Delhi District Court
State vs . Prem Pal on 17 December, 2013
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FIR No. 211/11
PS - Shalimar Bagh
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 97/13
Unique ID No. : 02404R0244452011
State Vs. Prem Pal
S/o Ganga Sah
R/o 281 J. J. Camp,
Near Ayurvedic Camp,
Haider Pur, Delhi
Lakhmi Ki Jhuggi.
Permanent Address :
Village Gothani,
PS - Khurja Junction,
District - Bulandshahar, U.P.
FIR No. : 211/11
Police Station : Shalimar Bagh
Under Sections : 376 IPC
Date of committal to session Court : 14/09/2011
Date on which judgment reserved : 14/12/2013
Date on which judgment announced : 17/12/2013
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FIR No. 211/11
PS - Shalimar Bagh
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 : That on 06/06/2011 on receipt of DD No. 82 B regarding rape, SI Rajan Pal with accompanying Constable Ram Phal reached at Jhuggi No. 191 near Ayurvedic Camp, Subhash ki Jhuggi, Haider Pur and on making inquiries the matter was found to be of rape on which SI Rajan Pal leaving Constable Ram Phal for the protection of the spot, with prosecutrix (name withheld being a case u/s 376 IPC) and her husband Subhash and alleged Prem Pal S/o Ganga Shah R/o 281, J. J. Camp, Near Ayurvedic Camp, Lakshmi Ki Jhuggi, Haider Pur, Delhi reached at the Police Station. SI Durga Kapri on receipt of information regarding rape also reached at the Police Station. SI Rajan Pal had also informed the Crime Team about the incident. SI Rajan Pal handed over DD No. 82B, with prosecutrix and alleged Prem Pal to SI Durga Kapri. SI Durga Kapri interrogated the prosecutrix. Prosecutrix (name withheld) W/o Subhash R/o Jhuggi No. 188 near Ayurvedic Camp, Haider Pur, Delhi, aged 30 years, made the statement which is to the 2 of 81 3 FIR No. 211/11 PS - Shalimar Bagh effect that, she lives at the above address with her family. Today (06/06/2011) morning her husband, Prem Pal, brother of her Jethani at about 11:00 a.m. on sitting on the roof of jhuggi were talking. Her husband does the boring work. Her husband when was leaving for work, he also asked Prem Pal to go with him but he (Prem Pal) came down from the roof but again came back on the roof. When her husband had gone for work at about 12:00 noon in the day time, he (Prem Pal) came in her jhuggi constructed at first floor and at that time her children were sitting at the down floor with her Jethai. Prem Pal on finding her alone caught hold her both hands and made her forcibly laid on the bed (Palang) and after removing her salwar forcibly committed Galat Kaam (Rape) with her without her consent and against her will and Prem Pal told her not to disclose this to any one and thereafter he went away from there (Aaj Subah Mera Pati Va Meri Jethani Ka Bhai Prem Pal Karib 11:00 Baje Meri Jhuggi Ki Chat Par Baith Kar Baatein Kar Rahe The. Mera Pati Jo Boring Lagane Ka Kaam Karta Hai Apne Kaam Par Jane Laga Jo Mere Pati Ne Prem Pal Ko Bhi Sath Chalne Ko Kaha Par Veh Meri Chat Se Niche Utra Aur Fir Vapas Aa Gya. Jab Mere Pati Kaam Par Chale Gaye To Karib 12:00 Baje Din Meri Pehli Manzil Mei Bani 3 of 81 4 FIR No. 211/11 PS - Shalimar Bagh Hui Jhuggi Mei Aa Gaya Jo Mere Bachche Us Samay Meri Jethani Ke Paas Niche The. Jo Prem Pal Ne Mujhe Akela Dekh Kar Mere Dono Hath Pakad Liye Aur Palang Par Mujhe Zabardasti Leta Diya Aur Meri Salwar Utar Kar Zabardasti Meri Marzi Ke Khilaaf Galat Kaam (Balatkaar) Kiya. Prem Pal Ne Mujhse Kaha Ki Yeh Baat Kisi Se Mat Kehna Aur Us Ke Baad Veh Wahan Se Chala Gaya). Her husband at about 1:00 p.m. came to the house and she told all about the incident to him. Now she alongwith her husband has come to the Police Station for lodging a complaint against Prem Pal. Legal action be taken against him. From the statement of the prosecutrix and the circumstances on finding that offence u/s 376 IPC appeared to have been committed, the case was got registered. The information was also sent to the NGO. Prem Pal was also interrogated and on finding sufficient evidence against him, he was arrested and his disclosure statement was recorded. On the pointing out of the prosecutrix the site plan was prepared. The medical examination of the prosecutrix as well as of the accused were got conducted from the BJRM Hospital and sealed exhibits, handed over by the concerned Doctor, after their medical examination were taken into Police possession and were deposited in Malkhana. SI Rajan Pal met SI 4 of 81 5 FIR No. 211/11 PS - Shalimar Bagh Durga Kapri in the Police Station and informed that he, by the orders of the SHO, had got inspected the spot/place of incident by the Crime Team and handed over the Inspection Report and one sealed pulinda of the bed sheet sealed with the seal of 'RPS' and the sealed pulinda was taken into Police possession and deposited in the Malkhana. Accused was produced to the Court and was sent to JC and information regarding the arrest of accused was given to his wife. The photographs of the spot were obtained from the Crime Team. Statement of witnesses u/s 161 Cr.P.C. were recorded. The sealed exhibits were sent to the FSL, Rohini vide RC No. 50/21/11.
Upon completion of the necessary further investigation, challan for the offence u/s 376 IPC was prepared against accused Prem Pal and was sent to the Court for trial.
