his work in the morning and used to come late in the night. He replied that electricity was there in the said premises but there was no electric meter installed and that he did not know if any electric meter was installed in the said premises or not. He denied the suggestion that it was agreed at the time of creation of tenancy that rent would be paid when the electric meter would be installed besides the said security amount would be given at that time. He replied that there was another tenant in the said premises who was a relative of the accused but he did not know his name, who had vacated the premises two days prior to the incident. He replied that the said premises consisted of one room and kitchen at the ground floor and there was no window or door at the backside of the said premises and that there was one window in the room which opens towards the main gali and that there was a staircase and a gallery in front of the said tenanted portion and that one latrine SC No.35/10 Page 21/56 was situated at the upper floor portion and there was no bathroom as such. He further replied that there was no door on the said latrine and only a curtain was there. He denied the suggestion that he along with his wife was insisting for fixing a door at the said latrine by the accused. He replied that there was a vacant plot by the side of the said premises. He denied the suggestion that there were houses in front of and by the left side of the said tenanted premises. He replied that he was not knowing any neighbour during those 10 or 12 days of his stay as tenant in the said premises. He replied that accused never visited his house prior to the day of incident nor he was knowing him during the said period. He replied that the gali in front of said premises was hardly frequented by the public as it was situated much inside from the main road. He did not know if the relatives of the accused were residing in the same gali in the nearby premises. He replied that on the day of incident, he was working at a house which was being constructed near bus terminal at a distance from the said tenanted premises, but he did not know the name of the said house owner where he was working, but he was known by the name of Baba.

16. In his further cross examination, he replied that he was alone at the time at the said premises where he was working when he received the phone call of his wife and he had informed the said house owner by the name of Baba with regard to his leaving the said SC No.35/10 Page 22/56 place of work for his home as he was having a work at his home. He replied that he did not disclose the incident to said Baba and as such, there was no question of asking the said Baba to accompany him. He further replied that his wife and children were present inside the tenanted room when he reached his house on the said day and he was advised by his neighbours, who had gathered there, to make a call at phone number 100 to the police regarding the incident. He replied that as he was not knowing family members or relatives of the accused, no question arose of talking with them before the arrival of the police and when the police had arrived, the neighbours came to know of the incident. He replied that he had given a call to the police at about 12.30 p.m within 15 minutes of his reaching the house and the police arrived at the spot within 5 minutes of his call. He replied that the police did not make enquiry from him or his wife at the spot as the wife of the accused and other relatives had come there to attack and beat them. He replied that after the arrival of the police and before they were removed to police post, he was outside the tenanted premises and his wife was inside the premises where the police was making inquiries from his wife and as such, he could not say if her statement was recorded at that time or not. He did not recollect if the police recorded his statement on 22.08.2007. He further replied that they went to the hospital from the police post after about 2 or 2½ hours of their reaching at the police post. He SC No.35/10 Page 23/56 answered that on the night intervening between 22nd and 23rd August, 2007, he remained in the said tenanted premises as his household articles were there. He replied that they met the lady officials of the Women Commission at Budh Vihar itself on 23.08.2007 at about 9 a.m. but he did not ask the names of the said ladies and that he orally explained the incident to the said lady officials but not in writing. He replied that he did not see DCP but the matter was reported to him through the said lady officials and that regarding the threat extended to his child and to them also, he had sent fax/registry to the authorities and that he had to search for the same in order to produce the same before the court. He replied that his statement was not recorded by the police in the presence of said lady officials and that police had made inquiries from the neighbours also and one of them was put behind the bars for threatening him. He further answered that his wife was taken for medical examination and at that time, the said lady officials and he accompanied her to the hospital and the medical examination was carried out on 23.08.2007. He admitted that from the time of incident on 22.08.2007 till her medical examination on 23.08.2007, his wife did not go along with him for making purchases in the market. He replied that police had come to the spot after the medical examination of his wife. He further answered that after the incident, he had seen the accused after about two days at PS Sultan Puri at about 11 a.m. SC No.35/10 Page 24/56

17. PW12, Retd. ASI Rakesh, was the initial IO who recorded the statement of the prosecutrix which is Ex.PW4/A and he prepared the rukka Ex.PW12/B and gave the same to Ct. Mahesh for registration of FIR and thereafter he prepared the site plan Ex.PW12/C at the instance of the prosecutrix and he arrested the accused vide memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW12/D and he recorded the supplementary statement of the prosecutrix and statements of other witnesses and as the offence was bailable, accused was released on bail from the police post and on 23.08.2007 in the morning, the file was transferred from him by the orders of the SHO.

