Delhi District Court
State vs Shankar Singh. -:: Page 1 Of 59 ::- on 6 September, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
State
Versus
Mr.Shankar Singh
Son of Mr.Suresh Singh,
Resident of Jhuggi No.W-1/169, Mayapuri Chowk,
Mansarowar Garden, Delhi.
First Information Report Number : 132/2013
Police Station Kirti Nagar,
Under section 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 26.06.2013.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 10.07.2013.
Arguments concluded on : 06.09.2013.
Date of judgment : 06.09.2013.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the State
is on leave.
Mr. Anil Kumar, Additional Public Prosecutor for the State.
Accused has been produced from judicial custody.
Mr. Ranjeet Singh, counsel for accused.
**************************************************************
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 1 of 59 ::-
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JUDGMENT
"Now, should we treat women as independent agents, responsible for themselves? Of course. But being responsible has nothing to do with being raped. Women don't get raped because they were drinking or took drugs. Women do not get raped because they weren't careful enough. Women get raped because someone raped them."--- Jessica Valenti, The Purity Myth:
How America's Obsession with virginity is Hurting Young Women.
1. The present case under consideration shocks the sensibilities and the conscience of the Court as well the society at large as the prosecutrix/victim is a senior citizen of very advanced age of 80 years and she is also claimed by the prosecution to be mentally challenged and the accused is a young man of 24 years, who is completely denying the alleged incident.
In such a situation, it becomes an onerous task of the Court to find out the truth and decide who is the victim. A sincere endeavour has been made to dispose the case expeditiously (file received after committal on 10.07.2013 and judgment delivered on 06.09.2013) as the prosecutrix is a senior citizen and considering the nature of the case.
2. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 2 of 59 ::-
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triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is known to the culprit.
3. "Courts are expected to show 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 witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
4. Mr.Shankar Singh, the accused, has been charge sheeted by Police Station Kirti Nagar, Delhi for the offence under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 16.04.2013 at 1.00-1.30 am at Jhuggi No.W-1/172, Near Tea Shop, Mayapuri Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 3 of 59 ::-
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Chowk, Mansarovar Garden, Delhi, he forcibly committed rape upon the prosecutrix (name withheld to protect her identity) who is a lady of advanced age of 80 years and is claimed by the prosecution to be mentally challenged (dimagi roop se vikshit hai).
CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet was filed before the Court of the learned Area Metropolitan Magistrate on 26.06.2013 and after its committal, the case was assigned to this Court vide order dated 10.07.2013 of the learned Sessions Judge, Delhi.
AMICUS CURAIE AND DEFENCE COUNSEL
6. Initially the accused did not have any counsel and Mr.Rajeev Mittal, amicus curaie was appointed vide order dated 10.07.2013. However, on 19.07.2013, Mr.Anand Mohan, advocate filed his Power of Attorney (vakaltnama) on behalf of the accused; then on 20.07.2013, Mr.Basant Kr.Singh, advocate appeared for the accused and subsequently, he took discharge as Mr.Ranjeet Singh, advocate, appeared and filed his Power of Attorney (vakaltnama) on behalf of the accused on 06.08.2013.
CHARGE
7. After hearing arguments, charge for offence under section 376 of the IPC was framed against the accused vide order dated 10.07.2013 to which he pleaded not guilty and claimed trial.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 4 of 59 ::-
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PROSECUTION EVIDENCE
8. In order to prove its case, the prosecution has examined as many as 15 witnesses.
9. PW1 is Mr. Bittu, an eye witness of the incident and the complainant of the case. PW2 is Mr. Amit Kumar, a public witness, also an eye witness. PW3 is Mr. Naresh Kumar Laka, learned Metropolitan Magistrate who had recorded the statements under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of Mr.Bittu and Mr.Amit Kumar. PW4 is Ct. Bheem Singh, who had collected the exhibits from Mal Khana and deposited to FSL office. PW5 is HC Mahavir, MHCM with who the case property was deposited by the Investigation Officer. PW6 is Dr. Ramesh who had medically examined the accused vide MLC (Ex.PW6/A). PW7 is Dr. Soma Mitra, who had also medically examined the prosecutrix vide MLC (Ex.PW7/A). PW8 is HC Mamta, who had taken the prosecutrix to Deen Dayal Upadhyay Hospital for her medical examination. PW9 is Ct. Yogesh, a witness of investigation and remained with the IO. PW10 is Dr.Y.N.Maurya, who had medically examined the prosecutrix vide MLC (Ex.PW7/A). PW11 is SI Vandana, who is the Investigation Officer. PW12 is Mr. Anuj, grandson of prosecutrix. PW13 is Mr. Ramshree, son in law of the prosecutrix. PW14 is Ms.L.Babyto Devi, FSL Expert, who had given a FSL report (Ex.PW11/D). PW15 is HC Hari Ram, the duty officer who had recorded the formal FIR of the case (Ex.PW15/A).
10. The accused and his counsel have failed to cross examine PWs 3, 4, 5, 6, 7, 10, 14 and 15 due to which their testimonies remain uncontroverted Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 5 of 59 ::-
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and unrebutted and can be presumed to have been admitted as correct by the accused.
11. On 15.07.2013, the prosecution preferred to drop PWs Mr.Amit and Mr.Raj Kumar as their evidence was repetitive in nature.
12. On 27.07.2013, the accused in the presence of his counsel, admitted the FSL report and that there was no objection to its exhibition as the report was admissible under section 293 of the Cr.P.C.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
13. In his statement under section 313 of the Cr.P.C., recorded on 07.08.2013, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. About three months prior to his arrest, he had a quarrel over water with Mr. Raj Kumar @ Raju who had threatened to get him implicated in a false case and due to this reason, he has been falsely implicated in the present case. He has preferred to lead defence evidence.
DEFENCE EVIDENCE
14. In his defence, the accused has examined Mr.Amrit lal, his landlord as DW1, Mr.Pankaj Kumar, co-worker/labourer and Ms.Ruby, an acquaintance of the accused as DW3.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 6 of 59 ::-
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ARGUMENTS
15. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written submissions filed on behalf of the accused.
16. The Substitute Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under section 376 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
17. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There is a delay in lodging of the FIR which otherwise is also without the details. The FSL report is in favour of the accused. There are several discrepancies in the evidence of PWs 1 and 2 which makes their evidence unreliable. There is no injury on the body of the prosecutrix which indicates that she has not been raped. The accused has been falsely implicated in this case at the instance of one Mr.Raj Kumar @ Raju with who he had a quarrel over water, about three months prior to his arrest.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
18. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 7 of 59 ::-
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conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
19. Under this sphere, I now proceed to test the submissions of both the sides.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 8 of 59 ::-
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CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
20. The prosecution story unveils with the police coming to the spot and making inquires from Mr. Bittu (PW1), who gave his statement (Ex.PW1/A) to the police. On 16.04.2013, SI Vandana (PW11) received a telephonic call from SHO PS Kirti Nagar that a call regarding the incident of rape had been received. As per the instruction of SHO, IO SI Vandana (PW11) immediately visited the spot which was near Mayapuri Chowk, Mansarovar Garden, Delhi. IO conducted the inquiries from the prosecutrix but the prosecutrix was unable to tell anything and she was not responding to her questions. IO was told that the prosecutrix/victim was having some mental illness and she was aged about 80 years. There was one eye witness namely Mr. Bittoo (PW1). IO SI Vandana recorded the statement of Mr. Bittoo, (Ex.PW1/A) eye witness of this case. IO prepared rukka (Ex.PW11/A) and handed over to Ct. Yogesh (PW9) for registration of FIR. HC Hari Ram, Duty Officer (PW15) had recorded the FIR (Ex.PW15/A) and made endorsement on rukka (Ex.PW15/B). The certificate under section 65 B Evidence Act (Ex.PW15/C) was issued. As per the instruction of IO, HC Mamta (PW8) had took the prosecutrix to DDU hospital for medical examination where the prosecutrix was medically examined by Dr.Y.N.Maurya (PW10) and referred to Gynae Emergency, where Dr. Soma Mitra (PW7) examined her vide MLC (Ex. PW7/A). The exhibits pertaining to the prosecutrix were taken and same were seized by the IO vide seizure memo (Ex.PW8/A). IO recorded the statement of Mr. Amit (PW2) who was informed by Mr. Bittoo regarding the incident. IO SI Vandana prepared site plan (Ex.PW11/B) at the instance of eye Mr. Bittoo (PW1). On the identification of eye witness Mr.Bittoo, accused was apprehended from his Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 9 of 59 ::-
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jhuggi. His arrest memo (Ex.PW1/B) and personal search memo (Ex.PW1/C) were prepared. On interrogation, his disclosure statement (Ex.PW1/D) was recorded. He also pointed out the place of occurrence and pointing out memo (Ex.PW11/C) was prepared. As per the instruction of IO, Ct. Yogesh (PW9) had took the accused to DDU Hospital, where he was medically examined by Dr.Ramesh (PW6) at DDU Hospital vide MLC (Ex.PW6/A) under the supervision of Dr. Rishi. Dr. Y.N.Maurya (PW10) was deputed in place of Dr. Rishi to prove the MLC (Ex.PW6/A), under whose supervision he had been examined. The exhibits were seized vide seizure memo (Ex.PW9/A). On 16.04.2013, the case property of the case were deposited with HC Mahavir (PW5) in the Mal Khana with SI Vandana (PW11) vide entry no.2191 in register no.19 (Ex.PW5/A). On 22.04.2013, the aforesaid case property were sent to the FSL through Ct.Bhim Singh (PW4) vide RC No. 30/21/13 (Ex.PW5/B) and after depositing the copy of acknowledgement (Ex.PW5/C). The FSL result (Ex.PW11/D) was received on 27.07.2013. The statement of the eye witness Mr. Bittoo under section 164 Cr.P.C (ExPW3/A) was recorded by Mr. Naresh Kumar Laka, learned Metropolitan Magistrate (PW3) on the application of the IO (Ex.PW3/B). Copy of the statement was given to the IO on her application (Ex.PW3/C). Ms.L. Babyto Devi(PW14), Senior Scientific Officer (Biology), FSL Expert had examined the exhibits of this case vide her detailed FSL reports (Ex.PW11/D) comprising of 03 pages.