2. Since the offence u/s 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 u/s 209 Cr.P.C.
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3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 376 IPC was made out against accused Prem Pal. 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 16 witnesses. PW1 - Prosecutrix, PW2 HC Pawan Kumar, PW3 Subhash, PW4 Constable Anil, PW5 Constable Devender, PW6 Constable Ram Phal Singh, PW7 Lady Constable Parul, PW8 Dr. V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, PW9 SI Matadin, PW10 Constable Dalbir Singh, PW11 HC Mukesh Chand, PW12 Dr. Deepak Chugh, Medical Officer, BJRM Hospital, Delhi, PW13 - L. Babyto Devi, Senior Scientific Officer, FSL, Rohini, Delhi, PW14 - Constable Dudh Nath, PW15 - SI Rajan Pal and PW16 - SI Durga Kapri.
5. In brief the witnessography of the prosecution witnesses is 6 of 81 7 FIR No. 211/11 PS - Shalimar Bagh as under : PW1 Prosecutrix is the victim who proved her statement made to the Police Ex. PW1/A, bearing her signature at point 'A', arrest memo of accused Ex. PW1/B and personal search memo of accused Ex. PW1/C bearing her signature at point 'A' and identified and proved her clothes i.e. One blue shade dirty salwar Ex. P1 and bed sheet of white and pink shade Ex. P2.
PW2 HC Pawan Kumar who deposed that on 06/06/2011 he was posted as Head Constable at PS - Shalimar Bagh. On that day, he was doing the job of Duty Officer from 4:00 p.m. to 12:00 midnight at PS Shalimar Bagh. SI Durga handed over a rukka to him in the Police Station for registration of FIR. On the basis of which he got recorded computerized copy of FIR u/s 376 IPC as per the rukka, photocopy of which is Ex. PW2/A which bears his signature at point 'A' and after recording the FIR, the same was handed over to IO.
PW3 - Subhash S/o Sh. Shiv Lal R/o N188, Near Ayurvedic Camp, Delhi is the husband of prosecutrix who deposed that 7 of 81 8 FIR No. 211/11 PS - Shalimar Bagh prosecutrix (name withheld) is his wife. He alongwith his wife and three children used to reside on the given address. He is doing the work of sanitary. On 06/06/2011 at about 10:00 a.m. he went to his work and came back at about 1:00 p.m. and he saw his wife was weeping bitterly. On inquiry, she told him that the Prem Pal, brother of Urmila (Jethani) had committed rape with her. He called the parents of his wife. They came in the evening and then he called at number 100 from his mobile no. 9910261783. Police officials came to his jhuggi alongwith one lady official. They took his wife, himself and accused Prem Pal present in the Court to the Police Station Shalimar Bagh. In the Police Station, statement of prosecutrix (name withheld) was recorded and thereafter, police again visited his house and inspected the spot. Thereafter, his wife was taken to BJRM Hospital by the Police. He also accompanied his wife. His wife was medically examined at BJRM hospital and his statement was recorded by the IO.
PW4 Constable Anil is the DD Writer who deposed that on 06/06/2011, he was posted at PS - Shalimar Bagh, Delhi. On that day, he was working as DD Writer from 4:00 a.m. to 12:00 midnight and 8 of 81 9 FIR No. 211/11 PS - Shalimar Bagh at about 7:08 p.m. one information was received through wireless operator from intercom that "In Subhash ki Jhuggi, a rape has been committed with his wife by neighbourer". The said information was recorded vide DD No. 82B. True copy of same is Ex. PW4/A. The said DD was marked to Sub Inspector Rajan Pal and later on to Woman Sub Inspector Durga Kapde.
PW5 Constable Devender who deposed that on 06/06/2011, he was posted at PS - Shalimar Bagh, Delhi. On that day, he alongwith Constable Dalip had joined investigation of this case with SI Durga Kapdi. Accused Prem Pal was already in the Police custody. He was interrogated and arrested in this case vide arrest memo Ex. PW1/B and his personal search memo Ex. PW1/C was also prepared. Both the memos bears his signature at point 'B'. IO recorded disclosure statement of accused which is Ex. PW5/A, bears his signature at point 'A'. Thereafter, the Police Team alongwith accused Present in the Court and prosecutrix (name withheld) left the PS and went to the residence of prosecutrix (name withheld) at her Jhuggi No. 188, Ayurvedic Camp, Haider Pur, Delhi. On the pointing out of prosecutrix, IO prepared site 9 of 81 10 FIR No. 211/11 PS - Shalimar Bagh plan of the place of incident i.e. first floor of the said Jhuggi which is Ex. PW5/B, bears his signature at point 'A'. Constable Ram Phal also met them at the spot. Thereafter, IO alongwith prosecutrix and himself went to BJRM Hospital for her medical examination after leaving Constable Ram Phal at the spot. The prosecutrix was got medically examined at the Hospital. The accused was also got medically examined at the Hospital. Thereafter, Constable Dalip handed over a sealed pullinda containing under garments and blood sample of accused alongwith sample seal of BJRM Hospital. IO seized the aforesaid pullindas vide seizure memo Ex. PW5/C, bears his signature at point 'A'. Thereafter, accused was brought to PS and put in the lockup and the case property was deposited in the Malkhana. IO recorded his statement.
PW6 Constable Ram Phal Singh who deposed that on 06/06/2011, he was posted as Constable at PS - Shalimar Bagh. On that day, he was on emergency duty from 8:00 a.m. to 8:00 p.m. DD No. 82B was received to SI Rajan Pal regarding the incident of rape at Jhuggi No. 188, near Ayurvedic Camp, Haider Pur, Delhi. He accompanied SI Rajan Pal to the place of occurrence. Only lady/prosecutrix (name 10 of 81 11 FIR No. 211/11 PS - Shalimar Bagh withheld) met them. Prosecutrix (name withheld) informed the IO that Prem Pal i.e. the brother of her Jethani committed rape upon her. Accused Prem Pal present in the Court, correctly identified. IO took accused Prem Pal, prosecutrix (name withheld) and her husband namely Subhash to the Police Station after leaving him at the spot. After some time, SI Durga Kapre alongwith one Lady Constable Parul, Constable Dalip, Constable Devender, Complainant/prosecutrix (name withheld), her husband Subhash and accused Prem Pal came at the spot. IO inspected the spot. Thereafter, complainant/prosecutrix (name withheld) was taken to the Hospital for her medical examination. After some time, SI Rajan Pal and Crime Team officials also reached at the spot. The Crime Team inspected the spot. He (PW6) got protected the scene of occurrence. IO seized one bed sheet from the bed upon which she was raped by the accused. The said bed sheet was converted into a sealed pullinda with the seal of 'RPS'. Seal after use handed over to him. His statement was recorded by the IO. He identified and proved the case property i.e. one bed sheet of white and pink shade as Ex. P2.