18. In his cross examination on behalf of the accused, he replied that he received DD No.15A Ex.PW12/A at about 12.45 p.m. He replied that when he reached the spot he met the prosecutrix, her husband but he did not meet their children and that there were two doors for entering the said house. He admitted that other houses were constructed near and in front of the said house. He replied that no other person from the neighbourhood had gathered there. He replied that he recorded the statement of the prosecutrix in the presence of her husband but he did not record statement of her husband at that time. He replied that the prosecutrix was taken by her husband to the hospital directly from the spot and she had come to the police post on the said day after her medical examination SC No.35/10 Page 25/56 which was got conducted by L/HC Nirmala and that he was standing outside the hospital and that at that time, he did not meet either the accused or his family members, but after the medical examination, he met accused and his relatives. He further replied that from the hospital, the prosecutrix, her husband and L/HC Nirmala reached the spot of their own, but again said, that he along with Ct. Mahesh were also accompanying them on his motorcycle. He replied that the accused was found present at his residence when he was arrested and wife of the accused was also present at that time.

19. PW13 Dr. Anita medically examined the prosecutrix on 23.08.2007 and seized the undergarment, sample of pubic hair and vaginal swab and handed over the same sealed with the seal of the hospital to the police official and her detailed examination report is from point X to X in the MLC Ex.PW3/A.

20. PW15 was the concerned Magistrate who recorded the statement of the prosecutrix which is already Ex.PW4/C u/s 164 Cr.PC.

21. PW17 is the subsequent IO W/SI Nisha who deposed that on 23.08.2007, she was informed that on the previous day a case u/s 354 IPC was registered wherein the complainant thereafter wanted to give her detailed statement and the prosecutrix/complainant was accompanied with her husband and were present at the PS and she SC No.35/10 Page 26/56 made inquiries from her wherein she told that due to fear and pressure, she could not tell about the factum of rape upon her committed by the accused and accordingly she recorded her statement which is Ex.PW4/B and she got the prosecutrix medically examined from SGM hospital vide MLC Ex.PW3/B and she seized the exhibits given by the doctor with regard to prosecutrix vide memo Ex.PW1/A and thereafter she took the prosecutrix and her husband to the house of accused at D­9, Harsh Vihar, Budh Vihar, in his search but he was not available and the house was found locked and on 24.08.2007, she moved an application for recording the statement of the prosecutrix u/s 164 Cr.PC which was recorded and she obtained the copy of the same. She further testified that on 13.09.2007, she formally arrested the accused as he was ordered to be released on anticipatory bail by the orders of the Hon'ble High Court and accused was sent for medical examination vide MLC Ex.PW11/A and the exhibits pertaining to the accused given by the doctor were seized and she tendered the FSL result in evidence as Ex.PX and Ex.PY.

22. In her cross examination on behalf of the accused, the said IO replied that prosecutrix and her husband met her for the first time in the PS and at that time, their one child was also present at the PS. She denied the suggestion that some officials of the Women Commission were also accompanying them in the PS or the said SC No.35/10 Page 27/56 officials of the Women Commission accompanied her, the prosecutrix and her husband to the hospital. She further denied the suggestion that at the time of recording of the statement of the prosecutrix u/s 164 Cr.PC, the officials of Women Commission were present.

23. The DW1, Om Sharan Yadav, deposed that the rate of rent of the said premises in the possession of prosecutrix was fixed at Rs.1,000/­ p.m and security was fixed as Rs.20,000/­ and that the rent and the security amount was to be paid after the supply of electricity connection to the tenanted premises and that no amount was paid at the time of settlement of conditions for renting out the premises and that he spoke to the accused about the receipt of payment as settled but he was told that no payment had been made and that thereafter the accused told the prosecutrix and her husband to vacate the said premises.

24. In his cross examination on behalf of the State, he replied that he was a confectioner item supplier on his cycle to different shops which were his customers between 7 a.m to 10 a.m and between 4 p.m to 7 p.m and he used to fetch the said material from Nangloi, which was 7 kilometers away from his residence. He replied that he knew accused Brijesh as his customer, whose shop was situated at the said address. He replied that he did not visit the house of the SC No.35/10 Page 28/56 accused nor he accepted the offer of the accused regarding having tea or cold water at his house and he knew the accused for the last about ten years and the accused never disclosed him about any other property which may or may not be in his possession and that he did not know as to when the accused was married. He answered that no writing work was executed with regard to the said rent agreement between the accused and the husband of the prosecutrix nor he was made a witness to any such document. He admitted that he had been asked by the accused to appear as a witness. He did not know the husband of the prosecutrix. He knew that the prosecutrix being the wife of the said tenant got registered the present case against the accused for raping her and that he had not seen the prosecutrix in this case. He could not say if the prosecutrix was beautiful enough so that any male person could have been attracted towards her. He replied that he came to know about 5 or 6 months ago that the accused had been implicated in this case of rape and that one salesman, who also used to supply the goods at the said shop of accused, informed him that Brijesh has been implicated in a rape case. He replied that he had not taken any action under the law for the said false implication of the accused. He did not remember that on the day when the said alleged rent transaction took place between the accused and the said tenant, as to whether he had gone to Nangloi to fetch the goods for supply or not. He could not tell the SC No.35/10 Page 29/56 addresses of his other customers namely Hari Ram, Shiv Kumar, Billu, Om Prakash and Munni Devi. He admitted that he had gone to supply the goods to Billu, Om Prakash and Munni Devi in the evening on the said date.

