Delhi District Court
State vs . Arun Kumar @ Arun Chaudhary on 8 March, 2013
1
FIR No. 1290/2004
PS - Sultan Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK COURT
: NORTHWEST DISTRICT : ROHINI : DELHI
Sessions Case No. : 95/13
Unique ID No. : 02401R5985982004
State Vs. Arun Kumar @ Arun Chaudhary
S/o Sh. Karan Pal
R/o D37, Rajeev Nagar
Sultanpuri, Delhi.
FIR No. : 1290/2004
Police Station : Sultan Puri
Under Sections : U/s 376/313/494 IPC
Date of committal to session Court : 18/01/2005
Date on which judgment reserved : 02/03/2013
Date of which judgment announced : 08/03/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under : 1 of 59 2 FIR No. 1290/2004 PS - Sultan Puri That on 20/10/2004 on receipt of DD No. 86B, SI Shashi Lata (PW9) made inquiries from the prosecutrix (name withheld being a case u/s 376 IPC), D/o Sh. Md. Nisaar, R/o D13, Begum Pur Extn., Delhi, who made the statement which is to the effect that, she has studied upto 12th class and had been residing at Nirmal Chayya (Samaj Kalyan Vibhag) since her childhood. From there, she used to come to meet her mummy and brother and sisters. Last year in the beginning of the month of October, 2003 when she used to come to her house at D13 Begum Pur Extn., Delhi, one or two times Arun Chaudhary S/o Sh. Karan Pal, R/o D - 37, Rajiv Nagar, Begum Pur, Delhi - 110041 whose complete address she came to know later on, while going from Begum Pur Bus Stand to her home used to follow her and had asked her to do friendship with him and she refused but whenever she used to come to her house and because of following her by Arun Chaudhary and of his asking to do friendship, talking started with him and in this way her friendship developed with Arun. On 28/10/2003 Arun Chaudhary took her (prosecutrix) from Begum Pur Bus Stand on his motorcycle to his shop namely Balaji Tent House, Begum Pur, Sultanpuri Market, Delhi. When they were talking each other at the said shop, during that time 5/6 boys (persons), who work at the Tent House came and after talking for some time 2 of 59 3 FIR No. 1290/2004 PS - Sultan Puri regarding the tent, they went away. At about 10:00 p.m. Arun tried to make physical relations with her (prosecutrix) without her consent which she refused on which Arun threatened her on which she got frightened and against her will and consent Arun made physical relations with her and on that night she remained in the shop of Arun. Arun told her "we are ready to go ahead to perform marriage between us, then what is the evil in this" (hum aapas mei shaadi kare wale hain, fir is mei burai kya hai). He told her that he is a bachelor (Avivahit). On the next day morning, she came to her house. Then one day thereafter, after meeting Arun at Bus Stand Begum Pur, Delhi, she returned back to the Hostel. Then, one or two times Arun also came at her Hostel to meet her. Then one or two weeks thereafter, Arun by taking her to the house of his sister had also made physical relations with her. When she told Arun to perform the marriage as per his promise, then he said that his family members will not be ready because of she being of another religion (dusre dharm ki hone ki vajah se) but he will make them agree slowly slowly. He also met her mummy at her house and told her about performing the marriage with her (prosecutrix) and after asking from her (prosecutrix), her mummy also gave her consent for her marriage with Arun. After few days, of the meeting with Arun Chaudhary, she came to know that 3 of 59 4 FIR No. 1290/2004 PS - Sultan Puri she is pregnant and she told about this (pregnancy) to Arun and he became happy and told, "Oh good, he is going to be a papa" (acha, mai baap ban ne wala hoon). She again told him for performing the marriage but on one pretext or the other, he kept on deferring it and when she continuously pressed for this (marriage) then on 26/02/2004 Arun Chaudhary, in front of his friend Babloo Jha, performed marriage according to Hindu Rites and Customs with her at Baba Ki Mazaar near Ganda Nala, Mangol Puri and had also filled her hair parting (maang) and also made her to wear red colour bangles and the photographs were also taken/got done at Lover Studio, Sultanpuri, Thana Road. After marriage, she told him to take her to his house but on some pretext, he refused, hence, she returned to her house. Then from 12/05/2004, she and Arun lived as husband and wife at Naveen Vihar near Masjid. When she asked Arun, as to whose house is this, on which he said this is his (hamara) house. Accused keep on saying to her for abortion and one day, he after calling the Doctor at home also got checked her up and told her that she is having too much weakness (bahut kamzori hai) and glucose is required to be injected (glucose chadhwana padega) and then on 19/05/2004, he got her admitted in Garg Nursing Home, Avantika where she was checked by Dr. Monika Garg and on her (Dr. Monika) asking, she 4 of 59 5 FIR No. 1290/2004 PS - Sultan Puri (prosecutrix) told her (Dr. Monika) the pregnancy as of seven months. On which doctor made her lie down on a bed and she was given injection and after putting on glucose, was made to lie down (injection lagaya aur glucose laga kar lita diya). She started feeling unconsciousness but she was conscious enough to know as to what is happening. In between (beech beech mei) she was also given tablets of medicine (dawai ki goliyan) and in the morning of 20/05/2004 at about 9:00 a.m. her foetus got aborted (mera garbh gir gaya) and doctor told her that one dead child (male) was born. Then on the same day, after her discharge from hospital, at about 12:00 noon mummy and papa of Arun came to them (hamare paas aae) and started abusing her, she had seen them for the first time. They (mummy papa of Arun) told her that their son Arun is married one and is having two children, why she has destroyed their house (hamara ladka to shaadi shuda hai, aur do bachche hain, tune hamara ghar barbaad kar diya hai). Arun Chaudhary made physical relations with her against her consent and had performed marriage with her after telling himself as unmarried (Avivahit) and on her getting pregnant, by cheating got her admitted in Nursing Home and got aborted her seven months foetus and now he is refusing to keep her with him. Legal action be taken against him. The statement has been heard and is correct.
5 of 59 6 FIR No. 1290/2004 PS - Sultan Puri Prosecutrix was got medically examined from SGM Hospital vide MLC No. 2872/04 and on her MLC, doctor had endorsed alleged H/o sexual assault and alleged H/o MTP on 19/05/2004 (seven months) and handed over the vaginal swab sample and MLC to SI Shashi Lata. On finding from the inspection of MLC and from the statement of the prosecutrix, that offences u/s 376/313/494 IPC appeared to have been committed, case was got registered and the investigation was proceeded with. At the instance of prosecutrix, site plan was prepared. Statements of the witnesses were recorded. On 20/10/2004, accused Arun Chaudhary was arrested. He was got medically examined from SGM Hospital vide MLC No. 2878/04, his blood sample pullinda and sample seal, as handed over by the concerned Doctor, were taken into Police possession. During the course of investigation, the record pertaining to the treatment of the prosecutrix from Garg Nursing Home, Avantika was obtained. The photographs of marriage, as were produced by the prosecutrix were taken into Police possession. Statement of the prosecutrix was got recorded u/s 164 Cr.P.C. Sealed exhibits were sent to CFSL.
Upon completion of the necessary further investigation challan 6 of 59 7 FIR No. 1290/2004 PS - Sultan Puri u/s 376/313/494 IPC was prepared against accused Arun Kumar @ Arun Chaudhary and was sent to the Court for trial.
2. Since the offences u/s 376/313 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing of charge prima facie a case u/s 376 IPC was made out against the accused. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined ten witnesses. PW1 Dr. Shankar Gupta, CMO Sanjay Gandhi Hospital, Mangol Puri, Delhi, PW2 HC Constable Kali Charan, PW3 Dr. Monika, Specialist, Gynae, Garg Nursing Home, Avantika, Rohini, PW4 Prosecurix, PW5 HC Chand Kiran, PW6 Sh. Prakash Jha @ Bablu, PW7
- V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, PW8 Smt. Seema, PW9 SI Shashi Lata, IO and PW10 Ms. Preeti Aggarwal 7 of 59 8 FIR No. 1290/2004 PS - Sultan Puri Gupta, Ld. Senior Civil Judge/Rent Controller, Rohini Court Complex, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Dr. Shankar Gupta, who deposed that on 20/10/2004 he examined prosecutrix vide MLC Ex. PW1/A, after medical examination she was referred to S.R. Gyane as she was reported to be sexually assaulted. Thereafter, vaginal swabs taken by S.R. Gyane, contained in a parcel was brought to him and the parcel was sealed with the seal of hospital and that sealed parcel was handed over to the Police.
