Delhi District Court
State vs Devanand @ Deva S/O Roshan Lal on 29 September, 2016
IN THE COURT OF SMT. SARITA BIRBAL, ADDITIONAL
SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST,
NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA
COURTS, DELHI.
SC No.1441/2016 Date of assignment : 22.04.2015
FIR No.62/2015 Date on which arguments
PS: Karawal Nagar were heard : 30.08.2016
U/S:452/328/376 IPC Date of judgment : 31.08.2016
State Versus Devanand @ Deva S/o Roshan Lal
R/o Ward No.24, Gali No.3, B-Block,
Sangam Vihar, Loni, Ghaziabad, UP.
JUDGMENT
1. The chargesheet avers that on 16.01.2015 vide DD no.59B, SI Nazma alongwith woman constable Reshma No. 1742/NE reached the spot (i.e. the house of the prosecutrix). SI Nazma recorded the statement of the posecutrix wherein the prosecutrix alleged as follows:-
(i) The prosecutrix is a house wife. She has one son aged about 1½ years born out of that wedlock. On 15.01.2015 at about 8:00 PM, accused Devanand who is a friend of her husband came to her house. He also brought a bottle of Frooti (a soft drink) with him. The accused himself served Frooti to the prosecutrix and her husband. Prosecutrix was not inclined to consume Frooti because it was winter season. However the accused insisted.
Thus, the prosecutrix and her husband consumed Frooti in glasses SC No. 1441/2016 State vs. Devanand @ Deva page 1 of 46 (tumblers). The prosecutrix and her husband also gave some Frooti to their child. After consuming Frooti the husband of the prosecutrix started vomiting and feeling drowsy. The prosecutrix went to her bed. At midnight when the prosecutrix opened her eyes, she saw that the accused was standing near her bed. Since she was under influence of some intoxicant, she could not speak anything. The accused came on the bed of the prosecutrix and by force made physical relations with her. Due to drowsiness, her limbs were not in her control and thus she could not offer any resistance. After committing rape on the prosecutrix, the accused took her to toilet and then he again made her lie on the bed. Thereafter the prosecutrix became unconscious.
(ii) Next morning, the prosecutrix could not wake up. Whole day she remained on her bed. In evening, her mother came to her house. Even at that time the prosecutrix was on her bed. The mother of the prosecutrix asked the reason for such a condition on which the prosecutrix narrated the incident to her mother. The mother of the prosecutrix made a phone call to the Police Control Room at 100 number and the police officials reached the house of the prosecutrix.
2. The chargesheet further avers that on the basis of above complaint, the present FIR under sections 328/376 IPC was got registered at police station Karawal Nagar. Crime team was called at the spot. Photographs of the spot were taken. The prosecutrix was taken to GTB Hospital where she was got SC No. 1441/2016 State vs. Devanand @ Deva page 2 of 46 medically examined vide MLC No-A-172/15. The husband of the prosecutrix was also got medically examined. Samples collected during medical examination of the prosecutrix and her husband were handed over by the doctors to the police officials. On 20.01.2015 the statement of the prosecutrix under section 164 Cr. P.C was got recorded. On 27.01.2015, the accused was taken in custody from the house of his father at Shiv Vihar, Karawal Nagar. The samples collected during medical examination of the prosecutrix, her husband and the accused were sent to FSL (Forensic Science Laboratory) at Rohini for chemical analysis.
3. After completion of investigation, the prosecution filed the present chargesheet under sections 328/376 IPC against the accused.
4. Since the offences in this case were triable by the court of Sessions, learned Chief Metropolitan Magistrate, North East District vide order dated 09.04.2015 committed this case to the Court of Sessions and on allocation this case was assigned to this court.
5. Vide order dated 28.05.2015, a charge under sections 452/328/376 IPC was framed against the accused. The accused pleaded not guilty and claimed trial.
6. In support of its case, the prosecution has examined SC No. 1441/2016 State vs. Devanand @ Deva page 3 of 46 twenty one witnesses. Out of these witnesses, PW1 (the prosecutrix), PW4 (husband of the prosecutrix) and PW5 (mother of the prosecutrix) are the witnesses who have personal knowledge about the facts of this case as transpired before the receipt of complaint at the PCR. Rest of the witnesses are the police officials who became involved during investigation of this case, the doctors who had medically examined the prosecutrix, her husband, their child and the accused and the learned Metropolitan Magistrate who had recorded the statement of the prosecutrix under section 164 Cr.P.C. PW6 is a friend of the husband of the prosecutrix.
7. The prosecutrix has been examined as PW1. The prosecutrix has deposed that her husband is working as a driver. On 15.01.2015 she alongwith her husband and son aged about 1½ years was residing at Shiv Vihar, Karawal Nagar. On that day at about 8:00 PM, the accused came to her house with a bottle of Frooti of 1-1¼ litres. At that time, her husband who was at the house asked the accused as to why he had brought that bottle of Frooti. Accused stated that he had brought that for his children. Husband of the prosecutrix and the accused watched television. After sometime, the accused offered Frooti to the prosecutrix and her husband but they refused. However, the accused insisted. Accused himself served Frooti to the prosecutrix and her husband in steel glasses. After five or ten minutes the accused served some more Frooti to them. They also gave small quantity of Frooti to SC No. 1441/2016 State vs. Devanand @ Deva page 4 of 46 their young child. After consuming Frooti, the prosecutrix and her husband started feeling giddy. They vomited and the accused took them to toilet. The accused made the husband of the prosecutrix lie on floor of the room and made the prosecutrix lie on a bed in the same room who lost her consciousness. During the night time, when the prosecutrix regained her consciousness to certain extent, she saw the accused standing near her bed. At that time, the accused forcefully raped her against her will and consent. The prosecutrix was not in a position to raise alarm or resist the accused as she was feeling drowsy. The accused also took the prosecutrix to the bathroom and after she passed the urine, he again brought her back on the bed. Next morning, she was still feeling giddy. Whole day she slept and the neighbours of the prosecutrix looked after her child. At about 10:00 PM, her mother came to her house. The prosecutrix disclosed the incident to her mother. The mother of the prosecutrix made a phone call to the police at 100 number. At that time, the husband of the prosecutrix came back home and the mother of the prosecutrix narrated the incident to her husband.
8. The prosecutrix further deposed that she had made the complaint Ex.PW1/A. The photographs of her house were taken from different angles by the crime team. Prosecutrix identified six of those photographs as Ex.P1 to Ex. P6 (also Ex. X1 to Ex. X6). She had handed over the bottle of Frooti to the Investigating Officer who had sealed the same with the seal of NK and seized SC No. 1441/2016 State vs. Devanand @ Deva page 5 of 46 the bottle vide seizure memo Ex.PW1/B. She was got medically examined at GTB Hospital vide MLC Ex.PW1/C. Her husband and child were also got medically examined. On 20.01.2015 her statement under section 164 Cr.P.C (Ex.PW1/D) was got recorded by the learned Metropolitan Magistrate. The prosecutrix identified her clothes i.e. lady's shirt Ex.P1, lady's pajami Ex.P2, Sweater Ex.P3 and one pair of socks as Ex.P4 which were seized during her medical examination. The prosecutrix also identified the Frooti bottle Ex.P5 which was seized from the spot.