PW7 Lady Constable Parul who deposed that on 11 of 81 12 FIR No. 211/11 PS - Shalimar Bagh 06/06/2011, she was posted as Constable at PS - Shalimar Bagh. On that day, she accompanied SI Durga Khapre to the Place of occurrence i.e. Jhuggi No. 188, Ayurvedic Camp, Haider Pur, Delhi alongwith complainant/prosecutrix (name withheld), her husband Subhash, accused Prem Pal and two Constables. The place of incident was on the first floor of the aforesaid Jhuggi. IO prepared site plan of the place of incident at the instance of the accused. Constable Ram Phal was already present there. Thereafter, she alongwith accused and the IO went to BJRM Hospital. Accused was medically examined there. One kit given by the Doctor was handed over by her to the IO. The seizure memo of the same is Ex. PW7/A, which bears her (PW7) signature at point 'A'. Thereafter, Police team returned at the Police Station, where IO recorded his statement. Accused is present in the Court. She was also cross examined by the Learned Addl. PP for the State during which she deposed that it is correct that the IO prepared the site plan at the instance of victim (name withheld). It is correct that she (PW7) alongwith the IO went to BJRM Hospital for medical examination of the victim (name withheld) and after her medical examination, she handed over MLC of victim (name withheld) alongwith sample seal of BJRM Hospital to the 12 of 81 13 FIR No. 211/11 PS - Shalimar Bagh IO.
PW8 Dr. V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi who deposed that on 06/06/2011 he was posted as CMO in BJRM Hospital. On that day Usha W/o Subhash Age 30 years female brought to hospital for medical examination with alleged history of sexual assault. The patient was initially examined by Dr. Ajit Tripathi, Junior Resident on duty under his supervision. On local examination no fresh external injury seen and thereafter patient was referred to S.R. Gynae. where she was examined by Dr. Meenakshi. As per MLC on local examination no injury seen. No abnormal finding recorded . On the same day, Prem Lal S/o Ganga Shah, Age 42 years male was brought to hospital for medical examination. He was initially examined by Dr. Ajit Tripathi, Junior Resident under his supervision and on examination no external injury seen. The patient was referred to SR Surgery where he was examined by Dr. A. K. Singh and who opined that there is nothing to suggest that the person is incapable of performing sexual intercourse. Witness deposed that he is acquainted with the handwriting and signature of Dr. Ajit Tripathi, Dr. Meenakshi Bansal 13 of 81 14 FIR No. 211/11 PS - Shalimar Bagh and Dr. A. K. Singh as he had seen them while writing and signing during the course of his duties. The MLC of prosecutrix (name withheld) is Ex. PW8/A, bearing signature of Dr. Ajit Tripathi at point 'A' and of Dr. Meenakshi Bansal at point 'B'. The MLC of Prem Lal is Ex. PW8/B, bearing the signature of Dr. Ajit Tripathi at point 'A' and of Dr. A. K. Singh at point 'B'.
PW9 SI Matadin who deposed that on 06/06/2011 he was posted as Incharge Mobile Crime Team, NorthWest District, Pitam Pura, Delhi. On that day after receiving the information he alongwith his staff reached at the spot i.e. Jhuggi No. 191, J. J. Camp, Haider Pur near Ayurvedi Camp, Haider Pur where they met SI Rajan Pal alongwith staff. He inspected the spot and Constable Dalbir, photographer took the photographs of the spot from different angle. He prepared his report Ex. PW9/A, bearing his signature at point 'A'.
PW10 Constable Dalbir Singh is the Photographer who deposed that on 06/06/2011, he was posted as Photographer in Mobile Crime Team, NorthWest District, Pitam Pura, Delhi. On that day, after 14 of 81 15 FIR No. 211/11 PS - Shalimar Bagh receiving the information he alongwith Incharge Mobile Crime Team and staff reached at the spot i.e. Jhuggi No. 191, J. J. Camp, Haider Pur near Ayurvedic Camp, Haider Pur where they met SI Rajan Pal alongwith staff. He (PW10) took 5 photographs of the spot from different angle. He has brought the negatives of the same. The negatives are Ex. PW10/A1 to Ex, PW10/A5 and the photographs thereof are Ex. PW10/B1 to Ex. PW10/B5.
PW11 HC Mukesh Chand is the MHC(M) who deposed that on 06/06/2011, he was posted as MHC(M) in PS Shalimar Bagh. On that day, W/SI Durga Kapri has deposited four sealed pullindas alongwith sample seal in the malkhana. He made entry at Serial No. 3864 of Register No. 19. On 27/06/2011, on the instruction of IO above said pullindas were sent to the FSL through Constable Dudh Nath vide RC No. 50/21/11. After depositing the same in FSL, Constable Dudh Nath has deposited the acknowledgment receipt with him. He has brought the Register No. 19 & 21. The copy of relevant entry of register No. 19 is Ex. PW11/A and copy of relevant entry of Register No. 21 is Ex. PW11/B and the copy of acknowledgment receipt is Ex. PW11/C. 15 of 81 16 FIR No. 211/11 PS - Shalimar Bagh The sealed pullinda remained intact during his custody.
PW12 Dr. Deepak Chugh, Medical Officer, BJRM Hospital, Delhi who deposed that on 07/06/2011 one Prem Pal S/o Ganga Sahai, Aged 40 years male was brought to hospital for medical examination having complaint of pain in chest. He was examined by Dr. Shailesh Pratap Singh, Junior Resident under his supervision who is not working in their hospital at present and his present whereabouts are not known. He is acquainted with his handwriting and signature as he has seen him while writing and signing during the course of his duties. On local examination no fresh external injury seen. The MLC is Ex. PW12/A, bearing signature of Dr. Shailesh Pratap Singh at point 'A'.