21. The allegations against the accused are that on the intervening night of 15.04.2013-16.04.2013 at 1.00-1.30am at Jhuggi no.W-1/172, Near Tea shop, Mayapuri Chowk, Mansarovar Garden, Delhi, he forcibly Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 10 of 59 ::-
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committed rape upon the prosecutrix. On the intervening night of 15/16.04.2013 at about 1.00-1.30 a.m, Mr. Bittu (PW1) was lying on a cot outside his shop and his elder brother Mr. Titu had gone to Chhatarpur Mandir since 8.00 - 10.00 p.m and had not returned from there. Accused was living in a rented accommodation in the neighbourhood of Mr.Bittu. Prosecutrix was also living in the neighbourhood and sometimes she used to sleep on a cot outside her house. On that night, prosecutrix was sleeping on a cot outside her house at a distance of 4-5 steps from the cot of Mr. Bittu. Mr. Bittu noticed that accused was sitting on the cot of prosecutrix and was asking the prosecutrix whether she had taken food or not. Thereafter, he lay down on the cot of the prosecutrix and covered himself with a bed sheet. Mr. Bittu noticed that the accused was moving up and down (upar niche hil raha tha). He called his friends namely Mr. Amit (PW2), Mr. Anil, Mr.Raj Kumar and some others. They called the accused whereupon he got up hurriedly. Mr. Bittu noticed that his private part (ling) was visible and his underwear was lowered and not at proper place. The exposed legs of the prosecutrix was visible outside the bedsheet. There were no clothes on the legs of prosecutrix and she was covered with bed sheet only. As it was night time and Mr. Bittu and others did not want to report to the police at that time, they sent the accused back to his house. In the morning i.e. on 16.04.2013, they informed the family members of prosecutrix. Mr.Munna, grandson of the prosecutrix, had informed the police.
PROSECUTRIX COULD NOT BE EXAMINED-HER CONDITION
22. All the precautions and safe guards, as per the directions of Hon'ble Delhi High Court and the Supreme Court, had been taken which are Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 11 of 59 ::-
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required while recording the evidence of the prosecutrix which in camera.
23. Guidelines for recording evidence of vulnerable witnesses in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" had been followed.
24. The prosecutrix was brought to the Court on 12.07.2013 by Mr.Babu Lal (her son in law) and Ms.Arti (wife of grand son of the prosecutrix). The prosecution had submitted that Ms. Parwati, the prosecutrix is senior citizen of advanced age of about 80 years. She has been brought to the Court inside the Court room by Mr. Babu Lal ( son in law of the prosecutrix) and Ms. Arti wife of the grandson of the prosecutrix. Mr. Babu Lal had carried her in his arms inside the Court room and she had been made to sit in a chair. The IO had also identified her to be the prosecutrix of this case and had stated that she was unable to walk.
25. As the prosecutrix was stated to be aged about 80 years, was of very frail built and was weak, I had myself gone down from the dais to her chair to talk to her.
26. I had tried to make preliminary inquiries from the prosecutrix to inquire whether or not she was well oriented and was capable of giving rational answers to questions and whether or not she understood the sanctity of oath. The proceedings regarding the ascertaining whether or not the Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 12 of 59 ::-
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prosecutrix is well oriented and is capable of giving rational answers to questions and whether or not she understands the sanctity of oath were recorded separately.
27. The prosecutrix was not giving any answer to any question and is not even telling her name on inquiry. She did not appear to understand anything what is being said to her or inquired from her. She is not responding to any command like lifting her hand. I had held her hand, trying to comfort her and asked her name several times but she did not respond and was not even looking towards me. She did not utter a single word and was silent. She was looking blankly towards the wall and was not responding to anything.
28. She did not appear to be oriented. She did not appear to be capable of giving answers to any question. She did not respond to any question or command. She did not understand the sanctity of Oath.
29. In the circumstances, her evidence could not be recorded and the proceedings were signed by the Court only and even her thumb impression or signatures were not taken. Considering her condition, she was discharged unexamined and she was dropped from the list of witnesses. The prosecution could move an application for her evidence if she is capable of deposing in the Court, at a later stage.
30. As the prosecutrix was not in a condition to take the diet money, the same was ordered to be given to Mr. Babu Lal and voucher also was issued in his name.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 13 of 59 ::-
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31. The IO was directed to get the prosecutrix medically examined from the Medical Board of DDU hospital to ascertain her medical and mental condition.
32. The IO was further directed to get at least three photographs of the prosecutrix taken and to file them on the record. The IO had called a photographer to the Court room and three photographs of the prosecutrix were taken, out of which one is with Ms.Arti, wife of the grandson of the prosecutrix. The same were retained on record.
33. In pursuance to the Court order, a Medical Board was constituted at DDU Hospital which examined the prosecutrix and vide its report dated17.07.2013, opined as follows:
"The board is of the opinion that the clinical finding suggest that she is suffering from severe Dementia due to which she is not capable of answering any questions. Therefore due to this mental condition she is unable to give witness in the Court."
34. It is clear from the observation of the Court as well as the report of the Medical Board that the prosecutrix is an aged lady of about 80 years. She cannot speak, talk, walk or respond. She is neither oriented not understands questions. She suffers from severe Dementia due to which she is not capable of answering any questions. She is in a persistent vegetative state.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 14 of 59 ::-
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TESTIMONIES OF THE PROSECUTION WITNESSES
35. It is necessary to elaborate the testimonies of the witnesses of the prosecution in brief.
The Most Material Witness-Eye Witness and Complainant
36. PW1, Mr. Bittu, the eye witness and complainant of the case, has deposed on oath that he is running tea shop near his house. On the intervening night of 15/16.04.2013 at about 1.00-1.30 a.m., he was lying on a cot outside his shop. His elder brother Mr.Titu had gone to Chhatarpur Mandir since 8.00
- 10.00 p.m and had not returned from there. Therefore, he was waiting for him to come back. He knows accused Mr.Shankar as he is living in a rented accommodation in his neighbourhood. Prosecutrix also lives in his neighbourhood. Sometimes, she used to sleep on a cot outside her house. On that night, prosecutrix was sleeping on a cot outside her house at a distance of 4-5 steps from his cot. He noticed accused Mr.Shankar sitting on the cot of prosecutrix. He heard accused Mr.Shankar asking the prosecutrix whether she had taken food or not. Thereafter, accused Mr.Shankar lay down on the cot of the prosecutrix and covered himself with a bed sheet. He noticed that accused Mr.Shankar was moving up and down ( upar niche hil raha tha). He called his friends namely Mr.Amit, Mr.Anil, Mr.Raj Kumar and some others.
