Delhi District Court
State vs . Dev Raj Sharma; on 7 September, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE / SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No : 57336/16
State
Versus
Dev Raj Sharma
S/o Late Sh. Sunhari Ram
R/o D400, Jahangirpuri,
Delhi.
FIR No. : 583/13
Police Station : Jahangirpuri
Under Sections : 376 IPC
Date of Committal to Sessions Court : 31.03.2014
Date on which Judgment reserved : 02.09.2019
Date on which Judgment announced : 07.09.2019
JUDGMENT
1. The accused has been forwarded to face trial for raping elder sisterinlaw (sali).
2. The case FIR was registered on 26.12.2013 on the statement of victim to the effect that she had gone to her parental house in Jahangirpuri on 25.12.2013 at 1.00 pm and stayed there over night. Next morning at about 11 am, she went to the house of her younger sister Sudha married with the accused, who was residing in the same vicinity. Accused was also present in the house. They took breakfast together and State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 1 of 15 she alongwith the accused again came to her parental home at about 4 pm and took tea with his Bhabhi Shivani W/o Harish Kumar. While taking tea, she recollected that she had forgotten sweater in the house of her sister and so, she asked the accused to bring sweater and drop her to her house in Prashant Vihar. The accused said that he would have to collect his helmet and driving licence, so she should accompany him to his house and from there, she would be dropped to her house. Accordingly, she boarded his bike and reached to his house in the same vicinity. Accused opened the lock and she went in the house to bring sweater but the door was closed and bolted from inside by the accused and he raped her and simultaneously, threatened that if she told anybody about the incident, she would be defamed. He dropped her to the bus stand on his bike and made her to board a bus leading to Prashant Vihar. She was raped 23 times earlier also by the accused during the marriage days of her brother Harish Kumar. After reaching home, she though a lot and ultimately, told her husband about the incident.
3. Charge under Section 376 IPC was framed against the accused on 22.07.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove the case, prosecution examined sixteen witnesses.
5. As PW9, the prosecutrix could not recollect the date and month when she had gone to her parental house in Jahangirpuri. But it was Sunday of winter season. Her parents, brother Harish Kumar and his wife Shivani met her in the house where she stayed over night. She State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 2 of 15 left for her house next day after receipt of phone call of her husband. After reaching home, she realized that she had left her sweater at her parent's house. So, she alongwith her son Nitin again went there and returned to her house with sweater. Her brotherinlaw/accused had met her at her parental house when she had gone there first time. She next deposed that in the presence of her parents, brother and Bhabhi, accused caught hold of her hair which she resisted. There was a quarrel between them and so, she left for her house. She next deposed that after reaching home, she told her husband about the incident who informed police on phone. He took her to PS Jahangirpuri where her thumb impression at pointA on statement Ex.PW9/A was obtained forcibly. Thereafter, she was taken to BJRM Hospital where she was medically examined. She admitted that her statement Ex.PW9/B U/s 164 Cr.P.C. was recorded. She could not recollect whether her clothes were taken in possession by the doctor or not. Petticoat Ex.P2 was shown to her but she stated that it did not belong to her. About bedsheet Ex.P1, she deposed that same was not seized from the house of the accused in her presence.
In cross examination on 18.02.2016 by Ld. Additional PP, she admitted it correct that she had gone to the house of the accused on his bike in order to recollect the sweater. She admitted it correct that when she entered the room to collect the sweater, accused bolted the door from inside and did galat kaam with her threatening that if she disclosed the incident to anybody, she would be defamed.
FIR No. 583/13; PS: Jahangirpuri Page No. 3 of 15 In cross examination by defence counsel, she deposed that she had made complaint to the police due to misunderstanding between both families and that is why she had approached Hon'ble High Court for quashing of FIR.
6. PW15 Shivani Sharma is wife of brother of victim. She deposed that the prosecutrix had come to their house on 25.12.2013 as she alongwith her husband and children had to go to Ujjain. For that visit, her husband and accused had gone to bank to withdraw money and returned after sometime. She next deposed that her sisterinlaw (victim) had to take money from the accused and so, she started quarreling with him and they had to intervene in order to separate them. Her other sisterinlaw was also present at that time. She next deposed that she alongwith her husband and accused went to market and when they returned, the victim had already left the house. At that point of time, there came two police officials and took accused with them. In cross examination by Ld. Additional PP, she deposed that she had not told police that after having tea at her home, the victim asked the accused to bring sweater from his house which she had forgotten there and that she (victim) went to the house of the accused with him on his bike.
7. PW1 HC Jaipal registered DD No. 36A Ex.PW1/A on 26.12.2013 at 9 pm when the prosecutrix informed him about the rape with her by her own brotherinlaw. On the same day at 11.40 pm, he registered case FIR Ex.PW1/B when tehrir was handed over to him by Ct. Naresh sent by WSI Renu Bala.