25. Yet another case wherein all the forces, legal and social, combined together in order to save the rapist and demolish the case of the prosecutrix, who was a poor rustic villager having three children and a husband working as petty plumber earning his daily wages and who had come to Delhi for the first time 10 to 12 days prior to the incident. The height of insensitization towards the victim of rape in the present case on behalf of the police is that despite having information of a rape committed by the accused upon a woman and that too with every specification as to who was the victim, the spot of incident and who was the culprit who committed rape, as is recorded in DD No.15, PP Budh Vihar, dated 22.08.2007 Ex.PW12/A, even then a male police official ASI Rakesh, PW12, was deputed to enquire and investigate the case in utter disregard of the repeated commands of the Hon'ble Supreme Court that in rape cases, a female police official is required to be deputed with a further command to create a congenial atmosphere for the victim to make her statement or to tell her woe in fearless manner and if need be, even to provide her with counseling in order to get rid of her traumatic and tragic experience. The said ASI Rakesh, as usual, SC No.35/10 Page 30/56 without taking all the precautions, recorded the statement of the prosecutrix to the effect that only her breasts were fondled by the accused and thus, reduced the case to Section 354 IPC only and wiped out the offence of rape and got the FIR registered, for the reasons best known to him and to the SHO of the concerned PS whereas it was never the case of the prosecutrix that her breasts were fondled by the accused even during the rape. Even the lady doctor, before whom the prosecutrix was produced for her medical examination on 22.08.2007, deposed in a saintly manner before the court that she had advised the patient to undergo the medical examination since she was with alleged history of sexual assault, but despite that the patient refused for her internal medical examination and she could not comment upon the suggestion to give an opinion that the patient refused for her internal examination medically because that may go against her allegation of sexual assault, but the said directions of the Hon'ble Supreme Court were not only for the police and the courts, but also for everyone concerned with such type of rape or child victims and the doctor nowhere tried to console her or to ascertain the real reason for refusal by the prosecutrix and her husband for her medical examination.

26. Thanks to the said unknown lady officials of the Women Commission who took up the case of the prosecutrix and somehow the voice of the prosecutrix, a common person in the street, was SC No.35/10 Page 31/56 thrown on the deaf ears of the higher police officials sitting in air conditioned office in which the poor and common persons like the prosecutrix, could not even dare to enter and thereafter, it seems that a female Sub Inspector Ms. Nisha, PW17 was deputed to investigate the matter. The plight of the prosecutrix and her husband did not stop here even. However, the W/SI Nisha, PW17, altogether denied the presence and involvement of any official/representative of the Women Commission in the case in her deposition. If it was so, a question comes to the judicial mind to be asked to the W/SI Nisha as to what prompted or forced her to record a second statement of the prosecutrix on 23.08.2007 and got her thumb mark on the same which is Ex.PW4/B, which is patently illegal act of the said lady IO because the command of the law is that only the statement on which the FIR is to be recorded is required to be signed by the informant and no other statement recorded during the investigation is required to be signed or thumb marked by any of the witness and Ex.PW4/B was recorded in utter violation of the law laid down u/s 162 of the Cr.P.C. It seems that here the said W/SI Nisha was sandwiched between two situations, one was the pressure operating upon her to investigate the case further and the possibility in creating that pressure by the said officials of the Women Commission cannot be ruled out in view of the specific deposition of the prosecutrix as PW4 and her husband as PW9 and even the Defence Counsel has not SC No.35/10 Page 32/56 denied the presence and involvement of the said lady officials of the Women Commission in the present case when it was suggested to the prosecutrix PW4 and her husband PW9 that this present false case was got registered by the prosecutrix at the instance and with the help of the officials of the Women Commission, to which they denied as wrong. The second limb of the sandwich was that even then how to save the accused and here W/SI Nisha tried to kill two birds with one stone by recording a statement Ex.PW4/B thumb marked by the prosecutrix so as to give a valid defence in the hands of the rapist that the said statement was hit by Section 162 Cr.PC. The said officials of the Women Commission, admittedly, are not the witnesses in the case and the natural inference is that as they would have thrown the light on the case and would have uprooted the helplessness of the prosecutrix in getting her real victimization recorded on 22.08.2007 itself. Thus, the fate of the case of the prosecutrix has been tried to be sealed by the police and the investigation agency at every juncture of the case. The next question comes into judicial mind as to whose skin W/SI Nisha was saving by recording the statement of the prosecutrix and getting her thumb marked on the same. Were these the higher police officials or the accused or the both and answer to this question is known to her for the reasons best known to her.