PW2 HC Kali Charan is the Duty Officer, who deposed that on 20/10/2004, he was posted as Duty Officer at PS - Sultan Puri from 12:00 mid night to 8:00 a.m. and on that day W/SI Shashi Lata handed over to him Rukka in the Police Station and on the basis of which he recorded FIR of this case and proved the copy of the FIR Ex. PW2/A also signed by him.
PW3 Dr. Monika who deposed that on 18/05/2004 she was 8 of 59 9 FIR No. 1290/2004 PS - Sultan Puri posted at Garg Nursing Home and on that day prosecutrix accompanied by her husband Arun Punia came to their nursing home who was brought with amenorrhea of three months with complaints of foul smelling discharge P.V. two days, bleeding P.V. one day, history of fever one day. She further deposed that on examination, she found that the patient was suffering from fever and there was foul smelling discharge from the vagina mixed with blood. Uterus mouth (OS) was open (admitting one tip of finger). After diagnosis, she found that it was a case of inevitable abortion. Therefore, the process of expulsion of products was carried out to prevent septicemia. She further deposed that on 19/05/2004 at about 8:30 a.m., the patient was discharged from the hospital. She proved the report regarding treatment Ex. PW3/A, treatment paper Ex. PW3/B, discharge report Ex. PW3/C. PW4 Prosecutrix, is the victim who deposed regarding the incidents and proved her statement made to the Police Ex. PW4/A, arrest memo of accused Arun Ex. PW4/B, seizure memo of the three photographs in which the prosecutrix and accused have been shown as husband and wife Ex. PW4/C, photographs Ex. PW4/D1, Ex. PW4/D2 & Ex. PW4/D3 and proved her statement recorded u/s 164 Cr.P.C. Ex. PW4/E. 9 of 59 10 FIR No. 1290/2004 PS - Sultan Puri PW5 HC Chand Kiran who joined investigation on 20/10/2004 and deposed on the investigational aspects and deposed that he got the prosecutrix medically examined from SGM Hospital and proved the seizure memo of the sealed exhibits handed over by the Doctor after her medical examination Ex. PW5/A signed by him at Point 'A'.
PW6 Sh. Prakash Jha @ Bablu who deposed that he is running a shop of opticles in main market, village Begum Pur, Delhi. The accused Arun present int he Court today (witness has pointed out towards the accused Arun) was running a Tent House at a distance from his shop. He does not know accused Arun personally. He does not know anything about his case. He was turned hostile and did not support the prosecution case and was also crossexamined by the Ld. Addl. PP for the State.
PW7 Dr. V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi has deposed that on 28/10/2004 he had examined Arun Chaudhary and was of the view that there was nothing to suggest that the said Arun Chaudhary was incapable of performing sexual act and proved his 10 of 59 11 FIR No. 1290/2004 PS - Sultan Puri endorsement in this regard encircled at Point 'A' on MLC Ex. PW7/A signed by him at Point 'B'.
PW8 Smt. Seema, is the wife of accused Arun Kumar Chaudhary who deposed that on 12/03/2000 she was married with accused Arun Kumar S/o Karan Pal as per Hindu Rituals and is having two sons Himanshu and Anurag.
PW9 SI Shashi Lata is the Investigating Officer (IO), who deposed on the investigational aspects and proved her attestation at point 'X' on the statement of prosecutrix Ex. PW4/A and also proved the seizure memo of the sealed exhibits handed over by the concerned doctor after the medical examination of the prosecutrix Ex. PW5/A signed by her at point 'X' and also proved rukka Ex. PW9/A, site plan Ex. PW9/B, arrest memo of accused Ex. PW4/B, his personal search memo Ex. PW9/C signed by her at points 'X', seizure memo of the sealed exhibits handed over by the concerned doctor after the medical examination of the accused Ex. PW9/D, seizure memo of the photographs Ex. PW4/C, seizure memo of two pages of the original register maintained by Anil Kumar, photographer in which at Serial 11 of 59 12 FIR No. 1290/2004 PS - Sultan Puri No. 119 he (photographer) had taken the photographs of prosecutrix on 26/02/2004 Ex. PW9/E and also proved the application for recording the statement of prosecutrix u/s 164 Cr.P.C Ex. PW9/G, signed by her at point 'X' and seizure memo of the photograph of marriage of Seema (PW8) with accused Arun as was handed over by Seema (PW8) Ex. PW9/H signed by her at Point 'X'.
PW10 Ms. Preeti Aggarwal Gupta, Ld. Senior Civil Judge / Rent Controller, Rohini Court, Delhi, who recorded the statement of the prosecutrix u/s 164 Cr.P.C and proved the application for recording the statement u/s 164 Cr.P.C Ex. PW9/G, statement u/s 164 Cr.P.C of the prosecutrix Ex. PW4/E (three pages) signed by her at point 'B' and certificate regarding the true and correctness of statement Ex. PW10/A. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.
6. Statement of accused Arun Kumar was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. He opted to lead 12 of 59 13 FIR No. 1290/2004 PS - Sultan Puri defence evidence and in his defence examined three witnesses namely DW1 HC Kali Charan, DW2 ASI Azad Mohd. and DW3 Sh. Karan Pal.
DW1 HC Kali Charan proved the copy of DD No. 95B dated 19/08/2004, PS Sultanpuri Ex. DW1/A. DW2 ASI Azad Mohd. to whom the DD No. 95B & 69B were marked, who deposed that after attending the both said calls, he came back to PS and recorded DD No. 2A dated 20/08/2004, PS Sultanpuri. He also proved the copy of DD No. 2A Ex. DW2/A. DW3 Karan Pal is the father of the accused who deposed that accused Arun was his son and he came to know regarding this case on 19/08/2004 when police officials came to him regarding the complaint made by prosecutrix and on 01/10/04 had taken back the same from PS - Sultan Puri stating that she had given the said complaint under some confusion and there is no dispute between her and Arun. On 20/10/2004, she again made a complaint against Arun regarding a false rape case and on that day itself accused Arun was arrested. On 20/12/2004 prosecutrix came to his house 13 of 59 14 FIR No. 1290/2004 PS - Sultan Puri with 3/4 other boys and demanded Rs. 2 lacs from him to get her son released from Judicial Custody. On the same day itself he made a complaint to concerned SHO and DCP. He further deposed that on 24/03/2005, she had again given a false complaint against him, Ravinder Bhura and one Virender Malik residents of the same locality which was found to be a false one. He further deposed that on 05/05/2005, she again made a false complaint against accused Arun, through he was in JC and was released on bail only on 07/05/2005. She further made a complaint on 12/05/2005 against accused Arun on which he was again arrested. He further deposed that on 16/05/2005 she and her mother demanded money of Rs. 5 lacs from him and his wife while they were going to the Court telling them that if she is given the said amount, she would deposed in favour of Arun else she would also implicate them falsely in some other case and instead of going to the Court, they went to the office of the Commissioner of Police and made a complaint. He also proved the photocopy of the request of prosecutrix made to SHO Mark 'A', his complaint made to concerned SHO and DCP Mark 'B' signed by him at Point 'A' and complaint made to the Commissioner of Police Mark 'C' signed by him at Point 'A'.
14 of 59 15 FIR No. 1290/2004 PS - Sultan Puri
7. Ld. Counsel for accused submitted that the prosecution failed to prove that the accused was owner and tenant of the said shop at Begumpur where the first time rape was alleged to have been committed and PW Jaswant who was allegedly owner of the said shop and has rented out the same to accused, had died unexamined and there is no documentary evidence on record in support of ownership and tenancy of said shop in the name of accused and his family members and further stated that PW9 SI Shashi Lata in the crossexamination has deposed that no document was handed over to us by Jaswant Singh regarding the shop in the name and style of Balaji tent House and PW6 Parkash Jha @ Bablu in his crossexamination has deposed that it is correct that accused was not running personally a tent house in the name and style of Balajit Tent House and submitted that hence, in the absence of any concrete evidence regarding the ownership and tenancy of accused about the said shop, it is highly impossible that accused can commit rape in the shop of others without the involvement of owner and landlord of the shop, And if it was so, then the owner and landlord must have been in array of the accused persons with the allegation of aid and abetment or Gang Rape. But it is not the case of prosecution. Hence on 28/10/2003 the committing of the offence of rape with the prosecutrix in the said shop 15 of 59 16 FIR No. 1290/2004 PS - Sultan Puri becomes doubtful as the spot of incident is not proved.