FIR No. 583/13; PS: Jahangirpuri Page No. 4 of 15 PW14 W/Ct. Sheela Devi deposed that she alongwith SI Renu Bala, on receipt of DD no. 36A, took victim to BJRM Hospital and after medical examination, the doctor handed over sexual assault evidence collection kit in sealed condition and sample seal to SI which she seized vide seizure memo Ex.PW14/A. She next deposed that statement of the prosecutrix was recorded in the hospital and handed over to Ct. Naresh after making endorsement. Ct. Naresh got the case FIR registered. She alongwith SI and complainant went to the house of accused in Jahangirpuri and IO prepared rough site plan on the pointing out of the prosecutrix. Ct. Naresh came there and handed over original rukka and computerized copy of FIR to IO. The accused was also present in his house and he was arrested vide arrest and personal search memos Ex.PW8/A and Ex.PW8/B respectively and after interrogation, his disclosure statement Ex.PW8/F was recorded. Case property was deposited in the Malkhana.
8. PW7 SI Nand Kishore was Incharge Crime Team, North west District on 27.12.2013 when he alongwith photographer PW5 Ct. Parvinder visited H. No. D400, Ground Floor, Jahangirpuri where WSI Renu Bala and other police staff were also present. He inspected the spot and found liquid like semen on floor which was lifted with the help of cotton. The bedsheet was also lifted from there and both articles were handed over to WSI Renu Bala. The detailed inspection report Ex.PW7/A prepared by him was also given to the IO. PW5 clicked six photographs Ex.PW5/A1 to Ex.PW5/A6 of the room i.e. the place of State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 5 of 15 incident from different angles.
9. PW6 Dr. Jitendra Nath Jha identified the signatures and handwriting of Dr. Pankaj and Dr. Dilip Kumar. Dr. Pankaj had initially examined the prosecutrix on 26.12.2013, prepared MLC Ex.PW6/B and referred her S.R. Gynae for further examination. He next deposed that the accused was examined by Dr. Dilip Kumar in casualty, MLC Ex.PW6/A was prepared and then the accused was referred to him for potency test. He next deposed that he collected the exhibits of the accused and handed over the same to police and then referred to forensic department.
PW3 Dr. Bhim Singh, while working as M.D. Forensic Medicine, BJRM Hospital, conducted potency test of the accused and opined that there was nothing to suggest that he was not capable to perform sexual intercourse. He prepared report Ex.PW3/A. PW10 Dr. R. Kappu identified signature and handwriting of Dr. Latika Phogat, S.R. Gynae. He deposed that after initial medical examination, the victim was referred to S.R. Gynae for further examination. Dr. Latika Phogat, S.R. Gynae examined her and made observation at encircled portion X on MLC Ex.PW6/B. The samples were also collected by Dr. Latika Phogat and handed over to IO.
10. PW8 Ct. Naresh deposed that on the asking of SI Renu Bala, he went to BJRM hospital on 26.12.2013 at about 9.30 pm, where the IO handed over him a tehrir which he took to the police station, got the case FIR registered and returned to the spot i.e. house of the accused and State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 6 of 15 handed over copy of FIR to the IO. The accused was arrested vide arrest and personal search memos Ex.PW8/A and Ex.PW8/B respectively and he was medically examined in BJRM Hospital. He next deposed that after medical examination, doctor handed over two sealed parcels alongwith sample seal to him which he handed over to the IO who seized the same vide seizure memo Ex.PW8/C. He next deposed that the crime team officials had also inspected the spot and lifted semen and the bedsheet from there. Semen was seized vide seizure memo Ex.PW8/D and bedsheet vide memo Ex.PW8/E. Disclosure statement Ex.PW8/F of the accused was also recorded.
PW12 ASI Arvind Kumar got conducted potency test of the accused in BJRM Hospital on 03.02.2014 vide application Ex.PW12/A.
11. PW2 HC Sandeep was working as MHC(M) in PS Jahangir Puri on 26.12.2013 when SI Renu Bala deposited one sealed pullanda alongwith sample seal in malkhana for which he made entry no. 4306 Ex.PW2/A in register no. 19. He next deposed that the IO deposited two sealed pullandas and two sample seal in malkhana on 27.12.2013 for which he made entry no. 4310 Ex.PW2/B in register no. 19. On 13.01.2014, he handed over all sealed pullandas alongwith sample seal to Ct. Sidharth vide R.C. No. 6/21/14 Ex.PW2/C, who deposited the same in FSL, Rohini and handed him over receipt of acknowledgment Ex.PW2/D. PW4 Ct. Sidharth deposed that he had deposited the case property in FSL, Rohini on 13.01.2014 after taking delivery of same State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 7 of 15 from MHC(M).