They called accused Mr.Shankar whereupon he got up hurriedly. He noticed private part of accused Mr.Shankar (Ling) was visible and his underwear was lowered and not at proper place. The exposed legs of the prosecutrix was visible outside the bedsheet. There were no clothes on the legs of the prosecutrix and she was covered with bed sheet only. As it was night time and they did not want to report to the police at that time, they sent accused Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 15 of 59 ::-
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Mr.Shankar back to his house.
37. In the morning i.e. on 16.04.2013, they informed the family members of the prosecutrix. Mr. Munna, grandson of the prosecutrix, had informed the police. The police came to the spot and made inquires from him. He gave statement (Ex.PW1/A) to the police. The police personnel had taken the prosecutrix to DDU hospital for her medical examination. IO had inspected the site and prepared the site plan of that place at his instance.
Accused Shankar was arrested by the police vide arrest memo (Ex. PW1/B). The personal search of accused was conducted vide personal search memo (Ex. PW1/C). The police had made inquires from the accused upon which he gave statement (Ex. PW1/D). Next day, he along with IO came to Tis Hazari Courts where his statement under section 164 of the Cr.P.C. (Ex.PW1/E) was recorded by the learned Magistrate. The prosecutrix started living in his neighbourhood since two and half years prior to this incident. She is mentally retarded and can neither hear nor speak properly and is aged about 80-85 years.
38. He has been cross examined by accused at length. Subsequently, he was recalled on the allowing of the application of the accused under section 311 of the Cr.P.C. and was further cross examined on 07.08.2013.
Another Eye Witness
39. PW2, Mr. Amit Kumar, who is also an eye witness, has deposed that he along with Mr. Bittu went near the cot of prosecutrix, who is his grand mother (Dadi) in relation. He saw that the bed sheet/blanket of accused Mr. Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 16 of 59 ::-
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Shankar was moving (chadar hill rahi thi) i.e. accused was moving under the bed sheet. When they removed the bed sheet/blanket, they saw that the prosecutrix and accused were on the bed. Accused Shankar was lying on his side next to Prosecutrix. Underwear of accused Shankar was not at proper place and the lower portion i.e. legs of Prosecutrix were visible as there were no clothes on the lower portion i.e legs. As it was night time and they did not want to get entangled with the police at that time, they did not inform police. Accused Shankar was under the influence of liquor at that time (Pee rakhi thi). Next day, Mr. Munna, grandson of prosecutrix informed the police. Police came to the spot and made enquiries from them. He gave his statement to the police. Police had recorded the statement of Mr. Bittu also. He has been cross examined at length on behalf of the accused.
Public Witnesses
40. PW12, Mr. Anuj, had deposed that on the night of 16.04.2013 his grandmother/prosecutrix was sleeping on the cot outside of their house. He along with other family members was sleeping inside. At about 1.30 am (night time). His neighbours namely Mr. Bittoo and Mr. Amit told them that accused Mr.Shankar Singh had committed rape upon his grandmother/prosecutrix. Accused Mr.Shankar Singh is also resident of their locality living in their neighbourhood. They apprehended accused Mr.Shankar Singh and he was given beatings by the public persons. Since it was a night time, they did not go to the police station to lodge the report. Next morning, they all decided to lodge a report against the accused and so he telephoned the police at number 100 at 8.30 -9.00 a.m. He has been cross examined at length on behalf of the accused.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 17 of 59 ::-
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41. PW13, Ms. Ramshree, had deposed that the prosecutrix is her mother in law who is aged about 80-90 years old. On the intervening night of 15/16.04.2013, her mother in law was sleeping outside the house and she along with family members were sleeping inside the house/ jhuggi. At about 12.30 or 1.00 a.m, accused Mr.Shankar Singh committed rape upon her mother in law/prosecutrix. Accused Mr.Shankar Singh is resident of their locality. They were told by their neighbour Mr. Bittoo about the fact of rape of her mother in law/prosecutrix by accused. His mother in law/prosecutrix is having some mental illness. She is unable to hear or speak and she cannot even respond. Matter was reported to the police. The police visited their house. Her mother in law was taken to DDU hospital for her medical examination. She had also accompanied them. She had given the history of sexual assault with her mother in law/ prosecutrix to the doctor. She wanted that accused should be punished who has committed rape with her mother in law/ prosecutrix who is an old lady and unable to respond to anything.
Medical Witnesses
42. PW6, Dr. Ramesh, Senior Resident, had medically examined the accused and has proved the MLC of the accused (Ex.PW6/A).
43. PW7, Dr.Soma Mitra, Senior Resident in Obs & Gynae, had medically examined the prosecutrix and has proved the MLC of the prosecutrix (Ex.PW7/A).
44. PW10, Dr.Y.N.Maurya, Medical Officer, had deposed that the prosecutrix had been medically examined vide MLC (Ex.PW7/A) by him and Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 18 of 59 ::-
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referred to Gynae Emergency. He had also been deputed to depose in place of Dr. Rishi who had supervised the medical examination of the accused by Dr.Ramesh (PW6) and prepared the MLC (Ex.PW6/A) of the accused.
Forensic Witness
45. PW14, Ms. L.Babyto Devi, Senior Scientific Officer (Biology), FSL, had examined the documents in connection with case FIR No.132/2013 and prepared the report (Ex.PW11/D).
Official Witness
46. PW7, Mr. Naresh Kumar Laka, Metropolitan Magistrate-04, West, Tis Hazari Court had recorded the statement of the eye witness Mr. Bittu (Ex.PW3/A) on application moved by the IO for recording the statement of the witness Mr. Bittu under section 164 Cr.P.C (Ex.PW3/B) and copy was supplied on application for supply of the copy of statement recorded under section 164 Cr.P.C (Ex.PW3/C).
Police Witnesses-Formal
47. PW15, HC Hari Ram, duty officer who had recorded the formal FIR (Ex.PW15/A) in the present case, made endorsement on rukka (Ex.PW15/B) and issued the Certificate under section 65 B Evidence Act (Ex.PW15/C). After registration of the FIR, the original rukka and copy of FIR handed over to Ct.Yogesh for handing the memo to SI Vandana for investigation of the case.
48. PW5, HC Mahavir, is the MHCM. He has proved the relevant Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 19 of 59 ::-
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entries in register number 19 and 21 (Ex.PW5/A to Ex.PW5/C) pertaining to the FIR No. 132/2013, PS Kirti Nagar regarding the deposit of the samples and sent to FSL Rohini pertaining to the accused.
49. PW4, Ct. Bheem Singh has deposed that on the direction of SI Vandana he had collected the exhibits of the case from the Malkhana vide RC No.20/21/13 and deposited them to the FSL Rohini. After the deposition of the exhibits, he had brought the receipt of the RC along with the acknowledgement of the case property.
50. PW8, HC Mamta had deposed that on 16.04.2013, she along with IO SI Vandana, joined the investigation. She along with IO went to the H. NO.W1/150, Mayapuri Chowk. Prosecutrix was present in that house. IO tried to make enquiries from the proseuctrix, however she was not responding to verbal commands i.e. neither speaking properly, nor could hear clearly. Thereafter, she had taken the prosecutrix to DDU hospital for medical examination. Prosecutrix was medically examined from DDU hospital. Doctor handed over the exhibits of the case along with sample seal which she handed over to the IO who seized the same through seizure memo through seizure memo (Ex-PW8/A).
