Delhi District Court
State vs Ram Kumar on 19 October, 2011
FIR No. 149/10 State Vs Ram Kumar Police Station Punjabi Bagh Under Section 376 IPC Convicted u/ s 354 IPC 19.10.2011 Pre: Convict Ram Kumar is in JC. His wife and brother are also present. Convict Ram Kumar has no counsel. Arguments on sentence heard. Vide separate order placed along side in the file, convict is sentenced for the offence u/s 354 IPC to undergo 18 months Rigorous Imprisonment. Benefit of Section 428 Cr. P. C. be given to the convict. Copy of this order and judgment be given to the convict at free of cost forthwith. Orders accordingly. (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi State Vs Ram Kumar FIR no.149/10 1 / IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. FIR No. 149/10 State Vs Ram Kumar Police Station Punjabi Bagh Under Section 376 IPC Convicted u/ s 354 IPC ORDER ON THE POINT OF SENTENCE 19.10.2011 Pre: Convict Ram Kumar is in JC. His wife and brother are also present. Convict Ram Kumar has no counsel. Convict submits that he is a poor person. He is rickshaw puller. He has four children to look after. He has also old parents who are suffering from old age ailments. He further submits that he is languishing in judicial custody w.e.f. for 22.05.2010. He again submits that he has no previous criminal antecedents. On these grounds convict requests for taking lenient view while awarding sentence. Having heard the submissions of convict and keeping in view of his family background and period of custody since he is in JC w.e.f. State Vs Ram Kumar FIR no.149/10 2 / 22.05.2010 to my view the ends of justice will be met if convict is sentenced for the offence u/s 354 IPC to undergo 18 months Rigorous Imprisonment. Accordingly, convict Ram Kumar is sentenced for the offence u/s 354 IPC to undergo 18 months. Benefit of Section 428 Cr. P. C. be given to the convict. Orders accordingly. ANNOUNCED IN THE OPEN COURT ON THIS 19.10.2011 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi State Vs Ram Kumar FIR no.149/10 3 / IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 234/1/10 Assigned to Sessions. 11/08/10 Arguments heard on 29.09.2011 Date of order. 15.10.2011 FIR No. 149/10 State Vs Ram Kumar s/o Rameshwar Prasad, R/o Jhuggi No.214, Indra Colony, Rampura, Delhi. Permanent Add: Village Khajri, PS & Post Office, Salvan, Distt. Raibareli, U.P. Police Station Punjabi Bagh Under Section 376 IPC JUDGEMENT
1. Briefly facts of the case as per version of PW3 prosecutrix Mrs. Rekha is that she along with her husband used to live as tenant in the Jhuggi of accused Ram Kumar for the last 9 10 months prior to the incident. On 19.05.2010 at around 12 noon husband of prosecutrix had gone to ply rickshaw. Prosecutrix Rekha was alone inside the jhuggi. Prosecutrix alleged that at around 2p.m. when she was sleeping in side the jhuggi, State Vs Ram Kumar FIR no.149/10 4 / accused Ram Kumar knocked the door of her jhuggi and called her by name. It has also been alleged by the prosecution that accused told her to return the gas (small gas cylinder having a burner). The gas was of his another tenant. On this, she opened the door and picked up the gas cylinder with the object to put the same outside the Jhuggi. As soon as she opened the door accused entered the Jhuggi and bolted the gate from inside. She raised alarm but no person was present there as it was noon of summer season. Accused caught hold her and laid her on the ground. Thereafter, he raped her after lifting her patticot and sari. She could not resist because accused is more stronger and taller then her. After committing rape, accused threatened her not to disclose about the incident to anyone by uttering words "Yadi Tune Is Baare Me Kisi Ko Kuch Bataiya To Teri Hi Badnami Hogi". Thereafter, accused left the jhuggi. She got frightened. Her husband came back at jhuggi at around 10 p.m. and then she narrated the incident to her husband. Thereafter, they went to police station in the morning of 20.05.2010. She was taken to hospital for medical check up but she refused for medical check up before the doctor due to agony (badnami) in the State Vs Ram Kumar FIR no.149/10 5 / society. Thereafter, they came back to house and discussed the matter with their relatives. Thereafter, she again went to police station on 21.05.2010 and got lodged a complaint against the accused vide Ex.PW3/A. She was produced before the Magistrate on the next date where her statement was recorded vide Ex.PW2/A. It has also been alleged by the prosecutrix that when accused was raping her, she tried to cry but accused threatened her that "Yadi Tu Chillayegi Ya Kisi Ko Batayegi To Teri Hi Badnami Hogi and that Tu Chahe Jaha Rahegi Teri Ijjat Le ke Chodunga". She handed over clothes to the doctor on 21.05.2010 which she was wearing on the date of incident.
