Delhi District Court
State vs . Shiva @ Chandrika, on 24 March, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.159/13.
Unique Case ID No. 02405R0183402013.
State Vs. Shiva @ Chandrika,
S/o Sh. Ramanand,
R/o VPO Ranipur, P.S. Kamasin,
Distt. Banda,
U.P.
Date of Institution : 19.6.2013.
FIR No.69 dated 23.3.2013.
U/s. 323/342/366/376D/377/506/34 IPC.
P.S. Dwarka Sector-23.
Date of reserving judgment/Order : 15.3.2014.
Date of pronouncement : 24.3.2014.
JUDGMENT
1. The accused had been chargesheeted by the prosecution for having committed the offences punishable u/s. 323/342/328/366/376/376(D)/377/506/34 IPC.
2. It is the case of the prosecution that the prosecutrix namely 'S' (real name withheld in order to conceal her identity) is married to Sh. Jagdish Prasad, r/o Raibareilly, U.P. Before shifting to Delhi, the prosecutrix was doing a job in Raibareilly where the accused was also working and he had a bad eye upon her. On 15.6.2012 when she alongwith her husband and children was travelling in a train from Kanpur to Raibareilly and had gone to the SC No.159/13. Page 1 of 16 toilet to ease herself, she found the accused present there, who threatened her that he would kill her husband and children and put a handkerchief on her face after which she did not remember what happened. When she regained consciousness, she found herself in a room and came to know that she is in Delhi. Accused did not permit her to come out of the house and used to commit rape upon her after administering some intoxicating medicine to her. The accused also used to have unnatural sex with her. On 22.3.2013, the accused came to the room at about 11 p.m. with two other associates whom the prosecutrix did not know. Accused increased the volume of television and pushed her upon the cot and caught hold of her both hands. When she tried to cry, accused put a cloth on her mouth and thereafter the two associates of the accused raped her on the asking of the accused. They had used condom while doing so. Thereafter they left and the accused also raped her. Accused threatened her that in case she disclosed this incident to anybody, he would kill her. The prosecutrix somehow escaped from that room the next day at about 11'O clock and reached Bijwasan railway station wherefrom she made a call at telephone no.100 and police came to her rescue.
3. It is further case of the prosecution that on 23.3.2013 at about 11.40 a.m., information was received in the police station on wireless from Police Control Room that a call has been received from a lady, who told that she has been raped in the house no.103 belonging to Ranvir and she is being beaten. The call had been received from mobile no.9971312723. The information was recorded as DD No.17A in the police station and was entrusted to SI Lokesh for suitable action. Meanwhile, SI Promila was also SC No.159/13. Page 2 of 16 directed by the SHO to reach the spot of incident. Accordingly, SI Promila reached the spot i.e. House No.303, owned by Rambir, village Barthal where she met the prosecutrix 'S'. She made inquiries from her and recorded her statement. She prepared rukka and got the FIR registered. She also took the prosecutrix to DDU Hospital and got her medically examined. She seized the exhibits given by the doctor. Accused Shiva came to be arrested. He made disclosure statement admitting his guilt. He was got medically examined in DDU Hospital. Exhibits were seized by the IO from the spot of crime. She recorded the statement of the material witnesses u/s.161 Cr.PC. Statement of the prosecutrix u/s. 164 Cr.PC was got recorded on 25.3.2013. Exhibits were sent to the FSL on 02.4.2013. Search was made for other two assailants but they could not be found as their particulars could not be known.
4. Upon completion of the investigation, Charge Sheet was prepared against the accused and submitted to the concerned Ld. Magistrate.
5. Upon committal of the case to the court of Sessions, Charges u/s.328 IPC, u/s.366 IPC, u/s.344 IPC, u/s.376 IPC, u/s.377 IPC, u/s.323 IPC, u/s.506 IPC and u/s.376(D) were framed against the accused on 19.7.2013. Accused pleaded not guilty to the aforesaid charges and accordingly, trial was held.
6. Prosecution has examined 10 witnesses to prove the guilt of the accused. Ld. APP also tendered in evidence the FSL result. The accused was examined u/s.313 Cr.PC on 18.2.2014 SC No.159/13. Page 3 of 16 wherein he denied the prosecution case and claimed false implication. He further stated that he had become acquainted with the prosecutrix in the year 2008 when she had arranged LIC policy for him and in the year 2009 the prosecutrix alongwith her children had voluntarily come to his room at Raibareilly as she had been thrown out from her matrimonial house by her parents-in- law. She remained in his room for about one week and thereafter on the request of her husband, he dropped her as well as her children at her matrimonial house. According to him, he did not commit sexual intercourse with her at any point of time. He stated that he has been falsely implicated in this case by the prosecutrix at the instance of her husband, who refused to accept her back unless she lodges a complaint against him.
7. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record.
8. The prosecutrix has been examined as PW1. She deposed that she had got married to Jagdish about 13 years ago and after marriage was residing with him in his native village Rampur, District Raibareilly, U.P. There she was working in a women organization. The accused also was working in the same organization and therefore, they knew each other. According to her, accused was having a bad eye upon her. She further deposed that on 15.6.2012. She alongwith her husband and children was returning to Raibareilly from Kanpur in a train. Train was overcrowded. At about 3 p.m., she felt urge to ease herself and accordingly went to toilet of the train compartment. When she opened the door of the toilet, she found the accused present SC No.159/13. Page 4 of 16 inside the toilet. She turned around and started leaving from there but the accused caught hold of her hand and threatened her not to raise any alarm or otherwise, he would kill her husband and her children. The accused put a handkerchief on her face and then she became unconscious. When she regained consciousness, she found herself present in a closed room. The doors of the window of the room were closed. She peeped outside through a small hole in the window and found that there was a school on the other side. She could not understand properly what was written in English on the board of the school but could understand that the place was in Delhi. After about 1½ hours, accused came inside the room. She requested him to take her to her family members but he started beating her. As she was having headache, accused gave her a tablet to relieve her from headache. On consuming the tablet, she became unconscious. However, before becoming unconscious, the accused committed sexual intercourse with her against her consent. Thereafter, accused continued to administer some tablets to her time and again and used to commit sexual intercourse with her during her semi consciousness state, after which she used to become unconscious. After regaining consciousness, she used to find herself nude with semen stains all over her body. The accused also used to be present in the room sometime in naked state and sometime with his clothes on. The accused did not permit her to go outside that room. He had taken her to a nearby doctor on two or three occasions when she was feeling sick. However, he had threatened her not to disclose the incident of sexual intercourse either to doctor or anybody else.
9. She further deposed that this continued for 2 or 3 SC No.159/13. Page 5 of 16 months. Thereafter, one day in the evening, the accused left room saying that he would be returning soon. He returned after about 1½ hours alongwith two more persons, whom she did not know. They had covered their faces with a 'Gamcha' (small cotton towel). Accused increased the volume of television set to a very high level and pushed her on to the bed in the room. When she tried to cry, he put a cloth on her mouth. Thereafter, accused as well as those two persons pulled off her clothes and the accused told them to do with her whatever they wanted to do. Those two persons committed sexual intercourse with her forcibly one after another and then left. The accused also committed sexual intercourse with her thereafter against her consent. Accused also beat her severely. He threatened her that he would kill her if she narrated the incident of sexual intercourse to anybody. Next morning at about 10 a.m., she requested the accused to permit her to go outside as she was feeling urge to deprecate assuring him that she would not say anything to anybody. Accused accompanied her upto the toilet, which was at a distance from the room. She was feeling like vomitting and asked the accused to bring 'Manjan' (toothpaste). Accused went inside the house to bring toothpaste and she found an opportunity to run away. As soon as she went out of the main gate of the house, she found that there was a railway station nearby. She made a call at telephone no.100 from the railway station. Police officials came to the railway station and met her at the railway station. They recorded her statement Ex.PW1/A and brought her to the police station. From the police station, she was taken to DDU Hospital for medical examination and the doctor took into possession her undergarment and also obtained her various samples. Thereafter, she was lodged in SC No.159/13. Page 6 of 16 Alpawas where she stayed for two days. On 25.3.2013 she was produced before the Ld. Magistrate, who recorded her statement Ex.PW1/B. Thereafter, she lodged in Nari Niketan where she remained for 12 or 13 days. She also deposed that she had shown to the police officials the room, in which she had been kept confined and sexually assaulted by the accused. Accused was arrested from the same house in her presence on 23.3.2013 itself.