9. During her cross examination, the prosecutrix admitted that on 14.01.2015 her husband alongwith the accused had gone to the house of one Vikram Master. She also admitted that the accused had taken a loan of Rs. 50,000/- from Vikram Master and her husband had deposited documents of his property with Vikram Master as the security for loan amount taken by the accused. Prosecutrix deposed that she is a house wife. She denied that there was a financial crisis in her family. Prosecutrix admitted that on 16.01.2015 her husband left for his duties in the morning time and came back in the evening but added that the whole day her husband felt intoxicated. She admitted that on 16.01.2015 during night time she and her husband spoke to the accused on his mobile phone. She deposed that at the time of commission of rape her husband was unconscious. She deposed that her husband woke her next morning but she vomited and slept again. She denied that she and her husband had implicated the accused in a SC No. 1441/2016 State vs. Devanand @ Deva page 6 of 46 false case to extort money from the accused.
10. PW4-husband of the prosecutrix deposed that on 15.01.2015 at about 8:00 PM, the accused who was his friend came to his house alongwith a bottle of Frooti. The accused and this witness watched television. After sometime, the accused offered Frooti to this witness and the prosecutrix but they refused. However the accused insisted. The accused himself served Frooti to this witness and the prosecutrix in steel glasses. This witness and his wife consumed Frooti. After five or ten minutes, the accused served them some more Frooti. They also gave some Frooti to their child. After consuming Frooti, this witness and his wife started feeling giddy. Both of them slept. Next morning he got up at 9:00-10:00 AM. He tried to wake up his wife but could not do so. Thereafter this witness himself prepared tea and left for his work place at Loni. He again vomited at his work place and the whole day he was feeling drowsy. He disclosed this to his friend (PW6) and told him about the accused. On this his friend told him that three or four months back, the accused had brought a similar bottle to his house and made his family consume Frooti and thereafter they had become unconscious.
11. PW4 further deposed that in the evening of 16.01.2015 he went back to his house and even at that time the prosecutrix was sleeping. After sometime, the mother of the prosecutrix came to their house and she also tried to make the prosecutrix wake up.
SC No. 1441/2016 State vs. Devanand @ Deva page 7 of 46 The prosecutrix disclosed the incident of rape by the accused on her to her mother. The mother of the prosecutrix made the phone call to the police at 100 number. Police officials reached their house and recorded the statement of the prosecutrix. Photographs Ex.X1 to Ex.X8 of his house were taken. Bottle of Frooti Ex.P5 was seized by the police officials. The accused was taken in custody.
12. During cross examination, PW5 admitted that on 14.01.2015 he alongwith the accused went to the house of Vikram Master for taking a loan of Rs.50,000/-. This witness denied that he had demanded a sum of Rs. 15 lacs from the accused for not filing the present complaint. This witness admitted that on 16.01.2015 he had made a phone call to the accused on his mobile phone before the phone call was made to the police. This witness deposed that he had made that phone call to the accused to enquire about rape on his wife but denied that the accused after that phone call came to his house. He denied that he and his wife have implicated the accused in a false case.
13. PW5-is the mother of the prosecutrix. She deposed that on 16.01.2015 at about 9:30-10:00 PM, she came to the house of his daughter (prosecutrix). The prosecutrix, her husband and their son were sleeping. She tried to wake up the prosecutrix on which she opened her eyes and then slept again. This witness washed the utensils and then again tried to wake up the prosecutrix. This witness served some water to her daughter. Her SC No. 1441/2016 State vs. Devanand @ Deva page 8 of 46 daughter (prosecutrix) told this witness that last night the accused had served Frooti to her and her husband and then the accused raped the prosecutrix when she was partially conscious. This witness further deposed that the prosecutrix also narrated the incident to her husband (PW4). Thereafter the husband of the prosecutrix made a phone to the accused but he did not come to his house. Then he made the phone call to the police.
14. During cross examination, PW5 denied that on 16.01.2015 she did not go to the house of the prosecutrix. She also denied that the prosecutrix in connivance with her husband and this witness had implicated the accused in a false case.
15. PW6-is a friend of the husband of the prosecutrix. He deposed that he, the accused and the husband of the prosecutrix (PW4) were good friends. On 16.01.2015, PW4 informed this witness that in the night of 15.01.2015, accused had brought a bottle of Frooti and served the same to PW4 and the prosecutrix. This witness at that time had told PW4 that some time earlier the accused had brought some Frooti to his house also and after consuming that Frooti, his family had also became unconscious.
16. During cross examination, PW6 denied that the husband of the prosecutrix had never met him and he has made a false deposition.
SC No. 1441/2016 State vs. Devanand @ Deva page 9 of 46
17. PW2-Dr. Shivesh Pandey, CMO, GTB Hospital, Delhi deposed that the prosecutrix was medically examined by Dr. Akash, who was working as a Junior Resident at that time. Now Dr. Akash has left the services of the hospital and his present whereabouts are not available with the hospital. This witness deposed that he had seen Dr. Akash signing and writing in the discharge of his official duties. He proved the MLC of the prosecutrix as Ex.PW2/A. This witness further deposed that on 27.01.2015 he had examined accused Devanand @ Deva. This witness had opined that there was nothing to suggest that the accused was not capable of performing sexual intercourse. During medical examination, blood and pubic hair samples of the accused were taken, sealed and handed over to constable Harsh. He proved his report as Ex.PW2/B.
18. PW3-Dr. Vikas Kumar Tiwari, Junior Resident (Casualty), GTB Hospital deposed that on 17.01.2015 at about 2:20 AM, the husband of the prosecutrix aged about 29 years was brought to the hospital by constable Sangram for medical examination with the alleged history of unknown intoxication on 15.01.2015 at about 9:00 PM. This witness deposed that a sample of gastric lavage of that patient was collected and handed over to the duty constable in a sealed condition. He proved the MLC of the husband of the prosecutrix as Ex. PW3/A.
19. PW7-Constable Sanjay Kumar deposed that on SC No. 1441/2016 State vs. Devanand @ Deva page 10 of 46 16.01.2015 he was working as a photographer with the crime team of Delhi Police, North East District. In the intervening night of 16/17.01.2015, he alongwith SI suman Kumar reached the house of the prosecutrix where SI Nazma alongwith other police officials was already present. SI Suman Kumar inspected the place of incident and this witness took photographs Ex.X1 to Ex.X8 (negatives of these photographs are Ex. X9 to X16) on directions of the Investigating Officer. During cross examination, this witness deposed that when he had taken photographs of the Frooti bottle, the said bottle was having about 50 ml to 100 ml of Frooti.