2. In this regard, on 21.5.2010 a DD No. 19A vide Ex. PW10/A was recorded in the police station by duty officer. This DD was marked to PW12 SI Urmil Sharma. IO made enquiry from Smt. Rekha and recorded her statement vide Ex. PW3/A. IO endorsed the statement of Smt. Rekha, vide Ex. PW12/B and gave original Tehrir to the Duty officer for getting the case registered. After registration of the case IO alongwith Ct. Harjinder Singh, complainant Smt. Rekha and her husband State Vs Ram Kumar FIR no.149/10 6 / Vinod Kumar reached at the residence of Smt. Rekha i.e. Jhuggi No. 213, Indira Colony, Rampura Transport Center, Delhi, where she prepared site plan at the instance of Smt. Rekha vide Ex. PW12/C. Accused Ram Kumar was arrested from his jhuggi i.e. jhuggi No. 214, Indira Colony, Rampura Transport Center , Delhi, at the pointing out of Vinod Kumar, husband of Smt. Rekha. Accused was arrested vide arrest memo and personal search memo and descriptive sheet Ex. PW4/A and PW4/B and Ex. PW12/D respectively. After completing all the formalities, challan was filed to the court.
3. This case was committed to this Court vide dated 11.08.2010 for trial as it pertains to the heinous crime committed under section 376 IPC which is exclusively triable by court of Sessions.
4. To prove and substantiate its case the prosecution has examined 13 witnesses namely PW1 ASI Jile Singh duty officer; PW2 Mr. Ajay Garg, ld. MM; PW3 Ms. Rekha - victim (prosecutrix); PW4 Vinod husband of prosecutrix; PW5 HC Balwan Sahai, PW6 Dr. Mahipal Singh, CMO SGM State Vs Ram Kumar FIR no.149/10 7 / Hospital; PW7 Dr. Binay Kumar, Medical Officer, Sanjay Gandhi Memorial Hospital; PW8 Dr. Beenu, Sr. Resident; PW9 Dr. Priyanka, Sr. Gynae; PW10 HC Sushila Devi - duty officer on 21.05.2010 at PS Punjabi Bagh; PW11 Ct. Anil - formal witness who deposited parcels at FSL Rohini on 08.06.2010; PW12 SI Urmil Sharma - Investigating Officer; and PW13 Ct. Harjinder.
5. PW1 ASI Jile Singh is the formal witness being duty officer on 21.05.2010 from 4p.m. to 12 mid night. He deposed that ASI Urmil Sharma produced rukka herself and on the basis of the same he recorded FIR of the present case. This witness got exhibited the photocopy of FIR as Ex.PW1/A. This witness has not been cross examined.
6. PW2 Sh. Ajay Garg, the then ld. MM, came to the witness box and deposed that on 22.05.2010 he had recorded the statement of prosecutrix Rekha u/s 164 Cr.PC. In this regard, ld. MM got exhibited the statement recorded u/s 164 Cr.PC as Ex.PW2/A; application of the State Vs Ram Kumar FIR no.149/10 8 / IO requesting for recording statement u/s 164 Cr.PC as Ex.PW2/B and application for supply of copy of statement of prosecutrix recorded u/s 164 Cr.PC as Ex.PW2/C. This witness has not been crossexamined.
7. PW4 Vinod husband of the prosecutrix came to the witness box and deposed that on 19.05.2010 he had gone to ply rickshaw at around 11 or 12 noon and came back to home at around 9 or 10 p.m. Her wife told her about the incident. He deposed that in the morning of next day they went to PS but did not get medical test of prosecutrix due to fear because he understood that prosecutrix may be operated. On the next day after consulting with relatives and to get punished the culprit they again went to police station and got the case registered against accused and her wife was got medically examined. He affirmed the fact that accused was arrested on 21.05.2010 vide arrest memo Ex.PW4/A and personal search memo Ex.PW4/B. This witness further deposed that accused is dabang type person. They have paid all rent to him. This witness further deposed that accused has raped her wife due to which he is facing shame. This witness has been crossexamined at length. I State Vs Ram Kumar FIR no.149/10 9 / have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. No contrary evidence in the crossexamination has come on record which may go to the root of this case.