10. In the cross examination, she deposed that her husband had not lodged any complaint after she was kidnapped from train. She further admitted that there were two doors in the room where she had been confined by the accused. She also admitted that there were two main gates of the house. She deposed that the gate on the rear side used to be locked from outside and the front side gate used to be bolted by the accused from inside. According to her, there was a colour TV of make Videocon in the room, which was purchased by the accused in her presence. There was an iron cot and the Godrej almirah also in the room, which too were purchased by the accused in her presence. She admitted that she had accompanied the accused to the electronic store, wherefrom the TV was purchased and the TV was selected by her choice. She added that the accused had threatened her not to disclose her plight to anybody or otherwise, she would be killed. She also stated voluntarily that the accused had purchased the TV set after selling her jewellery i.e. golden earring, one Mangalsutra and silver anklets. She did not know how much did the said jewellery fetch. She deposed that all the eatables were brought by the accused from the market. She did not know how much money used to be spent by the accused for SC No.159/13. Page 7 of 16 the household expenses and how much used to be paid as rent by him. She deposed that the accused was not doing any job and generally remained present in the room with her. He used to go out for just 5 to 10 minutes and used to lock the room from outside. Sometimes, he asked her to bolt the door of the room from inside saying that he would be near the room itself. She further deposed that she had visited the room again alongwith her husband after she was released from Nari Niketan to collect her belonging from the room. At that time, the landlord Sh. Rambir Singh had demanded rent from her and her husband paid him Rs. 3,200/- as arrears of rent. She admitted that on the date of incident i.e. 15.6.2012 she alongwith her family was travelling in general compartment of the train and it was overcrowded compartment. She admitted that many persons were standing outside the toilet when she had gone there. She deposed that her husband had told her later that when he reached near the toilet in her search, he was told by those persons that a lady was taken by a person after putting a handkerchief on her mouth. She denied having mentioned in her statement to the police that one day accused talked to her husband on phone and threatened him that he should leave her idea from his mind or otherwise, his children would be killed.
11. PW4 SI Lokesh Kumar was the first official, who reached the spot of incident. He deposed that on 23.3.2013 at about 11.45 a.m. when she alongwith Constable Radhey Shyam was attending some other call, Const. Jagdish handed over to him DD No.17A regarding rape of a lady in village Barthal. Accordingly, he alongwith Const. Radhey Shyam reached the spot i.e. House SC No.159/13. Page 8 of 16 No.303, belonging to Rambir in village Barthal, Dwarka. PCR officials had already reached the spot. He met the prosecutrix 'S' and made inquiries from her. She told him that she was beaten and raped by the three persons during previous night. He apprised the SHO about the circumstances of the case on telephone and thereafter SI Promila alongwith lady Const. Sunita reached the spot to carry on further investigation. SI Promila recorded the statement of the prosecutrix in his presence in the hospital, prepared rukka and sent it to the police station for registration of FIR. He is witness to the seizure of one bedsheet, one mattress, one towel, one Gudri and a polythene bag containing used condoms from the room of the accused by IO SI Promila. He is also witness to the arrest of the accused vide arrest memo Ex.PW4/C. In cross examination, he deposed that in the house where accused and prosecutrix were staying, bathroom was at a distance of about 10 to 11 yds. from their room. There was one room and some open space between the room of the accused and the bathroom. There was 5 ft or 6 ft. wide gali between the two rows of rooms. When he further deposed that when he had reached the spot, the prosecutrix met her in the gali outside the house. There was one TV, one bed, some kitchen utensils etc. in the room. He deposed that the accused did not try to run away on seeing them.
12. IO SI Promila has been examined as PW7. She deposed that on 23.3.2013 when she was present in P.S. Bindapur where she was posted at that time, the SHO directed her to report in P.S. Sector-23 Dwarka, as a call of rape had been received there. Accordingly, she reached P.S. Sector-23, Dwarka and met SHO, who apprised her about the call and directed her to reach the SC No.159/13. Page 9 of 16 place of incident. She alongwith lady Const. Sunita reached the spot of incident i.e. House No.303 belonging to Rambir, village Barthal, and met SI Lokesh, Const. Radhey Shyam and prosecutrix 'S'. She made inquiries from prosecutrix, who told her that she has been raped by accused Shiva, who also was present at the spot. Prosecutrix also told her that she had sustained injuries on her body and was feeling intense pain. Accordingly, she alongwith SI Lokesh and Lady Const. Sunita took the prosecutrix to hospital for medical examination. She recorded the statement of the prosecutrix in the hospital, prepared rukka and sent it to the police station for registration of FIR. She seized 12 sealed exhibits and one sample seal given to her by the doctor after medical examination of the prosecutrix. From the hospital, she reached the spot of incident alongwith prosecutrix and from the room of the accused, she seized one towel, one bedsheet, one mattress, one Gudri and a polythene bag containing used condoms. These were seized at the instance of the prosecutrix. She sealed them in different pullindas. She arrested accused Shiva @ Chandrika, who was present there and also recorded his disclosure statement Ex.PW4/E. Accused pointed out the spot of incident vide memo Ex.PW4/F. Thereafter, she got the accused medically examined and seized the exhibits given by the doctor. On 24.3.2013 she produced the prosecutrix before the concerned Ld. M.M., who recorded her statement u/s.164 Cr.PC. She recorded supplementary disclosure statement of the accused Ex.PW4/H on the same day. She identified all the aforesaid exhibits, which she had lifted from the room of the accused when these were shown to her in the court and the same are Ex.P1 to Ex.P5. In the cross examination, she deposed that the prosecutrix was around 30 SC No.159/13. Page 10 of 16 years of age and told her that she had stolen the mobile phone of accused and made call from that mobile phone at telephone no. 100 on reaching Bijwasan railway station.
