Delhi District Court
State vs . 1. Hari Chand on 30 March, 2013
1
FIR No. 34/09
PS - Begum Pur
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 51/13
Unique ID No. : 02404R0034582010
State Vs. 1. Hari Chand
S/o Nathi Lal
R/o House No. P1/1006,
Sultan Puri, Delhi.
FIR No. : 34/09
Police Station : Begum Pur
Under Sections : 376 IPC
Date of committal to session Court : 16/02/2010
Date on which judgment reserved : 15/03/2013
Date of which judgment announced : 30/03/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C is as under :
1 of 59 2 FIR No. 34/09 PS - Begum Pur That on 13/11/2009, on receipt of DD No. 18A, ASI Ved Prakash for conducting the inquiries reached at flat no. 204, Pocket - 18, Sector - 24, Rohini, Delhi where prosecutrix (name withheld being a case u/s 376 IPC) met who got recorded her statement which is to the effect that, she alongwith her husband and children lives at plot no. 204, Pocket - 18, Sector - 24, Rohini, Delhi and is a house wife. The said house was taken on rent about 7/8 months back through a property dealer. Hari Chand is the landlord of this house who lives in PBlock, Sultan Puri. Her husband and her both the sons, Hemant @ Sonu and Manish carries the work of garments. Her husband, for the last few days had gone out of Delhi. The rent of the said house has not been paid for the last 2/3 months. Her landlord usually comes to ask for the rent.
About one week back, landlord Hari Chand had come to ask for the rent. At that time, she was alone in the house and Hari Chand forcibly against her consent established physical relations with her and left saying to her not to disclose about the same to anyone. Due to shame/shyness, she did not tell about this to anyone and kept in her heart and remained/perturbed under mental tension (man hi man ghut ti rahi). Today, on 13/11/2009, when she was alone at her house, at about 1:30 2 of 59 3 FIR No. 34/09 PS - Begum Pur p.m. Hari Chand again came to her house on the pretext of asking for rent. Due to not feeling well, she was lying (leti) in the inner room, Hari Chand by coming inside sat on the sofa and started pressurising for rent. When she told him her husband is not at home, he to come later on (baad mei aana) then Hari Chand started molesting/misconducting (ched chad) with her saying that he will forgo the rent and he forcibly overpowered (daboch liya) her on the bed and against her consent after forcibly taking off her salwar established physical relations with her when she tried to raise an alarm, her mouth was pressed by him and after threatening not to disclose this incident to anyone he went downstairs. After some time, on becoming normal, she phoned the Police on No. 100 through her mobile phone about the excesses (zyadati)/incident committed upon her. Hari Chand, the landlord has committed rape upon her without her consent. Legal action be taken. The statement has been heard and is correct. On finding from the contents of the copy of DD No. 18A and from the statement of the prosecutrix, that offence u/s 376 IPC appeared to have been committed. The case was got registered u/s 376 IPC by sending the Rukka through Constable Bharat Singh. Further investigation of the case was assigned to SI Ravinder Kumar. SI 3 of 59 4 FIR No. 34/09 PS - Begum Pur Ravinder Kumar alongwith Constable Bharat Singh reached at the spot and there at the instance of the prosecutrix, site plan was prepared. Medical examination of the prosecutrix was got conducted under the supervision of Lady Constable Sangeeta DHG from Sanjay Gandhi Hospital, Mangol Puri vide MLC No. 15631/09. NGO Smt. Santosh Gupta was also called at the spot who also made inquiries from the prosecutrix. From the spot, one blanket as was lying spread on the double bed and adjacent to the double bed one Tshirt which was lying on the floor having semen stains were taken in the Police possession. The sealed exhibits handed over by the concerned Doctor after the medical examination of the prosecutrix were taken into Police possession. Accused Hari Chand, after bringing from his house by ASI Ved Prakash was produced before SI Ravinder Kumar who was interrogated and was arrested in the case and who also made a disclosure statement. The statements of the witnesses were recorded. Medical examination of accused Hari Chand was got conducted from Sanjay Gandhi Hospital vide MLC No. 15836/09 and the sealed pullindas handed over by the Doctor after his medical examination were taken into Police possession. The case property was deposited in the Malkhana and 4 of 59 5 FIR No. 34/09 PS - Begum Pur thereafter the sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation, challan u/s 376 IPC was prepared against accused Hari Chand and was sent to the Court for trial.
2. Since the offence under section 376 IPC is 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 under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376 IPC was made out against the accused. The 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 17 witnesses. PW1 - Prosecutrix (name withheld), PW2 - Dr. Ish Kumar Midha, CMO, Sanjay Gandhi Hospital, Delhi, PW3 - Dr. 5 of 59 6 FIR No. 34/09 PS - Begum Pur Sanjay Kaushik, Sr. Casualty, SGM Hospital, PW4 - W/Constable Parveena, PW5 - Dr. Megha Purohit, MS, Obst. & Gynae, Sanjay Gandhi Memorial Hospital, Delhi, PW6 - Mrs. Santosh Gupta, PW7 - HC Raj Singh, PW8 - W/Constable Sangeeta, PW9 - Constable Bharat Singh, PW10 - HC Sanjay Kumar, PW11 - HC Raj Singh, PW12 - ASI Sukhdev, PW13 - SI Jai Parkash (Retired), PW14 - ASI Ved Prakash, PW15 - Constable Pawan Kumar, PW16 - W/HC Runa Rathore and PW17 - SI Ravinder Kumar.
It is to be mentioned that HC Raj Singh has been examined as PW7 as well as PW11.
5. In brief the witnessography of the prosecution witnesses is as under: PW1 - Prosecutrix is the victim who deposed regarding the incident and proved her complaint made to the Police Ex. PW1/A signed by her at point 'A' and also proved the arrest memo of the accused Ex. PW1/B signed by her at point 'A' and also deposed that her suit was taken into possession. One Tshirt of her son and one blanket was also taken into possession by the Police. The blanket and Tshirt were taken 6 of 59 7 FIR No. 34/09 PS - Begum Pur into possession. The Tshirt of her son was taken into possession because accused had cleaned himself with that Tshirt after committing rape on her.
PW2 - Dr. Ish Kumar Midha, CMO, Sanjay Gandhi Hospital, Delhi who medically examined the prosecutrix vide MLC Ex. PW2/A signed by him at point 'A'.
PW3 - Dr. Sanjay Kaushik, Sr. Casualty, SGM Hospital who medically examined the patient/accused Hari Chand vide MLC Ex. PW3/A signed by him at point 'A'.