20. PW8-Constable Sonu Singh deposed that on 02.02.2015, the MHC(M) handed over five sealed pullandas (packets) alongwith three sample seals for depositing the same at FSL, Rohini. He deposited those sealed pullandas alongwith the sample seals at FSL, Rohini. He also deposed that as long as the case property remained under his custody, no one tampered with the same.
21. PW9-Head Constable Raj Kumar deposed that on 16.01.2015 at about 10:41 PM, he was working as the duty officer. An information was received that one person alongwith his family is lying unconscious at Shiv Vihar. He recorded this information in Daily Diary register vide DD No.59B. He made a phone call to SI Pratik and passed this information to him and asked him to reach the spot. Thereafter this witness contacted SI Nazma and woman SC No. 1441/2016 State vs. Devanand @ Deva page 11 of 46 constable Reshma and told them about the said information. SI Nazma alongwith woman constable Reshma went to Shiv Vihar. At about 12:45 AM, SI Pratik produced a rukka before this witness which was sent by SI Nazma. This witness recorded the present FIR Ex. PW9/A. He handed over one copy of that FIR to SI Pratik for further handing over the same to SI Nazma. This witness also made kayami vide DD No.2A and recorded his endorsement on the rukka as Ex.PW9/B. This witness proved the DD No.59B dated 16.01.2015 as Ex.PW9/C and certificate under section 65B of Indian Evidence Act as Ex.PW9/D. During cross examination, this witness admitted that call received by him was to the effect 'ek aadmi with family behosh'. He also admitted that the said information was not regarding commission of rape.
22. PW10-Constable Harsh Kaushik deposed that on 27.01.2015, he alongwith SI Nazma went to house No. B-73, Gali No.3, Ambika Vihar, Shiv Vihar, Delhi where the accused was located. SI Nazma called the husband of the prosecutrix to that house and the accused was taken in custody vide arrest memo Ex. PW4/A. Personal search of the accused was conducted vide memo Ex.PW10/A. The accused was taken to GTB Hospital where he was got medically examined. After medical examination of the accused, the doctor handed over three sealed pullandas (packets) alongwith two sample seals to him which he handed over to the Investigating Officer vide seizure memo Ex.PW10/B. During cross examination, this witness deposed that prior to 27.01.2015 he had SC No. 1441/2016 State vs. Devanand @ Deva page 12 of 46 never gone to the house of the accused.
23. PW11-Constable Yogesh Kumar deposed that on 30.01.2015, the MHC(M) handed over three sealed pullandas alongwith three sample seals to him for depositing the same at FSL, Rohini and he deposited the said property at FSL, Rohini and received the acknowledgement. The said acknowledgement was handed over to the concerned MHC(M).
24. PW12-Dr. Subhash deposed that on 17.01.2015 at about 4:00 AM, the husband of the prosecutrix was brought for his medical examination with the alleged history of unknown poisoning on 15.01.2015 at 9:00 PM. On examination, the patient was found conscious and well oriented in regard to time, place and person. This witness proved the detailed report as Ex.PW12/A. He further deposed that about 7:40 AM, the prosecutrix was brought before him for her medical examination. On examination, the prosecutrix was also found conscious and well oriented in regard to time, place and person. This witness proved his detailed report as Ex.PW12/B. During cross examination, this witness admitted that at the time when he had examined the patient (husband of the prosecutrix), no symptom of poisoning of any kind was observed.
25. PW13-Woman constable Reshma deposed that on 16.01.2015, she alongwith SI Nazma went to the house of the prosecutrix. SI Nazma recorded the statement of the prosecutrix SC No. 1441/2016 State vs. Devanand @ Deva page 13 of 46 and prepared the rukka which was handed over to SI Pratik for registration of FIR. Crime team was called at the spot. One plastic bottle of Frooti having some drops of Frooti was seized. The same was sealed with the seal of NK and taken in possession vide seizure memo Ex.PW1/B. The prosecutrix, her husband and her child were taken to GTB Hospital by this witness alongwith the Investigating Officer and constable Sangram. After their medical examination, the doctor handed over three sealed pullandas (packets) alongwith two sample seals to her which she handed over to the Investigating Officer vide seizure memo Ex.PW13/A. During cross examination, this witness deposed that she had seen the bottle of Frooti, some household articles, bed, utensils etc in the room of the prosecutrix. She also admitted that when they reached the house of the prosecutrix, the prosecutrix was in conscious condition. She admitted that there were occupied rooms adjacent to the room of the prosecutrix. This witness denied that she did not join investigation.
26. PW14-Constable Sangram deposed that on 16.01.2015 vide receipt of DD No.59B, he alongwith SI Pratik went to the house of the prosecutrix at Shiv Vihar where they met the prosecutrix, her husband and her son. After 20-25 minutes, SI Nazma also came there who asked some questions to the prosecutrix and recorded her statement. Crime team was called at the spot. The prosecutrix, her husband and son were taken to GTB hospital for their medical examination. Investigating Officer SC No. 1441/2016 State vs. Devanand @ Deva page 14 of 46 prepared the site plan and recorded the statements of the witnesses. The doctor handed over one sealed pullanda alongwith sample seal to this witness which was seized vide seizure memo Ex. PW14/A. During cross examination, this witness admitted that when he reached the house of the prosecutrix, the prosecutrix, her husband and son were in conscious condition. This witness denied that he had not joined the investigation.
27. PW15-Sh. Sharad Gupta, learned Metropolitan Magistrate had recorded the statement of the prosecutrix under section 164 Cr.P.C and proved the same as Ex.PW1/D. He also proved the relevant endorsement and documents in relation to the statement under section 164 Cr.P.C. The same are Ex.PW15/A, Ex.PW15/B and Ex.PW15/C.
28. PW16-Woman Sub Inspector Nazma is the Investigating Officer of this case. PW16 deposed that on 16.01.2015 at the directions of the SHO, she alongwith woman constable Reshma reached the house of the prosecutrix. This witness recorded the statement (Ex.PW1/A) of the prosecutrix and prepared the rukka Ex.PW16/A. The crime team was called which took photographs of the spot. Prosecutrix pointed to one plastic bottle of Frooti having some drops of Frooti which was seized and sealed with seal of NK. Prosecutrix, her husband and their son were taken to GTB hospital where they were got medically examined. After examination, the doctor handed over three sealed pullandas alongwith the sample seals and MLC pertaining to the SC No. 1441/2016 State vs. Devanand @ Deva page 15 of 46 prosecutrix to woman constable Reshma. Doctor also handed over one sealed pullanda alongwith sample seal and MLC of the husband of the prosecutrix and her son to constable Sangram. Counselling of the prosecutrix was got done through a representative of a NGO. SI Pratik in the meantime came to GTB Hospital alongwith a copy of the FIR and the original rukka and handed over the same to her. The police officials alongwith the prosecutrix, her husband and her child came back to the spot and this witness prepared the site plan Ex.PW16/B. Woman constable Reshma handed over three sealed pullandas alongwith two sample seals and MLC to her which were seized vide seizure memo Ex.PW13/A. Constable Sangram also handed over one sealed pullanda alongwith sample seal to her which was seized vide seizure memo Ex.PW14/A. On 20.01.2015, the statement of the prosecutrix under section 164 Cr.P.C was got recorded by the learned Metropolitan Magistrate. On the same day four sealed pullandas were sent to FSL, Rohini but the same were returned back with some objection. On 27.01.2015 accused was taken in custody from the house of his father on identification of the husband of the prosecutrix vide arrest memo Ex.PW4/A and his personal search was conducted vide memo Ex.PW10/A. One Puneet Dubey whose name figured during investigation was interrogated vide interrogation report Ex.PW16/C who stated that the accused was his friend and the accused had enquired about sleeping pills from him. On 30.01.2015, three sealed pullandas alongwith three sample seals were sent to FSL, Rohini through SC No. 1441/2016 State vs. Devanand @ Deva page 16 of 46 constable Yogesh Kumar. This witness deposed that on 02.02.2015 five sealed pullandas alongwith three sample seals were sent to FSL, Rohini through constable Sonu Singh. This witness proved the FSL report Ex.PW16/E and identified the Frooti bottle as Ex.P5.
