Delhi District Court
"State vs . Raju on 18 February, 2010
"State Vs. Raju
FIR No. 286/05
1
IN THE COURT OF MS. BARKHA GUPTA : ADDITIONAL
SESSIONS JUDGE - IV: ROHINI (OUTER) : DELHI
Date of Committal - 23/06/05
Date of Institution - 04/07/05
Date on which reserved
for Judgment - 08/02/10
Date of Judgment - 18/02/10
Final Order - Convicted
Sessions Case No. : 22/09
FIR No. : 286/05
PS : Uttam Nagar
Under Sections : 376/342 IPC
State Versus Raju
S/o Baij Nath
Permanent Address: R/o Village Patiala,
District Samastipur, Bihar
Present Address : House at Plot No. 31,
Primary School Matiyala
Ke Peeche, Delhi
JUDGEMENT
The charge-sheet u/s 173 Cr.P.C. has been filed against the accused Raju s/o Sh. Baij Nath u/s 376/342/506 IPC on the Contd....
"State Vs. Raju FIR No. 286/05 2 allegations of wrongfully confining, forcibly raping and criminally intimidating the prosecutrix Ms. Jyoti at his house.
2. Briefly stating the case of prosecution is that the prosecutrix Ms. Jyoti (then aged around 17 years) had been working as a maid servant at a house at Dwarka, Delhi who on 28.3.05 could not do the requisite household work due to fever on which her employer Ms. Seema scolded her and the prosecutrix Kumari Jyoti left the said house in anger.
It is further the case of prosecution that thereafter the prosecutrix Ms. Jyoti reached at a petrol pump where a scooter mechanic felt pity on her and brought her to his house where his mother and sister also resided and the prosecutrix had stayed with them during night and on the following day, she alongwith the said scooter mechanic came at the petrol pump where the accused Raju (a rickshaw puller) met her who offered her to help saying that he would leave her at her employer's place which the prosecutrix Contd....
"State Vs. Raju FIR No. 286/05 3 believed and accompanied him.
It is further alleged that the accused Raju instead of taking the prosecutrix to the house of her employer, took her at his rented accommodation at house situated at plot no. 31, behind Primary School, Matiyala Village, Uttam Nagar Delhi where he not only wrongfully confined her in the room but raped her against her will and without her consent and also criminally intimidated her by extending threats to cause injury on her person if she ever revealed the said incident to anybody.
It is further the case of prosecution that the matter/incident was reported to the police officials whereupon investigation commenced during which the prosecutrix Ms. Jyoti was recovered, the accused Raju was arrested and other necessary investigation was conducted and after completion of investigation, charge sheet u/s 173. Cr.P.C. was filed in the Court of Ld. Concerned MM who after compliance of necessary legal provisions u/s 207 Cr.P.C., 1973 committed the case to the court of Sessions.
Contd....
"State Vs. Raju FIR No. 286/05 4
3. My Ld. Predecessor after due consideration vide order dated 22/04/05 served the charge u/s 342/376/506 IPC on the accused Raju to which he had pleaded not guilty and claimed trial.
4. In order to bring home guilt of the accused Raju on record, the prosecution has examined Sixteen witnesses in all which include Ms. Jyoti (prosecutrix) as PW1, Bhukai Suna (mother of Prosecutrix) as PW2, Sh. B. Sagar (employer of the Prosecutrix) as PW3, Dr. Amitabh Bhasin (RMO Central Jail Hospital Tihar Delhi) as PW4, HC Banwari Lal as PW5, ASI Ramesh Chander as PW6, HC Satyawan (First Investigating Officer) as PW7, ASI Roop Prakash (Second Investigating Officer) as PW8, WASI Krishna (who accompanied the IO) as PW10, Constable Sher Singh (who accompanied the IO) as PW11, WASI Mukesh as PW12, Sh. Mukesh Kumar Gupta (the then Ld. MM) as PW13, ASI Sarita Bhardwaj (who also joined the investigation) as PW14, Dr. Shashi Contd....
"State Vs. Raju FIR No. 286/05 5 Lata Kabra (who examined the prosecutrix) as PW15 and Sh. Naresh Kumar (Sr. Scientific Assistant, Biology, FSL Rohini, Delhi) as PW16.
It would be pertinent to mention here that in all fifteen witnesses have been examined which is inadvertently shown to be sixteen.
Thereafter, statement of accused Raju was recorded U/s 313 Cr.P.C. wherein he claimed himself to be innocent also stating that he has been falsely implicated in the present case and preferred not to lead any evidence in defence.
5. I have heard the final arguments as advanced by Ld. APP for State, Sh. P. K. Samadhiya and Ld. Defence Counsel Sh. V.K. Anand for accused Raju and given my thoughtful consideration to the rival submissions made by them and I have also gone through the material placed on record.
Contd....
"State Vs. Raju FIR No. 286/05 6
6. Ld. APP has vehemently argued that the Prosecutrix Ms. Jyoti (PW1) is the sole most material witness being complainant and victim who has supported the case of prosecution on all material aspects and has proved the categoric allegations levelled against the accused Raju.
He has further submitted that the statement of complainant/prosecutrix Ms. Jyoti as recorded by the police officials, her statement recorded u/s 164 Cr. PC and her deposition before the court are coherent and in-conformity with each other and as such there is no material discrepancy at all.
Ld. APP has also submitted that the testimony of the prosecutrix Jyoti has also been corroborated by the medical evidence and various other documents which were prepared during the course of investigation and have been duly proved on record.
Ld. APP has further averred that the entire investigation was conducted fairly and there is no motive at all to falsely implicate the accused Raju in the present case and prays that since the Contd....
"State Vs. Raju FIR No. 286/05 7 prosecution has succeeded in bringing home guilt of accused Raju on record beyond reasonable doubt, hence he must be convicted U/Ss 342/376/506 IPC.
