Delhi District Court
State vs . 1. Raj Kumar Gupta on 22 February, 2013
1
FIR No. 206/10
PS - Begum Pur
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACT
COURT : NORTHWEST & OUTER DISTRICT : DELHI
SESSIONS CASE NO. : 15/13
Unique ID No. : 02404R0041552011
State Vs. 1. Raj Kumar Gupta
S/o Chuna Bad Gupta
R/o Village Dhanpura,
PS - Biwar
District Hamir Pur, U. P.
FIR No. : 206/10
Police Station : Begum Pur
Under Sections : 376 IPC
Date of committal to session Court : 21/02/2011
Date on which judgment reserved : 12/02/2013
Date of which judgment announced : 22/02/2013
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 47 2 FIR No. 206/10 PS - Begum Pur That on 01/06/2010, complainant/prosecutrix (name withheld being a case u/s 376 IPC) presented a written complaint regarding committal of rape upon her by Raj Kumar Gupta at Police Station - Kotwali, Panna, Madhya Pradesh on the basis of which SHO PS Kotwali, Panna on 01/06/2010 registered an FIR No. 0/10. In the complaint the complainant has stated that she is the resident of village Rani Pura, Chowki Kakkar Hati, PS - Kotwali and is having mother Sugna Bai, two brothers, Ram Swaroop age 13 years and Ram Kalang age 9 years and two sisters Prem Bai age 11 years and Sabili Bai age 7 years. Her father has expired about 7 years back. In the last year, in the month of Jeth, she alongwith her mother had gone to Delhi for doing the labour job (mazduri) and in Delhi she did the labour work with Dilip Thekedar while living in Sector - 22, PS - Begum Pur. For about three months prior, Raj Kumar Gupta, r/o village Dhankur, District Panda (U.P.) also started living in Sector - 22, who made acquaintance (mel jol) with them. He was doing the work of mason. He while living in the neighbourhood made a contact with her and in a month by inducing her he committed three times intercourse with her. About 1½ month ago she told the said incident to Natthu Beldaar, R/o Chattar Pur who lives in Delhi on which he snubbed (daanta) accused Raj Kumar Gupta. About a
2 of 47 3 FIR No. 206/10 PS - Begum Pur month back, she alongwith her mother had come to their house (Native village at Rani Pura). Yesterday, on 31/05/2010 on Monday, Raj Kumar Gupta with the intention to kill her had come to village Rani Pura. When her brother Ram Swaroop told the villagers on which the villagers gathered. On seeing them, Raj Kumar Gupta fled from there and she told the incident regarding the committal of rape upon her to her mother and accompanying her she has come to the Police Station to lodge the report. The mobile numbers of Raj Kumar Gupta are 7566428821 and 9560579625. Raj Kumar Gupta had established physical relations with her by inducing her and her modesty had been outraged. Legal action be taken against him. On the said complaint, IO ASI S. D. Singh, PS - Kotwali, Panna - Madhya Pradesh got registered a case u/s 376 IPC vide FIR No. 0/10. Prosecutrix was got medically examined from District Hospital, Panna and the sealed exhibits as handed over by the concerned Doctor after the medical examination of the prosecutrix were taken into Police possession. Statement of the prosecutrix was also recorded by IO ASI S. D. Singh. On finding that the place of occurrence is of PS - Begum Pur, Delhi, the copy of the Zero FIR, the MLC, seizure memo, statements etc. were sent to PS - Begum Pur, Delhi for further investigation.
3 of 47 4 FIR No. 206/10 PS - Begum Pur On receipt of the copy of the Zero FIR, SHO PS - Begum Pur, Delhi made endorsement on it on 21/08/2010 and got registered a case vide FIR No. 206/10 at PS - Begum Pur u/s 376 IPC and handed over the further investigation to SI Madan Lal. During the course of investigation, SI Madan Lal made efforts to find out the place of incident but in vain. SI Madan Lal with Lady Constable Ruby reached at PS - Kotwali, District Panna, M.P. and then reached near the village of the prosecutrix/complainant and examined the prosecutrix and recorded her statement u/s 161 Cr.P.C. On 09/09/2010, the Police officials of PS - Kotwali, District Panna were also joined in the investigation and their supplementary statements u/s 161 Cr.P.C. recorded. On 11/09/2010, the spot was inspected on the pointing out of the prosecutrix and the site plan was prepared of the place of incident, House No. 272, Pocket - 2, Sector - 22, Rohini, Delhi. Supplementary statements of the prosecutrix and the statement of her mother were recorded. Efforts were made to trace out accused Raj Kumar Gupta. On 02/12/2010, accused Raj Kumar Gupta was arrested. He was got medically examined in Sanjay Gandhi Hospital, Mangol Puri, Delhi and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession. Documents regarding the date of birth of the prosecutrix were taken into 4 of 47 5 FIR No. 206/10 PS - Begum Pur Police possession and were got verified. Exhibits were sent to the FSL, Rohini.