27. Many circumstances, as deposed by the victim PW4 and her SC No.35/10 Page 33/56 husband PW9, have gone unrebutted in the case showing or telling the circumstance as to why they refused for medical examination on 22.08.2007 and why such a statement Ex.PW4/A on which the FIR u/s 354 IPC was registered, was given by the prosecutrix. Her deposition, in her examination in chief, that she had narrated the incident of rape with her to the police of police post Budh Vihar on 22.08.2007 but as the brother of the accused was a local political leader and under his influence the true facts, as narrated by her with regard to rape by the accused, were not recorded by the police in her said statement Ex.PW4/A and that on 23.08.2007 she had gone to the PS Sultan Puri along with the media persons and then only her statement was recorded truly by the police which is Ex.PW4/B which is thumb marked by her at point A, has gone unrebutted and unassailed in her cross examination on behalf of the accused. Her further deposition that the wife and other family members of the accused came at her room and gave her beatings with chappals when she lodged the complaint against the accused, has gone unrebutted on the record and nothing has stopped the accused to produce his wife and his brother in the witness box in his defence at least to deny the said allegations of the prosecutrix in not recording her true statement on 22.08.2007 for the said reasons.

28. Similarly, the deposition of PW9, the husband of the prosecutrix, to the effect that when he came back to his house where SC No.35/10 Page 34/56 his wife narrated the entire incident, he called the police at phone no.100 and the police took them to the PP where brother of the accused, who was a BJP leader of the area, along with many other persons reached there and started talking with the police and that he refused to accept the offer given by them for closing the case and not to go for medical examination of his wife and that when he insisted, the police took his wife to the hospital in a separate vehicle and he along with his three small children was taken to the hospital by the brother of the accused along with other persons and that on the way to the hospital he was threatened by those persons to kill his only son, in case he insisted for medical examination of his wife and to get the case registered and in the hospital he asked his wife that she should not go for medical examination as their son was made to sit by those persons in the same vehicle and hence, they came back without medical examination of his wife and they assured the police officials and those persons who were threatening him that he would leave Budh Vihar for ever and would go to his native village, has gone unrebutted and unassailed during his cross examination and the same has been corroborated in material particulars even by the prosecutrix PW4 when she answered in her cross examination that she was taken to Police Post in a separate vehicle by the police officials and her husband and children were taken in a separate vehicle and that her husband was not with her at the time of her first SC No.35/10 Page 35/56 medical examination.

29. Taking the defence of the accused first which is based upon the fact that neither the PW9, the husband of the prosecutrix could pay rent nor he paid the security amount which was fixed as Rs.20,000/­, which has been denied altogether by the prosecutrix as PW4 and her husband as PW9. The fact that the premises was taken on rent 10 or 12 days ago has not been denied by the accused even by way of suggestion. Thus, it becomes an admitted fact on his part. In his cross examination, the husband PW9 has replied to a question that he had met the accused for the first time on the day of incident only because earlier he used to go for his work in the morning and used to come late in the night. In view of the said question asked on behalf of the accused and considering the said reply of the witness, it is even not probable to believe as to at what time the said agreement with regard to security deposit of Rs.20,000/­ took place with the tenant i.e. PW9. This question was again repeated to PW9 in another shape to which he answered that accused never visited his house prior to the day of incident nor he (the witness) was knowing him during the said period. In the said circumstances, it is difficult to believe that any such rent agreement or security deposit of Rs.20,000/­ was fixed at all and that too with PW9. Even otherwise, when there was no electric meter nor even a door at the latrine, how such a premises could have fetched a sum of Rs.20,000/­ as security SC No.35/10 Page 36/56 deposit, as is alleged by the accused in his defence. It is not the case of the accused that the victim family was residing in the premises for a long period so as to say that huge arrears of rent had accumulated and in order to get rid of the burden of paying the said arrears of rent to the accused, tenant got him falsely implicated in the case of rape of his wife because so many times this question was asked with regard to the time of tenancy in favour of PW9 and even PW9 answered to a question that he was not knowing any neighbour during those 10 or 12 days of his stay as tenant in the said premises. Thus, the accused has miserably failed even to establish his defence by way of a mere probability. Further, no relative or the wife or brother of the accused has been produced in the witness box to prove the alleged rent agreement or terms of the security deposit between PW9 and the accused, but a supplier of goods, the DW1, was produced in the defence evidence and the bare reading of his cross examination proved his deposition as worthless to be given any credit.