PW4 - W/Constable Parveena who proved the copy of the PCR Form dated 13/11/2009 about receiving a call from prosecutrix (name withheld) Ex. PW4/A. PW5 - Dr. Megha Purohit, MS, Obst. & Gynae, Sanjay Gandhi Memorial Hospital, Delhi who gynaecologically examined the prosecutrix on the MLC Ex. PW2/A signed by her at point 'B'.
7 of 59 8 FIR No. 34/09 PS - Begum Pur PW6 - Mrs. Santosh Gupta deposed that she is running an NGO under the name and style of Mumkhsha at B5/30, Sultan Puri, Delhi. On 13/11/2009, ASI Ved Prakash informed her on telephone regarding incident of rape at house no. 204, Pocket - 18, Sector - 24. On receipt of this telephonic message, she went to the said house. Prosecutrix (name withheld) was present there. IO recorded her statement and she prepared her report and handed over the same to the IO. The report is Ex. PW6/A which bears her signature at point 'A' and signature of the prosecutrix (name withheld) at point 'B'.
PW7 - HC Raj Singh is the MHC(M) who deposed that on 13/11/2009, he was working as MHC(M) at PS - Begum Pur and proved the relevant entry of register no. 19 Ex. PW7/A dated 13/11/2009 and deposed that on 18/12/2009, the case property was sent to FSL, Rohini through Constable Pawan Kumar vide RC No. 05/21/09. The examinationinchief of the said witness was not completed by the prosecution. However, HC Raj Singh was examined in continuation as PW11. His both examinationinchief and crossexamination were 8 of 59 9 FIR No. 34/09 PS - Begum Pur completed.
PW8 - W/Constable Sangeeta who on 13/11/2009 joined investigation with IO ASI Ved Prakash and deposed on the investigational aspects and deposed that she got conducted the medical examination of the prosecutrix in SGM Hospital.
PW9 - Constable Bharat Singh who on 13/11/2009 joined investigation with IO ASI Ved Prakash and deposed on the investigational aspects and deposed that he took the tehrir for the registration of the case and got registered the case and after registration of the case handed over copy of FIR and rukka to IO.
PW10 - HC Sanjay Kumar is the Duty Officer who proved the computerized copy of the FIR Ex. PW10/A and his endorsement Ex. PW10/B on the rukka.
PW11 - HC Raj Singh is the MHC(M) who deposed that on 13/11/2009 he was working as MHC(M) at PS - Begum Pur and proved 9 of 59 10 FIR No. 34/09 PS - Begum Pur the relevant entry of Register No. 19 Ex. PW11/A dated 14/11/2009 and copy of the RC No. 05/21 Ex. PW11/B. PW12 - ASI Sukhdev who deposed that on 13/11/2009, he was posted in PCR and he was on duty on vehicle L49, He used to park his PCR vehicle near Maharaja Agrasen Institute at Sector - 22, Rohini. HC Jai Bhagwan and ASI Mange Ram, Driver were with him on that day. At about 1:30 p.m. a wireless message was received by them and on receiving the same they reached at Sector - 24, Pocket - 8, Flat No. 204, Rohini where prosecutrix (name withheld) met them. She was present with two children at Flat No. 204. He made inquiry from her and in the mean time SHO and other Police officials of PS - Begum Pur also reached the spot and they were relieved from the spot by the Local Police.
PW13 - SI Jai Parkash (Retired) who deposed that on 31/12/2009, further investigation of the case was handed over to him. He recorded the statement of Malkhana Moharar and Constable Pawan Kumar and prepared the challan and filed it in the Court.
10 of 59 11 FIR No. 34/09 PS - Begum Pur PW14 - ASI Ved Prakash is the initial Investigating Officer (IO) of the case who deposed on the investigational aspects and proved his endorsement Ex. PW14/B signed by him at point 'A' on the statement of the prosecutrix Ex. PW1/A and got registered the case and got the prosecutrix medically examined and deposed that further investigation was assigned to SI Ravinder.
PW15 - Constable Pawan Kumar who joined the investigation on 13/11/2009 with IO ASI Ved Prakash (PW14) and deposed on the investigational aspects and besides proving the arrest memo of accused Ex. PW1/B also proved his personal search memo Ex. PW15/A, the seizure memo of the sealed exhibits handed over by the concerned Doctor after the medical examination of the prosecutrix Ex. PW15/B signed by him at point 'X', seizure memo of one blanket double bed size, one Tshirt Ex. PW15/C signed by him at point 'A', disclosure statement of the accused Ex. PW15/D signed by him at point 'A', seizure memo of the motorcycle No. DL4SAU8570 Ex. PW15/E signed by him at point 'A', seizure memo of the sealed exhibits handed over by the 11 of 59 12 FIR No. 34/09 PS - Begum Pur Doctor after the medical examination of the accused Ex. PW15/F signed by him at point 'A' and further deposed that on 18/12/2009 at the instructions of IO after obtaining the sealed pullindas alongwith FSL Form from MHC(M) he deposited the same in the FSL, Rohini. He also identified and proved the Tshirt as Ex. P1, blanket as Ex. P2 and motorcycle Ex. P3.
PW16 - W/HC Runa Rathore is the Duty Officer who proved the DD No 18 A dated 13/11/2009 recorded on the receipt of wireless message at about 3:25 p.m. Ex. PW14/A. PW17 - SI Ravinder Kumar is the Investigating Officer (IO) of the case who deposed on the investigational aspects and besides proving the other memos also proved the site plan Ex. PW17/A, seizure of photocopy of the document of house no. 204, 1st floor, Pocket - 18, Sector - 24, Rohini, Delhi Ex. PW17/B signed by him at point 'A', seizure of the copy of the RC of the motorcycle no. DL4SAU8570, Ex. PW17/C signed by him at point 'A' and deposed that he procured the FSL Report and tendered the same in evidence as Ex. PW17/D and Ex.
12 of 59 13 FIR No. 34/09 PS - Begum Pur PW17/E and identified and proved the Tshirt as Ex. P1, blanket as Ex. P2 and the motorcycle Ex. P3.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Hari Chand was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and opted to lead defence evidence. In his defence accused examined only one witness, his wife as DW1 - Smt. Bimla.