29. During cross examination, this witness deposed that there was no separate kitchen in the house of the prosecutrix. There were some occupied rooms adjacent to the room of the prosecutrix. This witness admitted that the bathroom/toilet was situated at 10 or 12 feet away from the room of the prosecutrix. She stated that she had deposited the case property at the malkhana on 17.01.2015 between 9:00 AM to 9:30 AM. This witness admitted that she had sent the pullandas alongwith sample seals of the prosecutrix and husband of the prosecutrix to FSL, Rohini on 20.01.2015 but the same were returned with some objection. She however does not remember the objection. This witness denied that she had sent the pullandas and sample seals to FSL Rohini after tampering with the samples. She also admitted that no sleeping pills or intoxicating substance was recovered from possession of the accused.
30. PW17-SI Pratik deposed that vide receipt of DD No.59B he alongwith constable Sangram went to the house of the prosecutrix. Statement of the prosecutrix was got recorded by SI Nazma but the same was written by this witness. Rukka was SC No. 1441/2016 State vs. Devanand @ Deva page 17 of 46 prepared by the Investigating Officer and this witness took the rukka to the police station. After registration of the FIR, this witness again came to the spot and handed over a copy of the FIR and original rukka to SI Nazma. During cross examination, this witness stated that there was one room in the house of the prosecutrix and there was no separate kitchen. He deposed that he did not notice if there were occupied rooms adjacent to the room of the prosecutrix. He denied that he has made a false deposition.
31. PW18-Dr. Vinay Bhushan, Senior Resident, GTB Hospital, Delhi deposed that on 17.01.2015 at about 3:15 AM, one child (son of the prosecutrix) aged about 1½ years was brought to the hospital by constable Sangram for medical examination. This witness examined the child vide the detailed report Ex. PW18/A.
32. PW19-SI Suman Kumar deposed that on 16.01.2015 he was posted as incharge of mobile crime team. On that day at the instructions of the Control Room, North East, this witness alongwith ASI Surender Prasad (Finger Print Proficient) and Constable Sanjay (Photographer) reached the place of incident. He met SI Nazma alongwith prosecutrix and other police officials. He inspected the place of occurrence. One plastic bottle of Frooti having some drops of Frooti was placed on the floor of the room. Constable Sanjay took photographs of the spot. This witness prepared the inspection report and proved the same as Ex.PW19/A. During cross examination, this witness stated that he tried to lift finger prints from the spot but no such prints were SC No. 1441/2016 State vs. Devanand @ Deva page 18 of 46 available.
33. PW20-Head Constable Rajeev Malik, MHC(M) deposed that on 17.01.2015 SI Nazma handed over five sealed pullandas (packets) alongwith three sample seals to him which he deposited in the malkhana vide entry at serial no.36 in register no.19. On 27.01.2015 SI Nazma handed over three more sealed pullandas alongwith two sample seals to him which he deposited the same in the malkhana vide entry at serial no.48 in register no.19. On 27.01.2015 three sealed pullandas alongwith two sample seals pertaining to serial no.36 were sent to FSL, Rohini through constable Sonu Singh vide RC No. 10/21/15 but the same were returned back with some objection. On 30.01.2015 eight sealed pullandas alongwith five sample seals pertaining to serial no.36 and 48 were sent to FSL, Rohini through constable Yogesh vide RC No. 13/21/15 and 14/21/15. Out of the eight pullandas, five sealed pullandas i.e. sexual assault forensic evidence kit, clothes, blood sample and pubic hair sample and one more kit alongwith three sample seals were returned back from FSL, Rohini with some objection. On 02.02.2015, five sealed pullandas and two sample seals were sent to FSL, Rohini through constable Sonu Singh. This witness proved the copies of entries pertaining to serial no.36 and 48 as Ex.PW20/A and Ex.PW20/B. He also proved various entries of RC Nos. 10/21/15, 13/21/15, 14/21/15 and 16/21/15 as Ex.PW20/C,Ex.PW20/D, Ex.PW20/E and Ex.PW20/G respectively. He proved the copies of acknowledgement of case SC No. 1441/2016 State vs. Devanand @ Deva page 19 of 46 acceptance as Ex.PW20/F and Ex.PW20/H. During cross examination, this witness deposed that on 27.01.2015 he had handed over the objection letter issued by the FSL authorities to the Investigating Officer and he does not know anything more about the objection. On 30.01.2015 he again received an objection letter from the FSL, Rohini and that was also handed over to the Investigating Officer but he does not know anything more about these objections. He deposed that he had not recorded anything about the objections.
34. PW21-Dr. Adesh Kumar, Senior Scientific officer, FSL, Rohini, Delhi deposed that on 30.10.2015 three sealed parcels were received at his office i.e. parcel no.1 was containing gastric lavage of the prosecutrix, parcel no.2 was containing gastric lavage of husband of the prosecutrix and parcel no.3 was containing some yellowish orange colour liquid in a plastic bottle printed as Frooti. Seals on all parcels were intact. This witness analysed the three parcels and all the three parcels were found having ethyl alcohol. He further deposed that ethyl alcohol is part of sedative group of drugs. This witness proved his report as Ex.PW21/A. During cross examination, this witness deposed that the three sealed parcels were received by him on 30.01.2015 and prior to that he had not received any parcel in relation to this case.
35. In his statement under section 313 Cr.P.C., the accused stated that on 15.01.2015 at about 12:00 noon he alongwith SC No. 1441/2016 State vs. Devanand @ Deva page 20 of 46 husband of the prosecutrix went to the house of one Vikram Master for taking Rs. 50,000/-. He took Rs. 50,000/- and went to his house. At about 7:00 PM, the husband of the prosecutrix (PW4) invited him for a party at his house but he refused. At about 8:00 PM, PW4 again made a phone call to him and then he went to the house of the prosecutrix. The prosecutrix served him tea and snacks and then he slept. He woke up next morning and then came back to his house. He also stated that on 16.01.2015 the husband of the prosecutrix made a phone call to him and demanded Rs. 3 lacs from him. He also threatened him that if he will not fulfil their demand, he will implicate him in a false case. He further stated that he has been falsely implicated in the present case by the prosecutrix and her husband.