Police Witnesses-Material
51. PW9, Ct. Yogesh had deposed that on 16.04.2013 he along with SI Bahadur reached the spot i.e. Jhuggies at Mayapuri Chowk. SI Vandana who did the investigation of this case also reached the spot. She had made enquiries at the spot, one Mr. Bittoo, an eye witness of this case, was present Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 20 of 59 ::-
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at the spot. IO recorded his statement on the basis of which FIR was got registered. IO had inspected the site and prepared the site plan at the instance eyewitness Mr. Bittoo. Thereafter, they searched for the accused. At the identification of eye witness Mr. Bittoo, accused Shankar was apprehended from his jhuggi. IO made enquiries from him and thereafter he was arrested vide arrest memo ( Ex.PW1/B). Personal search of accused was conducted vide personal search memo (Ex.PW1/C). On interrogation accused Shankar had given disclosure which was recorded by the IO vide disclosure memo(Ex.PW1/D). As per the instructions of IO of this case, he had taken accused Shankar to DDU hospital for his medical examination. After examination of accused Shankar, doctor handed over the exhibits along with the sample seal of CMO of DDU Hospital. He brought the accused and the exhibits of this case. He handed over the exhibits of this case to the IO, who seized the same vide seizure memo (Ex.PW9/A).Thereafter, accused was sent to lock up.
52. PW11, SI Vandana, is the Investigation Officer of the case and has deposed that on 16.04.2013 at about 10.15 a.m, she received a telephonic call from SHO PS Kirti Nagar that a call regarding the incident of rape had been received so she was asked by the SHO to come to PS Kirti Nagar. As per the instructions of SHO, she immediately visited the spot which was near Mayapuri Chowk, Mansarovar Garden, Delhi. She found a crowd of people collected near tea shop near Jhuggi no. W1/172. Among the crowd one lady i.e. victim was also present. She conducted inquires from her but she was unable to tell anything and she was not responding to her questions. She was told that the victim (prosecutrix) was having some mental illness. Her age Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 21 of 59 ::-
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was told to her as about 80 years. Accused Mr.Shankar Singh was also at the spot who had been apprehended by the persons collected at the spot. There was one eye witness namely Mr.Bittoo who told her that accused Shankar Singh had committed rape upon that old lady. At the spot Ct. Yogesh and HC Mamta of PS Kirti Nagar were also present. Thereafter, the prosecutrix accompanied by her daughter in-law namely Ms. Ramshree was sent to DDU hospital along with HC Mamta for medical examination of the prosecutrix. She remained at the spot. After the medical examination of the prosecutrix HC Mamta along with the prosecutrix and Ms. Ramshree came back to the spot. She recorded the statement of Mr.Bittoo (Ex. PW1/A), prepared rukka (Ex. PW11/A) and handed over rukka to Ct. Yogesh for registration of the case. After sometime, Ct. Yogesh came back to the spot and copy of FIR and handed over the same. She had seized the exhibits of the prosecutrix from HC Mamta which were handed over to her by doctor vide seizure memo (Ex.PW8/A). She recorded the statement of HC Mamta under section 161 of the Cr.P.C. She had also recorded the statement of PW Mr.Amit who was informed by Mr.Bittoo regarding the incident being committed with prosecutrix. PW Mr.Amit had also seen the incident. She prepared the site plan (Ex. PW11/B) at the instance of Mr. Bittoo. She arrested accused Mr.Shankar Singh vide arrest memo (Ex PW1/B) and his personal search memo (Ex. PW1/C). She recorded the disclosure statement of accused Shankar Singh (Ex. PW1/D). Accused pointed out the place of occurrence and prepared pointing out memo (Ex. PW11/C). Accused was sent to DDU hospital for his medical examination with Ct. Yogesh. After the medical examination of the accused, Ct. Yogesh along with accused came back at the spot and handed over exhibits to me which were seized by me vide seizure Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 22 of 59 ::-
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memo (Ex. PW9/A). Thereafter, they came back to PS Kirti Nagar along with accused Shankar Singh and PW Mr.Bittoo. She deposited the case property in malkhana PS Kirti Nagar. She recorded the statement of Ct. Yogesh, HC Mahavir (MHCM) and supplementary statement of Mr. Bittoo. Accused was sent to lock up. Next day i.e. on 17.04.2013 accused was produced in the Court and was remanded to judicial custody. On that day, statement of complainant Bittoo was got recorded under section 164 Cr.P.C. On 18.04.2013, she had recorded the statement of Ms. Ramshree, daughter in law of prosecutrix. Next day, she also recorded the statement of PWs Mr. Anil and Mr. Rajkumar who were also the eye witnesses of the present case. On 22.04.2013, exhibits of the present case were deposited in the office of FSL through Ct. Bheem. The FSL result (Ex.PW11/D) was collected and filed before the Court. On 30.05.2013, she had recorded the statement of Mr.Anuj who was the grandson of the prosecutrix who had called the police at no.100. After completing the investigation, the chargesheet was prepared and filed before the Court. She has been cross examined at length.
TESTIMONIES OF THE DEFENCE WITNESESS
53. It is essential also to elaborate in brief the evidence of the witnesses of the defence.
54. DW1, Mr. Amrit Lal has deposed that accused Shankar has been living in his above said house as a tenant for the last 15-16 years. There is no complaint against accused from any person of the locality. Accused is of good character. On the day of incident, accused came back home from his work and went to his room on the second floor of the jhuggi. He had his dinner and Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 23 of 59 ::-
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came back to his shop located at the ground floor at about 12.45am. He demanded tobacco from him and he gave the same to him and thereafter he went to sleep on the road outside the jhuggi. He also closed his shop and slept. He did not know what happened thereafter at night. In the morning he came to know that the police had come and taken the accused away. Police came to him and enquired from him, his jhuggi number. He was not made witness by the police in this case. He had not gone to the PS to enquire about the accused. He knows Mr. Bittu, who is son of a tea vendor (Chai wala). He is of the opinion that accused Shankar can not commit any offence. He did not want to say anything else.
55. DW-2, Mr. Pankaj Singh, has deposed that accused Mr.Shankar worked with him as a labourer. On 15.04.2013, after finishing work, he along with accused Shankar came back to their jhuggi at about 10.30pm. Accused Shankar went to his jhuggi for having meals. After having dinner, accused Shankar came out of his jhuggi and slept outside his jhuggi on footpath and thereafter he went to sleep under under Mayapuri Fly Over. He was sleeping at a distance of about 200 meters away from accused Shankar. Next morning at about 8.30 am, he came to know that accused Shankar had been taken away by the police.
56. DW-3, Ms.Ruby has deposed that she knows accused Shankar and his family for the last 10 years as she had visiting terms with the family. Accused Shankar is of good character and he never talks any ill things to any one. Accused Shankar never had any quarrel with any member of the locality of neighbour. She had never heard any complaint of his. I know prosecutrix Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 24 of 59 ::-
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(name withheld) who is an old lady and unable to speak . She even does not have her teeth.
57. All the defence witnesses have been cross examined on behalf o the State by the Additional Public Prosecutor.
IDENTITY OF THE ACCUSED
58. There is no dispute regarding the identity of the accused Mr.Shankar Singh who has been identified by PWs 1, 2 , 12 and 13. It is also not in dispute that they were known to each other prior to the lodging of the FIR. Accused is also named in the FIR. Accused is also named in the history given by the daughter in law of the prosecutrix when the prosecutrix was medically examined in the DDU Hospital.
59. Therefore, the identity of the accused stands established.
AGE OF THE PROSECUTRIX
60. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. As per the prosecution, she is about 80 years old.
61. Therefore, it is clear that the prosecutrux was a major at the time of incident.
VIRILITY OF THE ACCUSED
62. PW6, Dr. Ramesh, Senior Resident, had medically examined the accused and has proved the MLC of the accused (Ex.PW6/A). PW10, Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 25 of 59 ::-
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Dr.Y.N.Maurya, Medical Officer, had also been deputed to depose in place of Dr. Rishi under whose supervision Dr.Ramesh had prepared the MLC (Ex.PW6/A) of the accused. Both have not been cross examined by the accused.
63. It is mentioned in the MLC of the accused (Ex.PW6/A) that "There is nothing to suggest that accused person can not perform sexual act"
64. On perusal of MLC (Ex.PW6/A), it transpires that the accused had not given his semen sample and it is mentioned by Dr.Ramesh (PW6) that "Semen Sample-Uncooperate for semen sample".
65. The fact that the accused did not cooperate in giving his semen sample only calls for drawing adverse inference against him that he was capable of committing the offence of rape on the prosecutrix and only to defeat the purpose of FSL examination of the exhibits, he did not give his sample as the same could have been compared and the semen found on the samples of the prosecutrix could be attributed to him.