PW13 - L. Babyto Devi, Senior Scientific Officer, FSL, Rohini, Delhi who proved the biological and serological reports Ex. 13/A and Ex. 13/B respectively signed by her at points 'A'.
PW14 - Constable Dudh Nath who deposed that on 27/06/2011, he was posted as Constable in PS - Shalimar Bagh. On that 16 of 81 17 FIR No. 211/11 PS - Shalimar Bagh day, on the instructions of IO/SHO, he took four sealed pullindas alongwith sample seal from the MHC(M) for depositing the same in FSL, Rohini vide RC No. 50/21/11. He deposited the same in FSL, Rohini and thereafter, he handed over the acknowledgment receipt to the MHC(M). Sealed pullinda remained intact during his custody.
PW15 - SI Rajan Pal who deposed that on 06/06/2011, he was posted in PS - Shalimar Bagh and was on Emergency Duty from 8:00 a.m. to 8:00 p.m. On that day, he received the information regarding DD No. 82B regarding rape, telephone and thereafter he alongwith Constable Ram Phal reached at the spot i.e Jhuggi No. 188, Ayurvedic Camp, Haider Pur, Delhi where he met the complainant/prosecutrix (name withheld) W/o Subhash and the accused Prem Pal S/o Ganga Sah. Subhash, husband of the prosecutrix was also found present there who told that accused Prem Pal had committed rape with his wife on the first floor. He (PW15) left Constable Ram Phal at the spot to guard the scene of crime. Thereafter, he alongwith the prosecutrix, her husband and accused came back to the PS. He informed the SHO about the incident. Crime Team was also informed. W/SI 17 of 81 18 FIR No. 211/11 PS - Shalimar Bagh Durga Kapri was called in the PS and he handed over complainant/prosecutrix and accused to her. IO SI Durga Kapri recorded the statement of the prosecutrix and got the FIR registered. Crime Team reached at the Police Station. Thereafter, he alongwith Crime Team, IO SI Durga Kapri, the complainant and the accused reached at the spot. Crime Team inspected the spot. From the spot, IO lifted one printed bed sheet and the same was put up into a bag and sealed with the seal of 'RPS' and seized vide memo Ex. PW15/A bearing his signature at point 'A'. Accused Prem Pal is present in the Court. He identified and proved the bed sheet as Ex. P2.
PW16 - SI Durga Kapri is the Investigating Officer (IO) of the case who deposed that on 06/06/2011, she was posted as SI in Sub Division Shalimar Bagh, Rape Crisis Cell. On that day after receiving the information she reached PS Shalimar Bagh where SI Rajan Pal produced before him complainant/prosecutrix (name withheld), her husband Subhash and accused Prem Pal, present in the Court. SI Rajan Pal has also produced DD No. 82B. He (PW16) recorded the statement of the prosecutrix which is already Ex. PW1/A and attested her signature 18 of 81 19 FIR No. 211/11 PS - Shalimar Bagh at point 'A', bearing her signature at point 'B'. She prepared rukka Ex. PW16/A, bearing her signature at point 'A' and rukka was handed over to Duty Officer for getting the FIR registered. After registration of FIR, Duty Officer handed over to her the copy of FIR and original rukka. Accused was interrogated. Accused Prem Pal was arrested vide arrest memo Ex. PW1/B, his personal search memo was conducted vide memo Ex. PW1/C, he made disclosure statement Ex. PW5/A, all bearing her signature at point 'X'. Thereafter, she alongwith complainant, her husband, accused Prem Pal, Constable Parul, Constable Dalip and Constable Devender reached at the spot i.e. Jhuggi No. 188, Ayurvedic Camp, Haider Pur, Delhi. She prepared the Site Plan Ex. PW5/B at the instance of the complainant. Thereafter, she alongwith complainant, accused Prem Pal, Lady Constable Parul, Subhash, Constable Dalip and Constable Devender reached at BJRM Hospital. Prosecutrix (name withheld) was medically examined and after her medical examination, Doctor handed over the sealed pulinda containing exhibits to Constable Parul and she handed over the same to her (PW16) and she seized the same vide memo Ex. PW7/A, bearing his signature at point 'B'. Accused Prem Pal was also medically examined and doctor handed over the 19 of 81 20 FIR No. 211/11 PS - Shalimar Bagh sealed pulinda containing the exhibits to Constable Dalip and he handed over the same to him and he seized the same vide memo Ex. PW5/C, bearing her signature at point 'B'. Thereafter, they came back to Police Station. Case property was deposited in the Malkhana. SI Rajan Pal has handed over to her the Crime Team Report and one bedsheet in a sealed pulinda sealed with the seal of 'RPS' which he lifted from the spot and the same were seized vide memo Ex. PW15/A, bearing her signature at point 'B'. Accused was sent to police lockup and case property deposited in the Malkhana. She recorded the statement of witnesses. On 07/06/2011, accused Prem Pal was produced in the Court and was sent to JC. On 27/06/2011, exhibits were sent to FSL through Constable Dudh Nath and thereafter he deposited the acknowledgment receipt with MHC(M). She collected the photographs of the scene of crime. After completing the investigation challan was prepared and filed in the Court. Later on FSL Result was collected and filed in the Court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
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6. Statement of accused Prem Pal 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. Learned Counsel for the accused submitted that prosecutrix is the mother of the three children. Husband of the prosecutrix are four brothers namely, Subhash, Ramesh, Kailash and Suresh. Ramesh is married with the sister namely Urmila of accused Prem Pal 1617 years ago. They are residing in joint property. Out of 11 rooms, the six rooms are in the possession of prosecutrix and her husband. A quarrel used to take place on sharing on the rent amount with the brothers of the husband of the prosecutrix. Ramesh used to quarrel with prosecutrix, who is real brotherinlaw of accused Prem Pal and husband of Smt. Nirmala. Smt. Urmila used to quarrel with the prosecutrix. One or two times scuffling had taken place between prosecutrix and sister of accused. There was a dispute among the family members of the prosecutrix over the shares of the rooms and its rent and the accused Prem Pal being the relative of theirs used to intervene in favour of his sister.