Ld. Counsel for accused further submitted that the prosecution has failed to prove the factum of rape committed by accused upon prosecutrix at the house of his sister. He further submitted that prosecution failed to prove that on 26/02/2004 any marriage was performed between the prosecutrix and accused. PW4 Prosecutrix in her examinationinchief deposed that 26/02/2004 the accused accompanied by his friend Babloo Jha took her to Majar of Peer Baba, Y Block, Mangolpuri. The marriage was solemnized as per Hindu rites thereafter we all went to Lover photo studio at Sultanpuri and got ourselves photographed and thereafter, I returned back to my house and the accused was having with him sindoor, bindi, bangles, anklets, Mangalsutra and bichuas on that occasion I made to wear all the aforesaid items.
Ld. Counsel for the accused further submitted that in her cross examination, PW4 - Prosecutrix admitted that marriage was not pre arranged. On that day I told my family members about it but they did not come as they were already angry with me. Babloo was also sitting on the same bike. We directly went to the Majar and did not stop in between. I 16 of 59 17 FIR No. 1290/2004 PS - Sultan Puri was wearing a jeans a sweater at that time. I did apply makeup for marriage at the majar but did not change my clothes for marriage.
Ld. Counsel for accused further submitted that the evidence of PW4 Prosecutrix made it clear that Pandit was not called for the solemnization of legal marriage according to Hindu rites and necessary rites saptapadi did not take place in this marriage which is required for a valid Hindu marriage and raised a plea that why did the prosecutrix not force the accused to call the pandit and for saptapadi at the time of marriage and according to PW4 Prosecutrix at the time of marriage the photographs were not taken at majar and that Babloo the only eyewitness to this marriage is not in the photographs and that PW Anil the photographer has not been examined by the prosecution and that PW6 Sh. Prakash Jha @ Bablu did not support the case of prosecution and was declared hostile. Even in the cross examination by Ld. Addl. PP he declined to make such statement and that photographs could not be proved for the want of its original negatives and that PW9 - IO of the case in her crossexamination admitted that two pages of register collected from the photographer which is Ex. PW9/E does not bear the name of shop of the photographer and seal and signature of the photographer. It is correct that the negatives of the photographs which were 17 of 59 18 FIR No. 1290/2004 PS - Sultan Puri handed over to me by the prosecutrix Ex. PW4/D1D3 were not collected by me. Hence the defence version that the prosecutrix being the friend of accused was in the possession of accused's photographs and she with the connivance of photographers developed some false photographs, cannot be rule out especially when the prosecutrix had the ulterior motive to extort the money which came out later on.
He further submitted that the prosecution failed to prove that prosecutrix was pregnant from the accused. It is the admitted case of prosecution that the prosecutrix had been pregnant from the accused. Nowhere PW4 stated that she is pregnant from other person except the accused and PW4 in her examinationinchief deposed that on inquiry she told the doctor that she was having the pregnancy of seven months while the prosecutrix in her statement Ex. PW4/A stated that this fact told by (to) Dr. Monika that fetous was of 7 months.
He further submitted that in her crossexamination PW4 Prosecutrix admitted that she realized that in month December, 2003 that she have been pregnant but on the other hand PW3 Dr. Monika deposed that on 18/05/04 she was brought with amenorrehoea of three months with complaints of foul smelling, discharge P.V. Two days bleeding, history of 18 of 59 19 FIR No. 1290/2004 PS - Sultan Puri one day fever, uterus mouth was open and she found that it was a case of inevitable abortion and in her crossexamination PW3 - Dr. Monika deposed that on diagnosis and examination she came to the opinion that it was a case of three months amenorrhoea. Even the patient had given the history of three months pregnancy. In this case the patient might have had mensuration in the first and second week of Feb 2004 and submitted that the opinion of PW3 Dr. Monika is contrary to evidence of PW4 - Prosecutrix that she was pregnant in the month of December.
Ld. Counsel for accused further submitted that there is no allegation against the accused that she was raped or any sexual intercourse took place in the month of November and December between prosecutrix and accused and further in the month of February, 2004. Hence in both situations the pregnancy from accused is ruled out and it may be presumed from other persons and further raised a plea that when PW4 Prosecutrix could depose falsely even at the point of pregnancy to (from) whom it was, then she can go upto any extent to depose falsely against the accused with her ulterior motive and deposed that the evidence of PW4 prosecutrix cannot be believed as trustworthy, reliable and reliance cannot be placed upon her testimony.
19 of 59 20 FIR No. 1290/2004 PS - Sultan Puri He further submitted that it is worth to mention that it is not the case of prosecution that after 28/10/03 they started to reside together and used to have sexual intercourse as husband and wife before pregnancy and submitted that PW4 Prosecutrix and PW3 Dr. Monika have deposed contradictory in their evidence regarding the age of pregnancy, physical state of pregnancy, giving of information about the age of pregnancy and sex of fetous (male and female). Hence the evidence of prosecutrix is not in the consonance with the medical evidence deposed by Dr. Monika who is an expert witness.
Ld. Counsel for accused further submitted that the prosecution failed to prove the fact that the prosecutrix and accused lived there as husband and wife in the rented room at Navin Vihar.
Ld. Counsel for the accused further submitted that PW4 Prosecutrix in her statement Ex. PW4/A stated that we lived in a room at Naveen Vihar near Masjid as husband and wife and on asking accused told me that the house is ours but in her examinationinchief she deposed that on 12/05/04 accused took me on a rented room near Mosque and while in her 20 of 59 21 FIR No. 1290/2004 PS - Sultan Puri crossexamination she deposed that Arun told her that the house where they shifted in Navin Vihar was their own house and that his parents have gone somewhere and the other family residing in the adjacent rooms were their tenant and submitted that it revealed that PW4 Prosecutrix made contradictory statement about the room whether it was a rented room or owned by accused and that if it was rented room, then there is no documentary evidence on record regarding the rent agreement, rent receipt which can suggest the accused as a tenant and that the prosecution failed to locate any such house with site plan and that no statement of landlord of the rented room has been recorded in the case and that no public witness/neighbour is cited as a witness in the case to prove that the prosecutrix and accused lived there in the said room as husband and wife and that no such doctor has been examined in the case who had examined the prosecutrix at the said room in Navin Vihar and that if it was own house of the accused then no documentary evidence is produced on record regarding the ownership of the house which may suggest that either the father of accused or accused himself was the owner of house at Navin Vihar and submitted that it is against the human conduct when accused knew that he is already married and having the wife and parents at his house knowing also 21 of 59 22 FIR No. 1290/2004 PS - Sultan Puri that they shall not allow him such company, would keep the prosecutrix in his own house. It is not believable that all family members of accused would go outside and accused would keep the prosecutrix at his house in their absence and that PW4 - Prosecutrix has not deposed that during the period of 12/05/04 and 19/05/04 the accused repeatedly committed sexual intercourse with prosecutrix. Hence charge of rape framed against the accused could not be proved by prosecution beyond reasonable doubt and that when the existence of room where the prosecutrix allegedly lived with accused as husband and wife could not be proved then question of having sexual relations in such a room does not arise at all.