7. On the other hand, Ld. Defence Counsel for the accused Raju has vehemently rebutted the same contending that the prosecutrix Ms. Jyoti (PW1) was around 17 years age at the relevant time and also that various contradictions have crept in between the deposition of prosecutrix Ms. Jyoti (PW1) as recorded before the court, her statement recorded u/s 164 Cr. PC which is Ex. PW1/B as well as in her initial complaint Ex. PW1/A made before police officials, benefit of which must be extended to the accused, more so, when she is an interested witness and her testimony is not corroborated by any independent person.
Ld. Defence counsel has further argued that Ms. Seema who had employed the prosecutrix Ms. Jyoti (PW1) and also the scooter mechanic with whom she had gone and in whose house Contd....
"State Vs. Raju FIR No. 286/05 8 she admittedly stayed for one night have not been examined which collapses the case of prosecution.
Ld. Defence counsel further averred that no Patti or lock were recovered either from the possession or at the instance of accused Raju.
Ld. Defence counsel has prayed that as the accused Raju had neither wrongly confined the Prosecutrix Jyoti (PW1) nor raped her nor even extended any threats to her and even the FSL result does not mention of rape, hence the accused Raju must be acquitted of the charges levelled against him.
8. In rebuttal, Ld. APP has submitted that no public witness can be expected to be remain present at the spot at the time of commission of such offences considering their nature which is regarding wrongful confinement, rape and criminal intimidation. He further submits that even though certain discrepancies have crept in statements of Prosecutrix Jyoti (PW1) as recorded before the Contd....
"State Vs. Raju FIR No. 286/05 9 Court, u/s 161 Cr. P. C. (Ex. PW1/A) and u/s 164 Cr. P. C. (PW1/B), yet they are minor and are reasonably expected to creep in with passage of time.
He further submits that the identity of the accused Raju has been established on record beyond reasonable doubt as also that he had committed alleged offences upon the person of prosecutrix, hence, non examination of Ms. Seema or the scooter mechanic is immaterial as they cannot throw any light on merits of the case.
He further contended that as per FSL result, the samples got putrified, hence, no opinion could be given and prays that as the prosecution has succeeded in placing on record that accused Raju had committed the alleged offences on the person of prosecutrix Jyoti (PW1), hence he must be convicted U/s 342/376/506 IPC.
9. I have heard the final arguments as advanced by Sh. P. K. Samadhiya, Ld. APP for the State and Sh. V.K. Anand, Ld. Counsel Contd....
"State Vs. Raju FIR No. 286/05 10 for the accused Raju and have given my thoughtful submissions to the rival submissions made by them. I have also scrutinized the testimonies of the various witnesses examined in this case and have also gone through the material placed on record carefully.
10. In the present case, the most material witness examined by the prosecution is Ms. Jyoti (PW1) who is the prosecutrix and the complainant/victim as well, hence her testimony needs to be discussed on priority however, at this stage, it would be all the more appropriate to discuss the settled law.
The Hon'ble Supreme Court in a catena of cases laid down that there is no law that in the absence of any independent witness, the evidence of interested witness(s) must be thrown out or should not be relied upon for convicting an accused.
In fact, what the law requires is that where the witnesses are interested, the Court should approach their evidence with care and caution in order to exclude the possibility of false Contd....
"State Vs. Raju FIR No. 286/05 11 implication as held by the Hon'ble Apex Court in case titled as State of U.P. Vs. Ballabh Das & Ors. AIR 1985 SC 1384.
Further, in case of Paresh Kalyandas Bhavsar Vs. Sadiq Yakubbhai Jamadar, AIR 1993 SC 1544 the Hon'ble Apex Court observed that :-
It is needless to say that mere interestedness is not a ground to reject the evidence of the eye-witnesses particularly those who were injured. Firstly, their presence during the occurrence cannot be doubted. Secondly, the injured witnesses would be the last persons to leave out the real culprits and implicate others falsely. However, it becomes necessary to scrutinize their evidence with great care and caution. Normally, in a case of this nature, the evidence of such witnesses is scrutinized in the light of the medical evidence, their previous statements, the earliest version put forward and other circumstances like the investigation being defective and also the effect of omissions or discrepancies, if any.
11. In the light of above, I proceed to discuss and scrutinize the testimony of prosecutrix Ms. Jyoti (PW1) who testified that in March 2005, she had been working as a maid servant in a house at Dwarka and on 28.3.05 at about 8.30 am as she was suffering from Contd....
"State Vs. Raju FIR No. 286/05 12 fever and also missing her siblings, so she came out of the house and on the way, met with a scooter mechanic at about 12.30 pm who took her to his house where his mother and sister were also residing where she stayed during that night.
She also testified that the said mechanic had also asked her that when she would be able to recollect the address of the house, he would send her there.
She further deposed that the accused Raju (present in the court) had met her outside the shop who used to ply rickshaw and offered to leave her at her employer's place and thereafter, he forcibly made her sit in the rickshaw but instead of taking her to her employer, he rather took her to his house where he also raped her.
She further testified that when she raised noise, one of the neighbourers informed the police officials who came and took her as well as the accused Raju to the police station where her statement Ex. PW1/A was recorded after which she was got Contd....
"State Vs. Raju FIR No. 286/05 13 medically examined at DDU Hospital and the doctor had also seized her vaginal swab, pubic hair and undergarments.
She further deposed that the Ld. MM had recorded her statement U/s 164 Cr. PC which is Ex. PW1/B. She had also identified the pant of the accused Raju as Ex. P-1 and her underwear as Ex. P-2.
During cross examination by/on behalf of accused, the prosecutrix Jyoti (PW1) inter-alia stated that one of her relatives namely Tunna had brought her Delhi to provide her with job and the house of her employer was at a considerable distance from the house of Tunna.
She also stated that the petrol pump was at a distance of about 1-2 kms from the house of her employer and the scooter mechanic had called her as his sister. She also stated that she had stayed in the house of said mechanic only for one night and denied if she stayed there for two more nights i.e. till 30.3.05.
During further cross-examination, the prosecutrix denied if Contd....
"State Vs. Raju FIR No. 286/05 14 from the petrol pump, she had gone back to house of her employer, rather she had categorically pointed out towards the accused Raju stating that he had taken her forcibly.