DW1 - Smt. Bimla W/o Hari Chand has deposed that the prosecutrix (name withheld) used to reside in their house as tenant i.e. house no. 204, 1st floor, Pocket - II, Sector - 24, Roini. She was (had) not given the rent for about four months before the incident and they had requested them to vacate the house if they are not in (a) position to give the rent in time. On 12/11/2009, a telephonic message was received from husband of the prosecutrix (name withheld) Sh. Surender Sharma and called her husband to collect the rent on 13/11/2009. On 13/11/2009, in the morning hours at about 10:30 or 11:00 a.m., her husband received a 13 of 59 14 FIR No. 34/09 PS - Begum Pur telephonic message from Surender Sharma and at about 1:30 p.m. on the same day. Her husband responded to Surender Sharma that he was coming to his house at 1:30 p.m. as per his instructions. Her husband left the house at about 1:30 p.m. to the house of Surender Sharma but could not return even after one hour. Her dever received a call from her husband and informed her later that her husband was apprehended by the Police of Police Station Begum Pur. They went to the Police Station at about 2:30 p.m. and prosecutrix, Surender Sharma, Raju (Dealer) and other relatives of Surender Sharma met her at the Police Station. Prosecutrix and her husband Surender Sharma demanded Rs. 10 lacs from her to spare of her husband from any implication and since she could not arrange the said amount and prosecutrix falsely implicated her husband in a false case.
7. Ld. Counsel for the accused submitted that the deposition of PW1 - prosecutrix is self contradictory. Ld. Counsel for the accused further submitted that the ground floor of the property in which the complainant is residing, occupied by a lady namely Jaya and at the time of alleged incident of rape the complainant shouted and the quarrel had 14 of 59 15 FIR No. 34/09 PS - Begum Pur taken place between the complainant and the accused but in the whole chargesheet neither the statement of that lady was recorded nor did the Police officials try to collect any independent evidence from any witness around the vicinity of the alleged spot of incident. He further submitted that the area where the house of the complainant is situated is a running road and no one came at the voice of the complainant. Ld. Counsel for accused further submitted that the complainant herself submitted that the accused came to the house of the complainant to collect the arrears of rent by prior talking to the husband of the complainant, who had assured to the accused to come and collect the rent and all the doors of the house of the complainant were opened till the accused remained present in the house of the complainant.
Ld. Counsel for accused further submitted that in her chief examination the complainant stated that the complainant immediately informed the Police Control Room and in the crossexamination the complainant says that immediately after the alleged incident the complainant talked to her husband and on the advice of her husband, the complainant informed the Police Control Room. In the FIR the complainant says that after some time when the complainant became 15 of 59 16 FIR No. 34/09 PS - Begum Pur normal, then she called at 100 number. The statements of the complainant vary from time to time, which clearly established that in a preplanned manner the accused was called by the husband of the complainant in the house, even prior assured to the accused that he will give the arrears of rent to the accused and as the accused reached to the house of the complainant the complainant offered tea to the accused and in the meantime called the Police PCR and levelled the false charges over the accused.
Ld. Counsel for accused further submitted that the complainant herself admitted that neither she gave the statement to the Police officials nor mentioned in the FIR that the complainant was dragged by the accused how it could be possible that a person like accused dragged a well bodied woman like the complainant from the staircase of ground floor, from one hand holding and dragging her, from other hand keep her mouth shut for stopping her to raise alarm. This statement of the complainant is totally baseless and the MLC of the complainant did not support the version of the complainant.
Ld. Counsel for accused further submitted that it is hard to believe, when the accused aware that the husband of the complainant is 16 of 59 17 FIR No. 34/09 PS - Begum Pur coming to home to give him the arrears of rent then why any will do this act. On the other hand, the complainant herself admits that her husband called the accused for the payment of the rent. Ld. Counsel for accused further submitted that even after the information of the alleged offence at about 1:30/2:30 p.m. neither the husband of the complainant came to the house or Police Station but he came at night at 11:00 p.m. after completing his daily routine work. The act of the husband of the complainant shows as nothing happened and he was living his daily routine life. If the alleged offence had happened then, is it possible that the accused would remain stay there, it is established from act of the accused, that the accused had not escaped from there and the Police arrested the accused from the house of the complainant. The accused was arrested from standing outside of the house of the complainant. The act of the complainant and her husband shows the accused is innocent and has become the victim of the conspiracy of the complainant and her husband, in which the Police gave them the back support.
Ld. Counsel for accused further submitted that from the crossexamination of PW5 it is clear that there was no even a single mark of external injury or any struggle proved between the complainant and 17 of 59 18 FIR No. 34/09 PS - Begum Pur the accused. He further submitted that the statement of PW6 - Mrs. Santosh Gupta, NGO Counsellor supports the true facts of the accused and the defence witness that at the time of alleged offence the husband and the children of the complainant were present at the house of the complainant. He further submitted that during the crossexamination PW14 - IO ASI Ved Prakash stated that "I did no record the statement of any person related to this case". ASI Ved Prakash further stated in his crossexamination "I do not remember whether I had called Ms. Santosh Gupta."
Ld. Counsel for accused further submitted that the statement of the IO ASI Ved Prakash is totally contradictory with the statement of PW9. IO specifically said that he did not record the statement of any witness and PW9 says that his statement was recorded by the IO itself and only once. He further submitted that PW12 - ASI Sukhdev stated in his crossexamination that his statement was recorded by the IO of his own and nothing was asked from the witness. This shows that whole story was concocted by the complainant with her husband and the Police gave them full support.
Ld. Counsel for accused further submitted that during his 18 of 59 19 FIR No. 34/09 PS - Begum Pur crossexamination PW14 - SI Ved Prakash stated that "I left the spot at around 6:30 p.m." but in his crossexamination PW17 - SI Ravinder Kumar stated "Thereafter ASI Ved Prakash remained at spot at about 9:30 p.m. and then left".
Ld. Counsel for accused further submitted that the version of the defence witness is also corroborated with statement of the accused and prayed that the accused is an innocent person and has been falsely implicated and prayed that accused be acquitted of 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. Vikrant Arora, Ld. Counsel for the accused and have also carefully 19 of 59 20 FIR No. 34/09 PS - Begum Pur perused the entire record.
10. The charge for the offence u/s 376 IPC against accused Hari Chand is that on 13/11/2009, at about 1:30 p.m. at House No. 204, First Floor, Pocket - 18, Sector 24, Rohini, within the jurisdiction of PS - Begum Pur, he committed rape upon the prosecutrix (name withheld).
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. PW1 - Prosecutrix in her complaint dated 13/11/2009 made to the Police Ex. PW1/A has stated her age as 30 years.