30. Against this, the Ld. Counsel for the accused has contended that if the defence of the accused is weak or he is unable to establish the same, it is no ground to relieve the prosecution from its burden of proving the case beyond reasonable doubt and in this connection, besides other points, he has relied upon a judgment of the Hon'ble Supreme Court titled Radhu Vs. State of M.P. reported as 2007 Crl. SC No.35/10 Page 37/56 L.J. 4704 wherein it was held by the Hon'ble Supreme Court that the defence failed to establish the debt owed by the father of the accused to the father of the prosecutrix and that was why they had made false charge of rape, to avoid repayment, is not of much relevance, as the prosecution miserably failed to prove the charges. There is no dispute about the said premises of law laid down by the Hon'ble Supreme Court and it has not been disputed by the prosecution that the lapses in the prosecution case can be supplied by the weak defence of the accused.

31. Ld. Defence Counsel has further contended that there are improvements in the deposition of PW4, the prosecutrix, as has been confronted in her cross examination to her from her previous statements. The question is as to whether the said confronted portion is really an omission or improvement in her deposition before the court. I have reproduced the deposition of PW4 above and the facts mentioned in the said portion of confrontation were finding a mention in her one or the other statement and not finding the mention in one or the other statement. I have already narrated the circumstances in which the case was spoiled on 22.08.2007 and as such, what was recorded in her subsequent statements has been substantially deposed by her before the court but for minor discrepancies here and there. Since the statement Ex.PW4/A dated 22.08.2007, on which the FIR was recorded, has already been SC No.35/10 Page 38/56 discarded by me and the prosecutrix was alleging against the said statement Ex.PW4/A as not her truthful statement, the confrontation of her deposition before the court with the said statement Ex.PW4/A is fruitless and cannot come to the help of the accused in any manner because the prosecutrix has not only disowned her said statement but clearly spelt out in her deposition regarding the reasons therefor. The glaring feature of the same is that when she was narrating as to how the accused committed rape with her, she did not even claim that accused ever fondled her breasts during the process of raping her, but the said fact of fondling of breasts is finding mention in her said disowned statement Ex.PW4/A. The remaining confrontation as already held by me, was finding mention in her subsequent statements either Ex.PW4/B or Ex.PW4/C. Thus, I am of the considered opinion that the said contention raised on behalf of the accused is devoid of any merit.

32. Ld. Counsel for the accused further vehemently argued that in the MLC Ex.PW3/A of the prosecutrix dated 23.08.2007, it is mentioned that no injury was found on her genitals and there was no other injury mark on her body and hymen was ruptured which was old and healed and absence of injury was also noticed on her exposed part of body in the initial MLC Ex.PW5/A dated 22.08.2007 and it has been contended that same creates a doubt about the story of rape on her.

SC No.35/10 Page 39/56

33. The said contention at the first glance seems to be attractive, but on a closure scrutiny, it is devoid of any merit. The prosecutrix is admittedly the mother of three children and this fact sufficiently explained the rupture of hymen which is old and healed, but is this a ground to believe that no rape was committed with her. The absence of injury on her private parts or body parts may give rise to a doubt about the story of the victim in certain circumstances, but to say that it should be considered as negating the theory of rape, is not the law. In this regard, the said judgment of the Hon'ble Supreme Court in Radhu's case (supra) relied upon by the accused, goes against the said contention of the Ld. Defence Counsel wherein it has been specifically held that absence of injuries on the private parts of the victim would not, by itself, falsify the case of rape nor construed as evidence of consent. Even otherwise, in the case of a grown up female, the symptoms and features of the private parts generally are negative in character such as, absence of hymen, the vagina admitting more than two fingers, absence of injury etc., but a doctor is required to write down the said negative features in his/her report but no doctor can give an opinion in such negative circumstances that no rape was committed with the victim. Thus, the said contention is not tenable under the law and facts of the present case.