Upon completion of necessary further investigation challan u/s 376 IPC was prepared against accused Raj Kumar Gupta 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 18 witnesses. PW1 - ASI Shiv Prasad, PW2 - Saghuna Bai, 5 of 47 6 FIR No. 206/10 PS - Begum Pur PW3 - Prosecutrix (name withheld), PW4 - Nathu Verma, PW5 - Lady Constable Ruby, PW6 - Dilip, PW7 - Dr. M. Dass, CMO, SGMH, Delhi, PW8 - HC Hakim Singh, PW9 - Constable Sunil, PW10 - Dr. Meena, Gynaecologicalist, District Hospital, Panna, M.P., PW11 - W/Constable Sadhna Soni, PW12 - Constable Prahlad, PW13 - Constable Babu Lal, PW14 - ASI S. D. Singh, PW15 - ASI Chanderkant Pandey, PW16 - HC Raj Singh, , PW17 - SI Madan Lal and PW18 - Mr. Ambika Prasad Pandey.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - ASI Shiv Prasad, is the Duty Officer who deposed that on 21/08/2010, he was posted at PS - Begum Pur and was working as Duty Officer from 4:00 p.m. to 12:00 mid night and proved the copy of the FIR mark PW1/A (also Ex. PW17/B) and also proved the endorsement encircled in Red on Ex. PW1/B on Zero FIR after recording DD No. 29A and further deposed that the further investigation was handed over to SI Madan Lal.
6 of 47 7 FIR No. 206/10 PS - Begum Pur PW2 - Sugna Bai, is the mother of the prosecutrix who deposed regarding the incident as was told to her by the prosecutrix and proved the arrest memo of the accused Ex.PW2/A and his personal search memo Ex.PW2/B. PW3 - Prosecutrix, who deposed regarding the incident and proved Zero FIR lodged by her at PS - Kotwali, District Panna Ex. PW3/A signed by her at point 'A'. Seizure memo of certificate of her date of birth Ex. PW3/B signed by her at point 'A', and proved certificate of her date of birth as Ex. PW3/C. PW4 - Nathu Verma who deposed that he knows accused Raj Kumar Gupta who used to work as Beldar at House No. 276, Pocket
- B, Sector - 22, Rohini, where he (PW4) used to work as a Chowkidar in the year, 2010 and he also know Smt. Saguna mother of prosecutrix (name withheld). Both of them also used to work as beldar at his site. He further stated that in the month of April, he was in his village and there he received phone call from accused who told him (PW4) that the prosecutrix wanted to marry accused her parents were not ready for this marriage. He (PW4) returned village after about four months. Smt. 7 of 47 8 FIR No. 206/10 PS - Begum Pur Saguna, mother of the prosecutrix came to call him. He went to PS - Begum Pur, where accused was in the custody of Police. He had signed some papers in the Police Station. He does not know the contents of these papers.
He did not support the prosecution and was also cross examined by the Ld. Addl. PP for the State.
PW5 - Constable Ruby who joined the investigation with the IO SI Madan Lal and deposed that she alongwith SI Madan Lal went to village Rani Pura, PS - Kotwali, District Panna, M.P. She also deposed that the complainant/prosecutrix was interrogated by the IO in her presence and she had also produced her date of birth certificate which was seized by the IO and statement of the prosecutrix was recorded and proved the seizure memo of the date of birth certificate of the prosecutrix Ex. PW3/B signed by her at point 'B' and certificate of date of birth of the prosecutrix as Ex.PW3/C. PW6 - Dalip who deposed that he was working as Building Contractor in Sector - 22, Rohini for the last 3/4 years. He had constructed house no. 272, Pocket - 2, Sector - 22, Rohini. During the 8 of 47 9 FIR No. 206/10 PS - Begum Pur construction of aforesaid house Smt. Saguna with her family was residing at the said site. Smt. Saguna and her daughter/prosecutrix were working as beldars at his construction site. He was not charging any rent from Smt. Saguna. They had stayed for about three years at his site prior to the incident. He had heard from the labourers in the summer of 2010 that accused Raj Kumar Gupta has raped the prosecutrix. He further stated that he knows accused Raj Kumar Gupta as he also used to work as beldar at his (PW6) construction site. Family of complainant and accused had returned to their respective villages.
PW7 - Dr. M. Dass, CMO, SGM Hospital, Delhi who medically examined patient/accused Raj Kumar Gupta vide MLC Ex. PW7/A signed by him at point 'A' and proved his opinion, encircled Red on the MLC Ex. PW7/A that there was nothing to suggest that the person was incapable of performing sexual intercourse.
PW8 - HC Hakim Singh who deposed that on 27/12/2010, he was posted at PS - Begum Pur and on that day as per the instructions of SHO he went to PS Kotwali, District - Panna, Madhya Pradesh. He had collected one sealed pulinda duly sealed and sample seal seal vide 9 of 47 10 FIR No. 206/10 PS - Begum Pur RC No. 95 dated 22/12/2010 and returned to Police Station - Begum Pur and deposited the same with MHC(M) on 27/12/2010. He further deposed that so long as case property remained with him no one has tampered with the same.
PW9 - Constable Sunil who joined investigation with IO SI Madan Lal and deposed on the investigational aspects and besides proving the arrest memo of accused Ex. PW2/A also proved his personal search memo Ex. PW9/A, pointing out memo of the place of incident by accused Ex. PW9/B, disclosure statement of the accused Ex. PW9/C, seizure memo of the sealed exhibits handed over by the concerned doctor after the medical examination of the accused Ex.PW9/D. He further deposed that on 20/01/2011, he deposited the sealed pullindas after taking from the MHC(M) in FSL, Rohini vide RC No. 01/21/11 and after depositing the pullindas handed over the acknowledgment slip of the exhibits to the MHC(M).
PW10 - Dr. Meena, Gynaecologist, District Hospital, Panna, M.P. who conducted the gynaecological examination of the prosecutrix vide MLC Ex. PW10/A signed by he rat point 'A'.