She also explained that the house of accused Raju was in opposite direction to the house of her employer and denied if the said mechanic had maintained sexual relations with her and further denied if the accused Raju has not established sexual relationship with her or that she had lodged a false complaint against him.
During further cross examination, the prosecutrix Ms. Jyoti (PW1) narrated that when the accused was having sexual intercourse with her against her wishes, she tried to raise hue and cry but the accused Raju had forcibly shut her mouth and when he had raped her, she again raised hue and cry on which a lady came.
After going through the entire deposition of the prosecutrix Ms. Jyoti (PW1), it is revealed that she has attributed quite Contd....
"State Vs. Raju FIR No. 286/05 15 specific and categoric allegations at the accused Raju coherently and consistently which has been corroborated on all material aspects by Ex. PW1/B (her statement recorded U/s 164 Cr. PC) and Ex. PW1/A (her statement recorded u/s 161 Cr. PC) so far as commission of alleged offences are concerned and her testimony is further strengthened by the medical evidence and other material and documents placed and proved on record.
In fact, the testimony of the prosecutrix Ms. Jyoti (PW1) remains uncontroverted and substratum of her evidence/ deposition remains intact through she was cross examined at length on behalf of accused Raju from which it is crystal clear that he has not disputed either his presence or presence of prosecutrix Ms. Jyoti (PW1) at the spot and it is also shown that the prosecutrix was recovered from the possession of accused Raju who was also arrested at the same point of time.
Contd....
"State Vs. Raju FIR No. 286/05 16
12. Now, so far as aspect of discrepancies are concerned, it would be worth-mentioning that the Hon'ble Apex court has laid down time and again that a witness is not like a tape recorder and when he/she is giving evidence after a considerable time, his/her memory may not serve him completely right and he/she may not be able to repeat the exact words used on the earlier occasions.
In the present case even though the prosecutrix Ms. Jyoti (PW1) might not have deposed exactly the same what she had earlier stated in Ex. PW1/A and Ex. PW1/B and might have slightly improved her version at the trial, yet it cannot be lost sight of that she had been consistent in deposing that it was the accused Raju who had forcibly taken her to his house where he not only confined her but 'forcibly' raped her in the room which undisputedly implies 'without her consent' and 'against her will' as also that he had criminally intimidated her which could not been impeached anywhere during her entire lengthy Contd....
"State Vs. Raju FIR No. 286/05 17 cross examination and there seems no justified ground to disbelieve the version of prosecutrix Ms. Jyoti so far as her deposition regarding commission of alleged offences by the accused Raju are concerned.
In this regard, it would be pertinent to mention that in case titled as Bhimrao Anna Ingawale Vs. State of Maharashtra, AIR 1980 SC 1322, the Hon'ble Supreme Court laid down that:-
It is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. But that does not mean that falsity of testimony in one material particular would ruin if from beginning to end. On the other hand, the circumstance will be a good reason merely for the Court to be put on the guard, and sift the evidence with extraordinary caution and to accept those portions of it which appear fully trustworthy either intrinsically, or by reason of corroboration from other trustworthy sources. In the present case, evidence of prosecutrix Ms. Jyoti (PW1) when read as a whole appears to contain a ring of truth more Contd....
"State Vs. Raju FIR No. 286/05 18 particularly as she has categorically testified that the accused Raju had forcibly taken her on the rikshaw to his house on the pretext of taking her to her employer's house and also that he had forcibly raped her against her wishes and criminally intimidated her as well.
The prosecutrix Ms. Jyoti (PW1) had narrated the same coherently and consistently in Ex. PW1/A and Ex. PW1/B which have nowhere been shown to be false or motivated or procured ones.
It is well settled law that minor discrepancies on trivial matters which do not touch the core of the case, cannot be given undue importance and does not afford any reason for rejection of evidence as a whole.
In this regard, it would also be appropriate to discuss that Hon'ble Supreme Court observed in case titled as State of Uttar Pradesh Vs. M. K. Anthony, AIR 1985 SC48 that : -
Even honest and truthful witness(s) may Contd....
"State Vs. Raju FIR No. 286/05 19 differ in some details unrelated to the main incident because power of observation, retention and reproduction which differ with individuals. After going through the testimony of prosecutrix Ms. Jyoti (PW1) as a whole, court is of the considered opinion that so far as main incident is concerned, there is no reason to disbelieve the version of the prosecutrix Ms. Jyoti (PW1) and there is no reason as to why she would leave out the real culprit and falsely implicate the accused Raju in this case had he been innocent.
The discrepancies that have been crept in the deposition of prosecutrix Ms. Jyoti are not grave enough which go to the root of the matter and shake her basic version.
Now, so far as her 'interestedness' is concerned, it would be pertinent to mention that the prosecutrix Ms. Jyoti (PW1) has stood the test of cross examination successfully during which nothing is placed on record if the accused Raju had not confined her in his house or he did not forcibly rape her or that he had not Contd....
"State Vs. Raju FIR No. 286/05 20 criminally intimidated her, hence simply because she is interested in deposing against the accused being victim/prosecutrix is not a ground sufficient in itself to discard her version. In fact, she is interested to the extent that offence was committed upon her and if she would not come forward, then who-else will come forward to depose for her and she is the best witness being the person who suffered at the hands of accused Raju.
Now, so far as aspect of corroboration is concerned, it would be appropriate to mention that in a catena of cases, the law laid down is that if the testimony of the prosecutrix/ complainant is trustworthy, there is no need to look for corroboration and more particularly in case of rape, corroboration to the testimony of prosecutrix regarding commission of offence(s) cannot be reasonably expected as such offences are committed in secrecy and the accused is cautious enough to ensure to commit it in secrecy.
The aspects of corroboration in cases of rape has been Contd....
"State Vs. Raju FIR No. 286/05 21 dealt by Hon'ble Apex Court in case titled as Bharwada Bhoginbai Hirjibhai Vs. State of Gujrat AIR 1983 SC 753, wherein it was laid down that :-
Corroboration is not the sin qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of a corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so it is to justify the charge of male chaucinism in a male dominated society.