13. It was submitted by Ld. APP that the prosecutrix has consistently stated in all her statements including her testimony before this court that she was being continuously raped by the accused after being drugged and was got gang raped by the accused by his associates on the night of 22.3.2013 and therefore, the accused is liable to be convicted for the offence, with which he has been charged. She submitted that nothing contrary to the prosecution case has been elicited in the cross examination of the prosecutrix or any other witnesses. She further submitted that nothing has been brought on record to suggest that the accused has been falsely implicated in this case.
14. Ld. Counsel for the accused submitted that the prosecutrix had voluntarily gone to the house of the accused, which is manifest from the fact that it is not possible for a person to kidnap a grown up lady from a crowded train coach. He further submitted that even the husband and other family members of the prosecutrix knew that she had gone with the accused and therefore, they did not lodge any complaint regarding missing of the prosecutrix for six months, during which period the prosecutrix was staying with the accused. It is submitted that no incident of rape or gang rape had taken place and the prosecutrix has lodged a false case on the pressure of her husband, who was not willing to accept her back in the matrimonial fold unless she filed a complaint against the accused. He prayed for acquittal of the SC No.159/13. Page 11 of 16 accused.
15. As per the testimony of the prosecutrix, she was kidnapped by the accused from the toilet of a crowded train compartment at about 3 p.m. on 15.6.2012 when she was returning to Raibareilly from Kanpur alongwith her husband and children. She was around 30 years of age at that time. According to her when she opened the door of the toilet, she found the accused present there, who threatened her not to raise any alarm, put a handkerchief on her face, after which she became unconscious and when she regained consciousness, she found herself in a closed room at Delhi. The manner, in which the prosecutrix states to have been kidnapped by the accused does not seem to be probable and do not appeal to reason. I find it very difficult to believe that a grown up lady can be taken away from a crowded train compartment in such a fashion. Further, it would not be possible for a person to carry a lady in an unconscious state from a railway station between Kanpur and Raibareilly upto Dehi without being noticed by any person including police officials. It is also evident from the evidence on record that neither the husband of the prosecutrix nor her any other family member lodged any complaint with the police regarding missing of the prosecutrix till she was recovered by the police on 23.3.2013. The evidence on record indicates that the prosecutrix may have gone to the accused on her own and voluntarily. She was not forced or drugged by the accused. Therefore, I am of the opinion that the charges u/s.328 IPC and u/s.366 IPC framed against the accused must fail.
SC No.159/13. Page 12 of 1616. However, it is the consistent statement of the prosecutrix that the accused had been administered some substance to her regularly after taking which she became unconscious and the accused has been committing sexual intercourse with her against her consent regularly when she was in semi conscious state and when on the night of 22.3.2013 the accused had brought his two associates also to the room, who gang raped the prosecutrix in his presence after using condoms and thereafter accused also raped her. Merely, because the evidence led by the prosecutrix indicates that she may have gone to the accused voluntarily and on her own, it does not necessarily imply and construe that she had gone there to enjoy sexual relations with him. The reason for the prosecutrix to leave her husband and children could have been something else, may be a marital discord etc.