Ld. Counsel for accused further submitted that prosecution failed to prove that accused had forced the prosecutrix to get the foetus aborted but when the pregnancy was not from the accused in the absence of allegation of having relationship during the period of ovalation and mating, then why the accused should force prosecutrix to get abortion of the pregnancy. It is against the normal human conduct. He further submitted that PW4 Prosecutrix in crossexamination has deposed that during the period of 12/05/04 and 19/05/04 the pregnancy was all right at that time. Then why she accompanied the accused to Garg Nursing Home. PW3 Dr. Monika 22 of 59 23 FIR No. 1290/2004 PS - Sultan Puri deposed that it was a case of inevitable abortion and apprehension of septicemia, there was foul smell, uterus was open with bleeding and the history was for one day back. PW3 Dr. Monika admitted that in my report Ex. PW3/A name and particulars of the patient are not in my handwriting. Name and particular were not recorded in my presence. In respect of this case in case any document was supplied to the patient, it might have been supplied by Garg Nursing Home as I had no authority to supply any such document. It is correct that in this report Ex. PW3/A the space meant for signature of the authorised signatory is lying vacant and further submitted that while PW9 - SI Shashi Lata contrarily deposed that Dr. Monika Garg handed over her the photocopy of the register maintained at Garg Nursing Home. It is important to note that no authorised person or owner of the Garg Nursing Home is witness in the case with the original record. Who could have proved that the Ex. PW3/A the report and consenting form have been handed over to IO of the case. Hence it remained a mystery that how, when and whose instance or in presence the said photocopy of the register maintained at Garg Nursing Home made part of the record. PW9 did not depose about the date on which said record from Garg Nursing Home was taken. Ld. Counsel for the accused further submitted that there is no 23 of 59 24 FIR No. 1290/2004 PS - Sultan Puri independent witness to the seizure memo of record taken from Garg N. Home has been examined either from the Garg Nursing Home or in the presence of prosecutrix.
Ld. Counsel for the accused further submitted that FIR is delayed and is a concoction at the instance of complainant with the connivance of Police. For more than five months after 19/05/2004, no allegation of rape has been levelled by the prosecutrix and against the accused and on 19/10/2004 she made the first complaint vide DD No. 86B. Ld. Counsel for the accused further submitted that prosecution has failed to prove its case and prayed for the acquittal of the accused on the charge levelled against him.
8. While the Ld. Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Sh. S. C. Sroai, Ld. Addl. PP for the State and Sh.
24 of 59 25 FIR No. 1290/2004 PS - Sultan Puri Ashok Drall, Ld. Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offence u/s 376 IPC against the accused Arun Kumar is that on 28/10/2003 at 10:00 p.m. at Shop of Balaji Tent, Begumpur, Delhi, he raped the prosecutrix against her wish and thereafter from 12/05/2004 till 20/05/2004 he raped the prosecutrix to wit he had sexual intercourse by obtaining her consent deceitfully.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW4 the prosecutrix during her examinationinchief has deposed that during the days of occurrence, she was 18/19 years of age. Her date of birth is 10/04/1983 as per school certificate.
25 of 59 26 FIR No. 1290/2004 PS - Sultan Puri The said part of the testimony of PW4 prosecutrix has not been challenged by the accused during her lengthy and incisive crossexamination. Undisputably, no evidence to the contrary has been proved and led by the accused on the record.
In the circumstances, it stands proved on record that the date of birth of PW4 - prosecutrix is 10/04/1983.
As the first alleged incident occurred on 28/10/2003 and the date of birth of the prosecutrix is 10/04/1983, on simple arithmetical calculation the age of the prosecutrix comes to 20 years, 06 months and 18 days as on the date of first alleged incident on 28/10/2003.
In the circumstances, it stands established on the record that PW4 prosecutrix was aged 20 years, 06 months and 18 days on the date of the first alleged incident on 28/10/2003.
VIRILITY OF THE ACCUSED
13. PW7 Dr. V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, in his examinationinchief has deposed that : "On 28/10/2004, I was posted at SGM Hospital, Mangolpuri, Delhi in the Department of Forensic Medicine. ON that day, one Arun 26 of 59 27 FIR No. 1290/2004 PS - Sultan Puri Chaudhary was examined by me and his MLC was also placed before me dated 20/10/2004. After perusing the MLC and the physical examination of said Arun Chaudhary, I was of the view that there was nothing to suggest that the said Arun Chaudhary was incapable of performing sexual act. My opinion in this regard on the MLC is encircled at point 'A'. MLC is Ex. PW7/A and it bears my signatures at point 'B'.
He was not crossexamined despite grant of opportunity. In the circumstances, it stands established on the record that accused Arun Chaudhary was capable of performing sexual act.
14. Now let the testimonies of PW4 prosecutrix, PW8 - Smt. Seema, PW3 - Dr. Monika, PW6 - Sh. Parkash Jha @ Bablu and PW9 - SI Shashi Lata be perused and analysed.
PW4 prosecutrix in her examinationinchief has deposed that she has studied upto 12th standard. She resided at Nirmal Chhaya (Samaj Kalyan Vibhag) since her childhood. Presently she is residing with her mother and sister.
In the month of October 2003, she resided at Nirmal Chhaya and she used to visit the house of her mother situated at the above stated address (House No. D13, Begumpur Extension, Delhi). Arun accused present in the 27 of 59 28 FIR No. 1290/2004 PS - Sultan Puri court today used to follow her from Begampur bus stand upto the house of her mother. He also used to offer friendship. Accordingly, they developed friendship with each other.
On 28/10/2003, Arun accused took her to his tent house being run under the name & style Balaji Tent House, Begumpur, Sultanpuri market, on his motorcycle. There they talked with each other. At the same time, 5/6 boys also reached there. They talked to Arun and thereafter they left. At about 10 p.m., Arun accused tried to commit rape on her. She objected to it, but he threatened her that in case she did not permit him to do so, the boys present outside would come in and tear away her clothes. She felt terrified. The accused then did commit rape on her. During the night, she and Arun remained in the tent house. During that night, he (Arun) did commit rape on her thrice. When She asked from the accused as to why he did commit rape on her, he replied that he would marry her. The accused also told her that he was a bachelor. In the morning, she left the tent house and reached her house. On the next day, she met the accused at Begumpur bus stand and then left for Nirmal Chhaya.
From the aforesaid narration of the incident by PW4 prosecutrix, it is very clear that at the tent house accused committed 28 of 59 29 FIR No. 1290/2004 PS - Sultan Puri rape upon the PW4 Prosecutrix despite being objected to by her, under threat to her and after terrifying her that in case she did not permit him to do so, the boys present outside would come in and tear away her clothes and thereafter also committed rape thrice upon the prosecutrix during that night, on the assurance of marrying her and representing him as a bachelor.
PW8 Smt. Seema, is the wife of accused Arun Chaudhary who in her examinationinchief has deposed that she resides at D37, Rajiv Nagar, Begum Pur, Delhi alongwith her family and she is a housewife. On 12/03/2000 she was married with accused Arun Kumar S/o Karan Pal present in the court today (correctly identified) as per Hindu Rituals and out of the said legal wedlock, she is having two sons Himanshu and Anurag. She is the daughter of Sh. Ved Pal resident of Village Mau District Baghpat. IO recorded her statement.
Despite grant of opportunity, PW8 Seema was not cross examined by the accused.
In the circumstances, it stands established that PW8 Seema 29 of 59 30 FIR No. 1290/2004 PS - Sultan Puri was the wife of accused Arun Chaudhary.
From the testimony of PW8 Seema, it stands clearly indicated that accused Arun Chaudhary on 28/10/2003 had a living spouse, Smt. Seema and said factum of marriage was concealed by accused Arun Chaudhary from PW4 prosecutrix and on the representation of he being a bachelor and on the assurance of that he will marry her (PW4 prosecutrix) committed rape upon PW4 prosecutrix. Had there been no such misrepresentation practiced upon PW4 prosecutrix by accused the sexual intercourse with prosecutrix could not have taken place, for which prosecutrix had objected to.
During her crossexamination PW4 prosecutrix has deposed which is reproduced and reads as under : "On 28/10/2003, accused took me to his tent house from Begum Pur bus stand at around 10:00 p.m. I had gone to Begumpur bus stand at 10.00 pm as we had already decided to meet over there. Witness again states that accused met her at Begumpur bus stand at his tent house at around 10:00 p.m. Witness thus stated that the agreed time between her and accused to meet at Begumpur bus stand was of 7:00 p.m. / 8:00 p.m. In my statement made to the police, the time of meeting at Begumpur bus standing being 7:00 p.m. / 8:00 p.m. is not mentioned. At that time I had come from the house of 30 of 59 31 FIR No. 1290/2004 PS - Sultan Puri my mother. I had left my house to go to my hostel at Nirmal Chhaya. The hostel at Nirmal Chhaya used to close at 10:00 p.m. in the night. I had sit on the motorcycle of accused with him earlier also on some occasions. However, it was not pre decided that from Begumpur stand we will to go to the tent house of accused. I do not remember as to where I had gone alongwith accused on his motorcycle on the earlier occasions. It is wrong to suggest that I am deposing falsely or that accused had never taken me for a ride on his motorcycle.