After carefully scrutinizing the version of the prosecutrix Ms. Jyoti (PW1), it revealed that she is a very natural witness whose presence at the spot is not in dispute, it has nowhere been shown if her deposition suffers from any inherent infirmity which goes to the root of the matter or shatter her basic version to make it unreliable.
It is settled law that it is not the number of witnesses examined by the prosecution nor the quantity of evidence adduced by prosecution that counts but it is the quality of evidence that Contd....
"State Vs. Raju FIR No. 286/05 22 matters.
In cases of present nature, considering the totality of facts and circumstances, the testimony of the prosecutrix Ms. Jyoti (PW1) cannot be reasonably expected to be corroborated by any independent witnesses regarding confining her in a room and regarding commission of forcible rape upon her person or regarding extending threats to her by the accused Raju and there seems no reason at all as to why the testimony of the prosecutrix Ms. Jyoti (PW1) be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief and suspicion and as her testimony seems to be coherent, consistent and inspires the confidence of the court in as far as she has come forward with the picture of occurrence, their does not seem any reasonable ground to reject it.
The accused Raju has not been able to show any motive at all as to why the prosecutrix Ms. Jyoti (PW1) would falsely implicate him in the present case if he is innocent. The testimony Contd....
"State Vs. Raju FIR No. 286/05 23 of prosecutrix has remained unshaken and no motive has even been suggested to the prosecutrix Ms. Jyoti (PW1) regarding false implication of accused. It would be worth mentioning here that the accused Raju and the prosecutrix Ms. Jyoti were not acquainted with each other prior to the occurrence.
It was laid down in case titled as Molu Vs State of Haryana AIR 1976 SC 2499, that when the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic.
The prosecutrix Ms. Jyoti (PW1) time and again has very categorically stated that the accused Raju had also forcibly raped her apart from confining her in the room and extending threats to her which has nowhere been rebutted and there is not reason to disbelieve her.
14. At this stage, it would also be appropriate to discuss that Sh. Mukesh Kumar Gupta (PW13 - the then Ld. MM) had recorded Contd....
"State Vs. Raju FIR No. 286/05 24 the statement of prosecutrix Ms. Jyoti u/s 164 Cr. P.C. who testified that on 31.3.05, an application Ex. PW12/B was marked to him for recording the statement of prosecutrix Ms. Jyoti (PW1) whereupon on the same day itself, after making enquiries regarding voluntarily nature of statement, he had recorded her statement u/s 164 Cr. PC.
PW13 has also proved the endorsement/notings regarding voluntary nature of statement of Prosecutrix Ms. Jyoti (PW1) as Ex. PW13/A and her statement recorded u/s 164 Cr. PC as Ex. PW1/B (already exhibited) and further proved the certificate of correctness of said proceedings as Ex. PW13/B. He further testified that thereafter, copy of said statement of prosecutrix Jyoti (PW1) was given to the Investigating Officer vide his application Ex. PW12/C. During cross examination on behalf of accused Raju, he inter-alia stated that he had recorded whatever the prosecutrix Ms. Jyoti (PW1) had told and denied if he had recorded Contd....
"State Vs. Raju FIR No. 286/05 25 whatever the Investigating Officer told him.
He also stated that in order to satisfy himself regarding voluntarily nature of statement, he had asked certain questions from the prosecutrix Ms. Jyoti (PW1) and arrived at a subjective satisfaction that the prosecutrix Ms. Jyoti (PW1) was making the said statement before him voluntarily.
From the statement of Prosecutrix Ms. Jyoti (PW1) recorded u/s 164 Cr. PC which is Ex. PW1/B, it is amply clear that she had been working as a maid servant in a house but on one day, she could not do the household on which her employer got angry and thereafter she came out and one scooter wala Bhaiya who was a mechanic met her who had kept her in his house where his mother and sister also resided and on next day at about 9.00 am, she met with the accused Raju present in the court who was a rikshaw wala who had taken her to his house and forcibly raped her.
It would be pertinent to mention here that no Contd....
"State Vs. Raju FIR No. 286/05 26 substantive/effective cross examination was offered either to the prosecutrix Ms. Jyoti (PW1) or to Sh. Mukesh Kumar Gupta, (PW13- the then Ld. MM) to show if the contents of Ex. PW1/B (statement of prosecutrix Ms. Jyoti u/s 164 Cr. PC) are not correct or is not a truthful narration of the occurrence or if the prosecutrix Ms. Jyoti had made the said statement before PW13 under coercion or influence or for some extraneous consideration or under any pressure, rather it is placed on record that whatever the prosecutrix Ms. Jyoti (PW1) has deposed in her testimony on oath before the court has been duly corroborated by her statement Ex. PW1/B. It would also be appropriate to discuss here that though certain discrepancies have crept in between her deposition before the court and in Ex. PW1/B, yet it cannot be lost sight of that they are minor discrepancies which are bound to occur with passage of time and in fact they do not go to the root of the matter and shake the basic version of the prosecutrix Ms. Jyoti Contd....
"State Vs. Raju FIR No. 286/05 27 (PW1).
In fact, memory is trecherous and fades with passage of time and nobody can be reasonably expected to remember each and every detail of case by heart after lapse of considerable time. Court is of the considered opinion that had Ex. PW1/B (Statement of prosecutrix Ms. Jyoti U/s 164 Cr. PC) and the deposition of prosecutrix Ms. Jyoti (PW1) before the court would have been identical, the same would have definitely raised suspicion regarding genuineness of the case as no two statements even if made by the same person at different occasions can ever be same and certain discrepancies here and there are bound to occur.
In the present case, Court is of the considered that had there been no discrepancies at all during the previous statement of complainant as recorded by the police officials which is Ex. PW1/A, her statement u/s 164 Cr. PC (Ex. PW1/B) and her deposition before the court regarding commission of alleged Contd....