66. Even otherwise, on physical examination, the doctor has found that there is nothing to suggest that accused person can not perform sexual act.
67. Therefore, it is clear that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 26 of 59 ::-
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MLC OF THE PROSECUTRIX
68. PW10, Dr.Y.N.Maurya, Medical Officer, had deposed that the prosecutrix had been medically examined vide MLC (Ex.PW7/A) and referred to Gynae Emergency. PW7, Dr.Soma Mitra, Senior Resident in Obs & Gynae, had medically examined the prosecutrix and has proved the MLC of the prosecutrix (Ex.PW7/A).
69. It is clear from the MLC of the prosecutrix (Ex.PW7/A) that her daughter in law had told the doctor in the history that the prosecutrix had been sexually assaulted by Shankar.
70. Regarding injury, it is mentioned in the MLC that "old abrasion over post part of scalp. A lesion of 2.5 x 3 over lt side of Forehead. No other injury seen all over body.
71. It is also mentioned that "Final opinion of rape to be given after Forensic report".
72. It has been argued on behalf of the accused that as there is no medical evidence against the accused, it indicates that he has been falsely implicated in this case. She does not have any fresh injury on her body and had she been raped, there would have been injuries on her body and private parts.
73. However, this contention is not tenable as it cannot be ignored that the prosecutrix was not in a position to resist the accused considering her Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 27 of 59 ::-
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medical condition, as elaborated in the observation of this Court in the ordersheet dated 12.07.2013 when the prosecutrix was produced before the Court for her evidence as well the opinion of the Medical Board dated 17.07.2013 that she is suffering from severe Dimentia. When there was no resistance, there was no possibility of the prosecutrix being injured in the incident.
74. Otherwise also, medical evidence is only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix or the eye witness which is of utmost importance and the judgment is mainly based on that evidence.
FORENSIC EVIDENCE
75. PW14, Ms.L. Babyto Devi, FSL expert has proved the FSL report (Ex.PW11/D) which is otherwise also admitted by the accused (vide his statement on 27.07.2013). She has not been cross examined by the accused and therefore her evidence remains uncontroverted and unrebutted and can be presumed to be admitted by the accused.
76. The relevant extract of the FSL report reads as follows:
RESULT OF ANALYSIS
1) Semen was detected on exhibits '2a' and '2b'
2) Semen could not be detected on exhibits '1a', '1b', '1c', '1d', and '1f'.
3) Foreign material could not be detected on exhibit '1e' and '1g'.
DNA EXAMINATION Exhibits '2a', '2b' and '3' was subjected to DNA isolation. DNA was isolated from the source of exhibits '2a'(half piece of lady's shirt), Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 28 of 59 ::-
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'2b' (half piece of saree), and '3'(Blood in gauze of the accused). Identifiler plus amplification kit was used for each of the samples and data was analyzed by Gene-Mapper IDx Software. Male DNA Profile was generated from exhibits source of exhibits '2a'(half piece of lady's shirt), '2b' (half piece saree), and '3'(Blood in gauze of the accused).
Conclusion DNA profile (STR) analysis were performed on the exhibits '2a', '2b' and '3' is sufficient to concludes that allele data from the source of exhibit '3' is accounted in the allelic data from the source of exhibits '2a' and '2b'.
77. Ex. '2a' is one cut/torn half lady's shirt having small portion of dirty yellowish stains described as clothes of victim.
78. Ex. '2b' is one cut/torn half piece of saree having small portion of dirty stains described as clothes of victim.
79. Ex. '3' is gauze cloth piece described as blood in gauze of accused.
80. As per Ex.PW11/A, semen has been detected on the clothes of the victim/prosecutrix. DNA profile (STR) analysis concludes that allele data from the source of exhibit '3' is accounted in the allelic data from the source of exhibits '2a' and '2b'.
81. Therefore, it is clear that the semen found on the clothes of the prosecutrix is of the accused and none else. The prosecutrix is of advanced age of 80 years and can be presumed, due to her mental and medical Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 29 of 59 ::-
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condition, not be sexually active. When semen is detected on her clothes and the DNA test concludes that allele data from the source of exhibit '3' is accounted in the allelic data from the source of exhibits '2a' and '2b', it becomes crystal clear that she has been subjected to sexual assault.
82. It has been argued by the counsel for the prosecutrix that as no semen was detected on the vaginal swabs, vaginal smears, nail clippings, pubic hair of the prosecutrix, it cannot be a case of rape and at the most can be a case of outrage of modesty.
83. The forensic evidence clinches the prosecution case that the prosecutrix has been subjected to forced physical relation by the accused and is a victim of sexual assault.
DEFENCE OF THE ACCUSED
84. In his statement under section 313 of the Cr.P.C., the accused has given mainly three word answers by saying "It is wrong" to most of the questions or has denied the evidence against him. He has stated that he is innocent and has been falsely implicated in this case. He has stated that "About three months prior to my arrest I had a quarrel over water with Mr. Raj Kumar @ Raju who had threatened to get me implicated in a false case and due to this reason I have been falsely implicated in the present case."
85. I find on perusal of the cross examination of DW1 that two contradictory stands have been taken by the accused. The first is that PW had a monetary dispute with the accused due to which he has got the accused Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 30 of 59 ::-
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falsely implicated. PW1 has deposed that "It is wrong to suggest that the accused has falsely implicated in this case by me as I did not want to return the money which I had taken from the accused as a loan and in order to avoid the same I got implicated the accused in this false case." No evidence has been brought by the accused to substantiate his claim that he had a monetary dispute with PW1. The accused has not even taken up this stand in his statement under section 313 of the Cr.P.C.
86. The second stand taken by the accused is that he has been falsely implicated at the instance of Mr.Raj Kumar @ Raju. PW1 in his cross examination on 07.08.2013, was put the questions in this regard to which he answered as "I fetch water for making tea from the tap situated near my Jhuggi. The residents of all jhuggis take water from the same tap. I have never had any quarrel or fight with anyone including accused Shankar over water. Mr.Amit also had never had any quarrel or fight with anyone including accused Shankar over water." Again no evidence has been brought by the accused to substantiate his claim that there some dispute over water due to which he has been falsely implicated.
87. Coming to the evidence of DWs, it may be observed that their evidence is of absolutely no help to the accused.
88. The deposition of all the DWs that accused Mr.Shankar Singh is of good character and there has never been any complaint against him is of no use to him as what is relevant is whether or not the accused has committed the offence of rapping the aged prosecutrix or is innocent and not whether he is of Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 31 of 59 ::-
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good character.
89. DW1 has deposed that the accused is his tenant for 15-16 years but in his cross examination has deposed that "I can not produce any receipt of rent or any other document to show that accused Shankar has been living as a tenant in my house for the last 15-16 years." thereby making his version doubtful. He has also deposed that the accused demanded tobacco from him at his shop at 12.45 am and the same does not inspire confidence as no shop can remain open at that time. He did not know what happened thereafter at night. In the morning, he came to know that the police had come and taken the accused away. Police came to him and enquired from him, his jhuggi number. He was not made witness by the police in this case. He had not gone to the PS to enquire about the accused. His conduct does not inspire confidence.
90. DW2 has not mentioned anything in his examination in chief which may be in favour of the accused. In fact, he supports the prosecution version in his cross examination when he has deposed that "I was very much tired and had sound sleep there I can not tell as to what had happened on that night. I can not tell that accused Shankar had raped prosecutrix (name withheld) on the intervening night of 15/16.04.2013."
91. DW3 in fact is hostile to the stand of the accused when she has deposed in her cross examination that "I have no knowledge regarding the present case as I was not present at the place of the incident on the intervening night of 15/16.04.2013." When she was not even present at the spot, she cannot give any opinion about the incident. Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 32 of 59 ::-
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92. Another version has also been put that the accused was under the influence of alcohol and had fallen on the cot of the rposecutrix inhis inebriated state due to which the a crowd gathered to saying that he had raped the prosecutrix. However, no such evidence to substitute his claim has been led by the accused.
93. PW1 has been put the suggestion to the same effect and he has deposed in his cross examination that "The accused was in inebriated condition when I had seen him as he had consumed liquor. It is wrong to suggest that he was under so much influence of liquor that he could not even carry himself properly.....It is wrong to suggest that while the accused was under the influence of liquor, he had fallen on the cot of the prosecutrix as there was a glare from the vehicle and thereafter, he had immediately got up and left the cot of the prosecutrix. It is wrong to suggest that I was aware of this fact that he had accidentally fallen on the cot of the prosecutrix and for this reason I had not informed the police at night."