I asked that accused as to why he had taken me to the tent house and he stated that he will talk for some time over there and thereafter you will go back. The tent house was situated in a market area. I am not aware as to whether there were any PCO booth which used to remain open 24 hours. Most of the shops in the marked had closed by 10:00 p.m. or so. Though the tent house shop was open at that time but no one was present there. We reached the said shop within 1520 minutes of meeting at Begumpur bus stand. Prior to 10:00 p.m. we were just talking inside the tent house. No customer came at the shop during that period. Witness however states that 56 persons had come over there and they had some talks with accused Arun Choudhary but I do not know as to what they were talking. They left within 510 minutes. I had asked accused Arun prior to 28/10/2003 as to whether he was married or not and he replied that he was unmarried and the he wanted to marry me. It is correct that I developed intimacy with accused only because he stated that he was unmarried and he wanted to marry me. I had not stated the aforesaid fact either in my statement to the police Ex. PW4/A or in my statement u/s 164 Cr.P.C Ex. PW4/E. When accused told me his name as Arun Choudhary, then I could gather that he was a Hindu. Till 10:00pm on 28/10/2003 we had not decided 31 of 59 32 FIR No. 1290/2004 PS - Sultan Puri on any date for getting married. Prior to 10:00 p.m. on 28/10/2003 accused never tried to sexually assault me. Prior to 10:00 p.m. accused was continuously pulling down the shutter to some portion after some intervals on the pretext that he was feeling cold and finally at 10:00 p.m. / 10:15 p.m. he pulled down the shutter completely. When accused tried to sexually assault me then I told him to not to do so. By the time when shutter was brought down completely, those 56 persons who had earlier come had left. I did not notice as to whether they left on foot or on some vehicle. I had stated in my statement Ex. PW4/A that when I objected to the acts of accused then he threatened me that the persons standing outside will come and will tear off my clothes. (Confronted with statement Ex. PW4/A where it is not so recorded). I had not stated in statement Ex. PW4/A that accused was gradually pulling down the shutter. I had stated in statement Ex. PW4/A that accused raped me thrice on the night of 28/10/2003 in his shop (confronted with statement Ex. PW4/A where the incident of rape having taken place thrice is not mentioned). I do not remember as to whether any phone was installed in the said shop or not. I came to know after the registration of the present case only that accused was residing in that locality of Begumpur itself. No one came at the shop after 10:00 p.m. I left the shop in the morning at around 6:00 p.m. / 7:00 p.m. It is wrong to suggest that till 28/10/2003 there was no proposal between us of getting married."
On careful perusal and analysis of the said testimony of PW4 prosecutrix I find that the testimony of PW4 prosecutrix is natural, clear, cogent, convincing, trustworthy and inspires confidence. In the witness box she has withstood the test of crossexamination and her testimony is 32 of 59 33 FIR No. 1290/2004 PS - Sultan Puri consistent throughout. The version of PW4 - Prosecutrix on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW4 - Prosecutrix is also found to be in consonance with her statement u/s 164 Cr.P.C Ex. PW4/E. In the circumstances and in view of the clear, cogent, reliable and convincing testimony of PW4 - Prosecutrix there is no substance in the plea of Ld. Counsel for the accused that the prosecution has failed to prove that the accused was owner and tenant of the shop at Begumpur where the first time rape was alleged to have been committed. Moreover, the fact regarding the ownership and tenancy of said shop of Begumpur was especially within the knowledge of accused and the burden of proving the same was upon the accused as provided under sec. 106 of the Indian Evidence Act, 1872. In the circumstances, it does not lie in the mouth of the accused to utter that the committing of the offence of rape on 28/10/2003 upon the prosecutrix in the said shop has become doubtful as the spot of incident is not proved.
In the circumstances, and in view of above, I am of the 33 of 59 34 FIR No. 1290/2004 PS - Sultan Puri considered opinion that prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 28/10/2003 at about 10:00 p.m. at shop of Balaji Tent, Begumpur accused Arun Kumar committed rape upon the PW4 Prosecutrix despite being objected to by her, under threat to her and after terrifying her that in case she did not permit him to do so, the boys present outside would come in and tear away her clothes and thereafter also committed rape thrice upon the prosecutrix during that night, on the assurance of marrying her and representing him as a bachelor, despite knowing it well that he was already married to PW8 Seema and he cannot marry the PW4 prosecutrix whereby, the promise of marriage was merely a hoax and being conscious of the fact that, Had he not promised to marry the victim, she would have never allowed him the physical intimacy with her.
15. PW4 Prosecutrix in her examinationinchief has further deposed that after one week of 28/10/2003, she was taken by accused to her sister where he committed sexual intercourse with her, on the promise that he 34 of 59 35 FIR No. 1290/2004 PS - Sultan Puri shall marry her.
The relevant part of examinationinchief of PW4 - Prosecutrix reads as under : "After one week, I was going to the house of my mother. When I reached Budh Vihar bus stand, the accused met me there. He took me to the house of his sister in Sector20, Rohini, Delhi. At that time, he did commit sexual intercourse with me on the promise that he shall marry me. Thereafter, I returned to my house at Nirmal Chhaya.
After some days, I realized that I had become pregnant. I met the accused and told him about this fact. The accused replied that it was a matter of happiness as he was going to become a father. I reminded the accused of his promise to marry me but the accused replied that he was not sure if his parents were going to agree for our marriage as both of us were having different caste, I being Muslim and the accused being Hindu.
My name was struck off from the rolls of Nirmal Chhaya and as such I stated living at the house of my mother. I may mentioned here that while I was living at Nimral Chhaya, the accused visited there twice/thrice."
During her crossexamination PW4 prosecutrix has deposed that : "I had met the sister of accused on that day for the first time. I had never talked to her even on phone. We reached the house of sister of accused at around noon time. Over there accused introduced a lady aged about 35 years or so as his sister. The husband of said lady was also present 35 of 59 36 FIR No. 1290/2004 PS - Sultan Puri in the house as that lady introduced the said man as her husband. No one else was present in the house. They did not make any inquiry from me nor from Arun in my presence. We stayed there for about 1 or 11/2 hour. I did not have any tea etc over there. Accused Arun did talk to the said couple but I do not know what they were talking. Accused Arun did not state in my presence to them that he wanted to marry me. There was only one room in the said house with a kitchen and a WC and bathroom. After 11/2 house (hour) I asked Arun to leave as I was getting late for my house. It is correct that accused Arun left the house, then the said couple remained over there. It is wrong to suggest that over there he did not commit rape with me."
On careful perusal and analysis of the said testimony of PW4 prosecutrix I find that the testimony of PW4 prosecutrix is natural, clear, cogent, convincing, trustworthy and inspires confidence. In the witness box she has withstood the test of crossexamination and her testimony is consistent throughout.
I have carefully perused and analysed the evidence on record. From the testimony of PW4 prosecutrix as reproduced herein above, it stands clearly established that accused committed sexual with her at the house of his sister on the promise that he shall marry her. In the entire lengthy and incisive crossexamination of PW4 prosecutrix accused has no 36 of 59 37 FIR No. 1290/2004 PS - Sultan Puri where disputed or denied the fact that he did not visit the house of his sister alongwith PW4 prosecutrix or that he alongwith PW4 prosecutrix did not stay there.
In the circumstances, there is no substance in the plea raised by the Ld. Counsel for the accused that the prosecution has failed to prove the factum of rape committed by accused upon prosecutrix at the house of his sister.
In view of above and in the circumstances, I am of the considered opinion that prosecution has thus categorically proved beyond shadows of all reasonable doubts that after one week of 28/10/2003 accused took PW4 prosecutrix to the house of his sister and committed sexual intercourse with her, on the promise that he shall marry her despite knowing it well that he was already married to PW8 Seema and he cannot marry the PW4 prosecutrix whereby the promise of marriage was merely a hoax and being conscious of the fact that had he not promised to marry the victim, she would have never allowed him the physical intimacy with her thereby the consent was not valid in law.