12. PW13 Ms. Shashi Bala Pahuja, Sr. Scientific Officer (Biology), FSL, Rohini deposed that she had experience of more than 20 years in examining the exhibits biologically and serologically and DNA finger printing. In the case in hand, the SHO had sent five sealed parcels to FSL on 13.01.2014 which were marked to her for examination and analysis. She conducted biological and serological examination and gave reports Ex.PW13/A and Ex.PW13/B respectively.
PW11 Ld. MM Sh. Manish Khurana had recorded statement Ex.PW9/B of the prosecutrix U/s 164 Cr.P.C. on 31.12.2013.
13. PW16 IO / SI Renu Bala deposed that the prosecutrix came to the police station on 26.12.2013 and got lodged DD No. 36A which was assigned to her for investigation. She and W/Ct. Sheela took her to BJRM Hospital where she was medically examined. Doctor handed over nine sealed parcels alongwith sample seal which were she seized vide seizure memo Ex.PW14/A. She recorded statement Ex.PW9/A of the prosecutrix, prepared rukka Ex.PW16/A and got the case FIR registered through Ct. Naresh. She next deposed that she alongwith victim and W/Ct. Sheela went to the spot i.e. house of the accused bearing no. D 400, Ground Floor, Jahangirpuri and prepared site plan Ex.PW16/A at the instance of prosecutrix. Crime team also inspected the spot and clicked photographs from different angles. Crime Team Incharge gave report Ex.PW7/A to her. The bedsheet was lifted from the spot and seized vide seizure memo Ex.PW8/E. Semen stains were also lifted State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 8 of 15 from the floor, kept in a plastic container which was sealed with the seal of RB and taken into possession vide seizure memo Ex.PW8/D. The accused was also present his house and he was arrested. She took the prosecutrix to the court on 31.12.2013 and got her statement U/s 164 Cr.P.C. recorded. She next deposed that the case property was deposited in FSL, Rohini on 13.01.2014.
14. Under Section 313 Cr.P.C., the accused took the defence of false implication on the ground that hot arguments were exchanged between him and the prosecutrix but he did not catch hold of her hair. He further stated that when he was sitting in his inlaws house, two police officials came there and asked him to accompany them for enquiry. He further stated that he had borrowed Rs. 1,25,000/ from the prosecutrix which he was not able to repay and hence, she falsely implicated him in this case.
15. Accused did not examine any witness in defence.
16. Ld. defence counsel argued that in examination in chief, the prosecutrix deposed that the accused had not raped her. She had altercation with him in the presence of her parents, brother and Bhabhi. She had reported that quarrel to her husband after reaching home in Prashant Vihar who took her to PS Jahangirpuri where her thumb impression was obtained on the statement which was never made by her. When she was cross examined, she supported the prosecution case but in the form of leading questions. When she was cross examined by defence counsel, she again took Uturn and deposed that she had given complaint State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 9 of 15 against the accused due to misunderstanding and only due to that reason, she had approached Hon'ble High Court for quashing of FIR. Counsel next argued that the victim is not supported by her Bhabhi PW15.
Ld. defence counsel next argued that the prosecutrix was medically examined on the same day but no external injury was found on her body. Samples were collected on the same day but no semen was detected. Hence, there is no corroboration to the victim's version from medical and FSL report.
17. On the other hand, ld. Additional PP admitted that no external injury was found on the body of the victim and also semen of the accused was not detected on the samples collected from victim. He also admitted that victim's Bhabhi did not support the version of the prosecutrix. But on the evidence of the prosecutrix, Ld. Additional PP argued that the prosecutrix has supported the prosecution case in the cross examination done by him.
18. Prosecutrix deposed in examination in chief dated 27.04.2015 that she had a quarrel with the accused in her parental house in the presence of her parents, brother Harish Kumar and her Bhabhi Shivani Sharma. Thereafter, she went to her house in Prashant Vihar and told about the quarrel to her husband, who had took her to the police station where her thumb impression was obtained on the statement which was never made by her. Regarding the case property, torn petticoat Ex.P2, she deposed that the same did not belong to her. About bedsheet Ex.P1, purporting to have seized from the spot i.e. house of the accused, State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 10 of 15 she deposed that the same was not seized in her presence. So, as per examination in chief, the victim had not gone to house no. D400 of the accused in Jahangir Puri on 26.12.2013. She had altercation with him in her parental house in the presence of her family members.
She was cross examined on the same day by ld. Additional PP in which she deposed that she had gone to her parent's house on 25.12.2013 and returned to her house on the same day on receipt of phone call of her husband. She refuted the suggestion that she had stayed overnight in her parent's house. She next deposed that she had visited her younger sister Sudha's house but the accused was not present there. She next deposed that from her sister's house, she straightway went to her house in Prashant Vihar. She reiterated that she had met the accused in her parent's house at 12.30 pm. But when she was cross examined on 18.02.2016, she answered in leading manner that when the accused met her in the house of her parents, she told him that she had forgotten her sweater in his house and so, he should bring the sweater. She admitted it correct that she went to the house of accused Devraj on his bike and he opened the lock of the house and when she entered the room to take sweater, he bolted the door and did galat kaam with her. She further admitted it correct that the accused had threatened her that if she disclosed the incident to anybody, she would be defamed. She further admitted that the accused was arrested at her instance.