8. PW5 HC Balwan Sahai is a formal witness being MHC(M) at PS Punjabi Bagh on 21.05.2010. He deposed that on 21.05.2010, 15 sealed pulandas along with sample seal relating to the prosecutrix was deposited. She also handed over two sealed pulandas along with sample seal. In this regard he made entry in register no.19 at serial no. 3468. This witness further deposed that on 08.06.2010, 17 exhibits of this case along with two sample seal were sent to FSL Rohini vide RC no.48/21/10 through Ct. Anilk Kumar. This witness got exhibited the photocopy of the record as Ex.PW5/A. Testimony of this witness has not been challenged.
9. PW6 Dr. Mahipal Singh, CMO, SGM Hospital came to the witness box and deposed that on 21.05.2010 he was posted at SGM (M) Mangol State Vs Ram Kumar FIR no.149/10 10 / Puri. He deposed that prosecutrix was brought to hospital with the alleged history of sexual assault on 19.05.2010. He referred the patient/ victim to gynae department for further examination and expert opinion. This witness got exhibited the MLC of victim as Ex.PW6/A. This witness has not been crossexamined.
10. PW7 Dr.Binay Kumar Medical Officer Sanjay Gandhi Memorial Hospital Mangolpuri Delhi came to the witness box and deposed that on 20.05.2010 at about 5.10P.M. he was posted as CMO at Sanjay Gandhi Memorial Hospital. On that day one lady namely Rekha wife of Vinod Kumar, 20 years was brought by W/SI Urmil Sharma for medical examination with alleged history of sexual assault on 19/05/2010 at around 2PM, as told by patient herself. On examination patient was found to be conscious and oriented and her vitals were within normal limits. This witness mentioned in the MLC that local examination is to be conducted by Gynae SR. He referred the patient to labour room for Gynae opinion. He obtained thumb impression of the patient on the MLC and prepared MLC No.7701 vide Ex Pw7/A. This witness further State Vs Ram Kumar FIR no.149/10 11 / deposed that on 21/05/2010 at about 10.50PM one patient / accused namely Ram Kumar was brought by Constable Hajinder Singh for medical examination with alleged history of having committed sexual assault. On examination patient was found to be conscious and oriented and his vitals were within normal limits. This witness deposed that on local examination, he did not find any fresh external injury. Secondary sexual characters, Penis and scrotum were well developed both testis were descended into scrotum. There was no sign of veneral disease. Smegma was found present. This witness opined that there was nothing to suggest that patient (Accused) was not capable of performing sexual intercourse. One Underwear of red colour and blood sample of Ram Kumar were seized/taken and later on handed over to the Police Officer. He obtained the thumb impression of Ram Kumar on MLC No.7682 vide Ex Pw7/B. This witness has been cross examined at length. I have perused the same. I do not find any material contradiction which may go to the root of this case.