10 of 47 11 FIR No. 206/10 PS - Begum Pur PW11 - W/Constable Sadhna Soni, No. 364, PS - Kotwali, District Panna, M.P. who deposed that on 01/06/2010 she was posted at PS - Kotwali, Panna, M.P. and on that day IO ASI S. D. Singh had sent her to District HaHospital, Panna alongwith complainant for her medical examination. At that time Constable Babu Lal and Constable Prahlad were also with her and further deposed that she got conducted the medical examination of the prosecutrix and the sealed exhibits handed over by the Doctor after the medical examination of the prosecutrix were taken into Police possession vide seizure memo Ex. PW11/A signed by her at point 'A'. She also deposed that IO of PS - Begum Pur, Delhi had met her and recorded her statement.
PW12 - Constable Prahlad, No. C348, PS - Kotwali, District - Panna, M.P. has deposed on the same lines as has been deposed by PW11 - W/Constable Sadhna Soni.
PW13 - Constable Babu Lal, No. C204, PS - Kotwali, District - Panna, M/P. has deposed on the same lines as has been deposed by PW11 - W/Constable Sadhna Soni.
11 of 47 12 FIR No. 206/10 PS - Begum Pur PW14 - ASI S. D. Singh, PS - Kotwali, District Panna, M.P. is the Investigating Officer (IO) of PS - Kotwali, District - Panna, M.P. and deposed on the investigational aspects and besides proving the other memos also proved the complaint made by the prosecutrix at PS - Kotwali, Panna, M.P. Ex. PW14/A, application to the SDM for medical examination of the prosecutrix Ex. PW14/B, permission received of the SDM on the said application Ex. PW14/C, statement of the prosecutrix Ex. PW14/D, Case Diary (Two Pages) Ex. PW14/E, copy of the letter sent through SSP, that the jurisdiction of the offence was of Delhi at Begum Pur Ex. PW14/F and Index Case Diary Ex. PW14/G (Two Pages). He deposed that during course of investigation, Delhi Police met him and recorded his statement.
PW15 - ASI Chandra Kanta Pandey, PS - Sandhri, District Tikamgarh, M.P. who deposed that on 03/06/2010, he was working as MHC(M), PS - Kotwali, District - Panna, M.P. On that day ASI S. D. Singh had deposited duly sealed exhibits of case FIR No. 0/10, PS - Panna. He (PW15) had made the relevant entry in register no. 8 (malkhana deposit register) at serial no. 01/10 and proved the copy of the 12 of 47 13 FIR No. 206/10 PS - Begum Pur relevant entry of the malkhana register as Ex. PW15/A. PW16 - HC Raj Singh is the MHC(M) at PS - Begum Pur and proved the copy of the relevant entry of register no. 19 Ex. PW16/A and copy of the RC no. 1/21/11 Ex. PW16/B. PW17 - SI Madan is the Investigating Officer (IO) of the case who deposed that on 21/08/2010, he was posted at PS - Begum Pur, Delhi and deposed on the investigational aspects and besides proving the other memos as have been proved by the other witnesses also proved the certificate u/s 61B, Indian Evidence Act Ex. PW17/A and deposed that he verified the date of birth of the prosecutrix from the School of District, Panna and proved the attestation certificate in this regard as Ex. PW17/C, site plan Ex. PW17/D. He further deposed that he collected the FSL Result and tendered the same as Ex. PY and Ex. PQ.
PW18 - Mr. Ambika Prasad Pandey who produced the Admission Register of the School of the prosecutrix and deposed that as per their record, date of birth of the prosecutrix is 01/02/1990 and proved the copy of the Admission Register of the prosecutrix with entry of 13 of 47 14 FIR No. 206/10 PS - Begum Pur admission at Serial No. 10 as Ex. PW18/A and further deposed that he has seen the MarkSheet of their School of year, 2006 of prosecutrix Ex.PW3/C and this MarkSheet was issued by their School. He has also seen the Certificate Ex. PW17/C and identified his signatures at point 'A' showing date of birth of the prosecutrix. He further deposed that he has brought Admission Form of the prosecutrix and proved the copy of the same as Ex. PW18/B. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Raj Kumar Gupta was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and did not opt to lead any defence evidence.
7. Ld. Counsel for the accused submitted that the date of incident is not mentioned in the report. She further submitted that charge was framed without any date and time. Zero FIR was lodged at PS - Kotwali, Panna, M.P. On 12/06/2010. PW1 - ASI Shiv Prasad, Duty Officer, PS - Begum Pur lodged the FIR No. 206/10 on 21/08/2010 when SHO had handed over him Zero FIR which was received by Dak 14 of 47 15 FIR No. 206/10 PS - Begum Pur from PS - Kotwali, Panna, M.P. She further submitted that prosecutrix is major and her date of birth is verified by PW18 - Ambika Prasad Pandey. Ld. Counsel for the accused further submitted that PW18 - Dr. Meena in her examinationinchief has stated that as per her opinion, no opinion (regarding) the recent sexual intercourse can be given. According to examination, she is habitual for sexual intercourse.
Ld. Counsel for the accused further submitted that PW2 - Sugna Bai is the mother of the prosecutrix and she improved her statement and was confronted in her crossexamination. She stated in her crossexamination that "wife of Nathu Ram told her that accused had raped my daughter". Wife of Nathu Ram was not interrogated nor her statement was recorded by the IO. PW2 - Sugna Bai admitted in her crossexamination that she did not report the matter to the Police and took the prosecutrix to her parental village
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 15 of 47 16 FIR No. 206/10 PS - Begum Pur doubt.
9. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offence u/s 376 IPC against accused Raj Kumar Gupta is that at House No. 272, Pocket - 2, Sector - 22, Rohini within the jurisdiction of PS - Begum Pur, date and time unknown but approximately three months before 01/06/2010 he committed rape upon the prosecutrix (name withheld being case u/s 376 IPC) thrice in one month.
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.
16 of 47 17 FIR No. 206/10 PS - Begum Pur AGE OF THE PROSECUTRIX
12. PW2 Sugna Bai, the mother of the prosecutrix in her examinationinchief recorded on 06/08/2011 has deposed that she has five daughters and two sons. Prosecutrix is her eldest daughter. During her crossexamination, recorded on 25/09/2012, she has deposed that eldest one was prosecutrix, second one was Ram Saroop and was working in office and he was 1213 years, 3rd one in the decending line was a daughter Prem of 1112 years and she was working as a maid. 4th one was a son and he was of 810 years and youngest one was again a son of 45 years. She admitted to be correct that on the day of incident, her daughter/prosecutrix was more than 18 years.
PW3 - Prosecutrix, in her examinationinchief has deposed that her date of birth is 01/02/1990, she has three sisters and two brothers. She is the eldest child of her parents. She proved the seizure memo of the certificate of her date of birth Ex. PW3/B signed by her at point 'A' and the certificate of her date of birth as Ex. PW3/C. PW17 - SI Madan has deposed that he verified the date of birth of the prosecutrix/victim from the School of District Panna and proved the Attestation Certificate as Ex. PW17/C. 17 of 47 18 FIR No. 206/10 PS - Begum Pur PW18 - Ambika Prasad Pandey who deposed that as per the School record, date of birth of prosecutrix is 01/02/1990 and proved the copy of the Admission Register with entry of admission at Serial No. 10 with respect to the prosecutrix Ex. PW18/A. He deposed that the mark sheet Ex. PW3/C was issued by their School. He also identified his signatures at point 'A' on the certificate Ex. PW17/C indicating the date of birth of the prosecutrix. He also proved the copy of the admission form of the prosecutrix Ex. PW18/B. During his crossexamination PW18 Ambika Prasad Pandey, admitted it to be correct that the student was admitted to their School on the basis of age orally disclosed by the parents. There is nothing in the crossexamination of PW18 - Ambika Prasad Pandey so as to impeach his creditworthiness.
In the circumstances, it stands proved on the record that the date of birth of PW3 - Prosecutrix is 01/02/1990.
PW3 - Prosecutrix, in her crossexamination recorded on 06/08/2011 has deposed "I do not remember the date of incident. In the month of Jeth, with my mother and brothers and sisters, I came to Delhi but I cannot tell the year. Vol. It was last year".
As per the Hindi Calender, the Jeth Month starts in the mid 18 of 47 19 FIR No. 206/10 PS - Begum Pur of month of May ends in the mid of month of June.
As the date of birth of PW3 - Prosecutrix is 01/02/1990 and the month of the alleged incident is May, 2010, on simple arithmetical calculation, the age of the prosecutrix comes to 20 years and 3 months.
In view of the above and in the circumstances, it stands established on the record, that PW3 - Prosecutrix was aged 20 years and 3 months as on the date of alleged incident in May, 2010. MEDICAL EVIDENCE
13. PW10 - Dr. Meena, Gynaecologist, District Hospital, Panna, M. P. who conducted medical/gynaecological examination of the PW3 - Prosecutrix and proved the MLC Ex. PW10/A signed by her at point 'A'. It is pertinent to reproduce the examinationinchief of PW10 - Dr. Meena which reads as under : ".....After examination of the patient I had given the opinion. As per my opinion, no opinion of recent sexual intercourse can be given. According to examination she is habitual for sexual intercourse. Two slides of vaginal smear prepared sealed and signed and handed over to the Police Constable. The clothing of the patient worn by her at the time of incident was not brought by her. Age determination XRay was advised. The MLC prepared by me is now Ex. PW10/A which bears my signature at point 'A'."
19 of 47 20 FIR No. 206/10 PS - Begum Pur During her crossexamination, PW10 - Dr. Meena has deposed that the age of the patient was written as is was told by the patient.
There is nothing in the crossexamination of PW10 - Dr. Meena so as to impeach her creditworthiness.
In the circumstances, the medical/gynaecological examination of PW3 - Prosecutrix stands proved on the record.
14. Ld. Counsel for the accused submitted that as per PW10 - Dr. Meena, according to examination she (prosecutrix) is habitual for sexual intercourse.
I have carefully perused and analysed the evidence on record.
PW10 - Dr. Meena has clearly deposed regarding the medical/gynaecological examination of PW3 - prosecutrix as was conducted by her. It is not made clear by Ld. Counsel for accused as to what benefit she intends to reap from the said plea so raised. Does she intend to convey that PW3 - Prosecutrix is a woman of "easy virtues" or a woman of "loose moral character".
If it is so, it is not permissible as every woman has a right to 20 of 47 21 FIR No. 206/10 PS - Begum Pur protect her dignity and cannot be subjected to rape only for that reason.
In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"
can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In the circumstances, there is no substance in the plea so raised by Ld. Counsel for the accused.
VIRILITY OF THE ACCUSED
15. PW7 - Dr. M. Dass, CMO, SGM Hospital, Delhi who medically examined the patient/accused Raj Kumar Gupta and opined 21 of 47 22 FIR No. 206/10 PS - Begum Pur that there was nothing to suggest that the patient/accused Raj Kumar Gupta was incapable of performing sexual intercourse and proved the MLC Ex. PW7/A signed by him at point 'A' and the portion of his observation is encircled red in the MLC.