21 of 81 22 FIR No. 211/11 PS - Shalimar Bagh Learned Counsel for the accused further submitted that the entire story of the prosecutrix is unnatural, improbable and unbelievable. PW1 - prosecutrix in her crossexamination has stated that : "It is correct that at the time of present incident, the door of the house was in open condition. I raised alarm at the time of incident but accused shut my mouth with his hand and threatened that in case tell this fact to anybody, he will kill me. I raised alarm several time. I was raising alarm "bachaobachao". All the neighbours were present but no one came to rescue or help me. I Was raising alarm for more than one hour but again no one came. It is correct that alarm raised by me can go to the other houses also. Even the tenants did not help me on my raising alarm, only my jeth Kailash came to help me Kailash did not lead me to the PS and he only made a call to my husband. My husband did not come immediately but he came only at 1:00 p.m. My husband after his coming first of all went to Prem Pal. Thereafter, we did not go to anyone. It is correct that on that day, a quarrel had taken place between me and the sister of the accused Prem Pal."
Learned Counsel for accused argued that when the accused had already shut the mouth of the prosecutrix with his hand and threatened that in case she will tell this fact with anybody,, he will kill me, despite this fact the prosecutrix raised alarm several times about one 22 of 81 23 FIR No. 211/11 PS - Shalimar Bagh hour and despite the presence of neighbour, tenants and other family members, no one came to rescue her. Meaning thereby there is no such incident has ever happened. In fact on that day, there was a dispute and quarrel among the family members of the prosecutrix and that is why the people had assembled there and were viewing the quarrel. Even there was no any physical scuffling or fighting that is why no one had come forward to intervene among the dispute and quarrel with the family of the prosecutrix. The accused is neither ruffian not goonda nor dada nor muscleman of the locality. He is a poor and belongs to a labour class. There is no any evidence which suggest that the accused could commit alleged rape with the prosecutrix in the above facts and circumstances in the day time and in the crowded area.
He further submitted that the 'door' of the house was open and in this circumstances, no any such incident can be done as alleged by the prosecutrix. If such, it may be only with the consent of the prosecutrix or not at all.
Learned Counsel for the accused further submitted that as per the prosecutrix, the jeth had come and who instead of informing the 23 of 81 24 FIR No. 211/11 PS - Shalimar Bagh Police, had made a call to her husband did not came utmost surprising that husband did not came immediately despite his wife had allegedly been raped and he did not come immediately. Meaning thereby the husband of the prosecutrix was well aware that the routine quarrel was going on and no any such alleged incident was told to him because there was no such alleged incident which had happened.
Learned Counsel for the accused further submitted that in her crossexamination prosecutrix has stated that "It is correct whatever I had told to the Police about Prem Pal were not known to anyone except me and my husband." In fact, the quarrel had taken place in the morning time when the husband of prosecutrix had gone at his work nearby the locality. When he had come and after thoughts and planning and consulting to each other, they had made a call to the Police and approached the Police accordingly with these alleged facts of rape. Because the prosecutrix had already involved a person, namely, Shiv Prasad @ Babbu S/o Shri Asha Ram in FIR bearing No. 392/2008, u/s 376/506 IPC, PS - Shalimar Bagh, Delhi in which, the case now the accused had been acquitted. The certified copy is already on record 24 of 81 25 FIR No. 211/11 PS - Shalimar Bagh which is exhibited as Ex. 'DX'.
He further submitted that PW1 - prosecutrix in her cross examination has stated that "I do not know any Shiv Prasad @ Babbu. I have also lodged a case of rape against Babbu prior to the present case. It is correct that Babbu has been acquitted from the said case. I do not know the wife of Babbu. It is correct that I know her by face. I never met wife of Babbu. It is wrong to suggest that I got prepared jewellery from Babbu and his sister". This inspiration of lodging FIR had also led them (prosecutrix and her husband) to lodge false FIR on the basis of false facts and concocted story because the alleged incident had allegedly taken place prior to 12 O'Clock but the information and General Diary bearing No. 26A had been made at 8:05 p.m. and accordingly, the FIR had been lodged after 8 hours delay and the delay of which has not been explained by the prosecution.
Learned Counsel for the accused further submitted that it is report from the PCR vide DD No. 82B dated 06/06/2011, PS - Shalimar Bagh (Ex. PW4/A dated 06/06/2011) that at about 7:08 p.m. through intercom it was informed that at Haider Pur in Jhuggi of Subhash, near 25 of 81 26 FIR No. 211/11 PS - Shalimar Bagh Ayurvedic Hospital, a 'boy' has committed rape with his wife (Ki Haider Pur Subhash Ki Jhuggi Near Ayurvedic Hospital Pados Ke Ladke Ne Meri Wife Ke Sath Rape Kiya Hai). Accused Prem Pal was his well known close relative of 17 years old, aged about 45 years. Despite this fact the name of the accused Prem Pal was not told to the Police only with the moral obligation that the husband of the prosecutrix did not want to implicate him because there was no such type of incident which the prosecutrix has alleged. Otherwise the name of the accused Prem Pal might have been mentioned in this report,which exhibited as Ex. PW4/A dated 06/06/2011.
Learned Counsel for the accused further submitted that so far as the medical report of the prosecutrix is concerned, there is no any injuries on her body including her private part.
Learned Counsel for the accused further submitted that when the prosecutrix had gone to the Hospital, she had changed her clothes. It is also evidence that in Hospital no clothes were taken from her by anyone so the sending of clothes of the prosecutrix for FSL 26 of 81 27 FIR No. 211/11 PS - Shalimar Bagh Report in itself is doubtful.