34. The next contention raised by the Ld. Defence Counsel was that no alarm was raised by the prosecutrix, which is unnatural SC No.35/10 Page 40/56 conduct in view of her allegation of rape. This was substantially answered by the Hon'ble Supreme Court in the case titled State of Punjab Vs. Gurmeet Singh and others reported as (1996) 2 SCC 384, wherein although the Hon'ble Supreme Court was dealing as to why the young village girl, a student of X class, did not raise an alarm or did not inform the incident immediately to her teachers and class fellows or to the driver of the car, but it was held that the inherent bashfulness of the females and tendency to conceal outrage of sexual aggression are factors which the courts should not overlook and that the court overlook the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising alarm and that a girl, in a tradition­bound non­ permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down upon by the society and that her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability and in the normal course of human conduct, this unmarried minor girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others empowered by a SC No.35/10 Page 41/56 feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy.

35. The said observations of the Hon'ble Supreme Court are equally true in the present case and this court cannot overlook the situation that she had come to the locality where the incident had taken place just 10 to 12 days ago, not knowing anyone as such to call for help and that she was a mother of three children, having a daily wager husband, thinking of her future prospects and that of her family, what would her children be thinking about her when grown up or even her own husband, undoubtedly a member of the male dominated society, may think against her of being unchaste character and such other situations before her. My said view is fortified by her deposition that even when her husband returned back to the home, she did not narrate the incident at first instance to him and asked him to take her back to the native village and she did not want to reside there at the spot and it was because of the only reason that she had become depressed and hopeless not expecting any solution to her said trauma. She has specifically claimed in her deposition that she cried for help and asked her son to call someone for help through the said window but Ld. Defence Counsel tried to confront her said deposition with her previous statement Ex.PW4/A where certainly it was not found so recorded but it is equally true SC No.35/10 Page 42/56 that it was found mentioned in her statement Ex.PW4/C which was recorded by the Magistrate u/s 164 Cr.PC. I have already discarded the statement Ex.PW4/A and the resulting contention that the said fact of calling for help was an improvement also because the said statement was disowned by her, as has been recorded by the police itself and when she was under threat of the relatives of the accused and subsequently she also refused for medical examination when her son was almost kept as a hostage by the relatives of the accused. Thus, the said contention is meritless and is hereby rejected.

36. The next contention raised on behalf of the accused is that no rape can be said to have been committed in view of an answer given to a question put to the prosecutrix as PW4 wherein she answered that her saree and blouse remained in the same position in which she was wearing till the time the accused had stayed for checking the said meter for half or one hour and that accused was wearing pant and shirt at the said time and she admitted that accused went away after checking the meter wearing his pant and shirt intact. It has been argued that when saree and blouse remained in the same position and the accused also left the premises wearing his pant and shirt, how it can be said that the rape was committed.

37. The said question was nothing but a trick question wherein the prosecutrix fell into the trap and answered like that. Of course, her SC No.35/10 Page 43/56 petticoat and blouse remained intact and certainly after raping her, the accused was not going out in a naked condition and if he would have gone in a naked condition, that circumstance would have gone against him further. Even a rustic village woman understands the meaning and import and implication of the word "rape" and different vocabulary in various languages and dialects are used for the same and as per mental level, the said words and vocabulary qua the said act of rape are used. This court can take judicial cognizance of the fact that girl children of tender age before this court itself in many cases, have not used the word "rape" or "sexual intercourse"

but they often use the words "Bura Kaam" (the bad act) or "the accused putting his organ used for urinating, in her organ used for urinating". It is the substance of the things coupled with the decency and modesty of the woman to be maintained during the recording of evidence of such rape victims which is the prime consideration in deciding such cases. By no stretch of imagination it can be said that present victim, a mother of three children, when answering that her saree and blouse were as it is and accused also left in pant and shirt, she was meaning that no rape was committed with her and her previous statement Ex.PW4/C recorded by the Magistrate or her examination in chief qua committing of rape with her by the accused was false. This also goes to establish that she could not understand the question so as to anticipate that her said answer will be SC No.35/10 Page 44/56 interpreted in a different manner and of course, it has been tried to be given some other meaning as has been contended by Ld. Defence Counsel. However, to the judicial mind, when read in continuation with her whole deposition, she was referring that when accused came on the pretext of checking the meter, her clothes as well as that of the accused were intact.

38. Even the Hon'ble Supreme Court in the said case of Gurmeet Singh (supra) has held that inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty and that courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.

39. The said observation of the Hon'ble Supreme Court is equally applicable to the said answer given by the PW4 that her clothes were intact and that of the accused also and the said contention carries no value in the eyes of the law as well as in the facts of the case. Hence, the same is hereby rejected.