94. PW2, in his cross examination has deposed that "Accused was under the influence of liquor at that time. He was drunk to the extent though he could walk but was not aware what he was doing."
95. Although PWs have deposed that the accused was under the influence of liquor, but there is nothing in his MLC (Ex.PW6/A) to suggest the same.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 33 of 59 ::-
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96. There is no evidence on the record to support the different stands taken by the accused in his defence.
97. The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman (eye witnesses and family of the prosecutrix, in the present case) 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 or eye witnesses should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.
98. It cannot be imagined that only due to a monetary dispute or dispute over water, any one would implicate the accused in a false case as heinous as a rape case.
99. It may also be mentioned here that although the accused in his statement under section 313 of the Cr.P.C. has stated that "The prosecutrix does not have any mental illness. She has been talking to me. I used to address her as " Dadi Maa" (Grandmother). She does not talk much. Whatever I used to say to her she used to understand."
100. This claim is absolutely false as it is clear from the report of Medical Board as well as Court proceedings dated 12.07.2013 that the prosecutrix is suffering from severe Dimentia due to which she is not capable Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 34 of 59 ::-
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of answering any question and she does not talk or respond. Even PW1 has deposed that the prosecutrix is mentally retarded and can neither hear nor speak properly and is aged about 80-85 years. PWs 2 and 13 have deposed about the prosecutrix not being able to speak and her having some mental illness. PWs 1, 2 and 13 have not been cross examined on this part of their deposition which remains uncontroverted and can be presumed to have been admitted by the accused. Even DW3 has deposed in her examination in chief that the prosecutrix is unable to speak.
101. Therefore, in view of the foregoing discussion, I am of the considered opinion that there is no veracity in the defence of the accused.
MENS REA / MOTIVE
102. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
103. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 35 of 59 ::-
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of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
104. In the present case there is sufficient evidence on record to show that the accused did have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
105. In the present case, the victim/ prosecutrix is a lady of advanced age of 80 years. She cannot hear or speak. She does not respond. She cannot Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 36 of 59 ::-
-:: 37 ::-
even walk or move by herself. She is suffering from severe Dimentia due to which she is not capable of answering any questions. The prosecution's claim is that she is mentally challenged (as mentioned in complaint Ex.PW1/A - manshik roop se vikshit hai). Her medical and mental condition have made her a soft target for a pervert as she cannot offer any kind of resistance or raise alarm or shout for help. She cannot even get up and try to run away. The evidence of PWs 1 and 2, who are eye witnesses of the incident, that they had witnessed the accused committing the offence, only clarifies the criminal intention of the accused that he has committed the offence in a planned manner as initially he sat on her cot and enquired whether or not she had taken food and then lay down on the cot and went ahead to commit the offence.
106. All these facts in totality indicate that there was criminal intention and mens rea on the part of the accused.
DELAY IN FIR
107. The contention of the advocate for the accused that there was an unexplained delay in lodging of the FIR which is fatal is now being taken into consideration.
108. It is clear from the record that the FIR has been lodged on 16.04.2013 at 14:40 hours. DDno.12A dated 16.04.2013 was regarding a report at 9.05 am about rape of the grandmother of the prosecutrix. The incident is alleged to have occurred on the intervening night of 15.04.2013-16.04.2013 at about 1.00 am - 1.30 am.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 37 of 59 ::-
-:: 38 ::-
109. PW1 has given the explanation in his cross examination when he has deposed that "None of the persons who were sleeping there at night and had seen the incident or woken up after incident had suggested that the police should be informed immediately" besides deposing in examination in chief that "As it was night time and they did not want to report to the police at that time, they sent accused Mr.Shankar back to his house."
110. PW2 has also given the explanation in his cross examination when he has deposed that "We did not try to wake anyone when the incident had occurred. We did not inform the police at night as we did not wish to get involve with the police (police ke chakkar mein nahi padna chahte the)."
After deposing in his examination in chief that "As it was night time and they did not want to get entangled with the police at that time, they did not inform police."
111. PW12 in his examination in chief has deposed that "Since it was a night time, they did not go to the police station to lodge the report. Next morning, they all decided to lodge a report against the accused and so he telephoned the police at number 100 at 8.30 -9.00 a.m." and he has not been cross examined on this part of his deposition.
112. It is a common knowledge that no one wants to get involved in any criminal case that too at night due to the intricacies involved, visits to the Court for evidence, facing butcherous cross examination, own work suffering, etc. PWs 1 and 2 not informing the family of the prosecutrix at night and not Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 38 of 59 ::-
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calling the police at night when the incident had occurred have been satisfactorily explained by them. In the morning, the family of the prosecutrix was informed and her grandson, Mr.Anuj, PW 12, informed the police on which they arrived and the criminal action against the accused swung into motion.
113. Therefore, it cannot be said that the FIR was lodged after a delay which is fatal to the prosecution story. The delay had been satisfactorily explained.
STATEMENTS OF THE COMPLAINANT/EYE WITNESS AND ANOTHER EYE WITNESS
114. It is necessary to discuss and analyse the testimony of the most material witnesses i.e. PWs 1 and 2.
115. Both PWs 1 and 2 have given an almost similar account of the incident. Both have narrated the incident that the prosecutrix was sleeping on a cot outside her house at a distance of 4-5 steps from cot of PW1 who noticed that accused Mr.Shankar sitting on her cot. PW1 heard accused Mr.Shankar asking the prosecutrix whether she had taken food or not. Thereafter, accused Mr.Shankar lay down on the cot of the prosecutrix and covered himself with a bed sheet. PW1 noticed that accused Mr.Shankar was moving up and down (upar niche hil raha tha). PW1 called his friends namely Mr.Amit (PW2), Mr.Anil, Mr.Raj Kumar and some others. They called accused Mr.Shankar whereupon he got up hurriedly. They noticed private part of accused Mr.Shankar (ling) was visible and his underwear was lowered and not at Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 39 of 59 ::-
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proper place. The exposed legs of the prosecutrix was visible outside the bedsheet. There were no clothes on the legs of the prosecutrix and she was covered with bed sheet only.
116. There is nothing brought forth in their lengthy cross examination which may be of any help to the accused. Nothing is shown in the cross examination of PWs 1 and 2 which could shatter the veracity of their testimonies or show that they have falsely implicated the accused.
117. In fact, PW1, in his cross examination has further clarified that "Shankar sat on the cot of the prosecutrix at about 1.00 am in the night. ... When the accused lied on the cot of the prosecutrix alongwith her and covered himself with the bedsheet / blanket, I immediately called my friends. I alongwith my friends reached near the cot within minutes. When I alongwith my friends reached near the cot of the prosecutrix I saw the accused and the prosecutrix covered with the bed-sheet / blanket and only some portion of legs of Shankar were visible out side of the bed-sheet. The accused was wearing under-shirt (baniyan) and his underwear was not at proper place i.e lowered at that time... My cot was next to the cot of the prosecutrix and at the distance of about 4-5 steps. When I had first seen Shankar, he was sitting on the cot of the prosecutrix....... my friends namely Mr. Amit, Mr. Anil, Mr. Raj Kumar and some more persons were awake and I called them. They were at a distance of about 20-25 steps from the cot of the prosecutrix.... When Mr. Amit, Mr. Anil, Mr. Raj Kumar and some more persons, on my calling came towards the cot of the prosecutrix, the accused was still lying on the cot...." Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 40 of 59 ::-
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118. Even PW2 has further corroborated the version of PW1 in his cross examination by deposing that "Mr. Bittoo had woken me up at about 1.00 - 1.30 am. He told me about the incident and took me to the cot of the prosecutrix where I witnessed the incident. Mr. Bittoo had told me that the accused Shankar was doing something wrong (kuch galat kar raha hai). When I went to the cot of the prosecutrix with Mr. Bittoo, accused Shankar was still there...... When I reached to the cot of the prosecutrix, accused Shankar was lying there..... Accused Shankar was wearing undershirt (baniyan) and his underwear was not at proper place i.e found lowered at that time. One towel of white colour wrapped around his waist was also not properly wrapped and was on the upper side of the waist (UPAR KI TARAF UTHA HUA THA)..... However, the lower portion of the prosecutrix was naked as her clothes were raised (UPAR KARE HUYE THE)."