FIR No. 583/13; PS: Jahangirpuri Page No. 11 of 15 On the same day i.e. 18.02.2016, she was cross examined by defence counsel in which she deposed that she had given complaint against the accused due to misunderstanding between both families and due to only that reason, she had approached Hon'ble High Court of Delhi for quashing of FIR.
19. Above discussion shows that there are three versions of the prosecutrix before this Court. In examination in chief, she deposed that the accused had not raped her and rather, both had only quarreled in her parental house in the presence of her parents, brother and Bhabhi. She did not depose even in cross examination by Ld. Additional PP dated 27.04.2015 that she had been raped by the accused in his house. But she answered in response to the leading questions put by Ld. Additional PP that she was raped by the accused in his house on 26.12.2013. In the cross examination by defence counsel on 18.02.2016, she again took Uturn and deposed that she had given a false complaint against accused due to some misunderstanding.
20. Version of the prosecutrix that the accused raped her in his house on 26.12.2013, is not supported even by her Bhabhi i.e. PW15 Shivani Sharma who deposed that the victim had come to their house on 25.12.2013. On that day, her husband and accused had gone to bank to withdraw money and when they returned after sometime, the victim started quarreling with accused as she had to take money from him which he was not returning. She and her husband had to separate them. His other sisterinlaw was also present at that time. Thereafter, she State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 12 of 15 alongwith her husband and accused went to the market and when they returned, the victim had already left the house. So, as per PW15 also, no rape was committed by the accused and rather, the dispute between accused and victim was over demand of money.
21. The prosecutrix was medically examined on the same day at 9.32 pm and as per MLC Ex.PW6/B, she did not have any external injury over her body. A lady definitely resists forcible sexual intercourse and naturally the victim might also have resisted and in that process, either she or accused or both would have sustained some injury. But she did not have any external mark of injury. The accused was medically examined next day at about 1.57 am on 27.12.2013 and he also did not have any external injury. So, the prosecutrix is not corroborated by the medical evidence.
22. As per FSL report Ex.PW13/A, a torn petticoat was found stained with human semen, but the prosecution has failed to connect the same with the crime as it has been deposed by the prosecutrix that the petticoat did not belong to her. No other witness appeared and deposed that he / she had seen prosecutrix wearing that petticoat.
Strange thing is that despite collecting sample on the same day, no human semen was detected from swabs and vaginal secretion, etc. The bedsheet purporting to have been seized from the spot, was also not found stained with any kind of semen. Prosecution case is that semen stains lying on the floor of the room of the accused were also seized. But as per FSL report, it was not semen.
FIR No. 583/13; PS: Jahangirpuri Page No. 13 of 15 As per Biology Division report, the petticoat was found stained with the blood of A group, but as observed earlier, the same could not be connected with accused or crime. Blood sample of the accused was also collected by the doctor by whom he was medically examined but the FSL could not detect the blood group. So, Biology Division report is also not supporting the prosecution case.
23. It is the settled law that accused can be convicted on the sole testimony of prosecutrix provided the testimony is trustworthy and reliable.
In Abbas Ahmad Choudhary vs. State of Assam, I (2010) CCR 402 (SC), it has been observed as under: "We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
In Sadashiv Ramrao Hadbe vs. State of Maharashtra & Anr., 2006 (1)) SCC 92, the Apex Court while reiterating that in a rape case, the accused can be convicted on the sole testimony of prosecutrix, if it is capable of inspiring confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony, when the entire case is improbable and unlikely to have happened. This what has been stated: State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 14 of 15 "It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or that whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
24. Accordingly, accused Dev Raj Sharma is acquitted of the offence, he was charged with.
The personal and surety bonds of the accused are hereby cancelled. Surety is hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document be returned to surety.
25. However, in terms of Section 437(A) Cr.P.C., accused has furnished the fresh personal bond in the sum of Rs. 10,000/ with one surety of the like amount which are accepted with the directions to appear before higher court, in the event, he receives any notice of appeal or petition against the judgment.
File be consigned to record room.
Digitally signed by UMED UMED SINGH
SINGH GREWAL
Date: 2019.09.07
GREWAL 17:19:51 +0530
Announced in the open Court (Umed Singh Grewal)
On this 7th September 2019 ASJ: Special FTC (North)
Rohini Courts: Delhi
State vs. Dev Raj Sharma;
FIR No. 583/13; PS: Jahangirpuri Page No. 15 of 15