"State Vs. Raju FIR No. 286/05 28 offences upon her person by the accused Raju, the same would have definitely raised an iota of doubt regarding authenticity of prosecution case.
At this stage, it would also be worth discussing that Dr. Shashi Lata (PW15) had deposed that on 31.3.05, she had medically examined the accused Raju vide detailed MLC Ex. PW15/A after which his semen and trouser were sealed with the seal of hospital which were handed over to the Investigating Officer. She also opined that there were nothing to suggest that the accused Raju was not capable of performing sexual act.
She further testified that on 31.3.05, Dr. Swati Aggarwal had examined the prosecutrix Ms. Jyoti (PW1) vide detailed MLC Ex. PW15/B bearing her signature at point A and on the same day itself, Dr. Anu Goel had also examined the prosecutrix Ms. Jyoti (PW1) wherein she observed that there were no marks of external injury on or around Genitalia and also mentioned in her report the presence of pubic hair, hymen was torn and also that there was no Contd....
"State Vs. Raju FIR No. 286/05 29 bleeding in which regard two slides were prepared, pubic hair were cut which were sealed and the undergarments of prosecutrix Ms. Jyoti (PW1) were also sealed which were handed over to Lady HC Krishna. She proved the said report on MLC Ex. PW15/B as Ex. PW15/C bearing the signature of Dr. Anu Goel at point B. She inter-alia testified that she can identify the signatures and handwriting of Dr. Swati Aggarwal and Dr. Anu Goel as she had seen them writing and signing during the course of her official duties who have since left the services of the said hospital.
During cross examination on behalf of accused, she inter- alia stated that the sample of semen and trouser were sealed with the help of duty constable Balbir Singh who was posted in DDU Hospital at that time and handed them over to Ct. Sher Singh (PW11).
PW15 also stated that she cannot identify the red coloured underwear further clarifying that it was sealed by Dr. Anu Goel, however she identified the pant of the accused Raju as Ex. P-1.
Contd....
"State Vs. Raju FIR No. 286/05 30 During cross examination of PW15, nothing is shown if the accused Raju was not able to perform sexual intercourse or that the MLC Ex. PW15/B and report Ex. PW15/C pertaining to the prosecutrix Ms. Jyoti (PW1) are false or procured ones.
In the present case, the ocular testimony of the prosecutrix Ms. Jyoti (PW1) is sufficiently corroborated by PW15 on all material aspects which further finds corroboration from the documents MLCs Ex. PW15/A and Ex. PW15/B and report Ex. PW15/C which have nowhere been disputed.
12. Sh. B. Sagar (PW3) who had employed the prosecutrix Ms. Jyoti (PW1) has testified that she had worked as a domestic servant in his house since March 2005 but on 28.3.05, she had left his house and did not return thereafter, so he lodged the report with the police officials vide DD no. 2 dt. 30.3.05 which is Ex. PW3/A. It would be pertinent to mention here that no cross Contd....
"State Vs. Raju FIR No. 286/05 31 examination was offered to this witness by or on behalf of accused Raju on any aspect at all and accordingly the accused Raju has fairly conceded the factum of employment of prosecutrix Ms. Jyoti (PW1) as domestic servant by PW3 and also regarding her leaving the said house on 28.3.05.
The testimony of PW3 has strengthened the version of prosecutrix Ms. Jyoti (PW1) regarding her leaving the house on 28.3.05 as also that she had been working as a maid/domestic servant with him which has also been corroborated by Bhukai Suna (PW2- mother of prosecutrix Ms. Jyoti) who testified that her daughter came to Delhi who was employed as a domestic servant with one Sagar (PW3). She also deposed that after being informed about the incident by the police officials, she came to Delhi and took the custody of her daughter (prosecutrix Ms. Jyoti) from court.
The accused Raju during cross examination has nowhere challenged the employment of prosecutrix Ms. Jyoti as domestic servant with PW3. In these circumstances, if even Ms. Contd....
"State Vs. Raju FIR No. 286/05 32 Seema who is the wife of PW3 is not examined, the same does not collapse the case of prosecution.
It would be all the more appropriate at this stage to discuss the testimony of HC Satyawan (PW7) who had initially /preliminarily Investigated the case and was amongst the first police officials who had reached at the spot on receiving the information.
HC Satyawan (PW7) has deposed that on 30.3.05, on receiving DD no. 37 which is Ex. PW7/A, he alongwith Ct. Sher Singh (PW11) reached at the house No. RZ-34, behind Primary School, Village Matiyala where apart from several other persons, the prosecutrix Ms. Jyoti (PW1) was also present in a frightened state who pointed out towards the accused Raju stating that he had sexually assaulted her.
He further testified that thereafter, he informed the Incharge PP Matiala on which ASI Roop Prakash (PW8) came at the spot and made necessary enquiries after which they all left for PP Contd....
"State Vs. Raju FIR No. 286/05 33 Matiala alongwith the prosecutrix Ms. Jyoti (PW1) and the accused Raju. He further testified that WHC Krishna (PW10) had also joined the investigation thereafter and he was relieved off his duties.
He also deposed that on the next day, he joined the investigation of the case with WASI Mukesh (PW12) during which he had signed the arrest memo and personal search memo of accused Raju which are Exs. PW7/B and PW7/C respectively.
During cross examination on behalf of accused Raju, he inter-alia stated that he had recorded the said DD at about 8.23 pm after which he reached at the spot where the prosecutrix Ms. Jyoti (PW1) was found crying who had kept her head downwards where he remained for about 45 minutes.
He also stated that ASI Roop Prakash (PW8) had made enquiries at the spot itself in his presence during which he also noticed that there were certain articles/belongings lying in the room of accused Raju and it was not empty.
He also narrated that the prosecutrix Ms. Jyoti (PW1) who Contd....
"State Vs. Raju FIR No. 286/05 34 was around 16/17 years old had worn Salwar Suit at the relevant time and told in broken Hindi that she was sexually assaulted in pursuance of which she ahd also made signs with her hands.