Despite grant of opportunity, PW7 - Dr. M. Dass was not crossexamined on behalf of the accused.
In the circumstances, it stands established on the record that accused Raj Kumar Gupta was capable of performing sexual intercourse. BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW17 - SI Madan has deposed that he collected the FSL report and tendered the same as Ex. PY and Ex. PQ.
As per FSL Report Ex. PY the description of the articles contained in the parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed paper parcel sealed with the seal of "POSTMOREM CENTRE PANNA" containing exhibits '1a' & '1b'.
Exhibits '1a' 22 of 47 23 FIR No. 206/10 PS - Begum Pur & '1b' : Two microslides having faint whitish smear described as 'Semen slides'.
Parcel '3' : One sealed cloth parcel sealed with the seal of " SGMH MANGOLPURI DELHI " containing exhibits '3'.
Exhibit '3' : Greenish brown gauze cloth piece described as 'Blood Sample'.
RESULT OF ANALYSIS
1. Blood was detected on exhibit '3'.
2. Semen could not be detected on exhibits '1a', '1b' and '1c'.
3. Report of serological analysis in original is attached herewith.
The serological report Ex. PQ reads as under: Exhibits Species of origin ABO Grouping/Remarks '3' Blood stained gauze Human 'O' Group cloth piece As per biological report Ex. PY, Parcel No. 1 belong to PW3
- Prosecutrix which was seized vide seizure memo Ex. PW11/A and Parcel No. 2 belong to accused Raj Kumar Gupta which was seized vide 23 of 47 24 FIR No. 206/10 PS - Begum Pur seizure memo Ex. PW9/D. On careful perusal and analysis of the biological and serological evidence on record it clearly shows that blood was detected on exhibit '3' (Blood stained gauze cloth piece of accused seized vide seizure memo Ex. PW9/D) and semen could not be detected on exhibit '1a', '1b' and '1c' (Semen slides of prosecutrix seized vide seizure memo Ex. PW11/A).
17. The whole case of the prosecution hinges on the testimonies of PW3 Prosecutrix and PW2 - Saghuna Bai, mother of the prosecutrix.
Now let the testimony of PW3 - Prosecutrix be perused and analyzed.
PW3 - Prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "My date of birth is 01/02/1990. I have three sisters and two brothers. I am the eldest child of my parents. My father had expired six seven years ago. In the year, 2010 in the month of jeth, my mother alongwith myself and my brothers and sisters came to Delhi for labour work. We started living at Sector - 22, Begumpur. We stayed in Delhi for twothree months. My mother was working under Dalip contractor and accused, present in the Court (correctly identified) was also used to 24 of 47 25 FIR No. 206/10 PS - Begum Pur work as mason under the same contractor. On twothree occasions, I also accompanied my mother to her workplace and also worked there. Accused Raj Kumar became familiar to me and started speaking friendly with me. I was not inclined to speak to accused. After some days, I got ill and stopped going to the work with my mother and started staying at home with my brothers and sisters. During noon hours, on three occasions, accused came to my house and forcibly raped me. I wanted to tell my mother after the first incident of rape, but accused threatened me to kill by saying that he would finish me, if I told that incident before anyone. I disclosed this fact of rape to Nathu Lal who also used to work as beldaar with my mother. Wife of Nathu disclosed this fact to my mother and then my mother enquired from me about the incident and I told her that accused Raj Kumar had raped me thrice against my wish. My mother and Nathu scolded Raj Kumar and also threatened him. I alongwith my mother and my brothers and sisters returned to our native village. Accused Raj Kumar followed us and also reached my village Ranipura. It was Monday, accused came to my village after about one month of my reaching with the intention to kill me and accused also threatened me to kill and beat me. My younger brother Ram Saroop informed other villagers about the arrival of accused and his threats. With villagers, we went to chowki of our village. We were told by the Police that we should go to PS at Panna. We came to Police Station Panna and lodged my report. I was also taken for medical examination."
She also proved the FIR Ex. PW3/A and identified her signatures at point 'A'. She further deposed that she came to Delhi and reported the matter to Police of PS - Begum Pur and proved seizure 25 of 47 26 FIR No. 206/10 PS - Begum Pur memo of her date of birth certificate Ex. PW3/B signed by her at point 'A' and also proved her date of birth certificate Ex. PW3/C. From the aforesaid narration of PW3 - Prosecutrix, it is clear that in the year, 2010, in the month of Jeth when prosecutrix alongwith her mother, brothers and sisters came to Delhi for labour work and were living at Sector - 22, Begum Pur and her mother was working under Dalip contractor and accused was also working as mason under the same contractor. Prosecutrix on two or three occasions had accompanied her mother to her work place and also worked there and accused became familiar to her (prosecutrix) and started speaking friendly with her though prosecutrix was not inclined to speak to him. After some days when prosecutrix due to illness stopped going to work with her mother and started staying at home with her brothers and sisters. During noon hours, when her (prosecutrix's) mother was at work and her brothers and sisters were playing outside, accused came to her house on three occasions and forcibly raped her. She wanted to tell her mother after the first incident of rape, but accused threatened her to kill by saying that he would finish her, if she told that incident before anyone. She disclosed this fact of rape to Nathu Lal who also used to work as beldaar with her mother. Wife of Nathu disclosed this fact to her mother and then her 26 of 47 27 FIR No. 206/10 PS - Begum Pur mother enquired from her (Prosecutrix) about the incident and she (Prosecutrix) told her that accused Raj Kumar had raped her thrice against her wish. Her mother and Nathu scolded Raj Kumar and also threatened him. She (Prosecutrix) alongwith her mother and her brothers and sisters returned to their native village. Accused Raj Kumar followed them and also reached her village Ranipura.