11. PW8 Dr.Beenu, Sr. Resident OBS & Gynae Department Sanjay Gandhi State Vs Ram Kumar FIR no.149/10 12 / Memorial Hospital Mongolpuri Delhi came in the witness box and deposed that on 20/05/2010 one patient namely Rekha was brought by SI Urmil Sharma along with MLC No.7701 as she was referred by Dr.Binay Kumar of their hospital for Gynae opinion, with alleged history of sexual assault on 19/05/2010 around 2PM as told by patient Rekha herself and by her husband. Last Mensural period was 13/05/2010, mensural duration seven days, every 35 days irregular, painless with no clots. Obstatic history patient was married for two years, cohabiting since nine months with no issue. General condition of the patient was fair. Temperature was normal, she was conscious and oriented. Patient was not willing for internal examination. She obtained consent for refusal to undergo medical examination and she also refused to give her internal clothes. She obtained her signature and signature of her husband on the endorsement regarding refusal to undergo internal medical examination. This witness advised patient to come for menstural follow up and given Epill state. In this regard she made endorsement on the aforesaid MLC Ex PW7/A. This witness has been crossexamined at length. I have perused the same. No contrary evidence has come on record. State Vs Ram Kumar FIR no.149/10 13 /
12. PW9 Dr.Priyanka SR. Gynae Sanjay Gandhi Memorial Hospital Mongolpuri Delhi also came to the witness box and deposed that on 21/05/2010 at about 1.30PM she medically examined patient Rekha with alleged history of sexual assault on 19/05/2010 at 22.30PM by land owner. Victim was a 20 years old married female and she came with same clothes as worn at the time of assault. Patient had previously refused for medical examination. She had taken bath twice after the assault and passed urine and motion after that. No history of annal sex. Obstrucal history married before two and a half years and having no issue. Menstural history, patient stated that she had LMP on 13/05/2010. On examination, patient (prosecutrix) was found to be conscious and oriented and all the vitals were within normal limits. There was no mark of injury and there was no blood and seminal staining on the body. Nails scrapping and nail cutting on both the hands, Pubic hair, Vulval Swaband Vaginal Swab were taken, Vaginal smears, blood sample for blood grouping and drug level were taken. Under garments (including one Saree, Peticot, Blouse and Bra) were also sealed and the same were State Vs Ram Kumar FIR no.149/10 14 / handed over to the Police Officials. In this regard this witness made endorsement on MLC No.7702 regarding the examination conducted by her. The MLC is Ex Pw6/A. She also obtained the consent in writing by patient Rekha and Vinod, her husband to the effect that patient was willing to undergo her internal medical examination. This witness has been crossexamined at length by Sh. Girish Gaur Amicus Curie for the accused. In the crossexamination it has come on record that prosecutrix Smt. Rekha herself told that she had taken bath twice after the alleged incident. Rekha did not complain about any pain or bleeding in her body. Rekha handed over the clothes which she was wearing and the fresh clothes were already with her.
13.PW10 HC Sushila Devi is a formal witness in this case. being duty officer on 21.5.2010. She deposed that on that day at about 11.45 a.m. Smt. Rekha alongwith her husband came to her and got lodged her report on 20.5.2010 but her complete medical examination was not conducted and she now wanted to get her complete medical examination. This witness reduced this information into writing vide DD State Vs Ram Kumar FIR no.149/10 15 / NO. 19A and gave copy of the said DD to ASI Urmilla Sharma who alongwith Ct. Ajinder took Smt. Rekha to Sanjay Gandhi Hospital for her medical examination. This witness brought original DD register containing the said DD and true copy of the same is Ex. PW10/A. This witness has not been crossexamined.
14.PW11 Ct. Anil is also a formal witness in this case. He deposed that on 8.6.2010 he was posted at PS Punjabi Bagh. On that day Inchage of Malkahna gave 17 sealed parcel and two sample seals. He deposited the same at FSL Rohini, vide R/C No. 48/21/10 and after depositing the case property he gave receipt of the same to MHCM. The case property was not tampered with till it remained in his possession. This witness has not been crossexamined.