36. The accused opted to lead defence evidence and examined one witness Sh. Vikram Singh as DW1.
37. DW1 deposed that the husband of the prosecutrix and the accused are known to him for the last more than five years as both of them were living near his house. On 15.01.2015 at about 12:00 noon, the accused and the husband of the prosecutrix came to his shop at Shiv Vihar and asked him to give Rs.50,000/-. Thereafter this witness alongwith the husband of the prosecutrix, accused and one Daya Ram went to the office of one Sh. L.B. Mishra, Advocate at Shiv Vihar. This witness purchased a stamp paper and got prepared the mortgage deeds Ex.DW1/A and Ex.
SC No. 1441/2016 State vs. Devanand @ Deva page 21 of 46 DW1/B in respect of property situated at C Block, Sangam Vihar. The accused handed over original documents pertaining to that property to this witness and he gave Rs. 50,000/- to the accused in presence of the husband of the prosecutrix and Daya Ram. This witness further deposed that the accused had assured him that he will pay Rs.80,000/- if the amount is not paid back within one year. This witness further deposed that the father of the accused had repaid the due amount of Rs.50,000/- to him after three months. During cross examination by the learned Addl. Public Prosecutor, this witness denied that no documents were executed in presence of the husband of the prosecutrix. He also denied that he had not given the amount of Rs.50,000/- to the accused in presence of the husband of the prosecutrix.
38. I have heard learned Additional Public Prosecutor on behalf of the State and Sh. Alok Sharma, learned Advocate for the accused.
39. The accused is facing trial for commission of offences punishable under sections 452/328/376 IPC.
40. The deposition of the prosecutrix has been noted above. She has stated that on 15.01.2015 at about 8:00 PM, the accused came to their room alongwith one Frooti bottle and made the prosecutrix and her husband consume Frooti. Accused himself served Frooti to the prosecutrix and her husband. After consuming SC No. 1441/2016 State vs. Devanand @ Deva page 22 of 46 Frooti, the prosecutrix and her husband started feeling giddy. The prosecutrix and her husband vomited and the accused took them to the washroom. The accused made the husband of the prosecutrix lie on the floor and made the prosecutrix lie on a bed in the same room. The prosecutrix became unconscious. During night, the prosecutrix regained her consciousness and saw that the accused was standing near her bed. At that time, the accused raped her by force and against her will and consent. She was not in a position to raise an alarm or offer resistance as she had no control over her limbs. Next morning also, she was feeling drowsy and whole day she slept. That day her neighbours looked after her child. She informed this fact to her mother who came late evening to her house and a phone call was made to the police at 100 number and the police officials reached her house.
41. The statement of the prosecutrix finds support from the statements of her husband (PW4) and her mother (PW5). The depositions of these two witnesses have been noted above.
42. The deposition of the prosecutrix shows that the accused had sexual intercourse with her and that act of sexual intercourse was without the free and voluntary consent of the prosecutrix. The statements of the prosecutrix and her husband would show that the accused came to the premises of the prosecutrix with some prior preparation and made the prosecutrix and her husband consume some sedative or stupefying substance SC No. 1441/2016 State vs. Devanand @ Deva page 23 of 46 laced with the soft drink Frooti.
43. The evidence on record shows that the police officials received the information about the condition of the family of the prosecutrix and police officials reached her home on 16.01.2015 at about 11:00 PM. The prosecutrix was subjected to medical examination on 17.01.2015 at about 2:40 AM (intervening night of 16/17.01.2015) at GTB Hospital. MLC (Ex.PW2/A) of the prosecutrix shows that during her medical examination, samples from her body including vaginal secretion, washing from vagina, her undergarments, outer clothing were collected and sealed. These samples and clothing alongwith the samples collected from the body of the accused were sent for forensic analysis to Forensic Science Laboratory (FSL) at Rohini run by the Government of NCT of Delhi. FSL report dated 12.08.2015 (Ex.PW16/E) is on record. The report shows that human semen was detected in Ex.1J (cervical mucus collection), 1k-1(cotton wool swab), 1k-2a and 1k- 2b (two microslides having faint whitish smear), 1m (washing from vagina). Semen was also detected on the clothes of the prosecutrix i.e. lady' shirt and lady's pajami.
44. The semen detected on the samples, clothes of the prosecutrix and samples from the body of the accused were then subjected to DNA examination. Result of examination as noted in Ex.PW16/E is as follows:
"The DNA profile generated from the source of SC No. 1441/2016 State vs. Devanand @ Deva page 24 of 46 exhibit '3' (blood sample of accused) was found to be accounted in the mixed DNA profile generated from the source of exhibits '1j' (cervical mucus collection of victim), '1k-1', 1k-2a & '1k-2b' (vaginal cotton wool swab and microslides of victim), '1n-1, '1n-2a','1n-2b' (rectal cotton wool swab and microslides of victim) & '2b' (pajami of victim)."
Thus, the samples and the clothes of the prosecutrix were found having semen of the accused. This report of FSL Ex.PW16/E provides very strong support to the statement of the prosecutrix that the accused had sexual intercourse with the prosecutrix.
45. MLCs of the prosecutrix (Ex. PW2/A) and her husband (Ex.PW3/A) and oral evidence on record further show that during their medical examination, their gastric lavage samples were collected. These gastric samples and the residual Frooti in the bottle recovered from the spot were also sent to FSL for chemical analysis. FSL report No. FSL2015/C-689 dated 28.05.2015 (Ex. PW21/A) in respect of these gastric lavages and Frooti is also on record. This report shows that gastric lavage samples of the prosecutrix and her husband were found containing ethyl alcohol. The Frooti in the bottle recovered from the spot was also containing ethyl alcohol. Evidence of PW21 shows that ethyl alcohol is a part of sedative group of drugs. It is otherwise a matter of common knowledge that ethyl alcohol is the intoxicating component of liquors.
SC No. 1441/2016 State vs. Devanand @ Deva page 25 of 46
46. Learned counsel for the accused has contended that the present is a false case which has been fabricated by the prosecutrix and her husband in connivance with the police officials. The counsel for the accused has referred to the evidence on record to show that on the day of incident i.e. 15.01.2015 at noon time, the husband of the prosecutrix alongwith the accused went to the shop of one Vikram Master @ Vikram Singh (DW1). The accused took loan of Rs.50,000/- from Vikram Master by mortgaging and depositing documents of his own property situated at Sangam Vihar. For that purpose, learned counsel for the accused has drawn the attention of this court to the statement of DW1 Sh. Vikram Singh and the documents Ex.DW1/A and Ex.DW1/B which are photocopies of the mortgage deed and receipt of amount of Rs. 50,000/-.