40. Next is the contention with regard to fetching of a petticoat after her medical examination on 23.08.2007, which was changed SC No.35/10 Page 45/56 after her previous petticoat, which she was wearing at the time of the incident, was taken by the doctor in the hospital and the Ld. Counsel for the accused has pointed out that in this regard PW4 answered in her cross examination that on her second medical examination her clothes were taken by the doctor concerned and after that she had put on the clothes which were purchased from the market on the same day of medical examination and that at the instance of the doctor, one petticoat was purchased for her to change the same, whereas PW9, her husband, admitted in his cross examination that from the time of incident on 22.08.2007 till her medical examination on 23.08.2007, his wife did not go along with him for making purchases in the market and by these two answers given by two witnesses, Ld. Defence Counsel wants to point out a material contradiction with regard to the fetching of the petticoat to be changed in the said circumstances.

41. I have carefully gone through both the answers and I find no contradiction in the said two answers as PW4, the prosecutrix, never said in her answer that she had gone out to purchase one petticoat along with her husband for changing the same after her previous petticoat was seized and as such, the reply of the husband that his wife did not go for making purchases in the market during the said period, is absolutely correct. It is not the case of Ld. Defence Counsel that he further asked any question as to who fetched the SC No.35/10 Page 46/56 new petticoat for her from the market and in the absence of said fact on the record, the said contention is devoid of any substance and hence the same is hereby rejected.

42. Next contention is again a contradiction shown to this court with regard to staying of the victim and her family in the same locality and it has been pointed out that as per PW4, after returning from the police post, she along with her husband and children did not stay in the said tenanted house in the night and they stayed at a house in a gali nearby called Malik Wali Gali where her husband had worked and PW9 has answered in his cross examination that on the night intervening between 22nd and 23rd August, 2007, he remained in the said tenanted premises as his household articles were there. The said contention ignores her further answers wherein she stated that she had visited the said tenanted premises along with the police officer after the said night when they stayed in the house at Malik Wali Gali after she was medically examined and second report was lodged. This answer clarifies that there was no contradiction and it was only PW9 who was claiming to have stayed in the tenanted premises as his household articles were there. I find that this is not very material qua the charge of rape and staying in the same locality or in the same tenanted premises after the incident, would not have changed the charge of rape or has created any such suspicious circumstance against her deposition of rape with her. SC No.35/10 Page 47/56 Hence, the said contention is worthless in the said circumstances.

43. Again the contention that there was no independent witness examined in the case to corroborate the deposition of the prosecutrix as PW4, has been raised on behalf of the accused. I am putting a question to myself as to who could have been the independent witnesses in the present case. The persons who have come to the locality 10 to 12 days ago and the adjoining houses, as per own case of the accused, were occupied by the relatives of the accused then how an independent witness could have been fetched by the victim of the rape. I have already discussed that even the ladies of the locality and of the family of the accused, who should have felt sympathy for the victim being a lady, turned hostile towards her and started beating her with chappals and the other relatives having influential position were present not only at the spot but at the police post also and certainly became successful in spoiling the case of the victim of the rape in the present case and in such circumstances, it is not appealable to common sense as to how an independent witness could have been fetched by the said victim. So far as corroboration aspect is concerned, the FSL result Ex.PX and Ex.PY mentions that human semen was detected on the petticoat seized by the doctor of the prosecutrix which she was wearing at the time of incident and on her vaginal swab also and it is specific answer of the PW4 that she had not taken bath nor she changed her clothes till her second SC No.35/10 Page 48/56 medical examination on 23.08.2007 when her petticoat was seized and vaginal swab was taken as sample by the doctor and there are circumstances also brought on record by the cross examination on behalf of the accused himself that she had no sexual access with her husband PW9 till that time, but still I am not taking the said FSL report as a corroboration for the reasons that it has not been established on record that said semen belonged to the accused though it is mentioned that semen stains on the petticoat were of "O" group but in the vaginal swab it gave no reaction and further that chances of cohabitation between the husband and wife during the said period has not been completely ruled out by any evidence on the record. Still the law commands that if the deposition of the prosecutrix is otherwise reliable, then no corroboration is required of her deposition and Hon'ble Supreme Court in the said case of Gurmeet Singh (supra) has laid down this law in the following words:

"The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, SC No.35/10 Page 49/56 disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self­inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treting her as if she were an accomplice........"

44. It was further held by the Hon'ble Apex Court as under:

"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 courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix SC No.35/10 Page 50/56 inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

45. It was further commanded by the Hon'ble Apex Court as follows:

"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self­respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case....."