17. From the testimony of PW4 & PW7, it is evident that the prosecutrix had been staying with the accused in a room in the house of Rambir in his house bearing no.303, village Barthal, Dwarka Sector-23, New Delhi. The police officials including these two witnesses had reached there on 23.3.3013, pursuant to a call made at telephone no.100 by the prosecutrix and recovered the prosecutrix from there. The police officials had also seized the one bedsheet, one mattress, one towel, one Gudri and a polythene bag containing used condoms from the said room. From the MLC of prosecutrix Ex.PW5/A, it is evident that her outer clothes as well as inner clothes were taken into possession by the doctor and the doctor had also taken her vaginal swab, vulvul swab and blood samples. From the MLC of the accused Ex.PW10/A, it is manifest SC No.159/13. Page 13 of 16 that his blood sample and pubic hair sample was preserved by the doctor and was handed over to the IO in sealed condition.
18. The evidence shows that all the aforesaid exhibits pertaining to prosecutrix as well as accused were sent to FSL for DNA fingerprinting and examination. The DNA report Ex.PA shows that the human semen was detected on the Salwar, underwear, vulvul swab, vaginal swab, vaginal smear of the prosecutrix as well as on the bedsheet and the condoms seized from the room of the accused. The DNA was extracted from the aforesaid exhibits of the prosecutrix and was compared with the DNA isolated from the blood sample of the accused. The report shows that the alleles contained in the blood sample of the accused were similar to the alleles found in the male DNA generated from the aforesaid samples of the prosecutrix. However, the DNA isolated from the semen found in the used condoms was found dissimilar to the male DNA generated from the exhibits pertaining to the prosecutrix.
19. Therefore, it is established that the accused had committed sexual intercourse with the prosecutrix a very short time before the prosecutrix was recovered by the police and sent for medical examination. It is further established that the prosecutrix was subjected to sexual intercourse not only by the accused but by some other persons also, who had used the condoms seized from the room of the accused.
20. The aforesaid conclusions reached from the DNA report also corroborates the version of the prosecutrix that the SC No.159/13. Page 14 of 16 accused as well as his two associates had committed sexual intercourse with her on the night intervening between 22.3.2013 and 23.3.2013.
21. Once it is proved by the prosecution that there had been sexual intercourse between the accused and the prosecutrix and also between some other person and the prosecutrix on 22.3.2013 and the prosecutrix has been consistently saying that it was against her consent, the presumption envisaged u/s.114A of the Evidence Act comes into play. Therefore, the court has to presume that the prosecutrix had not consented for such sexual intercourse. In this view of the matter, it was for the accused to rebut this presumption and establish that the sexual intercourse between him and the prosecutrix as well as between other persons and the prosecutrix was consensual. The accused has neither been able to elicit anything regarding such consent in the cross examination of the prosecutrix nor has led any evidence in his defence to prove this fact. To the contrary, it has been the defence of the accused, as stated by him in statement u/s.313 Cr.PC that he had not committed sexual intercourse with the prosecutrix at any point of time, which is falsified by the aforesaid DNA report.
22. There is no force in the contention of the accused that the prosecutrix has lodged a false complaint against him at the instance of her husband. Evidently, the husband of the prosecutrix was not accompanying the police officials when they recovered the prosecutrix from the room of the accused on 23.3.2013. The prosecutrix had not met her husband since 15.6.2012 till she SC No.159/13. Page 15 of 16 made a call at telephone no.100 on 23.3.2013. Therefore, there was no occasion for the husband of the prosecutrix to pressurize her to lodge a false complaint of rape against the accused. Further, I fail to understand, if the prosecutrix had been residing voluntarily with the accused and willingly having physical relations with him, why would she make a call at telephone no.100 suddenly on 23.3.2013.
23. Considering the aforesaid discussion, which is based upon the evidence led by the prosecution, there is no escape from the conclusion that the prosecutrix was not a consenting party either to the sexual intercourse with the accused or with other persons, who had ravished her on 22.3.2013 at the instance of the accused. The prosecution has also established that the accused had been giving beatings to the prosecutrix regularly and issuing threats to her not to disclose the incidents of forcible sexual intercourse to anybody else. However, there is no evidence on record to support the charge u/s.377 IPC framed against the accused.
24. Resultantly, the accused is hereby acquitted of the charges u/s.328 IPC, u/s.366 IPC and u/s.377 IPC. However, the accused is hereby convicted of the offences punishable u/s.344 IPC, u/s.376 IPC and u/s.376(D) IPC, u/s.323 IPC and u/s.506 IPC.
Announced in open (VIRENDER BHAT)
Court on 24.3.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.159/13. Page 16 of 16