37 of 59 38 FIR No. 1290/2004 PS - Sultan Puri PW4 Prosecutrix in her examinationinchief has further deposed that on 26/02/2004, accused solemnized marriage with her at Mazar and thereafter, they went to studio under the name and style Lover Studio and got themselves photographed. On 12/05/2004 accused took on rent a room near a mosque in the area of Naveen Vihar, where they lived as husband and wife. On 19/05/2005 accused took her to Garg Nursing Home situated in Avantika. On 20/05/2004 at about 7:00 / 8:00 a.m. she delivered one dead male child and was discharged from Garg Nursing Home on the same day. Thereafter, she reported the matter to police and accused was arrested in her presence.
It is pertinent to reproduce the relevant part of examinationin chief of PW4 Prosecutrix, which reads as under : "On 26/02/2004, the accused accompanied by his friend Bablu Jha took me to Majar of Peer Baba, situated near ganda nullah, YBlock, Mangolpuri, Delhi. The accused was having with him Sindoor, bindi, bangles, anklets, mangalsutra and bichuas. The accused then solemnized marriage with me at the said Majar. On that occasion, I was made to wear all the aforesaid items. This marriage was solemnized as per Hindu rites. Thereafter, all of us went to a Studio under the name and style Lover Studio, in the area of Sultanpuri and got ourselves photographed. Thereafter, I returned back to my house as the accused promised that he would make his 38 of 59 39 FIR No. 1290/2004 PS - Sultan Puri parents agree for this marriage.
On 12/05/2004, the accused took on rent a room near a Mosque in the area of Naveen Vihar. We lived there as husband and wife. The accused presurrised (pressurized) me for abortion. I refused to do so. One day the accused brought a person to the said room and represented that he was a doctor. The doctor checked me and told that the child in the womb was too weak; that glucose had to be administer and that in case glucose was not administered it could lead to miscarriage.
On 19/05/2005, accused Arun took me to Garg Nursing Home situated in Avantika. Dr. Monika Garg checked me there. On enquiry I told the doctor that I was having the pegnancy of seven months. The doctor asked me to lay down. The doctor then administer me an injection and glucose. As a result I could not see properly. I started suffering from pains. Thereafter I slept. Again said I became unconscious. When I regained consciousness I found that I was bleeding and a nurse was by my side. After some time, I again became unconscious.
On the next day i.e on 20/05/2004, at about 7:00 / 8:00 a.m., I delivered one dead male child. I enquired from the doctor as to how the child died. Doctor told me that the child had suffered damaged and as such had to be extracted. I was discharged from Garg Nursing Home on the same day, so I reached the tenanted room accompanied by Arun accused. On the same day, parents of the accused came to the tenanted room, and told me that their son the accused was a married person having his wife and two children and that as to why I was spoiling his life. They started hurling abuses at me. Thereafter, I returned to the house of my mother. From there I went to the police station Sultanpuri in 20/10/2004 and reported the matter. Police 39 of 59 40 FIR No. 1290/2004 PS - Sultan Puri recorded my statement. I have seen my statement which is Ex. PW4/A which bears my signatures at point 'A'. Arun accused was arrested in my presence on the same day. Police obtained my signatures on 2/3 papers. I identify my signatures at point A on arrest memo Ex. PW4/B."
During her crossexamination PW4 Prosecutrix has deposed which is reproduced and reads as under : "The marriage which took place on 26/02/2004 was not pre arranged. On that day, after Arun told me to get married then I did tell my family members about it but they did not come as they were already angry with me. In my presence, accused did not inform about the marriage even to his family and no one was present from his family at that time except his friend Babloo."
"From Begumpur bus stand, I went ahead on the bike of accused Arun. Babloo was also sitting on the same bike. We directly went to the Mazar and did not stop in between. I was wearing a jeans and sweater at that time. I did apply make up for marriage at the Mazar but did not change my clothes for marriage. I had stated in my statement Ex. PW4/A that accused had brought Sindoor, Bindi, Bangles, anklets, Mangal Sutra and Bichhuwas (confronted with statement Ex. PW4/A where it is mentioned about Sindoor and Bangles not about the remaining things). We stayed at the mazar for about 11/2 or 2 hours. No Pandit was called over there. At the mazar no photographs were taken. Babloo, the friend of Arun had refused to get himself photographed with us at the studio. About four photographs were taken at Lovers Studio. All the photographs were given to the police. It is wrong to suggest that on 26/02/2004 no marriage was solemnised between us
40 of 59 41 FIR No. 1290/2004 PS - Sultan Puri at any mazar or that I am deposing falsely in this regard or that no person with the name Babloo was ever present with us. It is further wrong to suggest that accused never brought any Sindoor, Bindi, bangles, anklets, Mangal Sutra and Bichhuwas for me nor applied Sindoor upon me. I had later on gone to the said photographer for collecting the negatives buthe told me that the same have already been collected by accused Arun. Prior to 26.2.2004 we have not got ourselves photographed at Lovers Studio. It is wrong to suggest that I was having friendship with accused Arun and was thus in possession of single photograph of Arun and in connivance with Lovers Studio photographer I got some photographs fabricated showing myself with Arun. I had stated in statement Ex. PW4/A that after the marriage accused told me that he will get his parents agree to the proposal and thereafter I returned back to my house. (confronted with statement Ex. PW4/A where it is only mentioned that accused on some pretext asked me to go back to my house but the aforesaid fact is not specifically mentioned). Thereafter till 12/05/04 I remained at my house with my parents. My parents did ask Arun to take me as we were not married but they did not talk to the parents of Arun. Arun told me that the house where we shifted in Navin Vihar was their own house and that his parents have gone somewhere and the other family residing in the adjacent rooms were their tenants. Between 12/05/2004 and 19/05/2004 the parents of Arun did not come to the said house to meet us. I did not come to know that the parents of accused had lodged any missing report. I do not know the name and address of the said male person who was introduced to me by the accused as a doctor. I had stated in my statement Ex. PW4/A that the said person had told me that the child in my womb was too weak or that in case glucose is not administered that it might lead to miscarriage confronted with statement Ex. PW4/A where it is not mentioned). Voltd. The doctor had said that it might lead to some problem. During this period of 12/05/04 to 19/05/04 I did not get my 41 of 59 42 FIR No. 1290/2004 PS - Sultan Puri self examined from any other doctor. As I was sleeping when the said person had come and he all of a sudden touched by abdomen and when I woke and question him then accused told me that he is merely carrying out a check up and the said person only touched my abdomen and thus I did not raise any objection. Voltd. I was perfectly all right at that time."
"On 19/05/04 I went to Garg Nursing Home at around 8:00 / 8:15 p.m. It is wrong to suggest that accused never took me to Garg Nursing Home or that I never lived with accused Arun from 12/05/04 till 19/05/04 at Navin Vihar. I had stated in statement Ex. PW4/A that on 20/05/04 parents of accused Arun came to our tenanted room at Navin Vihar (confronted with statement Ex. PW4/A where the word "tenanted room at Navin Vihar" is not mentioned)."
"It is wrong to suggest that I knew that accused is already married or that he is the only son of his parents, so I in order to extort money lured him in my friendship and thereafter in sexual relationship. It is wrong to suggest that I was having friendship with a number of other persons of the locality or that I was having sexual relations with them. It is also wrong to suggest that often I use to remain outside my house during night or that my family members have no control over me. It is wrong to suggest that accused Arun was not running any tent shop or that he never committed rape upon me, either in any tent house or at the house of any of his sister. In my presence police never recorded statement of any other person in this case. It is also wrong to suggest that I never got pregnant from accused Arun or that he never forged me to get my foetus aborted. It is also wrong to suggest that I am deposing falsely or that accused has falsely implicated in this case. It is wrong to suggest that I and Arun never resided as husband and wife or that accused never promised to marry me."