It has also come on record during further cross examination of PW7, that the accused Raju was also present at the spot towards whom the prosecutrix Ms. Jyoti (PW1) had specifically pointed out and she had not pointed out towards any other person.
Now, before proceeding further, at this stage it would be appropriate to discuss the testimony of Ct. Sher Singh (PW11) who had accompanied HC Satywan (PW7) at the spot on receiving DD no. 37 on 30.3.05 and has deposed on the lines of PW7, hence examination in chief of PW11 is not repeated for the sake of brevity.
During cross examination on behalf of accused, PW11 inter-alia stated that he had reached at the spot alongwith HC Satyawan (PW7) where the prosecutrix Ms. Jyoti (PW1) was Contd....
"State Vs. Raju FIR No. 286/05 35 found crying who also narrated in Hindi that the accused had committed wrong act/Galat Kaam with her.
He also stated that the prosecutrix had not told him if the accused had raped her inside the room or outside the room which factum might have been told to the Investigating Officer.
He also stated that the said spot/place of occurrence was not a brothel and elaborated that one cot, chadar, rajai and certain utensils etc. were lying in the said room where the prosecutrix Ms. Jyoti (PW1) was raped but did not remember whether or not there was any Roshandaan. He also stated that none in the crowd told him if they had witnessed the said rape.
From the testimonies of PW7 and PW11, it is crystal clear that immediately on receiving the information, it was reduced into writing and both of them had reached to the spot and conducted preliminary investigation.
15. ASI Roop Prakash (PW8) is one of the Investigating Officers who testified that on 30.3.05, he was posted as PP Matiala, Contd....
"State Vs. Raju FIR No. 286/05 36 PS Uttam Nagar when HC Sataywan (PW7) had sent the information about the present case whereupon he reached at the spot at the house no. RZ-34, behind Primary School Village Matiala where he met with Ct. Sher Singh (PW11) and HC Satyawan (PW7) who had produced the accused Raju and prosecutrix Ms. Jyoti (PW1) who was in frightened state.
He further deposed that many public persons had gathered at the spot and the accused Raju as well as the prosecutrix Ms. Jyoti (PW1) were brought to the PP Matiala, where WHC Krishna (PW10) had also joined the investigation.
He further testified that thereafter he recorded the statement of prosecutrix Ms. Jyoti (PW1) which is Ex. PW1/A, made endorsement on it which is Ex. PW8/A after which he sent the said rukka through Ct. Sher Singh (PW11) to PS Uttam Nagar for registration of the case and also clarified that he also made a request in the said rukka regarding handing over further investigation to lady police official.
Contd....
"State Vs. Raju FIR No. 286/05 37 He further testified that after some time, WASI Mukesh (PW12) also reached at PP Matiala, to whom the custody of the accused Raju and prosecutrix Ms. Jyoti (PW1) was handed over who interrogated the accused Raju, arrested him, conducted his personal search vide memos Ex. PW7/B and PW7/C respectively after which the prosecutrix Ms. Jyoti (PW1) and accused Raju were sent to DDU Hospital for medical examination through WHC Krishna (PW10) and Ct. Sher Singh (PW11) respectively.
During cross examination on behalf of accused, he inter- alia stated that when he had received the information, it was already dark and that they came back to the police station from the spot on foot which took about 15-20 minutes. He also stated that the accused Raju seemed to be in repenting state.
In pursuance of suggestion given by Ld. Defence counsel, during cross examination, he stated that "it is correct that prosecutrix Ms. Jyoti, (PW1) had told me that accused Raju had done wrong act with her" and Contd....
"State Vs. Raju FIR No. 286/05 38 volunteered that "the prosecutrix Ms. Jyoti (PW1) had made gestures as well that the accused Raju had raped her".
During further cross examination, he stated that the word Galat Kaam includes 'oral sex' also and denied that if does not include 'Rape'.
He also stated that the room where the accused Raju had raped the prosecutrix Ms. Jyoti (PW1) was under tenancy and the people who had gathered there were also saying that the prosecutrix Ms. Jyoti (PW1) was raped.
He expressed his inability to state regarding further investigation as it was conducted by other Investigating Officer and denied the suggestion given by Ld. Defence counsel that "it is wrong to suggest that it was prosecutrix Ms. Jyoti (PW1) who indulged herself in prostitution at the house of accused Raju".
At this stage, it would be appropriate to mention that from the aforesaid suggestion itself, the accused Raju has not only admitted his presence at the spot but also that even the Contd....
"State Vs. Raju FIR No. 286/05 39 prosecutrix Ms. Jyoti (PW1) was also present there.
Further, from the above, it is also clear that the accused Raju had also not disputed his maintaining sexual relationships with prosecutrix and his only defence is that the prosecutrix Ms. Jyoti, (PW1) herself indulged in prostitution at his house.
16. WASI Krishna (PW10) had joined the investigation with ASI Roop Prakash (PW8), hence her examination in chief is not repeated for the sake of brevity being on same lines, however she inter-alia deposed that the Investigating Officer ASI Roop Prakash (PW8) had recorded the statement of prosecutrix Ms. Jyoti (PW1) in her presence whom she had also taken for medical examination at DDU Hospital where the concerned doctor had handed over her three sealed pullandas duly sealed with the seal of CMO DDU Hospital alongwith sample seal and after returning to the police station alongwith prosecutrix Contd....
"State Vs. Raju FIR No. 286/05 40 Ms. Jyoti (PW1), she had handed over the same to the Investigating Officer ASI Mukesh (PW12) which were seized by her vide memo Ex. PW10/A in which regard the Investigating Officer also recorded her statement.
During cross examination on behalf of accused Raju, she inter-alia stated that she neither talked to the prosecutrix Ms. Jyoti (PW1) nor the prosecutrix Ms. Jyoti (PW1) on her own narrated anything to her but she was crying. She also stated that the prosecutrix Ms. Jyoti (PW1) remained with her till 8.00 am and when another lady Constable had came, she was relieved off from her duty.