119. It is clear from the evidence of PWs 1 and 2, who are the eye witnesses of the incident, that the accused in a planned manner first came and sat on the cot of the prosecutrix and enquired whether she had taken food. Then he lay down on her cot and covered them with a bedsheet. Then he lowered his underwear and took out his private part, raised the clothes of the prosecutrix on the lower part of her body and raped her. The narration made by PWs 1 and 2 of the movement done by the accused and that his underwear was lowered and his private part was visible and the lower part of the body of the prosecutrix was uncovered clearly proves beyond all shadow of doubt that the accused had raped her. When PW1 noticed the incident, he called PW2 and others who also witnessed the incident. They called the accused who got Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 41 of 59 ::-
-:: 42 ::-
up hurriedly and even then his underwear was not in proper place and was lowered and his private part was visible.
120. Their evidence has also been corroborated by the forensic evidence, as mentioned in the FSL report that Semen was detected on exhibits '2a' and '2b'(clothes of prosecutrix) and the DNA profile (STR) analysis were performed on the exhibits '2a', '2b' and '3'(blood in gauzed of accused) is sufficient to conclude that allele data from the source of exhibit '3' is accounted in the allelic data from the source of exhibits '2a' and '2b'. When semen is detected on her clothes and the DNA test concludes that allele data from the source of exhibit '3' is accounted in the allelic data from the source of exhibits '2a' and '2b', it becomes crystal clear that the prosecutrix has been subjected to sexual assault by the accused and none else.
121. The counsel for the accused has argued that there are some contradictions in the evidence of the prosecution witnesses. However, they were not even pointed out. It may also be observed here that the minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. When the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 42 of 59 ::-
-:: 43 ::-
which are not normal, and not expected of a normal person. Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
122. Further, the counsel for the accused has argued that as per the cross examination dated 15.07.2013 of PW1, he went to sleep at about 2.00 am - 2.30 am and woke up at 6.30 am but in his cross examination dated 12.07.2013, he has deposed that he opens his shop at 5 am. This shows that the incident has not occurred. However, as this is a rape of sexual assault on the prosecutrix, time of sleeping at night of PW1 or time of his waking up or time of his opening his shop are not relevant. What is relevant is whether or not there is anything surfacing which could indicate that the accused has not committed the offence.
123. It is also argued on behalf of the accused that the conduct of PWs 1 and 2 is not natural as they did not inform the family of the prosecutrix at night when they witnessed the incident. However, this contention is also not tenable as they have explained in their cross examination that as it was night Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 43 of 59 ::-
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time and they did not want to get involved with the police, they did the needful in the next morning (as already discussed under the heading of delay in FIR).
124. It is further argued on behalf of the accused that Mr.Tittoo, brother of PW1, who was allegedly away to Chattarpur Temple has not been associated in this case which indicates that the case is false. However, even this contention is not tenable as Mr.Titto is not a witness of the incident and therefore his association in this case would have been irrelevant and is not required.
125. There is no reason shown why PWs 1and 2 would choose the accused only for leveling false allegations of rape especially when there is nothing shown by the accused that they had any vested interest or mala fide motive.
126. It may be observed here that it is settled principle of law that it is not in every case that the version of an eye witness must be corroborated in material particulars by independent witnesses. In a case where the Court is satisfied that the testimony of the eye witness is free from blemish and is implicitly reliable, then on his sole testimony, conviction can also be recorded but in appropriate cases the Court may look for corroboration from independent sources or circumstances. The testimony of the eye witness has to be tested on the touch stone of truthfulness and credibility. In the present case, the testimony of PW1, complainant and eye witness of the incident, has been corroborated by the testimony of PW2. Their evidence is consistent and Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 44 of 59 ::-
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corroborative and does not suffer from any inconsistency or discrepancy.
127. There is nothing material brought forth in the lengthy cross examination of PWs 1 and 2 on behalf of the accused which could shatter the veracity of their evidence.
128. Therefore, in view of the foregoing discussion, the evidence of PWs 1 and 2 appears to be reliable and believable.
INVESTIGATION
129. The investigation conducted in the present case has been deposed by police witnesses. The FIR has been proved by the duty officer, PW15. The MLCs of the accused and the prosecutrix have been proved by the doctors, PWs 6, 7 and 10. The FSL report has been proved by PW14. All the documents prepared during the investigation like the arrest memo, personal search memo, disclosure statement of accused, seizure memos, site plan, pointing out memo, etc. have been properly proved by the police witnesses.
There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
130. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. There is nothing on the record to show that their testimonies are false or not reliable.
131. It is the actual crime which is important than the investigation. Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 45 of 59 ::-
-:: 46 ::-
Where the actual crime is being elaborated and proved in the evidence of the material witnesses, then the investigation becomes less important as eye witnesses have not only deposed regarding the manner of commission of the crime but have also elaborated all the details and has assigned a clear and specific role to the accused.
132. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
133. It may also be observed here that the accused has also failed to show that he is not the person who had raped the prosecutrix. The accused has also failed to lead any evidence to substantiate his claim of innocence or falsify the prosecution version or show that the evidence of the prosecution witnesses is not reliable and credible.
CONCLUSION
134. It s clear from the record that the evidence of PWs 1 and 2 is free from blemishes. It is worthy of credence and trust. Nothing has been shown by the accused to indicate that they had any vested interest in leveling false allegations against him. It is also clear from the record that on the intervening night of 15.04.2013-16.04.2013 at 1.00-1.30 am at Jhuggi No.W-1/172, Near Tea Shop, Mayapuri Chowk, Mansarovar Garden, Delhi, accused Mr.Shankar Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 46 of 59 ::-
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Singh forcibly committed rape upon the prosecutrix who is a lady of advanced age of 80 years.
135. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
136. Applying the above principles of law to the facts of present case, it is evident that the evidence of the prosecution especially PW1, complainant of the case and an eye witness as well PW2, an eye witness, is reliable, believable and trustworthy and the prosecution has established the case of rape against accused Mr.Shankar Singh. The facts of the case are consistent with the hypothesis of guilt of the accused.
137. The prosecution has successfully proved that on the intervening night of 15.04.2013-16.04.2013 at 1.00-1.30 am at Jhuggi No.W-1/172, Near Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 47 of 59 ::-
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Tea Shop, Mayapuri Chowk, Mansarovar Garden, Delhi, accused Mr.Shankar Singh forcibly committed rape upon the prosecutrix who is a lady of advanced age of 80 years.
138. The prosecution has been able to successfully prove the following facts:
1. the identity of the accused namely Mr.Shankar Singh;
2. the identity of the prosecutrix;
3. the prosecutrix was a major;
4. the prosecutrix is a senior citizen of advanced age of about 80 years. She cannot hear, talk, speak or respond. She is suffereing from severe Dimentia due to which she is not capable of answering any questions. She is in a persistent vegetative state.
5. the manner in which the offence has been committed that on the intervening night of 15.04.2013-16.04.2013 at 1.00-1.30 am, accused Mr.Shankar Singh came and sat on the cot of the pros-
ecutrix, enquired whether or not she had taken food, lay down on her cot, covered them with bedsheet and committed rape upon the prosecutrix;
6. the place of commission of the offence i.e. Jhuggi No.W-1/172, Near Tea Shop, Mayapuri Chowk, Mansarovar Garden, Delhi;
7. the medical and forensic evidence against the accused;
8. the investigation including the documents prepared.
139. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witnesses of the prosecution Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 48 of 59 ::-
-:: 49 ::-
have been able to build up a continuous link. All the facts relevant in respect of the offence punishable under section 376 of the IPC have been properly proved.
140. In view of the foregoing reasons, the conscience of this Court is completely satisfied that the prosecution has been able to successfully bring home the charge against the accused Mr.Shankar Singh regarding the commission of offence punishable under section 376 of the IPC.
141. Accordingly, the accused, Mr.Shankar Singh, is hereby convicted for having committed offence punishable under section 376 of the IPC.