42 of 59 43 FIR No. 1290/2004 PS - Sultan Puri Inspite of incisive crossexamination of PW4 prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. On careful perusal and analysis, the testimony of PW4 is found to be clear, natural, cogent, convincing, trustworthy and inspires confidence. She has withstood the rigors of crossexamination without being shaken. Her version has remained intact on the core spectrum of crime. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
Ld. Counsel for the accused submitted that prosecution failed to prove that on 26/02/2004 any marriage was performed between the prosecutrix and accused.
In view of the clear, cogent, reliable and convincing testimony of PW4 - testimony detailed and discussed hereinabove, instead of raising the plea, it was for the accused to prove that on 26/02/2004 at Mazar of Peer Baba, situated near ganda nallah, YBlock, Mangol Puri, Delhi, what ceremony was performed by him with prosecutrix, was it a marriage?, If it was a marriage, was it is a Hindu Marriage or was it a Muslim Marriage? or was it a farce of marriage played upon the prosecutrix to exploit her sexually, despite knowing it well that he was already married to PW8 -
43 of 59 44 FIR No. 1290/2004 PS - Sultan Puri Seema and he cannot marry PW4 - Prosecutrix.
In the circumstances, there is no substance in the plea so raised by Ld. Counsel for the accused.
Further in view of the clear, cogent and reliable testimony of PW4 - Prosecutrix as discussed hereinabove, there is no substance in the pleas raised by Ld. Counsel for the accused that the prosecution has failed to prove that prosecutrix was pregnant from the accused or that the prosecution has failed to prove that prosecutrix and accused lived as husband and wife in a rented accommodation at Navin Vihar.
Further the testimony of PW4 prosecutrix is found to be corroborated in material particulars by PW3 Dr. Monika, PW6 Sh. Prakash Jha @ Bablu and PW9 SI Shashi Lata, IO.
PW3 Dr. Monika in her examinationinchief has deposed that : "On 18/05/2004, I was posted as such at Garg Nursing Home. On that date, patient prosecutrix (name withheld) wife of Arun, aged 19 years, resident of D37, Rajiv Nagar, Sector22, accompanied by her husband Arun Punia came to our nursing home. She was brought with amenorrhoea of three months with complaints of foul smelling discharge P.V. Two days, bleeding P.V. one day, history of fever one day. On examination, I found that the patient was suffering from fever and there was foul smelling discharge from the vagina mixed with blood. Uterus mouth (OS) was open 44 of 59 45 FIR No. 1290/2004 PS - Sultan Puri (admitting one tip of finger). After diagnosis, I found that it was a case of inevitable abortion. Therefore, the process of expulsion of products was carried out to prevent septicemia. My report in this regard is Ex. PW3/A, which is correct. I also prepared treatment paper. Same is Ex. PW3/B. It bears my signatures at point 'A'. On 19/05/2004 at about 8:30 a.m., the patient was discharged from the hospital. My report in this regard is Ex. PW3/C, which bears my signatures at point 'A'."
There is nothing in her crossexamination so as to impeach her creditworthiness.
PW9 SI Shashi Lata in her examinationinchief has deposed that : "On 11/12/2004, I recorded statement of Seema. On 16/12/2004, I recorded statement of Jaswant Singh. Seema w/o Arun handed over me one photograph of her marriage with Arun. Same was taken in police possession view seizure memo Ex. PW9/H signed by me at point 'X'. Dr. Monika Garg handed over me the photocopy of the register maintained at Garg Nursing Home where at Serial No. 32, dated 18/05/2004, prosecutrix (name withheld) was shown as wife of Arun reflecting address of accused i.e D37, Rajiv Nagar."
Nothing material could be elicited during the crossexamination of PW9 SI Shashi Lata so as to impeach her creditworthiness.
45 of 59 46 FIR No. 1290/2004 PS - Sultan Puri PW6 Parkash Jha @ Bablu, though was turned hostile but during his crossexamination by Ld. Addl. PP for the state has admitted it to be correct that there is a majar near the Ganda Nala, Sultanpuri.
At the cost of repetition, PW8 Smt. Seema has deposed that she resided at D37, Rajiv Nagar, Begum Puri, Delhi alongwith her family and she is housewife. On 12/03/2010 she was married with accused Arun Kumar S/o Karan Pal present in the court today (correctly identified) as per Hindu rituals and out of the said legal wedlock, she is having two sons Himanshu and Anurag. She is the daughter of Sh. Ved Pal resident of Village Mau District Baghpat. IO recorded her statement.
Ld. Counsel for the accused raised the plea that prosecution has failed to prove that accused had forced the prosecutrix to get the foetus aborted. I have carefully perused and analysed the evidence on record. On conjoint reading of the testimony of PW4 - Prosecutrix and PW3 - Dr. Monika as discussed and detailed hereinabove, there is no substance in the plea so raised by the Ld. Counsel for the accused.
46 of 59 47 FIR No. 1290/2004 PS - Sultan Puri
16. Ld. Counsel for the accused submitted that FIR is delayed and is a concoction at the instance of complainant with the connivance of Police. For more than five months after 19/05/2004, no allegation of rape has been levelled by the prosecutrix and against the accused and on 19/10/2004 she made the first complaint vide DD No. 86B. He further submitted that prosecutrix admitted the recording of DD No. 95B dated 19/08/2004 Ex. DW1/A. I have carefully perused and analysed the evidence on the record. PW9 - SI Shashi Lata in her examinationinchief recorded on 13/01/2010 has deposed that the information was received at the PS vide DD No. 86B dated 19/10/2004.
The said DD No. 86B dated 19/10/2004 has also not been disputed by the Ld. Counsel for the accused as while raising the said plea, he has referred to it.
It is also not in dispute that it is the DD No. 86B dated 19/10/2004 which resulted in the initiation of the investigational proceedings in the case and led to the registration of the FIR on the statement Ex. PW4/A of PW4 - prosecutrix.
It is pertinent to reproduce the relevant part of the examination 47 of 59 48 FIR No. 1290/2004 PS - Sultan Puri inchief of PW4 - prosecutrix which reads as under : "On the next day i.e on 20/05/2004, at about 7/8 a.m., I delivered one dead male child. I enquired from the doctor as to how the child died. Doctor told me that the child had suffered damaged and as such had to be extracted. I was discharged from Garg Nursing Home on the same day, so I reached the tenanted room accompanied by Arun accused. On the same day, parents of the accused came to the tenanted room, and told me that their son the accused was a married person having his wife and two children and that as to why I was spoiling his life. They started hurling abuses at me. Thereafter, I returned to the house of my mother. From there I went to the police station Sultanpuri in 20/10/2004 and reported the matter. Police recorded my statement. I have seen my statement which is Ex. PW4/A which bears my signatures at point 'A'. Arun accused was arrested in my presence on the same day. Police obtained my signatures on 2/3 papers. I identify my signatures at point 'A' on arrest memo Ex. PW4/B."
From the aforesaid narration of PW4 - prosecutrix, it is clearly indicated that on 20/05/2004, she delivered a dead male child and was discharged from Garg Nursing Home on the same date and then reached in the tenanted room accompanied by accused Arun and on the same day, parents of the accused came to the tenanted room and told her that their son - the accused was a married person having wife and two children and as to why she was spoiling his life and they also hurled abused on her. Thereafter, prosecutrix returned to the house of her mother. From there she went to PS - Sultan Puri on 20/10/2004 ands reported the matter. Police recorded her 48 of 59 49 FIR No. 1290/2004 PS - Sultan Puri statement Ex. PW4/A signed by her at point 'A'. On the same day, i.e. on 20/10/2004, accused was arrested in her presence vide arrest memo Ex. PW4/B. The perusal of DD No. 95B dated 19/08/2004 Ex. DW1/A pertains to the complaint lodged by PW4 - prosecutrix for the misbehaviour (Badtamizi) done to her by accused Arun near Shamshan Ghat.
From above, it is clearly indicated that after about five months of 20/05/2004 of the delivery of a dead male child the prosecutrix lodged the complaint Ex. PW4/A on 20/10/2004. It appears that after 20/05/2004, prosecutrix relegated to its fate and helplessness and could not have the courage to go before the Police Station and lodge a case. It was only on 19/08/2004, DD No. 95B Ex. DW1/A was lodged by her for the misbehaviour (badtamizi) done to her by accused Arun near Shamshan Ghat.