She also stated that when the Investigating Officer Roop Prakash (PW8) was recording the statement of prosecutrix Ms. Jyoti (PW1), she was crying at which point of time no public persons was present. She identified the accused Raju present in the court stating him to be the same person who was arrested in the present case.
Contd....
"State Vs. Raju FIR No. 286/05 41
17. WASI Mukesh (PW12) is also one of the Investigating Officers who has deposed that on the intervening night of 30/31.3.05, on receiving message, she reached at PP Matiala, where ASI Roop Prakash (PW8) and HC Satyawan (PW7) were already present who told that an incident of rape has taken place and further investigation was handed over to her during which the prosecutrix Ms. Jyoti (PW1) and the accused Raju were sent to DDU hospital for their medical examinations through WHC Krishna (PW10) and Ct. Sher Singh (PW11) respectively.
She further deposed that she had recorded the statements of ASI Roop Prakash (PW8), HC Satyawan (PW7) u/s 161 Cr. PC and in the meantime, WHC Krishna (PW10) also came back alongwith the prosecutrix Ms. Jyoti (PW1) who also handed over her three sealed parcels duly sealed with the seal of DDU Hospital alongwith sample seal which were seized vide memo Ex. PW10/A and further testified that Ct. Sher Singh (PW11) also came back Contd....
"State Vs. Raju FIR No. 286/05 42 with the accused Raju who also handed over her two sealed parcels duly sealed with the seal of DDU Hospital alongwith sample seal of DDU Hospital which were seized vide memo Ex. PW11/A and she had recorded their statements as well.
She further deposed that she had also recorded the statement of prosecutrix Ms. Jyoti (PW1) u/s 161 Cr. PC and interrogated the accused Raju who admitted his guilt after which he was arrested vide memo Ex. PW7/B and his personal search was conducted vide memo Ex. PW7/C. She further deposed that thereafter she took the prosecutrix Ms. Jyoti, (PW1) at the place of occurrence where at the instance of prosecutrix, she prepared the site plan Ex. PW12/A after which the accused Raju and the prosecutrix Ms. Jyoti (PW1) were produced before concerned Metropolitan Magistrate and as no relative of prosecutrix Ms. Jyoti (PW1) was found residing in Delhi, hence she was sent to Nari Niketan.
She further testified that she had moved an application Ex.
Contd....
"State Vs. Raju FIR No. 286/05 43 PW12/B whereupon the then Ld. MM Sh. Mukesh Kumar Gupta had recorded the statement of prosecutrix Ms. Jyoti (PW1) u/s 164 Cr.PC on 5.4.05 which is Ex. PW1/A after which she moved another application Ex. PW12/C to obtain the copy of proceedings which was allowed as per rules.
She further testified that thereafter she had also moved another application before Ld. MM for the ossification test of prosecutrix Ms. Jyoti (PW1) which was conducted on 8.4.05 and on the said day itself the prosecutrix Ms. Jyoti (PW1)also informed her that her mother and cousin had come from Orissa to Delhi to meet her in Nari Niketan who were staying in Dwarka in the house (where she was earlier employed as maid servant) on which the Investigating Officer reached at the given address and made necessary enquiries from her employer Ms. Seema and her mother Ms. Bhukai Suna (PW2).
She also deposed that she had recorded the statements of Ms. Bhukai Suna (PW2) and that of the prosecutrix Ms. Jyoti (PW1) Contd....
"State Vs. Raju FIR No. 286/05 44 who revealed her name as Bilasini also who had exonerated her employer.
She also deposed that further investigation was conducted by WASI Sarita Bhardwaj (PW14) who after completion of investigation had filed the charge sheet in the court.
During cross examination on behalf of accused, she had narrated regarding the various detailed investigation conducted by her in the case during which she also stated that the prosecutrix Ms. Jyoti (PW1) had also clarified as to what she meant by Galat Kaam and it was amply clear that by the same, she meant 'Rape'.
She also stated that the prosecutrix Ms. Jyoti (PW1) had also apprised her that when the accused Raju (rikshaw puller) returned to his house, he had bolted the door of room, untied the string of her Salwar, made her lay down upon a cot, pressed her mouth and thereafter penetrated his male organ into her vagina. She clarified that the prosecutrix Ms. Jyoti (PW1) being Contd....
"State Vs. Raju FIR No. 286/05 45 illiterate might not had heard the word 'rape'.
She fairly conceded that she did not seize the bed-sheet on which the said rape was committed and could not find any Patti and/or lock in the room.
She also denied if the prosecutrix Ms. Jyoti (PW1) was pressurized to make a false statement/complaint against the accused Raju by threatening her and further denied that the accused Raju has been falsely implicated in the present case. After going through the testimonies of all the police officials, it is revealed that no inherent infirmity has crept in between their depositions and rather they have corroborated the version of the prosecutrix Ms. Jyoti (PW1) on all material aspects and have categorically stated that the prosecutrix Ms. Jyoti (PW1) had emphatically told them that the present accused Raju had raped her which has not been rebutted anywhere during their cross examinations and nothing is placed on record that the police officials are not narrating the correct version of what the prosecutrix Ms. Jyoti (PW1) told them Contd....
"State Vs. Raju FIR No. 286/05 46 regarding the incident.
It is not out of place to mention here that though certain discrepancies have crept in the testimonies of police officials but they are very minor and can be reasonably expected to creep in with passage of time. It cannot be lost sight of that the police officials were examined after a considerable period and minor variations may occur, however, after careful scrutiny of their testimonies, there are no major contradictions at all and all the police officials have corroborated versions of each other and that of the prosecutrix on all material aspects. It is clear from the record that neither there is any delay in lodging the FIR nor has any manipulation been shown to be done in it and the police officials have deposed before the court whatever they had seen at the spot and whatever proceedings were conducted by each of them. In fact, there does not seem any reason to disbelieve their versions and rather then testimonies have further strengthened the version of the prosecutrix Ms. Jyoti (PW1).
Contd....