In the MLC of PW1 - prosecutrix Ex. PW2/A, her age has been shown as 30 years.
Although no document as such regarding the age of the 20 of 59 21 FIR No. 34/09 PS - Begum Pur PW1 - prosecutrix being 30 years has been proved on record. Yet, the factum of age of PW1 - prosecutrix being 30 years has neither been disputed nor been challenged during the crossexamination of PW1 - prosecutrix. In the circumstances, it stands established that PW1 - prosecutrix was aged 30 years on the date of alleged incident on 13/11/2009.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW2 - Dr. Ish Kumar Midha, CMO, SGM Hospital. Delhi deposed that on 13/11/2009, he was posted as CMO in SGM Hospital. On that day, prosecutrix was brought in casualty with alleged history of sexual assault. He examined the prosecutrix vide MLC Ex. PW2/A signed by him at point 'A' and referred her for gynae opinion.
Despite grant of opportunity, PW2 - Dr. Ish Kumar Midha was not crossexamined on behalf of accused.
PW5 - Dr. Megha Purohit, MS Obst & Gynae, SGM Hospital, Delhi who gynaecologically examined the prosecutrix on 13/11/2009 at 7:30 p.m. and proved her gynaecological examination on the MLC Ex. PW2/A signed by her at point 'B'.
21 of 59 22 FIR No. 34/09 PS - Begum Pur The perusal of gynaecological examination interalia shows "No clothes changed since assault", "Hymen absent", "No underwear was worn at that time nor at the time of examination".
There is nothing in the crossexamination of PW5 - Dr. Megha Purohit so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical and gynaecological examination of prosecutrix vide MLC Ex. PW2/A satnds proved on the record.
VIRILITY OF THE ACCUSED
14. PW3 - Dr. Sanjay Kaushik, Sr. Casualty, SGM Hospital deposed that on 14/11/2009 he examined patient/accused Hari Chand with the alleged history of sexual assault vide MLC Ex. PW3/A signed by him at point 'A' and has further deposed that as per examination the patient/accused Hari Chand was capable to perform sexual intercourse.
Despite grant of opportunity PW3 - Dr. Sanjay Kaushik was not crossexamined on behalf of accused.
In the circumstances, it stands established on the record that accused Hari Chand was capable to perform sexual intercourse.
22 of 59 23 FIR No. 34/09 PS - Begum Pur BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW17 - SI Ravinder Kumar tendered the FSL Report No. 2009/B5302 and Serological Report No. 1387/09 dated 31/12/2010 in evidence as Ex. PW17/D and Ex. PW17/E respectively.
As per FSL report Ex. PW17/D, the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibits '1a', '1b', '1c'.
Exhibit '1a' : One lady's shirt. Exhibit '1b' : One salwar. Exhibit '1c' : One brassier.
Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '2'. Exhibit '2' : One microslide having whitish smear described as 'Vaginal smear'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '3', kept in a test tube.
23 of 59 24 FIR No. 34/09 PS - Begum Pur Exhibit '3' : Cotton wool swab on a stick described as 'oral swab'. Parcel '4' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '4', kept in a test tube. Exhibit '4' : Cotton wool swab on a stick described as 'oral swab'. Parcel '5' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '5', kept in a test tube.
Exhibit '5' : Cotton wool swab on a stick.
Parcel '6' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '6', kept in a test tube.
Exhibit '6' : Cotton wool swab on a stick.
Parcel '7' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '7', kept in a test tube.
Exhibit '7' : Cotton wool swab on a stick Parcel '8' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '8', kept in a test tube.
Exhibit '8' : Cotton wool swab on a stick.
Parcel '9' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '9', kept in a test tube.
24 of 59 25 FIR No. 34/09 PS - Begum Pur Exhibit '9' : Liquid material described as saline mouth wash. Parcel '10' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '10', kept in a test tube. Exhibit '10' : Cotton wool swab on a stick described as 'Vulval swab'.
Parcel '11' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '11', kept in a test tube. Exhibit '11' : Cotton wool swab on a stick described as 'Vulval swab'.
Parcel '12' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibits '12a' and '12b', kept in test tubes.
Exhibit '12a': Cotton wool swab on a stick labelled as 'Nail scraping right hand'.
Exhibit '12b': Cotton wool swab on a stick labelled as 'Nail scraping left hand'.
Parcel '13' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '13'. Exhibit '13' : A few nail clippings labelled as 'nails of right hand'. Parcel '14' : One sealed cloth parcel sealed with the seal 25 of 59 26 FIR No. 34/09 PS - Begum Pur of "SGMH GNCT DELHI" containing exhibit '14'. Exhibit '14' : A few nail clippings labelled as 'nails of left hand'. Parcel '15' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '15', kept in an injection vial.
Exhibit '15' : Dark brown foul smelling liquid described as plain vial of blood of prosecutrix.
Parcel '16' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '16', kept in an injection vial.
Exhibit '16' : Dark brown foul smelling liquid described as citrate vial of blood of prosecutrix.
Parcel '17' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '17'. Exhibit '17' : A few strands of hair described as 'pubic hair'. Parcel '18' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. of NCT DELHI" containing exhibit '18'.
Exhibit '18' : One underwear.
Parcel '19' : One sealed cloth parcel sealed with the seal
26 of 59
27
FIR No. 34/09
PS - Begum Pur
of "SGMH GOVT. of NCT DELHI" containing exhibit '19', kept in an injection vial.
Exhibit '19' : Damp dark brown gauze cloth piece described as 'blood gauze piece of accused'.
Parcel '21' : One sealed cloth parcel sealed with the seal of "RKY" containing exhibits '21a' and '21b'.
Exhibit '21a': One blanket.
Exhibit '21b': One Tshirt.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '15', '16' and '19'.
2. Human semen was detected on exhibits '1b', '2', '7', '10', '11' and '21b'.
3. Semen could not be detected on exhibits '1a', '1c', '3', '4', '5', '6', '8', '9', '12a', '12b', '13', '14', '17', '18' and '21a'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'NK FSL DELHI'.
As per FSL Report Ex. PW17/E, the result of serological analysis reads as under: 27 of 59 28 FIR No. 34/09 PS - Begum Pur Exhibits Species of origin ABO Grouping/Remarks Blood stains: '15' Blood sample Sample putrefied hence no opinion '16' Blood sample Sample putrefied hence no opinion '19' Blood stained No reaction gauze Semen stains: '1b' Salwar No reaction '7' Cotton wool swab No reaction '10' Cotton wool swab No reaction '21b' Tshirt Inconclusive result At the outset, it is to be mentioned that in the Biological report Ex. PW17/D, there is no mentioning of any Parcel '20' otherwise analysis of total 20 parcels has been detailed therein.