In the circumstances, the mental and the physical condition and the rigors through which the prosecutrix was undergoing explains the reason for the delay in lodging the report to the Police on 20/10/2004 when her life was again jolted, interfered and disturbed by accused Arun which led to the lodging of DD No. 95B on 19/08/2004 Ex. DW1/A for the misbehaviour (badtamizi) done to her by accused Arun near Shamshan Ghat.
49 of 59 50 FIR No. 1290/2004 PS - Sultan Puri The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
50 of 59 51 FIR No. 1290/2004 PS - Sultan Puri The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
51 of 59 52 FIR No. 1290/2004 PS - Sultan Puri The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
17. While analysing the testimony of PW4 - Prosecutrix, as discussed hereinabove, inspite of incisive crossexamination nothing has come out in the statement of PW4 - Prosecutrix which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by defence to PW4 - Prosecutrix that till 28/10/2003, there was no proposal between them of getting married or that over there (at the house of sister of accused Arun) he did not commit rape with her or that on 26/02/2004, no marriage was solemnized between them at any Mazar or that she is deposing 52 of 59 53 FIR No. 1290/2004 PS - Sultan Puri falsely in this regard or that no person with the name Babloo was ever present with them or that accused never brought any sindoor, bindi, bangles, anklets, mangal sootra, bichuaas for her nor applied sindur upon her or that she was having friendship with accused Arun and was thus in possession of single photograph of Arun and in connivance with Lovers Studio's Photographer, she got some photographs fabricated showing herself with Arun or that she is in the habit of extorting money from people in the locality by leveling such kind of allegations or that she knew that accused is already married or that he is the only son of his parents so in order to extort money, lured him in her friendship and thereafter in sexual relationship or that she was having friendship with number of other persons in the locality or that she was having sexual relations with them or that often she used to remain outside her house during night or that her family members have no control over her or that accused Arun was not running any Tent shop or that he never committed rape upon her, either in any tent house or at the house of any of his sister or that she never got pregnant from accused Arun or that he never forced her to get her foetus aborted or that she is deposing falsely or that accused has been falsely implicated in this case or that she and Arun never resided as husband and wife or that accused never promised to marry 53 of 59 54 FIR No. 1290/2004 PS - Sultan Puri her, were put, which were negated by the said PW4 - Prosecutrix but the same have not at all being made probable much established by any cogent evidence.
However, a futile attempt has been made by the accused to save his skin from the clutches of the law by way of examination of DW1 HC Kali Charan, DW2 ASI Azad Mohd. and DW3 Sh. Karan Pal.
DW1 HC Kali Charan proved the copy of DD No. 95B dated 19/08/2004, PS Sultanpuri Ex. DW1/A. DW2 ASI Azad Mohd. to whom the DD No. 95B & 69B were marked, who deposed that after attending the both said calls, he came back to PS and recorded DD No. 2A dated 20/08/2004, PS Sultanpuri. He also proved the copy of DD No. 2A Ex. DW2/A. DW3 Karan Pal is the father of the accused who deposed that accused Arun was his son and he came to know regarding this case on 19/08/2004 when police officials came to him regarding the complaint made by prosecutrix and on 01/10/04 had taken back the same from PS Sultanpuri stating that she had given the said complaint under some confusion and there 54 of 59 55 FIR No. 1290/2004 PS - Sultan Puri is no dispute between her and Arun. On 20/10/2004, she again made a complaint against Arun regarding a false rape case and on that day itself accused Arun was arrested. On 20/12/2004 prosecutrix came to his house with 3/4 other boys and demanded Rs. 2 lacs from him to get her son released from Judicial Custody. On the same day itself he made a complaint to concerned SHO and DCP. He further deposed that on 24/03/2005, she had again given a false complaint against him, Ravinder Bhura and one Virender Malik residents of the same locality which was found to be a false one. He further deposed that on 05/05/2005, she again made a false complaint against accused Arun, through he was in JC and was released on bail only on 07/05/2005. She further made a complaint on 12/05/2005 against accused Arun on which he was again arrested. He further deposed that on 16/05/2005 she and her mother demanded money of Rs. 5 lacs from him and his wife while they were going to the Court telling them that if she is given the said amount, she would deposed in favour of Arun else she would also implicate them falsely in some other case and instead of going to the Court, they went to the office of the Commissioner of Police and made a complaint. He also proved the photocopy of the request of prosecutrix made to SHO Mark 'A', his complaint made to concerned SHO and DCP Mark 'B' signed 55 of 59 56 FIR No. 1290/2004 PS - Sultan Puri by him at Point 'A' and complaint made to the Commissioner of Police Mark 'C' signed by him at PointA. I have carefully perused and analysed the defence evidence. DD No. 95B dated 19/08/2004 Ex. DW1/A pertains to the complaint lodged by PW4 - Prosecutrix for the misbehaviour (badtamizi) done to her by accused Arun near Shamshan Ghat.
DD No. 2A dated 20/08/2004 Ex. DW2/A is regarding kept pending of DD No. 95B (Ex. DW1/A) as PW4 - Prosecutrix expressed her inability to go to the house of accused Arun.
DW3 - Sh. Karan Pal is the father of accused Arun who has marked the photocopy of complaint dated 19/08/2004 (DD No. 95B Ex. DW1/A) Mark 'A'; copy of complaint dated 20/12/2004 made by him Mark 'B' and copy of complaint dated 16/05/2005made to the Office of Commissioner of Police Mark 'C'.
During his crossexamination by Ld. Addl. PP for the Statae, DW3 - Karan Pal negated the suggestion that it is only a false defence created by him in favour of his son Arun Kumar.
Undisputably, in the entire incisive crossexamination of PW4
- Prosecutrix conducted on 19/08/2008 and 05/09/2009 neither the said 56 of 59 57 FIR No. 1290/2004 PS - Sultan Puri documents Mark 'A', Mark 'B' and Mark 'C' nor any suggestions pertaining to them were put to her. It is not the case of the accused that he was not aware about the said documents Mark 'A', Mark 'B' and Mark 'C'.
In the circumstances, there appears to be substance in the suggestion of Ld. Addl. PP for the State put to DW3 - Karan Pal during his crossexamination that it (the said documents) is only a false defence created by him in favour of his son Arun Kumar.
In the circumstances, the testimony of DW3 - Karan Pal does not inspire confidence and he appears to be a procured witness.
18. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 28/10/2003, at about 10:00 p.m. at shop of Balaji Tent, Begum Pur, accused Arun Kumar committed rape upon the PW4 Prosecutrix despite being objected to by her, under threat to her and after terrifying her that in case she did not permit him to do so, the boys present outside would come in and tear away her clothes and thereafter also committed rape thrice upon the prosecutrix during that night, on the assurance of marrying her and 57 of 59 58 FIR No. 1290/2004 PS - Sultan Puri representing him as a bachelor and also committed rape upon the prosecutrix after one week of 28/10/2003 at the house of his sister in Sector - 20, Rohini, Delhi on the promise that he shall marry her, despite knowing it well that he was already married to PW8 Seema and he cannot marry the PW4 prosecutrix whereby the promise of marriage was merely a hoax and being conscious of the fact that, Had he not promised to marry the victim/PW4 prosecutrix, she would have never allowed him the physical intimacy with her and further the consent of PW4 prosecutrix for cohabitation/sexual intercourse was obtained by the accused Arun Kumar under a misconception of fact by deceitfully causing her to believe that she is lawfully married to him on 26/02/2004 while the accused committing the sexual intercourse upon the prosecutrix knew that the consent was given by PW4 prosecutrix in consequence of such misconception and despite accused Arun Kumar knowing it well that he was already married to PW8 Seema and being a Hindu, he cannot marry PW4 prosecutrix as he has a living spouse PW8 Smt. Seema and made her (PW4 prosecutrix) pregnant and got aborted her foetus.
I, accordingly, hold accused Arun Kumar @ Arun 58 of 59 59 FIR No. 1290/2004 PS - Sultan Puri Chaudhary guilty for the offence punishable u/s 376 IPC and convict him thereunder.
19. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Arun Kumar @ Arun Chaudhary in the commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Arun Kumar @ Arun Chaudhary beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Arun Kumar @ Arun Chaudhary guilty for the offence punishable u/s 376 IPC, and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 08th Day of March, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 59 of 59