During her crossexamination PW3 - Prosecutrix negated the suggestions that accused had physical relations with her with her consent or that she (prosecutrix) had not lodged any report with the Police after first incident of rape as her mother was aware that she (prosecutrix) was having love affair with the accused and with her consent, such physical relations were made.
PW3 - Prosecutrix also negated the suggestion that she (prosecutrix) alongwith accused used to go for roaming in Delhi or that her mother was aware about her friendship with accused and voluntarily stated that she was not having any friendship with accused and denied the suggestion that accused Raj Kumar used to help her mother financially or that accused Raj Kumar had come to their village to collect the balance payment regarding beldaari and also negated that she is 27 of 47 28 FIR No. 206/10 PS - Begum Pur deposing falsely.
Inspite of incisive crossexamination of PW3 - Prosecutrix, nothing material has been brought out so as to impeach her creditworthiness. Moreover, the careful analysis of the suggestions put to PW3 - Prosecutrix as detailed hereinabove, during her cross examination also indicate that the fact of making physical relations with PW3 - Prosecutrix has not been disputed by the accused nor has been disputed by the accused of coming to the village Rani Pura of the PW3 Prosecutrix.
On careful perusal and analysis the testimony of PW3 - Prosecutrix, is found to be clear, natural, cogent, reliable, trustworthy and inspires confidence. She has withstood the test of crossexamination and her testimony is consistent throughout. The version of PW3 - 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 PW3 - Prosecutrix has also been corroborated by PW2 - Sugna Bai, her mother to whom prosecutrix 28 of 47 29 FIR No. 206/10 PS - Begum Pur disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW2 - Sugna Bai, mother of the prosecutrix in her examinationinchief has deposed that : "I have five daughters and two sons. Prosecutrix (name withheld) is my eldest daughter. My husband Sikki Lal has already expired. One year ago, during summer season (in jeth month), I had come to Delhi with my relatives and with my children. My daughter prosecutrix (name withheld) also came with me to Delhi. We started living at House No. 272, Sector - 22, Rohini and started doing the work of beldaar. I was working under contractor Dalip. My daughter prosecutrix (name withheld) with other children used to stay at home.
I know accused Raj Kumar present in the Court (correctly identified). He used to reside near our house at Sector - 22, Rohini. Accused was also working with contractor Dalip as mason. One Nathu Lal with his family used to reside in our neighbourhood. His wife told me that my daughter prosecutrix (name withheld) was raped by Raj Kumar twothree times. Wife of Nathu Lal had also told me that my daughter prosecutrix (name withheld) had disclosed about her rape by Raj Kumar to her. I made enquiries from my daughter about the incident. My daughter revealed before me that twothree times, Raj Kumar had raped her. She had also told me that when prosecutrix (name withheld) was at home and I was at work and other children were playing outside, accused Raj Kumar came there and raped her. I also enquired from prosecutrix (name withheld) as to why she had not revealed such incidents before me. Prosecutrix (name withheld) told me that she was 29 of 47 30 FIR No. 206/10 PS - Begum Pur feeling shy in telling me such facts. Prosecutrix (name withheld) knew that Raj Kumar also used to work under the same contractor under whom I was working. After 810 days of such incident, we returned to our native village Ranipura to attend some marriage and remained in the village for 810 days. Thereafter, I returned to Delhi for work and prosecutrix (name withheld) stayed at Ranipura Village with her grandparents.
Last year i.e. in 2010 when I was in Delhi in the month of Besakh, accused Raj Kumar reached at my native village with the intention to finish my daughter prosecutrix (name withheld) as my daughter was not ready to marry and live with accused. After that, I also reached my village. Raj Kumar run away from my village. I alongwith my daughter went to PS - Kotwali, M.P. And lodged the report with the Police. Medical examination of my daughter was also done. I came back to Delhi with my daughter prosecutrix (name withheld). Accused Raj Kumar was arrested on my identification in winters of 2010 vide memo Ex. PW2/A and personal search memo Ex. PW2/B. My statement was recorded by the Police."
During her crossexamination PW2 - Sugna Bai negated the suggestion that her daughter (PW3 - Prosecutrix) wanted to marry him (accused) but she (PW2) refused as accused Raj Kumar did not belong to their biradari.
However, the said suggestion so put to PW2 - Sugna Bai, was not at all put to PW3 - Prosecutrix.
There is nothing in the crossexamination of the PW2 -
30 of 47 31 FIR No. 206/10 PS - Begum Pur Sugna Bai so as to impeach her creditworthiness. The witness 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.
On careful perusal and analysis of the testimony of PW2 - Sugna Bai the same is found to be clear, natural, cogent, inspiring confidence and having a ring of truth.
Further the testimonies of PW2 - Sugna Bai and PW3 - Prosecutrix are corroborated by PW6 - Dalip in material particulars.