Learned Counsel for the accused further submitted that it is not the evidence that the human semen detected on Ex. 1J(a) and Ex. 1J(b) is of accused as it might be the semen of anyone else or her husband and nowhere else the semen was detected which makes the story of the prosecutrix doubtful.
Learned Counsel for the accused further submitted that the alleged incident had taken place in the day time, in the crowded area and in the presence of so many persons but no any person had come forward to intervene or corroborate the story of the prosecutrix nor the Police personnels/IO has made any effort to enquire the matter from the public nor there is any witness.
Learned Counsel for the accused prayed that the accused being innocent having been falsely implicated with intention to settle the family dispute to extract some money from the accused be acquitted in the interest of justice.
27 of 81 28 FIR No. 211/11 PS - Shalimar Bagh Learned Counsel for the accused referred to the cases and are reported as 'Rajesh Patel Vs. State of Jharkhand' AIR 2013 SC 1497, 'Rajoo & Ors. Vs. State of M.P.', AIR 2009 SC 858 and 'Narender Kumar Vs. State (NCT of Delhi)', AIR 2012 SC 2281.
8. While the Learned 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, Learned Addl. PP for the State and Sh. S. H. Ansari, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offence punishable u/s 376 IPC against the accused Prem Pal is that on 06/06/2011, at 12:00 noon at Jhuggi No. 28 of 81 29 FIR No. 211/11 PS - Shalimar Bagh 188, Ayurvedic Camp, Haider Pur, Delhi, within the jurisdiction of PS - Shalimar Bagh, he committed rape upon the prosecutrix (name withheld) w/o Sh. Subhash against her consent.
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 proved her statement made to the Police on 06/06/2011 Ex. PW1/A bearing her signature at point 'A'. In the said statement, prosecutrix has stated her age as 30 years.
On 25/01/2012, statement of PW1 - prosecutrix was recorded in the Court and in her particulars, she stated her age as about 30 years.
The said factum of age of PW1 - prosecutrix has not been disputed by the accused. Nor any evidence to the contrary has been 29 of 81 30 FIR No. 211/11 PS - Shalimar Bagh produced or led on the record by the accused.
As the date of alleged incident is of 06/06/2011 and on 06/06/2011 at the time of making her statement before the Police Ex. PW1/A, PW1 prosecutrix has stated her age as 30 years and on 25/01/2012 at the time of recording of her statement in the Court, prosecutrix has deposed her age as about 30 years while giving her particulars, on simple arithmetical calculation, the age of prosecutrix comes to around 30 years as on the date of the alleged incident on 06/06/2011.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged around 30 years, as on the date of alleged incident on 06/06/2011. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW8 Dr. V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi who deposed that on 06/06/2011 he was posted as CMO in BJRM Hospital. On that day prosecutrix (name withheld) W/o Subhash, Age 30 years female brought to hospital for medical examination with alleged history of sexual assault. The patient was 30 of 81 31 FIR No. 211/11 PS - Shalimar Bagh initially examined by Dr. Ajit Tripathi, Junior Resident on duty under his supervision. On local examination no fresh external injury seen and thereafter patient was referred to S.R. Gynae. where she was examined by Dr. Meenakshi. As per MLC on local examination no injury seen. No abnormal finding recorded and proved the MLC of the prosecutrix (name withheld) Ex. PW8/A, bearing signature of Dr. Ajit Tripathi at point 'A' and of Dr. Meenakshi Bansal at point 'B'.
Despite grant of opportunity, PW8 Dr. V. K. Jha was not crossexamined on behalf of accused.
In view of above and in the circumstances, the medical and the gynaecological examination of PW1 - prosecutrix vide MLC Ex. PW8/A stands proved on the record.
MEDICAL EVIDENCE OF ACCUSED PREM PAL
14. PW12 Dr. Deepak Chugh, Medical Officer, BJRM Hospital, Delhi who deposed that on 07/06/2011 one Prem Pal S/o Ganga Sahai, Aged 40 years male was brought to hospital for medical examination having complaint of pain in chest. He was examined by Dr. Shailesh Pratap Singh, Junior Resident under his supervision who is not 31 of 81 32 FIR No. 211/11 PS - Shalimar Bagh working in their hospital at present and his present whereabouts are not known. He is acquainted with his handwriting and signature as he has seen him while writing and signing during the course of his duties. On local examination no fresh external injury seen. The MLC is Ex. PW12/A, bearing signature of Dr. Shailesh Pratap Singh at point 'A'.
Despite grant of opportunity, PW12 - Dr. Deepak Chugh was not crossexamined on behalf of accused.
In view of above and in the circumstances, the medical examination of accused Prem Pal vide MLC Ex. PW12/A stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW8 Dr. V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi who deposed that on 06/06/2011 Prem Lal S/o Ganga Shah, Age 42 years male was brought to hospital for medical examination. He was initially examined by Dr. Ajit Tripathi, Junior Resident under his supervision and on examination no external injury seen. The patient was referred to SR Surgery where he was examined by Dr. A. K. Singh and who opined that there is nothing to suggest that the 32 of 81 33 FIR No. 211/11 PS - Shalimar Bagh person is incapable of performing sexual intercourse. Witness deposed that he is acquainted with the handwriting and signature of Dr. Ajit Tripathi, and Dr. A. K. Singh as he had seen them while writing and signing during the course of his duties. The MLC of Prem Lal is Ex. PW8/B, bearing the signature of Dr. Ajit Tripathi at point 'A' and of Dr. A. K. Singh at point 'B'.
Despite grant of opportunity, PW8 Dr. V. K. Jha was not crossexamined on behalf of accused.
In view of above and in the circumstances, it stands proved on the record that accused Prem Pal was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW13 - L. Babyto Devi, Senior Scientific Officer, FSL, Rohini, Delhi who proved the biological and serological reports Ex. 13/A and Ex. 13/B respectively signed by her at points 'A'.