On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibit '15' (Blood sample of prosecutrix), exhibit '16' (Blood sample of prosecutrix) and exhibit '19' (Blood sample of accused). Human semen was detected on 28 of 59 29 FIR No. 34/09 PS - Begum Pur exhibit '1b' (Salwar of the prosecutrix), exhibit '2' (Vaginal smear of the prosecutrix), exhibit '7' (Cotton wool swab of the prosecutrix), exhibit '10' (Cotton wool swab of the prosecutrix described as 'vulval swab'), exhibit '11' (Cotton wool swab of the prosecutrix described as 'vulval swab') and exhibit '21b' (Tshirt of son of prosecutrix with which accused cleaned himself after committing rape upon her).
On a conjoint reading of the medical evidence, the gynaecological examination on MLC Ex. PW2/A of the prosecutrix as was conducted by PW5 - Dr. Megha Purohit together with the MLC of accused Hari Chand Ex. PW3/A in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of recent sexual intercourse activity.
In the circumstances, it stands clearly established on the record that recent sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW17/D with regard to the description of the articles contained in the parcels, it is noticed that, Parcel No. 1 to Parcel No. 17 belong to PW1 - prosecutrix which were 29 of 59 30 FIR No. 34/09 PS - Begum Pur seized vide seizure memo Ex. PW15/B, parcel no. 18 and parcel no. 19 belong to accused Hari Chand which were seized vide seizure memo Ex. PW15/F and parcel no. 21 is the clothes parcel, the clothes contained therein were seized from the place of incident vide seizure memo Ex. PW15/C. As per the biological report Ex. PW17/D, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1b' Salwar (of the prosecutrix seized vide seizure memo Ex. PW15/B), exhibit '2' Vaginal smear (of the prosecutrix seized vide seizure memo Ex. PW15/B), exhibit '7' Cotton wool swab (of the prosecutrix seized vide seizure memo Ex. PW15/B), exhibit '10' Cotton wool swab described as 'vulval swab' (of the prosecutrix seized vide seizure memo Ex. PW15/B), exhibit '11' cotton wool swab described as 'vulval swab' (of the prosecutrix seized vide seizure memo Ex. PW15/B) and exhibit '21b' (Tshirt of son of prosecutrix with which accused cleaned himself after committing rape upon her seized vide seizure memo Ex. PW15/C). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be 30 of 59 31 FIR No. 34/09 PS - Begum Pur present on the said exhibits '1b' '2', '7', '10', '11' and '21b'. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
16. Now let the testimonies of PW1 - prosecutrix and PW6 - Mrs. Santosh Gupta, NGO Counsellor be perused and analysed.
PW1 - prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "I am residing as a tenant in the house of the accused present in the Court for the last 89 months. The monthly rent is Rs. 3,800/ and water and electricity charges are separately. My husband sells clothes on patri in markets. My husband also stays out of Delhi in connection with his work. On 13/11/2009, accused telephoned me at around 10:00 a.m. I told him/accused to come in the evening for collecting the rent. Again accused telephoned my husband. My husband also told him to come and collect the rent. Accused came to my house at about 1:30 p.m. in the afternoon. My husband and children were away. I was not feeling well so I was lying on the bed. He came and sat on the sofa. Thereafter he torn my clothes and did wrong act with me. He also pressed my neck. When I asked him what he was doing he replied :
"kuch nahi nota mai sab sambhal lunga"
31 of 59 32 FIR No. 34/09 PS - Begum Pur I immediately informed the police control room. When he had just gone out of my house I informed the Police. Police arrived there. By wrong act I mean that he committed rape on me. Police recorded my statement. I admit my signature at point 'A'. My complaint is Ex. PW1/A. I was taken to the Police Station and then I was taken to the Hospital where I was medically examined. My suit was taken into possession. One Tshirt of my son and one blanket was also taken into possession by the Police. The blanket and Tshirt were taken into possession. The Tshirt of my son was taken into possession because he had cleaned himself with that Tshirt after committing rape on me. The accused was arrested then and there by the Police on my pointing out. His arrest memo Ex. PW1/B was prepared which bears my signatures at point 'A'.
From the aforesaid narrations of PW1 - prosecutrix it is clear that she was residing as a tenant in the house of accused Hari Chand for the last 89 months at a monthly rent of Rs. 3,800/ with separate water and electricity charges. Her husband, sells clothes on Patri in markets and also stays out of Delhi in connection with his work. On 13/11/2009, accused telephoned her at about 10:00 a.m. She told accused to come in the evening for collecting the rent. Again accused telephoned her husband. Her husband also told accused to come and collect the rent. Accused came to her house at about 1:30 p.m. in the afternoon. Her husband and children were away. She was not feeling 32 of 59 33 FIR No. 34/09 PS - Begum Pur well so she was lying on the bed. Accused came and sat on the sofa. Thereafter accused torn her clothes and did wrong act with her. Accused also pressed her neck. When she asked him what he was doing he replied : "kuch nahi nota mai sab sambhal lunga". She immediately informed the police control room. When accused had just gone out of her house she informed the Police. Police arrived there. By wrong act she means that accused committed rape on her. Police recorded her statement Ex. PW1/A signed by her at point 'A'. She was taken to the Police Station and then to the Hospital where she was medically examined. Her suit was taken into possession. One Tshirt of her son and one blanket was also taken into possession by the Police. The blanket and Tshirt were taken into possession. The Tshirt of her son was taken into possession because accused had cleaned himself with that Tshirt after committing rape on her. The accused was arrested then and there by the Police on her pointing out vide arrest memo Ex. PW1/B signed by her at point 'A'.
During her crossexamination, PW1 - Prosecutrix negated the suggestions that no incident of rape took place with her or that she is not paying rent regularly to the accused and with the simple intention of 33 of 59 34 FIR No. 34/09 PS - Begum Pur grabbing his property she has implicated him in a false case or that she implicated the accused in a false case so that the accused shall be sent to custody and she shall enjoy his property without paying any rent or that in furtherance of well planned conspiracy between she and her husband she lodged this false complaint with the sole intention of grabbing the property of the accused or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - prosecutrix, nothing material could be brought out so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The version of the witness on the core spectrum of the crime has remained intact. On careful perusal and analysis her testimony is found to be natural, cogent, convincing, trustworthy and inspires confidence. 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 PW - Prosecutrix is also found to be in consonance with her complaint Ex. PW1/A made to the Police signed by 34 of 59 35 FIR No. 34/09 PS - Begum Pur her at point 'A'.