PW6 Dalip in his examinationinchief has deposed which is reproduced and reads as under : "I was working as Building contractor in Sector - 22, Rohini for the last 34 years. I had constructed house no. 272, Pocket - 2, Sector
- 22, Rohini. During the construction of aforesaid house Smt. Saguna with her family was residing at the said site. Smt. Saguna and her daughter Prosecutrix (name withheld) were working as a beldars at my construction site. I was not charging any rent from Smt. Saguna. They had stayed for about three years at my site prior to the incident. I had heard from the labourers in the summer of 2010 that accused Raj Kumar (present in Court, correctly identified) had raped Prosecutrix (name withheld). I know accused Raj Kumar Gupta as he also used to work as 31 of 47 32 FIR No. 206/10 PS - Begum Pur beldar at my construction site. Family of complainant and accused had returned their respective villages.
Ld. Addl. PP for state wants to put one leading question to the witness. Heard. Request is allowed.
Q. It is not correct that Nathu Verma who was working as beldar at your site had informed you about such rape incident? And. I was told by some other labour."
From the aforesaid narration of PW6 - Dalip it is clear that he was working as Building Contractor in Sector - 22, Rohini for the last 34 years and had constructed House No. 272, Pocket - 2, Sector - 22, Rohini. During the construction of aforesaid house Smt. Saguna with her family was residing at the said site. Smt. Saguna and her daughter Prosecutrix (name withheld) were working as a beldars at his construction site. He was not charging any rent from Smt. Saguna. They had stayed for about three years at his site prior to the incident. He had heard from the labourers in the summer of 2010 that accused Raj Kumar (present in Court, correctly identified) had raped Prosecutrix (name withheld). He stated that he knows accused Raj Kumar Gupta as he also used to work as beldar at his construction site. Family of complainant and accused had returned their respective villages.
Further the testimony of PW2 - Sugna Bai and PW3 -
32 of 47 33 FIR No. 206/10 PS - Begum Pur Prosecutrix have also been corroborated by PW4 - Nathu Verma in material particulars though, PW4 Nathu Verma was turned hostile.
PW4 - Nathu Verma has deposed that he knows accused Raj Kumar Gupta who used to work as Beldar at House No. 276, Pocket - B, Sector - 22, Rohini, where he (PW4) used to work as a Chowkidar in the year, 2010 and he also know Smt. Saguna mother of prosecutrix (name withheld). Both of them also used to work as beldar at his site. He further stated that in the month of April, he was in his village and there he received phone call from accused who told him (PW4) that the prosecutrix wanted to marry accused her parents were not ready for this marriage. He (PW4) returned village after about four months. Smt. Saguna, mother of the prosecutrix came to call him. He went to PS - Begum Pur, where accused was in the custody of Police. He had signed some papers in the Police Station. He does not know the contents of these papers.
In the case of Rameshbhai Mohanbhi Koli & Ors. Vs. State of Gujrat 2010 XI AD (S.C.) 53 = (2011) 11 SCC 111, the Supreme Court held : "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the 33 of 47 34 FIR No. 206/10 PS - Begum Pur prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh Vs. State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey Vs. State of Orissa 1976 SCC (Cri) 566, Syad Akbar Vs. State of Karnataka 1980 SCC (Cri) 59 and Khujji Vs. State of M.P. 1991 SCC (Cri) 916].
In State of U.P. Vs. Ramesh Prasad Misra 1996 SCC (Cri) 1278, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution, or the accused but required to be subjected to close the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Bai Sonba Shinde Vs. State of Maharashtra 2002 VII AD (S.C.) 249 = 2003 SCC (Cri) 112, Gagan Konojia Vs. State of Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh Vs. State of U.P. 2006 I AD (S.C.) 417 = (2006) 1 SCC (Cri) 661, Sarvesh Narain Shukla Vs. Daroga Singh (2009) 1 SCC (Cri.) 188 and Subbu Singh Vs. State (2009) 2 SCC (Cri.) 1106"
18. While analysing the testimonies of PW3 - Prosecutrix and PW2 - Sugna Bai as discussed hereinabove, inspite of incisive cross examination nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though suggestions by defence to PW3 - Prosecutrix that accused had physical
34 of 47 35 FIR No. 206/10 PS - Begum Pur relations with her with her consent or that she (prosecutrix) had not lodged any report with the Police after first incident of rape as her mother was aware that she (prosecutrix) was having love affair with the accused and with her consent, such physical relations were made or that she (prosecutrix) alongwith accused used to go for roaming in Delhi or that her mother was aware about her friendship with accused. Voluntarily, she was not having any friendship with accused or that accused Raj Kumar used to help her mother financially or that accused Raj Kumar had come to their village to collect the balance payment regarding beldaari or that she is deposing falsely and the suggestion to PW2 - Sugna Bai that her daughter (PW3 - Prosecutrix) wanted to marry him (accused) but she (PW2) refused as accused Raj Kumar did not belong to their biradari, were put, which were denied by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
19. Prosecution has discharged its initial burden of proving that 35 of 47 36 FIR No. 206/10 PS - Begum Pur the acts of sexual intercourse by accused with PW3 - Prosecutrix were performed forcibly without her consent. Accused was under an obligation to explain how and under what circumstances, such acts of sexual intercourse were performed with the consent of PW3 - Prosecutrix.
The absence of such an explanation both in the section 313 Cr.P.C. statement of accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
20. It is now well settled principle of law that conviction for rape can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground 36 of 47 37 FIR No. 206/10 PS - Begum Pur for throwing out an otherwise reliable prosecution case. (Ref. State of H.P. Vs. Asha Ram AIR 2006 SC 381).
21. Ld. Counsel for the accused submitted that date of incident is not mentioned in the report and further submitted that the charge was framed without any date and time.
I have carefully perused and analysed the evidence and the material on the record.
Section 212 Cr.P.C. provides for particulars as to time, place and person.