15.PW12 SI Urmil Sharma, IO and PW13 Ct. Harjinder are the most material witnesses in this case. Both these witness deposed that on 21.5.2010 Duty officer gave copy of DD No. 19A vide Ex. PW10/A to the IO. Complainant Smt. Rekha and her husband Vinod Kumar were also State Vs Ram Kumar FIR no.149/10 16 / produced before IO by the Duty Officer. IO made enquiry from Smt. Rekha and recorded her statement vide Ex. PW3/A. Thereafter, PW12 IO alongwith PW13 Ct. Harjinder Singh, Smt. Rekha and her husband Vinod Kumar went to Sanjay Gandhi Hospital Mangolpuri, where Smt. Rekha was medically examined by the doctor. IO collected the MLC from the hospital. Doctor at the hospital gave 15 sealed parcel and one sample seal, sealed with the seal of SGMH GNCT DELHI. IO took the case property into possession through seizure memo vide Ex. PW12/A. They came back to the PS. IO deposited the case property with the MHC(M). IO made endorsement on the statement of Smt. Rekha vide Ex. PW12/B and gave original Tehrir to the Duty officer for getting the case registered. After registration of the case, Duty Officer gave copy of FIR and original Tehrir to the IO. Thereafter, PW12 alongwith PW13 Ct. Harjinder Singh, complainant Smt. Rekha and her husband Vinod Kumar at the residence of Smt. Rekha i.e. Jhuggi No. 213, Indira Colony, Rampura Transport Center, Delhi, where site plan at the instance of Smt. Rekha was prepared vide Ex. PW12/C. Accused Ram Kumar was arrested on 21.05.2010 from his jhuggi i.e. jhuggi No. 214, Indira State Vs Ram Kumar FIR no.149/10 17 / Colony, Rampura Transport Center , Delhi, at the pointing out of Vinod Kumar, husband of Smt. Rekha, vide arrest memo of accused; personal search memo and Descriptive Sheet of accused which are exhibited as Ex. PW4/A and PW4/B and Ex. PW12/D respectively. Accused was sent to Sanjay Gandhi Hospital in the custody of Ct. Harjinder Singh for his medical examination. After the medical examination, Ct. Harjinder alongwith accused met IO at the PS and he produced two sealed parcel and one sample seal. IO took the same into possession vide Ex. PW12/E. IO deposited the case property in the Malkhana. On 22.5.2010, accused Ramkumar was produced before the concerned court from where he was sent to J/C. IO moved an application for recording the statement of prosecutrix u/s 164 Cr.P.C vide request Ex. PW12/F and on the same day her statement was recorded by Ld. M.M. IO had also moved an application to obtain the copy of the statements vide Ex. PW12/G. PW12 IO further deposed that On 8.6.2010, Ct. Anil was sent to FSL Rohini to deposit the case property vide RC No. 48/21/10. Both these witnesses have been crossexamined at length. I have perused the same. In their crossexamination I found some State Vs Ram Kumar FIR no.149/10 18 / contradictions which are not material contradictions and are bound to be occurred due to lapse of time and memory of a human being.
16.After completing the prosecution evidence statement of accused u/s 313 Cr. PC was recorded in which the defence of accused was of denial in simplicitor. However, no defence evidence was led by the accused. Accused pleaded that he is innocent and he has been falsely implicated in the case. He did not commit any rape upon Rekha. This case has been got registered falsely by the complainant as she and her husband had landlordtenant dispute with accused and they wanted to grab the tenanted jhuggi.
17.Arguments were heard at length. It is argued by the learned Amicus Curiae that accused is innocent and he has been falsely implicated in this case. There is no other evidence except the evidence of prosecutrix that she has been raped by the accused. Ld. counsel again argued and submitted that victim and her husband wants to grab the jhuggi of accused since she is tenant of accused. Ld. counsel again argued and State Vs Ram Kumar FIR no.149/10 19 / submitted that no independent witness has been joined in this case while the alleged incident had occurred in afternoon time. It is also argued and submitted that medical evidence also does not support the prosecution story. On these grounds ld. Amicus Curiae submitted that accused be acquitted by giving him benefit of doubt.
18.Contrary to it, ld. APP argued and submitted that prosecution has successfully proved its case since prosecutrix has correctly identified the accused as culprit who raped her. Ld. APP further argued and submitted that alone statement of prosecutrix is sufficient to hold the accused guilty in rape cases. In support of his contentions he has stated that it has been held on the point of sexual assault that:
"The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict and accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape of sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence on State Vs Ram Kumar FIR no.149/10 20 / an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity I the shape of rule of law is introduced through a new form of testimonial tyranny making justice a causality. Courts cannot cling to a fossil formual and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
In another case of S. Ramakrishna Vs. The State 2008 (11) JT 635, the Apex Court while delivering this judgment also observed:
"10. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (In short "the Evidence Act") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence "
The contentions of ld. Amicus curiae that having not found any injury on the private part of the prosecutrix exfacie indicates that no rape could have been committed. Ld. APP opposing the aforesaid contentions of the Amicus Curiae contended that in case 'B.C. State Vs Ram Kumar FIR no.149/10 21 / Deva Vs. State of Karnataka 2007 VII AD (S.C.) 143= 2007 12 SCC 122, it has been held that merely because no injury was found on the private parts of the prosecutrix would not negate her testimony about the rape committed on her.