Further the testimony of PW1 - prosecutrix is also found to be in consonance with the medical evidence, her gynaecological examination and biological and serological evidence on record as discussed hereinbefore.
The testimony of PW1 - prosecutrix is also corroborated by PW6 - Mrs. Santosh Gupta, an NGO Councellor to whom PW1 prosecutrix disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 & 8 of Indian Evidence Act, 1872.
PW6 - Mrs. Santosh Gupta in her examinationinchief has deposed that she is running an NGO under the name and style of Mumkhsha at B5/30, Sultan Puri, Delhi. On 13/11/2009, ASI Ved Prakash informed her on telephone regarding incident of rape at house no. 204, Pocket - 18, Sector - 24. On receipt of this telephonic message, she went to the said house. Prosecutrix (name withheld) was present there. IO recorded her statement and she prepared her report and handed over the same to the IO. The report is Ex. PW6/A which bears her signature at point 'A' and signature of the prosecutrix (name withheld) at point 'B'.
35 of 59 36 FIR No. 34/09 PS - Begum Pur The perusal of report Ex. PW6/A dated 13/11/2009 given by PW6 - Smt. Santosh Gupta is to the effect that, today on 13/11/2009 on the call of ASI Ved Parkash she reached at Police Station and from there she reached at House No. 204, First Floor, Pocket - 18, Sector - 24 where she met prosecutrix (name withheld) W/o Surender Sharma, who made the statement which is to the effect that, "I am living in this house on rent. Her landlord Hari Chand lived at P1/1006. Whenever he came to demand rent he was keeping an evil eye on her and used to do bad activities (galat harkat) with me. About one week before he committed Jabardasti with me, for the sake of my honour, I did not tell anyone. Today again in the day at 1:30 p.m., he came to me on the pretext of demanding rent; committed Jabardasti with me and established physical relations with me without my consent. Please legal action be taken aganst Hari Chand".
The statement of the prosecutrix in said report Ex. PW6/A is also found to be in consonance with the complaint Ex. PW1/A lodged by her.
PW6 - Mrs. Santosh Gupta is an NGO Counsellor and an 36 of 59 37 FIR No. 34/09 PS - Begum Pur independent entity who has categorically proved report Ex. PW6/A as reproduced hereinabove and the same has not at all being challenged during her crossexamination and has remained intact. It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.:
Wahid Ahmed and Ors. Vs. State 2011 VII AD (DELHI) 276).
Inspite of incisive crossexamination nothing material has been brought out in the crossexamination of PW6 - Santosh Gupta so as to impeach her creditworthiness. Her testimony is found to be natural, clear, inspiring confidence and having a ring of truth. She has withstood the rigors of crossexamination without being shaken. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
17. While analysing the testimony of PW1 - prosecutrix as discussed hereinabove, inspite of incisive crossexamination, nothing has come out in the statement of PW1 - prosecutrix which may throw even a slightest doubt on the prosecution version of the incident.
Though, the suggestions by defence to PW1 - prosecutrix that no 37 of 59 38 FIR No. 34/09 PS - Begum Pur incident of rape took place with her or that she is not paying rent regularly to the accused and with the simple intention of grabbing his property she has implicated him in a false case or that she implicated the accused in a false case so that the accused shall be sent to custody and she shall enjoy his property without paying any rent or that in furtherance of well planned conspiracy between she and her husband she lodged this false complaint with the sole intention of grabbing the property of the accused or that she is deposing falsely were put, which were negated by the said PW 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 law by way of examination of his wife DW1 - Smt. Bimla.
DW1 - Smt. Bimla W/o Hari Chand in her examinationin chief has deposed that the prosecutrix (name withheld) used to reside in their house as tenant i.e. house no. 204, 1st floor, Pocket - II, Sector - 24, Roini. She was (had) not given the rent for about four months before the incident and they had requested them to vacate the house if they are not in (a) position to give the rent in time. On 12/11/2009, a telephonic 38 of 59 39 FIR No. 34/09 PS - Begum Pur message was received from husband of the prosecutrix (name withheld) Sh. Surender Sharma and called her husband to collect the rent on 13/11/2009. On 13/11/2009, in the morning hours at about 10:30 or 11:00 a.m., her husband received a telephonic message from Surender Sharma and at about 1:30 p.m. on the same day. Her husband responded to Surender Sharma that he was coming to his house at 1:30 p.m. as per his instructions. Her husband left the house at about 1:30 p.m. to the house of Surender Sharma but could not return even after one hour. Her dever received a call from her husband and informed her later that her husband was apprehended by the Police of Police Station Begum Pur. They went to the Police Station at about 2:30 p.m. and prosecutrix, Surender Sharma, Raju (Dealer) and other relatives of Surender Sharma met her at the Police Station. Prosecutrix and her husband Surender Sharma demanded Rs. 10 lacs from her to spare of her husband from any implication and since she could not arrange the said amount and prosecutrix falsely implicated her husband in a false case.
During her crossexamination Smt. Bimla has deposed that : 39 of 59 40 FIR No. 34/09 PS - Begum Pur "I cannot tell the telephone number by which wife of Surender Sharma phone to my husband on 12/11/2009 as well as on 13/11/2009. I was present in my house when my husband received a phone call. It is correct that I have not listed (listened) the conversation between my husband and the prosecutrix."
On careful perusal and analysis of the trstimony of DW1 - Smt. Bimla, it is found that the theory of "Telephone call made on 12/11/2009 by Surender Sharma husband of prosecutrix to accused, to collect rent on 13/11/2009" and another theory of "Telephone call made by Surender Sharma on 13/11/2009 in the morning hours at about 10:30 or 11:00 a.m. to accused and then at about 1:30 p.m. on the same day" as propounded by DW1 - Smt. Bimla are totally demolished, during her crossexamination when she (DW1 - Smt. Bimla has taken a complete UTurn and has deposed that it was wife of Surender Sharma (Prosecutrix) who made the call on 12/11/2009 and 13/11/2009, not Surender Sharma, husband of the prosecutrix.
At the cost of repetition, it is pertinent to reproduce the relevant part of crossexamination of DW1 - Smt. Bimla which reads as under : "I cannot tell the telephone number by which wife of 40 of 59 41 FIR No. 34/09 PS - Begum Pur Surender Sharma phone to my husband on 12/11/2009 as well as on 13/11/2009. I was present in my house when my husband received a phone call. It is correct that I have not listed (listened) the conversation between my husband and the prosecutrix."