It reads as under : 212 Particulars as to time, place and person - (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) XX XX XX XX The charge for the offence u/s 376 IPC framed against 37 of 47 38 FIR No. 206/10 PS - Begum Pur accused Raj Kumar Gupta on 09/03/2011 reads as under : CHARGE XX XX XX XX That at House No. 272, Pocket - 2, Sector - 22, Rohini within the jurisdiction of PS - Begum Pur, date and time unknown but approximately three months before 01/06/2010 you had committed rape upon Prosecutrix (name withheld) thrice in one month and thereby you have committed an offence punishable under Section 376 IPC within my cognizance.
XX XX XX XX From above, it is clearly indicated that the said charge contains such particulars as to time and place of the alleged offence and the person against whom it was committed and the person against whom it was committed as are reasonably sufficient to give accused notice of the matter with which he is charged.
In the circumstances, there is no substance in the plea so 38 of 47 39 FIR No. 206/10 PS - Begum Pur raised by the Ld. Counsel for the accused.
22. Ld. Counsel for the accused submitted that Zero Fir was lodged at PS - Kotwali, Panna, M.P. On 01/06/2010 and further submitted that PW1 - ASI Shiv Prasad, The Duty Officer lodged the FIR (206/10) on 21/08/2010 when Sho had handed over him Zero FIR which was received by DAK from PS - Kotwali, Panna, M.P. And further submitted that there is delay of about more than two months in the registration of the FIR.
I have carefully perused and analysed the material on the record.
PW3 - Prosecutrix has explained the reasons and the compulsions as to why the complaint was lodged on 01/06/2010 at PS - Kotwali, Panna M.P. At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW3 - Prosecutrix which reads as under : "My date of birth is 01/02/1990. I have three sisters and two brothers. I am the eldest child of my parents. My father had expired six seven years ago. In the year, 2010 in the month of jeth, my mother alongwith myself and my brothers and sisters came to Delhi for labour 39 of 47 40 FIR No. 206/10 PS - Begum Pur work. We started living at Sector - 22, Begumpur. We stayed in Delhi for twothree months. My mother was working under Dalip contractor and accused, present in the Court (correctly identified) was also used to work as mason under the same contractor. On twothree occasions, I also accompanied my mother to her workplace and also worked there. Accused Raj Kumar became familiar to me and started speaking friendly with me. I was not inclined to speak to accused. After some days, I got ill and stopped going to the work with my mother and started staying at home with my brothers and sisters. During noon hours, on three occasions, accused came to my house and forcibly raped me. I wanted to tell my mother after the first incident of rape, but accused threatened me to kill by saying that he would finish me, if I told that incident before anyone. I disclosed this fact of rape to Nathu Lal who also used to work as beldaar with my mother. Wife of Nathu disclosed this fact to my mother and then my mother enquired from me about the incident and I told her that accused Raj Kumar had raped me thrice against my wish. My mother and Nathu scolded Raj Kumar and also threatened him. I alongwith my mother and my brothers and sisters returned to our native village. Accused Raj Kumar followed us and also reached my village Ranipura. It was Monday, accused came to my village after about one month of my reaching with the intention to kill me and accused also threatened me to kill and beat me. My younger brother Ram Saroop informed other villagers about the arrival of accused and his threats. With villagers, we went to chowki of our village. We were told by the Police that we should go to PS at Panna. We came to Police Station Panna and lodged my report. I was also taken for medical examination."
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her 40 of 47 41 FIR No. 206/10 PS - Begum Pur 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)."
41 of 47 42 FIR No. 206/10 PS - Begum Pur 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.
42 of 47 43 FIR No. 206/10 PS - Begum Pur Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
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.
23. Ld. Counsel for the accused submitted that PW2 - Sugna Bai is the mother of the prosecutrix and she improved her statement and was confronted in her crossexamination. She stated in her cross examination that "wife of Nathu Ram told her that accused had raped my daughter". Wife of Nathu Ram was not interrogated nor her statement was recorded by the IO. PW2 - Sugna Bai admitted in her cross 43 of 47 44 FIR No. 206/10 PS - Begum Pur examination that she did not report the matter to the Police and took the prosecutrix to her parental village.
I have carefully perused and analysed the evidence on record. The said PW2 - Sugna Bai has deposed regarding the facts what she observed and experienced. Nothing more can be read in the said parts of her testimony. There are bound to be some discrepancies in narration of the witnesses when they speak out details. Moreover, these are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence and do not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
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 not render the evidence of eye witnesses unbelievable.
44 of 47 45 FIR No. 206/10 PS - Begum Pur 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 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 45 of 47 46 FIR No. 206/10 PS - Begum Pur 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].
24. In view of above and in the circumstances, prosecution has thus proved beyond shadows of all reasonable doubts that at House No. 272, Pocket - 2, Sector - 22, Rohini, Delhi within the jurisdiction of PS
- Begum Pur, approximately three months before 01/06/2010 accused Raj Kumar Gupta committed rape upon PW3 Prosecutrix thrice in one month without her consent.
I accordingly, hold accused Raj Kumar Gupta guilty for the offence punishable u/s 376 IPC and convict him thereunder.
25. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Raj Kumar Gupta in the 46 of 47 47 FIR No. 206/10 PS - Begum Pur 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 Raj Kumar Gupta beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Raj Kumar Gupta. I, therefore, hold accused Raj Kumar Gupta guilty for the offence punishable u/s 376 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 22nd Day of February, 2013 ASJ/Spl. FTC N/W & Outer District Rohini, Delhi 47 of 47