"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
19.In light of the aforesaid contentions of Amicus curiae and ld. APP I find major contradictions in the statement of PW3 prosecutrix with regard to the allegations of rape since after two days of incident she got medically examined herself and got the case registered after consulting with some relatives as incident occurred on 19.05.2010 while FIR has been registered on 21.05.2010. Besides, no medical evidence has come on record which may suggest that prosecutrix was subjected to rape by accused since PW6 Dr. Mahipal Singh, PW7 Dr. Binay Kumar, PW8 Dr. Beenu and PW9 Dr. Priyanka have also not supported the prosecution story on the point of committal of rape upon the prosecutrix. No witness State Vs Ram Kumar FIR no.149/10 22 / from FSL has been examined in this case while exhibits were sent to FSL for test. Therefore, in absence of scientific and technologically principles the statement of prosecutrix was found unworthy of credit. However, it has come on record in the statement of prosecutrix PW3 that accused had removed her clothes/ patticot. Thus, the act of accused falls within purview of section 354 IPC for outraging the modesty of the prosecutrix intentionally. However, there is blurred distinction between outraging the modesty of a woman and committal of rape. In this regard the following important observations have also been made in several cases which are as under: In 'Basudev Nain Vs State 1991 Cr. LJ 1594 (Ori)' it has been observed that :
"When the accused dragged a lady to some distance, stripped her of her clothing, and made her stark naked and did some immoral act not amounting to rape or attempt to rape, he is guilty under section 354 IPC".
Again in 'Kuthu Vs State of Madhya Pradesh 1998 Cr.LJ 960 (MP)' the following observation has been made ;
"When the accused took the prosecutrix to a lonely place by deception, then suddenly pushing bunch of leaves into her mouth and untid her undergarments, the offence of outraging modesty is proved."
In another case 'Shivraj Chandrappa Vs State of Maharashtra 1998 State Vs Ram Kumar FIR no.149/10 23 / Cr. LJ 3168 (Bom)' it was observed that: "The accused asked the victim gril to go inside the room to bring the tobacco packet, followed her into the room, locked the door from inside, wrapped cloth around her mouth so that she could not should and fell her on the wooden trunk in an attempt to rape her. She anyhow removed the cloth wrapped round her mouth and shouted, released herself and ran way. The accused is guilty of outraging modesty and wrongful confinement of the victim girl."
The relevant section 354 IPC is being reproduced verbatim which is as under: Section 354 IPC "Assault or criminal force to woman with intent to outrage her modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
In view of the observations made in the judgments by the Hon'ble Superior Courts the sum and substance with regard to the conviction of accused on the statement of prosecutrix alone is that corroboration from other sources for the conviction for the offence of rape is not mandate of law but the rules of prudence developed and laid down by the catena of judgments of superior courts. In the present case it has come on record in the statement of prosecutrix that accused entered into the jhuggi of prosecutrix on 19.05.2010 at around 2 p.m. and forcibly committed some misdeeds with the prosecutrix as deposed by State Vs Ram Kumar FIR no.149/10 24 / the prosecutrix in the deposition recorded u/s 164 Cr.PC vide Ex.PW2/A by PW2 Sh. Ajay Garg, the then Ld. MM. So long as the other aspects regarding conviction for the offence of rape is concerned, in this regard no witness from FSL has been examined to prove the material circumstances like the clothes of prosecutrix and accused, semen, medical report etc. So to my view under the present circumstances of the case the conviction of accused in absence of corroboration will lead to miscarriage of justice. However, no woman in the Indian ethos and pathos and cultural traditions will tell a lie regarding her modesty and chastity in the Society, so the deposition of prosecutrix cannot be denied in toto but an inference can be drawn that if no rape has been proved by some other external circumstance yet it can safely be inferred that accused outraged the modesty of the prosecutrix which is an offence punishable u/s 354 IPC. The conclusion to this effect can very well be ascertained from the deposition of PW2 Sh. Ajay Garg, the then Ld. MM who had recorded the statement of prosecutrix u/s 164 Cr.PC vide Ex PW2/A and the deposition of the prosecutrix herself vide Ex.PW3/A. It is well settled State Vs Ram Kumar FIR no.149/10 25 / preposition of law that accused can be convicted for the lessor punishment. Accordingly, I convict the accused for the offence u/s 354 IPC and acquit the accused for the offence u/s 376 IPC precisely for the reasons discussed in the preceding paras.
Accordingly, I convict accused for the
offence u/s 354 IPC; and
I acquit him for the offence u/s 376 IPC.
ANNOUNCED IN THE OPEN COURT
ON THIS 15.10.2011
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
State Vs Ram Kumar
FIR no.149/10
26 /