As per biological report Ex. 13/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL 33 of 81 34 FIR No. 211/11 PS - Shalimar Bagh Parcel '1' : One sealed cardboard box sealed with the seal of "MS BJRMH J.PURI DELHI" containing exhibits '1A', '1B', '1C', 1D, 1E, 1F, 1G, 1H, 1I, 1J(a) 1J(b), 1K, 1L, 1M(a) and 1M(b), each exhibits were kept in a paper envelops.
Exhibit '1A' : One dirty salwar labelled as 'Step 3A Outer Clothing'.
Exhibit '1B' : One white blank paper labelled as 'Step 3B'. Exhibit '1C' : Few nail clippings labelled as 'Step 4 Nail scrapping'.
Exhibit '1D' : Cotton wool swab on a wooden stick labelled as 'Step 4 In between finger'.
Exhibit '1E' : Cotton wool swab on a wooden stick labelled as 'Step 5 Breast swab'.
Exhibit '1F' : One comb labelled as 'Step 6 Combing of pubic hair'.
Exhibit '1G' : Few strands of hair labelled as 'Step 7 clipping of pubic hair'.
Exhibit '1H' : One blank white paper labelled as 'Step 8 Matted of pubic hair'.
Exhibit '1I' : Cotton wool swab on a wooden stick, kept in a plastic tube labelled as 'Step 9 Cervical mucus collection'.
Exhibit '1J(a)' : Two microslides having faint smear labelled as and '1J(b)' 'Step 9 Vaginal secretion'. Exhibit '1K' : Cotton wool swab on a plastic stick alongwith
jelly like liquid, kept in a plastic tube labelled as 'Step 10 Culture'. Exhibit '1L' : One rubber tube labelled as 'Step 11 Washing from vagina'.
34 of 81 35 FIR No. 211/11 PS - Shalimar Bagh Exhibit '1M(a)' : One vial having dark brown foul smelling liquid labelled as 'Step 15 Urine and Oxalate blood vial'. Exhibit '1M(b)' : One vial having dark brown foul smelling liquid labelled as 'Step 15 Urine and Oxalate blood vial'. Parcel '2' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibit '2'. Exhibit '2' : One vial having dark brown foul smelling liquid described as 'Blood sample'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "MS BJRMH J. PURI DELHI" containing exhibit '3'.
Exhibit '3' : One dirty underwear. Parcel '4' : One sealed cloth bag sealed with the
seal of "MS BJRMH J. PURI DELHI" containing exhibit '4'.
Exhibit '4' : One dirty bed sheet.
RESULT OF ANALYSIS
1. Human semen was detected on exhibits '1J(a)' and '1J(b)'.
2. Semen could not be detected on exhibits '1A', '1C', '1D', '1E', '1F', '1G', '1I', '1K', '1L', '3' and '4'.
3. Blood was detected on exhibits '1A', '1M(a)', '1M(b)' and '2'.
4. Blood could not be detected on exhibits '1C', '1D', '1E', '1F', '1G', '1I', '1K', '1L', '3' and '4'.
5. Report of serological analysis in original is attached herewith.
35 of 81 36 FIR No. 211/11 PS - Shalimar Bagh NOTE : Remnants of the exhibits have been sealed with the seal of 'BD FSL DELHI'.
The serological report Ex. 13/B reads as under: Exhibits Species of origin ABO Grouping/Remarks '1A' Salwar Human 'AB' group '1M(a)' Blood sample Sample was putrefied hence no opinion '1M(b)' Blood sample Sample was putrefied hence no opinion '2' Blood sample Sample was putrefied hence no opinion On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1A' (salwar/outer clothing of the prosecutrix), exhibit '1M(a)' (Urine & oxalate blood vial of the prosecutrix), exhibit '1M(b)' (Urine & oxalate blood vial of the prosecutrix) and exhibit '2' (Blood sample of accused Prem Pal); blood could not be detected on exhibit '1C' (Nail scrapping of the prosecutrix), exhibit '1D' (In between finger of the prosecutrix), exhibit '1E' (Breast swab of the prosecutrix), exhibit '1F' (Combing of pubic hair of the prosecutrix), exhibit '1G' (Clipping of pubic hair of the prosecutrix), exhibit 36 of 81 37 FIR No. 211/11 PS - Shalimar Bagh '1I' (Cervical mucus collection of the prosecutrix), exhibit '1K' (Culture of the prosecutrix), exhibit '1L' (Washing from vagina of the prosecutrix), exhibit '3' (Underwear of accused Prem Pal) and exhibit '4' (Bed sheet recovered from the spot); Human semen was detected on exhibit '1J(a)' and exhibit '1J(b)' (Vaginal secretion of the prosecutrix) and semen could not be detected on exhibit '1A' (salwar/outer clothing of the prosecutrix), exhibit '1C' (Nail scrapping of the prosecutrix), exhibit '1D' (In between finger of the prosecutrix), exhibit '1E' (Breast swab of the prosecutrix), exhibit '1F' (Combing of pubic hair of the prosecutrix), exhibit '1G' (Clipping of pubic hair of the prosecutrix), exhibit '1I' (Cervical mucus collection of the prosecutrix), exhibit '1K' (Culture of the prosecutrix), exhibit '1L' (Washing from vagina of the prosecutrix), exhibit '3' (Underwear of accused Prem Pal) and exhibit '4' (Bed sheet recovered from the spot). As per the serological report Ex. PW13/B 'Sample was putrefied hence no opinion' could be given on the exhibit '1M(a)' (Blood Sample of prosecutrix), exhibit '1M(b)' (Blood Sample of the prosecutrix) and exhibit '2' (Blood Sample of accused Prem Pal).
37 of 81 38 FIR No. 211/11 PS - Shalimar Bagh As per the biological report Ex. PW13/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW7/A dated 06/06/2011, parcel nos. 2 & 3 belong to the accused Prem Pal which were seized vide seizure memo Ex. PW5/C dated 06/06/2011, parcel no. 4 containing the bed sheet recovered from the scene of crime vide seizure memo Ex. PW15/A, dated 06/06/2011.