47. I have considered this submission of the learned counsel for the accused. I am unable to find any connection between taking of loan by the accused and the allegations in this case. The evidence on record only shows that the accused took loan of Rs. 50,000/- from DW1 by depositing title documents of his own property and the husband of the prosecutrix accompanied the accused to the shop of DW1. It is not the case of the accused that it was the husband of the prosecutrix who had taken that loan or that amount was retained by the husband of the prosecutrix. Husband of the prosecutrix or his family was no way going to be SC No. 1441/2016 State vs. Devanand @ Deva page 26 of 46 benefited by the amount taken as loan by the accused from DW1. Husband of the prosecutrix at best accompanied the accused to the shop of DW1 as a common friend of DW1 and the accused. It is not in dispute that the accused and the husband of the prosecutrix were friends. Thus, this contention of the accused is liable to be rejected. Be it noted that though the prosecutrix in her cross examination admitted the suggestion that the mortgaged property was that of her husband but the documents show that the property belongs to the accused.
48. It is contended that no neighbour who was residing in other rooms of the building where the prosecutrix was residing has been examined in this case. Reference is made to the deposition of the prosecutrix who stated that her neighbours looked after her child for the whole day of 16.01.2015 as she was feeling drowsy. This contention again has no force. The accused is facing trial for having committed offences punishable under sections 452/328/376 IPC. No neighbour was a witness to the incident which took place inside the room where the prosecutrix and her family members were residing. Thus neighbours were not required to be produced as witnesses in this case.
49. It is also contended by the learned counsel for the accused that the material on record shows that the prosecutrix was medically examined in the very early morning of 17.01.2015 at about 2:40 AM. Certain sealed packets alongwith the sample seals SC No. 1441/2016 State vs. Devanand @ Deva page 27 of 46 were handed over by the doctor to the police officials which were handed over by the Investigating Officer to MHC(M) vide entry at serial no.36 of register no.19. Three sealed packets pertaining to entry at serial no.36 were sent to FSL, Rohini on 27.01.2015 but were not accepted by the FSL authority and returned with objection. On 27.01.2015, the Investigating Officer deposited three more sealed packets alongwith sample seals in the malkahna vide serial no.48 of register no.19. On 30.01.2015 all the eight sealed packets pertaining to serial nos.36 and 48 were sent to FSL, Rohini but again five of them were returned back by the FSL authorities with objection and only three were accepted by the FSL authority. On 02.02.2015, five packets were again sent to FSL authorities which were accepted by FSL authorities. The objection raised by the FSL authorities while returning the packets have not been disclosed. Reference is made to the evidence of PW20 [MHC(M)] who stated that he does not know as to what the objections were and he had handed over the document containing the objections to the Investigating Officer. Investigating Officer (PW16) stated that she does not remember anything about of objections. In the circumstances it is contended that FSL reports Ex.PW16/E and Ex.PW21/A are not worth placing reliance and there is a possibility that there was tempering with the samples at some stage.
50. This contention of the accused also cannot be accepted.
SC No. 1441/2016 State vs. Devanand @ Deva page 28 of 46
51. Material on record shows that the prosecutrix, her husband and their child aged about 1½ years were subjected to medical examination in the early morning of 17.01.2015. Thereafter four sealed packets were handed over to the police officials by the doctor at GTB Hospital. These four packets comprised of (a) gastric lavage sample of the prosecutrix (b) gastric lavage sample of her husband (c) sexual assault forensic evidence kit of the prosecutrix and (d) clothes of the prosecutrix. These four packets alongwith the sample seals were seized vide seizure memos Ex.PW13/A and Ex.PW14/A. In addition the Frooti bottle having residual Frooti was seized by the Investigating Officer vide seizure memo Ex. PW1/B. The four samples handed over by the doctor alongwith the sample Frooti bottle collected from the spot and sample seals were deposited in the malkhana on the same day vide entry at serial no.36 (Ex.PW20/A). The FSL report and the statement of PW21 Dr. Avdesh Kumar, Senior Scientific Officer, FSL Rohini show that the two gastric lavage samples and Frooti samples were ultimately received at the FSL authorities in sealed condition with the seal of 'MLC GTB HOSPITAL SHO DELHI 05' intact. FSL report Ex.PW16/E shows that the other samples were also subsequently received with the seals of the hospital intact.
52. The evidence on record also shows that the accused was taken in custody on 27.01.2015. Same day he was subjected SC No. 1441/2016 State vs. Devanand @ Deva page 29 of 46 to medical examination at GTB hospital vide MLC Ex.PW2/B. Three sealed packets were handed by the doctor to the police officials vide seizure memo Ex.PW10/B. These samples were (a) blood sample (b) pubic hairs (c) envelope enclosed samples (kit). These samples were deposited at the malkhana vide entry at serial no.48 in register no.19 (Ex.PW20/B). Five sealed parcels deposited on 17.01.2015 were sent to FSL on 27.01.2015 but those parcels were not received by the FSL authorities and returned with some objection. Ex.PW20/A shows that on 30.01.2015 all the eight sealed packets were sent to FSL authority but five of them which relate to the prosecutrix and the accused were returned with objection. Three packets containing gastric lavage of the prosecutrix, her husband and the bottle of Frooti were accepted. Subsequently the remaining samples were accepted on 02.02.2015. Record shows that seals on all samples were intact.
53. It is no doubt true that the objection raised by the FSL authorities has not been disclosed or brought on record. However, I am of the opinion that the reports submitted by the FSL authorities are not liable to be ignored on this ground. Material on record shows that the samples were received at the FSL authorities in sealed condition with seals intact. Seven out of eight samples were sealed by the doctors at GTB Hospital. This would show that there would have been some procedural objection which was subsequently rectified by the police authorities.
SC No. 1441/2016 State vs. Devanand @ Deva page 30 of 46
54. Even if for the sake of argument, the FSL reports are ignored from consideration for the above reason, I am of the opinion that in view of the depositions of the prosecutrix, her husband and her mother in this court, it would not have any bearing on the outcome of the present trial.
55. It is otherwise well settled that even the absence of human semen in samples from the private parts of a prosecutrix in a rape case is not significant if her statement is otherwise found reliable.
56. In case of Beeru Vs. State (NCT of Delhi) [Criminal Appeal No. 1079/2010 decided on December 11, 2013], a Division Bench of the Hon'ble Delhi High Court held as follows:-
"Much would depend on the quality, reliability and credibility of the testimony of the prosecutrix and if the same is found to be of unimpeachable character, the conviction of the accused can be based on the same even without looking for corroboration from the medical evidence. The same principle equally applies to the evidence of the Forensic Science as the same is also not a substantive piece of evidence and may not support even otherwise clear and cogent evidence of the prosecutrix. It is also a settled legal position that for proving the offence of rape, penetrative sexual assault may not necessarily result SC No. 1441/2016 State vs. Devanand @ Deva page 31 of 46 in ejaculation and therefore in such cases there can hardly arise any question of stains of semen being there on the clothes of the victim and the perpetrator of the crime. Thus the contention raised by learned counsel for the appellant on this aspect also lacks merit and the same is rejected."