46. This is the same law laid down by the Hon'ble Supreme Court in the judgment of Radhu's case (supra) relied upon by the accused in his support when it was held that finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix as very nature of offence makes it difficult to get direct corroborating evidence which should not be rejected on the basis of minor discrepancies and contradictions and that victim, if states on Oath, SC No.35/10 Page 51/56 that she was forcibly subjected to sexual intercourse, the statement would normally be accepted, even if uncorroborated unless there arises a need to draw inference that there was consent or that the entire incident was improbable or imaginary. Thus, the said judgment do not come to the help of the accused in the circumstances of the case because it was in the cross examination that the case put by the prosecutrix was successfully demolished and even the Hon'ble Apex Court upheld the same, but same is not the situation applicable in the present case as not only the prosecutrix has remained consistent in her examination in chief and cross examination and substantially supported her previous statement Ex.PW4/C also, even if I ignore Ex.PW4/B being hit by Section 162 Cr.PC and while disowning her initial signed statement Ex.PW4/A, she has successfully explained the circumstances in which her said wrong statement was recorded or that as to why she and her husband refused to go for her internal medical examination on 22.08.2007 and the explanations given by her that even her son was kept as hostage not to allow her to go for her medical examination or getting her statement correctly recorded, have remained unassailed and unrebutted on the record. Even otherwise, her deposition is otherwise substantially corroborated by the deposition of her husband, the PW9 and accused failed to point out any material contradiction in the same. Moreover, no motive could be imputed to SC No.35/10 Page 52/56 PW4, who was claiming to have know the accused for 3 or 4 days prior to the incident and to PW9, who even did no know the accused by face prior to the day of incident, for the false implication of the accused.

47. In view of my said discussion, I am of the considered opinion that the prosecutrix as well as her husband have bring home the guilt of the accused beyond reasonable doubt about her rape and threat and accordingly, the accused is held guilty and convicted for the offences punishable u/s 376 & 506 IPC.

(Announced in the open court on 03.09.2012) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.35/10 Page 53/56 IN THE COURT OF SH. RAKESH TEWARI ASJ­VI(OUTER), ROHINI COURTS, DELHI SC NO.35/10 FIR NO. 1341/07 U/S 341/354/376/506 IPC PS Sultan Puri Unique Case ID No. : 02404R0106042008 State Vs. Brijesh s/o Shiv Shanker r/o D­9, Harsh Dev Park, Budh Vihar Phase II, Delhi.

ORDER ON SENTENCE:

Present : Ld. Substitute Addl. PP for the State.

Sh. Rajan Bhatia, Ld. Counsel for the convict.

1. Heard on the point of sentence. It has been submitted by the Ld. Counsel for the convict that the convict is the sole bread earning member of his family and he has two kids, out of which one is newly born and that he is running his coaching institute and there is no previous criminal record against him and as such, a lenient view may be taken.

2. On the other hand, Ld. Substitute APP has submitted that in a SC No.35/10 Page 54/56 proven case of rape, no leniency is to be shown lest a wrong message may go to the society.

3. In the background of the case, at the time of the commission of the offence and after that also, the convict was having victory in his one hand and conquest in the other. He not only satisfied his sexual lust by ravishing the prosecutrix on the one hand, but there was a battery of persons in order to hush up the said offence. His wife and other womenfolk had arrived at the spot and gave beatings to the prosecutrix with chappals and on the other hand, his relatives were busy in managing the police and the investigation agency and to a great extent, they have become successful also, as has been discussed in the judgment. Even they procured assurance from the victims i.e. the prosecutrix and her husband that they would be leaving the said part of Delhi and would go to their native village and such was the terror created in her mind. Police also sided with the rapist in the present case and all the norms and commands of the Hon'ble Supreme Court in dealing with the rape cases were brushed aside in order to save the convict from the consequences of law by hook or crook. In these circumstances, he deserves no leniency and as such, the convict is sentenced to undergo life imprisonment for the offence u/s 376 IPC along with a fine of Rs.1 lakh and in default of payment of fine, he shall further undergo SI for a period of two years. The convict is further sentenced to undergo RI for a period of SC No.35/10 Page 55/56 five years for the offence u/s 506 IPC and a further fine of Rs.10,000/­ and in default of payment of fine, he shall undergo SI for a period of one month. Both the said sentences shall run concurrently. Benefit of Section 428 Cr.PC, if any, is extended to the convict.

4. Out of the said amount of Rs.1 lakh, after the expiry of the period of appeal, revision, etc., a sum of Rs.75,000/­ as a token towards the compensation be given to the prosecutrix being the victim of unfortunate circumstance, though this court knows that this meager amount is no compensation to her at all, whose soul has been killed by the convict, for which hardly any compensation in terms of money can be an equivalent.

5. A copy of this order as well as order convicting the convict be given free of cost to the convict forthwith. The file be consigned to the Record Room.

(Announced in the open court on 03.09.2012) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.35/10 Page 56/56