142. Let him be heard of the point of sentence.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 06th day of September, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*************************************************************** Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 49 of 59 ::-
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA, ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK COURT)-01, WEST, TIS HAZARI COURTS, DELHI Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
State
Versus
Mr.Shankar Singh
Son of Mr.Suresh Singh,
Resident of Jhuggi No.W-1/169, Mayapuri Chowk, Mansarowar Garden, Delhi.
First Information Report Number : 132/2013 Police Station Kirti Nagar, Under section 376 of the Indian Penal Code.
Date of filing of the charge sheet before : 26.06.2013. the Court of the Metropolitan Magistrate Date of receipt of file after committal : 10.07.2013.
Date of judgment : 06.09.2013. Arguments on sentence concluded on : 07.09.2013. Date of order on sentence : 07.09.2013.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the State Convict has been produced from judicial custody.
Mr. Ranjeet Singh, counsel for convict.
********************************************************* Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 50 of 59 ::-
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ORDER ON SENTENCE "A while ago?" Anaxantis asked. "Yes, he raped me a while ago. Exactly nine months and two days ago. What's that? Nine months or nine minutes. It's the same. And it is in the past, you say? Then why is it still happening, every day, every time I close my eyes? Every time I hear someone behind me, and I don't know who it is? How is it that I get an almost irresistible urge to kill anyone who happens to touch me unexpectedly? Tell me, Hemarchidas, how do I forgive, let alone forget, something that is still happening, that keeps happening over and over? How? How do I do that?"
― Andrew Ashling, The Invisible Chains - Part 1: Bonds of Hate
1. In pursuance of judgment dated 06.09.2013 as passed by this Court convicting the accused namely Mr.Shankar Singh for offence punishable under section 376 of the Indian Penal Code (hereinafter referred to as the IPC), I have heard the Additional Public Prosecutor for the State as well as the convict and the counsel for the convict on the point of quantum of sentence to be awarded to the convict and also carefully perused the case record.
2. It has already been observed in the judgment that this case is a glaring example of the growing menace of sexual abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim who is in a persistent vegetative state besides being a senior citizen of advanced age of about 80 years is subjected to unwanted physical contact by a perverted male young adult.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 51 of 59 ::-
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3. The Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him.
4. The convict and his counsel, on the other hand, have requested for a lenient view to be taken against him and for his release on probation as the convict hails from a very modest family. He is an unmarried man, aged about 24 years. He was working as a labourer prior to his arrest. He is the only bread winner of his family comprising of aged parents and three unmarried sisters. His fourth sister if married. He is in custody w.e.f. 16.04.2013. He is a first offender and has never committed any offence earlier. He has also assured that he shall not commit any offence in future.
5. Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider it proper to award a substantive sentence upon the convict. Rape in itself is abominable, ghastly, inhuman and barbaric. The convict has violated the person and soul of the prosecutrix. He has subjected the prosecutrix to unwanted physical contact by a perverted male adult. The victim lacks self-
confidence and is always under a sense of guilt and denial. It's not about the body. It's more about the mind. Sexual abuse is a rape of the mind and thought processes.
6. Section 376 IPC read as follows:-
Punishment of rape-(1) Whoever, except in the cases provided for Sessions Case Number : 120 of 2013. Unique Case ID Number : 02401R0309052013. FIR No. 132/2013. Police Station Kirti Nagar. Under section 376 of the Indian Penal Code. State versus Shankar Singh. -:: Page 52 of 59 ::-
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in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine..............
7. Here, it may be mentioned that vide The Criminal Law (Amendment) Act, 2013 which has come into force w.e.f. 03.02.2013, Section 376 of the IPC has been amended. The relevant portion of the same reads as follows:
376. Punishment for rape-
(1)--------------------------
(2)--------------------------
(a)---------------------- (k)
(l) commits rape on a woman suffering from mental or physical disability; and
(m)---------------------(n) shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.......
8. Keeping in view the offence committed by the convict, I am not inclined to take a lenient view against him and release him on probation. He has raped an aged woman of about 80 years. She does not speak, move or respond. She is suffering from severe Dimentia. She was a helpless, defenceless, vulnerable and an easy prey.
9. I am of the considered opinion that the convict should be awarded a substantive, stern and firm sentence because he has defiled her. As per social morality which attaches highest importance to the chastity of a Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 53 of 59 ::-
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woman, the outrage and breach of her privacy and modesty is a heinous offence. Keeping into consideration the fact that the act of rape is an act of a perverted man, the minimum sentence provided of ten years or a lesser imprisonment should not be awarded to the convict. I do not find any mitigating factors.
10. The object of sentence should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The welfare and interest of other women in the society also needs to be protected for the reason that if the convict is released, they may be subjected by him in a similar offence with them.
11. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. Socio- economic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a Sessions Case Number : 120 of 2013.
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FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 54 of 59 ::-
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sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on helpless old lady who is practically in a persistent vegetative state, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court.
12. The convict has taken advantage of a helpless and defenceless vulnerable prey. The convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating her person. It was a devilish and diabolic act on the part of the convict who appears to be perverted and depraved.
13. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the Constitution) the Courts, are therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A society sensitized judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions.
14. Recently, crime against women generally and rape in particular is on the increase and the society also appears to be concerned for the honour of women. In this backdrop, this Court is required to treat the issue with more Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 55 of 59 ::-
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sensitivity. The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The offences against women are on a rise and there is an urgent need to curb this tendency by awarding deterrent punishment to perpetrators of this grave offence.
15. In the present case, the act of the convict is most deplorable, both legally and morally. It is time for realization that certain category of sexually depraved behaviour is totally unacceptable in the Indian Socio-Legal System which seeks to protect the chastity the first virtue of a woman and such behaviour can prove to be costly as has happened in the present case.
16. Keeping in view the ghastly and inhuman act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path. The convict does not deserve any leniency or a minimum sentence.
17. Therefore, considering these aggravating facts, I hereby sentence convict Mr.Shankar Singh, for offence under section 376 of the IPC to rigorous imprisonment for life and a fine in the sum of Rs. 50,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of one year. It is also made clear life means the remainder of the convict's natural life.
18. The entire amount of fine, if realized, is awarded to the Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 56 of 59 ::-
-:: 57 ::-
prosecutrix as compensation for the benefit of the prosecutrix. Fine has not been deposited.
19. The sentences shall run concurrently, in the event of the fine not being realized.
20. Further, this Court directs that the State shall pay to the prosecutrix/victim an appropriate sum as victim compensation in terms of Rules 3 and 5 read with Entry 2 to the schedule of the Delhi Victims Compensation Scheme 2011 (notified on 02.02.2012) read with section 357-A of the Cr.P.C. The terms of the scheme entitle every rape victim to minimum compensation of Rs.2 lacs and a maximum compensation of Rs.3 lacs. Having regard to the facts of the case and the circumstances of the prosecutrix/victim, the Government of NCT is directed to pay an appropriate amount of compensation to the victim. 75 % of the amount shall be deposited in a fixed deposit, in terms of Rule 7 of the Scheme, in a nationalized bank for a period of three years and the remaining 25 % shall be available for utilization and initial expenses by the victim/prosecutrix.
21. These directions shall be complied within six weeks. The Delhi Legal Services Authority, which is the designated body under the said Scheme, shall oversee the implementation of these directions. The State Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 57 of 59 ::-
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shall ensure that the victim is duly informed within one week. The victim/prosecutrix be produced by her immediate family before the Delhi Legal Services Authority on 17.09.2013 for the said purpose.
22. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
23. A copy of the judgment dated 06.09.2013 and a copy of the order on sentence dated 07.09.2013, duly attested, besides the complete set of copy of the relevant case record, in compliance of directions of the High Court, be given to the convict, namely, Mr.Shankar Singh, free of cost imme- diately.
24. A copy of the judgment dated 06.09.2013 and a copy of the order on sentence dated 07.09.2013 also be given to the Additional Public Prosecutor, as requested.
25. After completion of the formalities and expiry of the period of limitation, the ahlmad is directed to consign the file to the record room.
Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 58 of 59 ::-
-:: 59 ::-
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 07th day of September, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
*************************************************************** Sessions Case Number : 120 of 2013.
Unique Case ID Number : 02401R0309052013.
FIR No. 132/2013. Police Station Kirti Nagar.
Under section 376 of the Indian Penal Code.
State versus Shankar Singh. -:: Page 59 of 59 ::-