(emphasis added)
57. It may be noted here that during cross examination of the husband of the prosecutrix, it was suggested on behalf of the accused himself that the accused had made physical relations with the prosecutrix with the free will and consent of the prosecutrix and her husband. This would show that even the accused has not disputed that he had sexual intercourse with the prosecutrix.
58. In case of State of Punjab vs. Gurmeet Singh [1996 (2) SCC 384], the Hon'ble Supreme Court observed as follows:-
".... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman 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 should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent SC No. 1441/2016 State vs. Devanand @ Deva page 32 of 46 bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases 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 an 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 complaints of rape or 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 levelled 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 on a par with the evidence of an injured witness and to an extent is even more reliable....."
59. In the case of Munna vs. State of M.P. [(2014) 10 SCC 254], the Hon'ble Supreme Court held as follows:-
"Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or SC No. 1441/2016 State vs. Devanand @ Deva page 33 of 46 a woman in India make false allegations of sexual assault....... The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non- permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) she would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the SC No. 1441/2016 State vs. Devanand @ Deva page 34 of 46 fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent".
[See also State of Rajasthan vs. N. K., (2000) 5 SCC 30] and State of Rajasthan vs. Biram Lal, (2005) 10 SCC 714].
60. Another argument of the learned counsel for the accused that the prosecutrix was not having injury on her body is also liable to be rejected. The proseutrix is a married woman and mother of a child. She has also stated that she was in no position to offer any resistance as her limbs were not in her control.
61. It is also contended that the material on record shows that before the complaint was lodged with the police authorities at 100 number at about 10:30 PM, the husband of the prosecutrix had made a phone call to the accused. (This fact has been admitted by the prosecutrix and her husband in their cross examination). It is contended that this shows that the accused has been falsely implicated by the prosecutrix and her husband in order to extract money from the accused.
62. The husband of the prosecutrix during his cross examination has explained this phone call by saying that he had SC No. 1441/2016 State vs. Devanand @ Deva page 35 of 46 made that call to the accused to enquire about the incident of rape on his wife by the accused. To my mind, the conduct of the husband of the prosecutrix in making the phone call to the accused who was his friend after coming to know about the incident of rape upon the prosecutrix is not abnormal and is not indicative of demand of money. The husband of the prosecutrix would have naturally been enraged after coming to know about the incident and he would have made the phone call to that accused in that state of mind.
63. It is also contended that DD No.59B dated 16.01.2015 (Ex.PW9/C) recorded at police station Karawal Nagar records that 'ek aadmi with family behosh' (one man with his family is lying unconscious). However, the FIR was got registered under section 328/376 IPC. Thus, the case is an afterthought as there is no allegation of rape in the initial information.
64. I find no substance in this contention of the learned counsel for the accused. A daily diary entry is not required to record the complete details of the case. It is the FIR which is of significance on this issue. In a recent case reported as Gopal alias Babbal alias Pawan vs. State of Delhi [2014 (1) JCC 789] which was also a case under section 376 IPC, the Hon'ble Delhi High Court observed as follows:
"This submission of the learned counsel for the appellant that this DD (Ex.PW-4/A) only mentioned a teasing and did not contain the ingredients of the SC No. 1441/2016 State vs. Devanand @ Deva page 36 of 46 offence for which the appellants have been convicted also does not advance the line of argument of the appellants. A "DD" as is suggestive from its name is only a daily diary entry which only has to record the time and the place of incident, it does not have to contain any further details. In fact the first information report relating to the commission of offence is recorded by the police under Section 154 Cr.P.C. and which is the FIR. The FIR in fact sets the criminal law in motion; it obtains information about the alleged criminal activity in order that suitable action to book the guilty can be taken. It is not an encyclopedia of the offence which has to contain all the detailed ingredients of the offence."
65. In this case the call to Police Control Room was made by the mother of the prosecutrix. Steps for registration of FIR were taken as soon as the police officials reached the house of the prosecutrix and enquired about the incident. Women police officials were immediately asked to proceed to the spot by the SHO.
66. Learned counsel for the accused also pointed out certain variations in the depositions of the prosecution witnesses. It is pointed out that PW16 (Investigating Officer) during her cross examination stated that there was a separate kitchen in the house of the prosecutrix while PW14 constable Sangram who also visited the house of accused on 16.01.2015 during his cross examination stated that there was no separate kitchen in the house of the SC No. 1441/2016 State vs. Devanand @ Deva page 37 of 46 prosecutrix. The Investigating Officer (PW16) stated that the Frooti bottle recovered from the spot was having some drops of Frooti whereas PW7 constable Sanjay Kumar deposed that said bottle was having about 50ml to 100 ml of Frooti. The information regarding the alleged incident received at police station vide DD entry no.59B (Ex.PW9/C) was to the effect that 'ek aadmi with family behosh'. However, the husband of the prosecutrix admitted that on 16.01.2015 he attended his duty as a driver. During cross examination, the husband of the prosecutrix stated that at the time of incident, the prosecutrix was wearing a salwar. However, as per the case of prosecution and FSL report Ex.PW16/E, the prosecutrix was wearing a pajami.
67. The above mentioned variations pointed out by the learned counsel for the accused are not of any consequence and the same are not material in nature. Such variations are inevitable when different persons deposed about the same incident. The husband has explained that though he went for work, he remained giddy.
68. It is further contended on behalf of the accused that steel tumblers in which Frooti was allegedly served to the prosecutrix and her husband have not been produced during evidence. There is no strength in this argument. The bottle of Frooti has already been produced by the prosecution. The police officials were not required to seize the household utensils of the SC No. 1441/2016 State vs. Devanand @ Deva page 38 of 46 prosecutrix.
69. It is contended that in the normal course of things the accused himself would have consumed Frooti as otherwise the prosecutrix and her husband would have become suspicious and thus the case of prosecution is not believable. It is not essential that the accused himself would have necessarily consumed Frooti. The accused was aware of the fact that Frooti was having some sedative substance. The accused was a friend of the husband of the prosecutrix and not a stranger to them.
70. The gastric lavage of the child of the prosecutrix was not collected during his medical examination. That child was just about 1½ years of age and had consumed very little quantity of Frooti.
71. It is also contended that as per the case of prosecution, the family of the prosecutrix and the prosecutrix remained sedated throughout the next day till the night. But the MLCs of the prosecutrix, her husband and child show that they were conscious and oriented at the time of their medical examination. The prosecutrix and her family were examined after about 30 hours of consuming intoxicating substance and thus by that time the effect of the substance would have come to an end.
72. Learned counsel for the accused also submitted that SC No. 1441/2016 State vs. Devanand @ Deva page 39 of 46 the accused was not taken in custody from the house of his parents as is the case of prosecution but he was taken in custody from the house of the mother of the prosecutrix. There is nothing to substantiate this contention. There is no reason to disbelieve the witnesses on this aspect who are police officials. Even otherwise the fact that the accused was taken in custody from the house of the mother of the prosecutrix and not from the house of his parents is of no significance for this trial.