In view of above and in the circumstance, it clearly indicates that DW1 - Smt. Bimla is a procured witness. Her testimony does not inspire confidence.
In the circumstances, there appears to be substance in the suggestion put to DW1 - Smt. Bimla during her crossexamination by Ld. Addl. PP that she being wife of the accused has constructed a false story to save her husband which though she negated.
Further, the said theories so propounded by DW1 - Smt. Bimla were not put/suggested to PW1 - prosecutrix during her crossexamination. Nor even a single word regarding the said theories was uttered by accused during his statement u/s 313 Cr.P.C.
In the circumstances, the said theories so propounded are merely an afterthought and does not inspire confidence.
18. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the 41 of 59 42 FIR No. 34/09 PS - Begum Pur medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse: In law, this term is held to mean the 42 of 59 43 FIR No. 34/09 PS - Begum Pur slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - prosecutrix in the light of medical evidence, biological and serological evidence, gynaecological examination on MLC Ex. PW2/A of the prosecutrix as was conducted by PW5 - Dr. Megha Purohit and MLC of accused Hari Chand Ex. PW3/A as discussed hereinbefore, the act of recent sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record of the performance of the act of sexual intercourse by accused Hari Chand with PW1 - prosecutrix without her consent.
43 of 59 44 FIR No. 34/09 PS - Begum Pur
19. Ld. Counsel for accused submitted that the complainant herself submitted that the accused came to the house of the complainant to collect the arrears of rent by prior talking to the husband of the complainant, who had assured to the accused to come and collect the rent and all the doors of the house of the complainant were opened till the accused remained present in the house of the complainant.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix in her examinationinchief has specifically deposed that on 13/11/2009, accused telephoned her at about 10:00 a.m. She told accused to come in the evening for collecting the rent. Again accused telephoned her husband. Her husband also told accused to come and collect the rent. Accused came to her house at about 1:30 p.m. in the afternoon. Her husband and children were away.
During her crossexamination PW1 - prosecutrix has deposed that : "Mobile number of my husband is 9811073966. My husband has one more number but that number I do not remember. It is 44 of 59 45 FIR No. 34/09 PS - Begum Pur correct that on 13/11/2009 my husband telephoned the accused from his abovesaid telephone number and called him in his house at 10:47 a.m."
From above, it is clearly indicated that husband of PW1 - prosecutrix had called the accused in his house at 10:47 a.m. for collecting the rent : but accused did not go at that time at 10:47 a.m. but accused went to the house of PW1 - prosecutrix at 1:30 p.m. in the afternoon knowing it well that by that time husband and other family members would not be there, on the pretext of collecting the rent. It clearly indicates malafide on the part of the accused which he is trying to hide by making a futile attempt by way of raising the said plea.
Further the fact that the doors of the house of the prosecutrix were opened till the accused remained present in the house of the prosecutrix, does not fortify his plea of innocence, as for the committal of the offence of sexual assault, it does not take ages/years. Moreover, it was committed on the bed where the prosecutrix was lying.
At the cost of repetition, the testimony of PW1 - prosecutrix coupled with the biological and serological evidence as 45 of 59 46 FIR No. 34/09 PS - Begum Pur discussed hereinbefore established the committal of sexual intercourse by accused Hari Chand with PW1 - prosecutrix without her consent.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
20. Ld. Counsel for the accused submitted that the ground floor of the property in which the complainant is residing, occupied by a lady namely Jaya and at the time of alleged incident of rape the complainant shouted and the quarrel had taken place between the complainant and the accused but in the whole chargesheet neither the statement of that lady was recorded nor did the Police officials try to collect any independent evidence from any witness around the vicinity of the alleged spot of incident. He further submitted that the area where the house of the complainant is situated is a running road and no one came at the voice of the complainant.
I have carefully perused and analysed the evidence on record.
46 of 59 47 FIR No. 34/09 PS - Begum Pur The said plea so raised reflect on the investigation but does not reflect upon the substantive evidence and the probative value of the statement of PW1 - prosecutrix made on material and relevant aspects and does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW1 - prosecutrix on the core spectrum of crime has remained intact.
It is a known fact that the persons of the public are reluctant to join any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence. (Ref. Nirmal Sngh & Ors. Vs. State 2011 III AD (Delhi) 699).
In State of Government of Delhi Vs. Sunil & Ors. 2000 VIII AD (SC) 613 it was held by the Hon'ble Supreme Court that the legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the Police is cast on a Police officer when searches are made under chapter VII of the Code of Criminal Procedure and not for discovery under Section 27 of the Indian Evidence Act.
In the circumstances, there is no substance in the plea so 47 of 59 48 FIR No. 34/09 PS - Begum Pur raised by the Ld. Counsel for the accused.
21. Ld. Counsel for accused submitted that in her chief examination the complainant stated that the complainant immediately informed the Police Control Room and in the crossexamination the complainant says that immediately after the alleged incident the complainant talked to her husband and on the advice of her husband, the complainant informed the Police Control Room. In the FIR the complainant says that after some time when the complainant became normal, then she called at 100 number. The statements of the complainant vary from time to time, which clearly established that in a preplanned manner the accused was called by the husband of the complainant in the house, even prior assured to the accused that he will give the arrears of rent to the accused and as the accused reached to the house of the complainant the complainant offered tea to the accused and in the meantime called the Police PCR and levelled the false charges over the accused.
I have carefully perused and analysed the evidence on record.
48 of 59 49 FIR No. 34/09 PS - Begum Pur In view of the clear, cogent, natural, reliable and trustworthy testimony of PW1 - prosecutrix, as discussed hereinbefore, there is no substance in the plea so raised. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact. The Hon'ble Supreme Court in "Bharwada Bhoginbhai Jirjibhai Vs. State of Gujrat" (1983), has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
The Hon'ble Supreme Court of India in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should 49 of 59 50 FIR No. 34/09 PS - Begum Pur not render the evidence of eye witnesses unbelievable.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
22. Ld. Counsel for accused submitted that the complainant herself admitted that neither she gave the statement to the Police officials nor mentioned in the FIR that the complainant was dragged by the accused how it could be possible that a person like accused dragged a well bodied woman like the complainant from the staircase of ground floor, from one hand holding and dragging her, from other hand keep her mouth shut for stopping her to raise alarm. This statement of the complainant is totally baseless and the MLC of the complainant did not support the version of the complainant.