"State Vs. Raju FIR No. 286/05 47
18. ASI Sarita Bhardwaj (PW14) has deposed that on 5.5.05, she had collected the Ossification test result of the prosecutrix Ms. Jyoti (PW1) from DDU Hospital and further testified that on 17.5.05, she had collected the exhibits from MHC(M), Uttam Nagar and deposited them at FSL Rohini Delhi vide RC No. 125/21 after which she handed over the receipt to MHC(M) whose statement she had also recorded. She also deposed that so long as the exhibits remained in her custody, nobody tempered with them.
During cross examination on behalf of accused, she stated that she could not say as to for how many days, the prosecutrix Ms. Jyoti (PW1) remained outside her house as the entire investigation was conducted by the earlier Investigating Officers.
19. In the present case, HC Banwari Lal (PW5) who was posted as MHC(M) at PS Uttam Nagar has testified that on 31.3.05, WASI Mukesh (PW12) had deposited five pullandas duly Contd....
"State Vs. Raju FIR No. 286/05 48 sealed with the seal of concerned hospital which contained the undergarments, vaginal swab and pubic hair of prosecutrix Ms. Jyoti (PW1) and also deposited the trouser of the accused Raju regarding which he made an entry at serial no. 3448 in register No.
19. He further deposed that on 17.5.05, all the said sealed pullandas alongwith sample seal alongwith FSL Form were sent at the office of FSL through WASI Sunita vide RC No. 125/21 and testified that so long as the case property remained in his custody, nobody tempered with it and proved on record the photocopy of requisite entry as Ex. PW5/A. During cross examination on behalf of accused, he stated that the case property was earlier also produced in the court.
20. ASI Ramesh Chander (PW6) was posted as Duty Officer at the relevant time who has testified that on 31.3.05 at about 1.05 am, he received a rukka which was brought by Ct. Sher Singh Contd....
"State Vs. Raju FIR No. 286/05 49 (PW11) as sent by ASI Roop Prakash (PW8) on the basis of which he registered the present FIR and proved its copy as Ex. PW6/A. He also deposed that further investigation was entrusted to WASI Mukesh (PW12) to whom the rukka and copy of FIR were handed over.
During cross examination, he stated that the accused Raju was not present at the time of registration of present FIR before him.
21. Dr. Amitabh Bhasin (PW4) has deposed that on 8.4.05, a medical board was constituted by the Medical Superintendent, DDU Hospital on the application of ASI Mukesh (PW12) of which he was the Chairman which also consisted of a Physician, Radiologist and Dental Surgeon.
He testified that the prosecutrix Ms. Jyoti (PW1) was examined physically, dentally and radiologically after which the ossification report Ex. PW4/A was prepared as per which the Contd....
"State Vs. Raju FIR No. 286/05 50 prosecutrix Ms. Jyoti (PW1) was more than 17 years but less than 19 years as on 8.4.05.
22. Naresh Kumar (PW16- Sr. Scientific Assistant, Biology, FSL, Rohini Delhi) had deposed that on 17.5.05, five sealed parcels duly sealed with the seal of CMO DDU Hospital were received in the office of FSL Rohini Delhi on which the seal was intact found which matched with the specimen seal .
He further deposed that he analysed the said samples, conducted biological examination and proved his detailed report as Ex. PW16/A. During cross examination on behalf of accused, he stated that semen sample could not be compared with the sample as it got putrified.
23. Before proceeding any further, it would be appropriate to discuss relevant provisions of Section 375 IPC, 1860: -
Contd....
"State Vs. Raju FIR No. 286/05 51 As per provisions of Section 375 IPC - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman First - against her will Secondly- without her consent.
Thirdly..........
Accordingly, sexual intercourse with a woman though major if it is 'against her will' or 'without her consent', then it certainly amounts to rape.
It would be pertinent to mention here even at the cost of repetition that the prosecutrix Ms. Jyoti (PW1) has very categorically deposed that it was the accused Raju who had taken her on the pretext of taking her to her employer's house which she believed and accompanied him, however he had taken her to his house where he confined her in the room and maintained sexual relationship with her against her will and without her consent and also criminally intimated her which has not been rebutted anywhere or shown to be false by the accused Raju during lengthy cross-examination of PW1 Ms. Contd....
"State Vs. Raju FIR No. 286/05 52 Jyoti, rather from the cross examination of prosecutrix Ms. Jyoti and other witnesses examined by the prosecution, the accused Raju has not only admitted his presence but the presence of the prosecutrix Ms. Jyoti at spot and also regarding maintaining sexual relationship with her as discussed earlier at length.
The testimony of the prosecutrix Ms. Jyoti (PW1) has been sufficiently corroborated on all material aspects by the concerned doctor and by the medical documents and even by the police officials whom she had narrated about the incident/offences committed by the accused Raju at length, and though all these witnesses have been cross examined at length, yet nothing is placed on record if they are not deposing truthfully before the court or that their versions are exaggerated narrations of the incident and nothing is shown if the prosecutrix had any motive to falsely implicate the accused Raju in the present case.
36. Considering totality of facts and circumstances of the case, in view of material placed on record and in view of above Contd....
"State Vs. Raju FIR No. 286/05 53 discussion, Court is of the considered opinion that the ocular testimonies of witnesses neither suffer from any material infirmities nor seem to be artificial, rather they have been sufficiently corroborated by the documentary evidence placed on all material aspects. The witnesses examined by the prosecution are cogent, convincing and inspire confidence of the court in as far as they come forward with true picture of occurrence and there does not seem any artificially in the case of prosecution. Accordingly in the considered opinion of the court, the material placed on record unerringly points out towards the guilt of accused Raju that on 28.3.05 at Plot No. 31, Primary School Matiala ke Peeche Delhi he had wrongfully confined the prosecutrix Ms. Jyoti and also raped her against her will and without her consent as well as also criminally intimidated her. Accordingly, accused Raju is convicted u/s 342/376/506 IPC.
Announced in the open Court (BARKHA GUPTA) on this 18th February, 2010 Additional Sessions Judge - IV Outer District - IV Rohini District Courts, Delhi Contd....