73. This court finds no reason to disbelieve the statements of the prosecutrix, her husband and her mother. The deposition of the prosecutrix is supported by the forensic evidence on record. The deposition of the prosecutrix and other witnesses have been consistent. At no stage, the conduct of any of the prosecution witnesses have been suspicious or unnatural. The accused has been taking contradictory stands during trial. The accused has not disputed that he remained at the house of the prosecutrix on the night of the incident. On one hand, it is stated by the accused that he slept throughout the night after consuming tea and snacks offered by the prosecutrix and on the other hand it is suggested to the husband of the prosecutrix that though physical relations were made between the prosecutrix and the accused but the same were with consent of the prosecutrix and her husband. No motive has been shown on the part of the prosecutrix for putting her own honour on stake by making allegation of rape on her by the accused.
SC No. 1441/2016 State vs. Devanand @ Deva page 40 of 46
74. In view of above discussion, this court holds that it stands established beyond any doubt that on 15.01.2015 in the night time the accused came to the house of the prosecutrix alongwith one Frooti bottle which was containing some intoxicating substance mixed with Frooti. The accused served that Frooti to the prosecutrix and her husband which made them unconscious. At the time of consumption of Frooti, prosecutrix and her husband were not aware of the fact that Frooti was having such a substance. In that situation, the accused raped the prosecutrix. Hence, accused Devanand @ Deva is convicted of offences under sections 452/328/376 IPC.
Announced in the open court on 31.08.2016 (SARITA BIRBAL) Additional Sessions Judge, (SFTC), East, Karkardooma Courts, Delhi.
SC No. 1441/2016 State vs. Devanand @ Deva page 41 of 46 IN THE COURT OF MS. SARITA BIRBAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI SC No. 1441/16 FIR No. 62/2015 P.S. Karawal Nagar U/s:452/328/376 IPC State Versus Devanand @ Deva S/o Roshan Lal R/o Ward No.24, Gali No.3, B-Block, Sangam Vihar, Loni, Ghaziabad, UP.
Order on sentence:
Present: Sh. Kamal Akhtar, Ld. Addl. P.P. for the State.
Convict Devanand @ Deva produced in J/C. Sh. Alok Sharma, Advocate for the convict.
1. I have heard Sh. Kamal Akhtar, learned Addl. Public Prosecutor and Sh. Alok Sharma, Advocate for the convict on the quantum of sentence.
2. Convict Devanand @Deva has been convicted for the offences punishable under section 452/328/376 IPC.
3. Learned Addl. Public Prosecutor has pointed out that the convict went to the house of the prosecutrix with prior preparation. He made the prosecutrix and her family consume soft drink Frooti which was containing some intoxicating or stupefying substance and in that situation he raped the prosecutrix. It is also SC No. 1441/2016 State vs. Devanand @ Deva page 42 of 46 pointed out that the convict breached the trust of the prosecutrix and her husband. Learned Addl. Public Prosecutor contended that in the circumstances, maximum punishment should be imposed on the convict.
4. Learned counsel for the convict has submitted that the convict is aged about 27 years and has to look after his wife, two minor children and old aged and ailing father. It is also submitted that the convict has no criminal antecedents. It is prayed that a lenient view may be taken in the matter.
5. Section 376 IPC stipulates that whoever commits offence of 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.
6. Offence under section 328 IPC is punishable with imprisonment of either description for a term which may extend to ten years and fine.
7. Offence under section 452 IPC is punishable with imprisonment of either description for a term which may extend to seven years and fine.
8. In the circumstances of the case and having regard to the age and family circumstances of the convict, I am of the opinion that the ends of justice would be met if the convict is sentenced to undergo Rigorous Imprisonment for 7 years and a fine of Rs.10,000/- for the offence punishable under section 376 IPC. In default of payment of fine, he shall be liable to undergo 2 SC No. 1441/2016 State vs. Devanand @ Deva page 43 of 46 months Simple Imprisonment.
9. The convict is further sentenced to undergo Rigorous Imprisonment for 2 years and a fine of Rs.2500/- for the offence punishable under section 328 IPC. In default of payment of fine, he shall be liable to undergo 30 days Simple Imprisonment.
10. The convict is sentenced to undergo Rigorous Imprisonment for 2 years and a fine of Rs.2500/- for the offence punishable under section 452 IPC. In default of payment of fine, he shall be liable to undergo 30 days Simple Imprisonment.
11. All the sentences shall run concurrently. Convict shall be given benefit under section 428 Cr.P.C.
12. In the judgment reported as Vikas Yadav and Ors. vs. State of UP and Ors.(Criminal Appeal No.910 of 2008 decided on 06.02.2015), it has been held by a Division Bench of the Hon'ble Delhi High Court that it is mandatory duty of every court to consider whether the case before it is a fit case for award of compensation to the victim and if so, to what extent and who is to pay that amount [see also the judgment of the Hon'ble Supreme Court in the case of Suresh & Anr. vs. State of Haryana, 2015 (1) JCC 457].
13. In the present case, the prosecutrix is a married woman. Her husband is working as a driver. She may have suffered social stigma on account of the offence of rape on her.
Having regard to the facts of this case, I am of the opinion that victim/prosecutrix should be awarded compensation for her rehabilitation.
SC No. 1441/2016 State vs. Devanand @ Deva page 44 of 46
14. Learned counsel for the convict stated that the convict is a poor person and earlier before being taken in custody, he was working as an ice-cream vendor on a rehri. It is also stated that the convict is having a small property of 25 square yards at Loni, Ghaziabad, UP but that property is under mortgage as his family has taken a loan on it for the present trial. It is also stated that the convict would also need money for paying the fine and filing an appeal before the Hon'ble Delhi High Court. It is pointed out that the convict is in judicial custody since 28.01.2015. In the circumstances, this court is of the opinion that it would be futile to direct the convict to pay the compensation to the prosecutrix.
15. Under section 357A (3) Cr.P.C., a court can make a recommendation for payment of compensation to the victim to the State Legal Services Authority. The Govt. of NCT of Delhi has notified Delhi Victims Compensation Scheme, 2011 for that purpose which also lays down the amount payable for various offences.
16. A recommendation is hereby made to Delhi Legal Services Authority to determine and award appropriate compensation to the victim/prosecutrix herein in accordance with the provisions of section 357A Cr.P.C. and the Scheme.
17. Copy of judgment and order on sentence be given to the convict free of cost.
18. Copy of the judgment and order on sentence be forwarded to Delhi Legal Services Authority.
SC No. 1441/2016 State vs. Devanand @ Deva page 45 of 46 Announced in the open court on 29.09.2016 (SARITA BIRBAL) ASJ (SFTC), East/KKD Courts, Delhi.
SC No. 1441/2016 State vs. Devanand @ Deva page 46 of 46