I have carefully perused and analysed the evidence on record.
During her crossexamination, PW1 - prosecutrix has specifically deposed that : "The accused dragged me upstairs. I received injuries on my back due to dragging. No alarm was raised by me because he 50 of 59 51 FIR No. 34/09 PS - Begum Pur pressed my mouth with his hands. I received injuries on my hand. I could raise any alarm on staircase."
PW2 - Dr. Ish Kumar Midha who medically examined PW1
- prosecutrix and proved MLC Ex. PW2/A, signed by him at point 'A', despite grant of opportunity, was not crossexamined. Moreover, the perusal of MLC Ex. PW2/A of PW1 - prosecutrix interalia shows presence of on local examination (L/E) "multiple linear mildly raised erythematous marks on B/L (Bilateral) upper breast".
In the circumstances, there is no substance in the theory of "Nonpossibility of dragging of a well bodies woman like prosecutrix by accused" as propounded by raising the said plea by the Ld. Counsel for the accused.
23. Ld. Counsel for accused submitted that it is hard to believe, when the accused aware that the husband of the complainant is coming to home to give him the arrears of rent then why any will do this act. On the other hand, the complainant herself admits that her husband called the accused for the payment of the rent.
51 of 59 52 FIR No. 34/09 PS - Begum Pur Ld. Counsel for accused further submitted that the statement of PW6 - Mrs. Santosh Gupta, NGO Counsellor supports the true facts of the accused and the defence witness that at the time of alleged offence the husband and the children of the complainant were present at the house of the complainant.
I have carefully perused and analysed the evidence on record.
Ld. Counsel for the accused does not himself appear to be clear while raising the said pleas in which he is blowing hot and cold in the same breath.
The foundation of theory "Husband of the complainant is coming to home to give the arrears of rent" so propounded is not laid anywhere during the entire lengthy, incisive crossexamination of PW1 - prosecutrix.
I could not lay my hands in the entire crossexamination of PW1 - prosecutrix on a single word on the theory so propounded. Nor the Ld. Counsel for the accused could assist in this regard.
At the cost of repetition, PW1 - prosecutrix in her cross examination has specifically deposed that : 52 of 59 53 FIR No. 34/09 PS - Begum Pur "Mobile number of my husband is 9811073966. My husband has one more number but that number I do not remember. It is correct that on 13/11/2009 my husband telephoned the accused from his abovesaid telephone number and called him in his house at 10:47 a.m."
In the circumstances, the theory "Husband of the complainant is coming to home to give the arrears of rent" falls flat on the ground.
Further Ld. Counsel for accused failed to explain if at the time of alleged offence the husband and the children of the complainant were present at the house of the complainant, then what was the basis of propounding of the theory of "Husband of the complainant is coming to home to give the arrears of rent". It appears that accused is making a futile attempt to save his skin from clutches of law by raising every possible baseless and evidenceless theories.
In the circumstances, there is no substance in the pleas so raised by the Ld. Counsel for the accused.
24. Ld. Counsel for accused submitted that even after the information of the alleged offence at about 1:30/2:30 p.m. neither the husband of the complainant came to the house or Police Station but he 53 of 59 54 FIR No. 34/09 PS - Begum Pur came at night at 11:00 p.m. after completing his daily routine work. The act of the husband of the complainant shows as nothing happened and he was living his daily routine life. If the alleged offence had happened then, is it possible that the accused would remain stay there, it is established from act of the accused, that the accused had not escaped from there and the Police arrested the accused from the house of the complainant. The accused was arrested from standing outside of the house of the complainant. The act of the complainant and her husband shows the accused is innocent and has become the victim of the conspiracy of the complainant and her husband, in which the Police gave them the back support.
I have carefully perused and analysed the evidence on record.
Just like, the powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another, similarly the action or reaction to a particular situation differ from person to person. Husband of PW1 -
54 of 59 55 FIR No. 34/09 PS - Begum Pur prosecutrix acted/reacted in manner which he felt appropriate.
In the circumstances, nothing more can be read in the said plea. Moreso, when the prosecution case is proved on record by clear, cogent and convincing evidence.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
25. Ld. Counsel for accused submitted that during the cross examination PW14 - IO ASI Ved Prakash stated that "I did no record the statement of any person related to this case". ASI Ved Prakash further stated in his crossexamination "I do not remember whether I had called Ms. Santosh Gupta."
Ld. Counsel for accused further submitted that the statement of the IO ASI Ved Prakash is totally contradictory with the statement of the PW9. IO specifically said that he did not record the statement of any witness and PW9 says that his statement was recorded by the IO itself and only once. He further submitted that PW12 - ASI Sukhdev stated in his crossexamination that his statement was recorded by the IO of his own and nothing was asked from the witness. This shows that whole 55 of 59 56 FIR No. 34/09 PS - Begum Pur story was concocted by the complainant with her husband and the Police gave them full support.
Ld. Counsel for accused further submitted that during his crossexamination PW14 - SI Ved Prakash stated that "I left the spot at around 6:30 p.m." but in his crossexamination PW17 - SI Ravinder Kumar stated "Thereafter ASI Ved Prakash remained at spot at about 9:30 p.m. and then left".
I have carefully perused and analysed the evidence on record.
The said discrepancies do not reflect upon the substantive evidence and the probative value of the statement of PW1 - prosecutrix made on material and relevant aspects. Nor do they vitiate or negate the prosecution case which is otherwise proved on record by the clear, cogent and convincing evidence. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact. Moreover, minor contradictions are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence. It is well settled that there are bound to be some discrepancies in the narration of certain 56 of 59 57 FIR No. 34/09 PS - Begum Pur witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable (Ref. Leela Ram Vs. State of Haryana, (1999) 9 SCC 525).
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth 57 of 59 58 FIR No. 34/09 PS - Begum Pur from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
26. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 13/11/2009 at about 1:30 p.m. at House No. 204, First Floor, Pocket - 18, Sector - 24, Rohini, accused Hari Chand committed rape upon PW1
- prosecutrix without her consent.
I accordingly hold accused Hari Chand guilty for the offence 58 of 59 59 FIR No. 34/09 PS - Begum Pur punishable u/s 376 IPC and convict him thereunder.
27. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Hari Chand 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 Hari Chand beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Hari Chand. I, therefore, hold accused Hari Chand guilty for the offence punishable u/s 376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 30th Day of March, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 59 of 59