As per the biological report Ex. PW13/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1J(a)' and exhibit '1J(b)' (Vaginal secretion of the prosecutrix seized vide seizure memo Ex. 7/A). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1J(a)' and '1J(b)' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statements of the accused Prem Pal and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
38 of 81 39 FIR No. 211/11 PS - Shalimar Bagh
17. Learned Counsel for the accused submitted that it is not the evidence that the human semen detected on Ex. 1J(a) and Ex. 1J(b) is of accused as it might be the semen of anyone else or her husband and nowhere else the semen was detected which makes the story of the prosecutrix doubtful.
I have carefully perused and analysed the evidence on record.
As to what has been discussed and analysed hereinabove under the Heading "Biological & Serological Evidence", at the cost of repetition, as per the Biological Report Ex. PW13/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1J(a)' and exhibit '1J(b)' (Vaginal secretion of the prosecutrix seized vide seizure memo Ex. 7/A), in the circumstances, the theory that, "it is not the evidence that the human semen detected on Ex. 1J(a) and Ex. 1J(b) is of accused as it might be the semen of anyone else or her husband" is found to have no substance as accused was under an obligation of explain how and under what circumstance human semen came to be present on the Ex. 1J(a) and Ex. 1J(b) (vaginal secretion of the prosecutrix). Moreover, the statement of 39 of 81 40 FIR No. 211/11 PS - Shalimar Bagh accused u/s 313 Cr.P.C. is also totally silent regarding such explanation nor any evidence has been led by him in this regard. Such plea so raised during the arguments is an afterthought as no suggestion of the human semen of anyone else or her husband {as was detected on Ex. 1J(a) and Ex. 1J(b) (vaginal secretion of the prosecutrix)} was put/suggested either to PW1 - prosecutrix or to PW3 - Subhash, her husband or to the IO PW16 - SI Durga Kapri. In the circumstances, it appears that such plea has been raised by the accused in order to save his skin from the clutches of the law.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
18. Now let the testimonies of PW1 Prosecutrix and PW3 - Subhash, her husband be perused and analyzed.
PW1 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I am a housewife and used to reside with my family members on the first floor of aforesaid jhuggi (Jhuggi No. 188, Near Ayurvedic Camp, Haider Pur, Delhi). On 06/06/2011, at about 11:30 a.m., I was alone in my jhuggi alongwith my daughter of about one month old. Accused present in Court today who is brother of my sister 40 of 81 41 FIR No. 211/11 PS - Shalimar Bagh inlaw (jethani) Urmila who is residing on the ground floor of my jhuggi, came to my room after seeing me alone. He caught hold of my both hands and pushed me on the bed. He put off my clothes and committed wrong act (sexual intercourse) with me. I resisted to the same and due to which my daughter fell down from the bed. Thereafter, accused went from there and threatened me to kill in case, I disclose this fact to anybody. At about 1:00 p.m., my husband came to house from his work for lunch. I narrated the entire incident to him. Thereafter, I alongwith my husband went to PS and lodged a complaint."
During her further examinationinchief dated 25/02/2012, PW1 - prosecutrix has deposed that : "Police recorded my statement Ex. PW1/A which bears my signature at point 'A'. Police took me to BJRM Hospital and got me medically examined in the hospital. Thereafter, I returned back to my house. I do not recollect other proceedings."
During the leading question put by the Learned Addl. PP for the State, PW1 - prosecutrix has deposed that : "It is correct that after my medical examination, Doctor seized my salwar which I was wearing at the time of incident. It is also correct that Police seized bed sheet of the bed on which accused committed rape with me. I can identify the aforesaid articles if shown to me."
From the aforesaid narration of PW1 - prosecutrix, it is clear that she is a housewife and used to reside with her family members 41 of 81 42 FIR No. 211/11 PS - Shalimar Bagh on the first floor of Jhuggi No. 188, Near Ayurvedic Camp, Haider Pur, Delhi. On 06/06/2011, at about 11:30 a.m., she was alone in her jhuggi alongwith her daughter of about one month old. Accused present in Court who is brother of her sisterinlaw (jethani) Urmila who is residing on the ground floor of her jhuggi, came to her room after seeing her alone. He caught hold of her both hands and pushed her on the bed. He put off her clothes and committed wrong act (sexual intercourse) with her. She resisted to the same and due to which her daughter fell down from the bed. Thereafter, accused went from there and threatened her to kill in case, she disclose this fact to anybody. At about 1:00 p.m., her husband came to house from his work for lunch. She narrated the entire incident to him. Thereafter, she alongwith her husband went to PS and lodged a complaint. Police recorded her statement Ex. PW1/A which bears her signature at point 'A'. Police took her to BJRM Hospital and got her medically examined in the hospital. Thereafter, she returned back to her house. She does not recollect other proceedings.
PW1 - Prosecutrix during her crossexamination has negated the suggestions that brothers of her husband used to demand the 42 of 81 43 FIR No. 211/11 PS - Shalimar Bagh rented amount collected by them (prosecutrix and her husband) or that quarrel used to take place on sharing of rent amount with the brothers of her husband or that Ramesh also used to quarrel with her or that there are two windows int he room where incident took place or that she got prepared jewellery from Babbu and his sister or that Ramesh was demanding equal share for all brothers or that she had taken bath before going to Hospital or that she and her husband are demanding money from Prem Pal or that she falsely implicated the accused in the present case in connivance with the accused (Be read as 'her husband') as there is dispute between her and sister of accused Prem Pal.
Inspite of incisive crossexamination nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of crossexamination and her testimony is consistent throughout. The testimony of PW1 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness 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 43 of 81 44 FIR No. 211/11 PS - Shalimar Bagh accused to falsely implicate him in the case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement Ex. PW1/A made to the Police.
The testimony of PW1 - Prosecutrix is also found to be corroborated by PW3 - Subhash, her husband, to whom prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW3 - Subhash, husband of the prosecutrix in his examinationinchief has deposed which is reproduced and reads as under : "Prosecutrix (name withheld) is my wife. I alongwith my wife and three children used to reside on the given address (Jhuggi No. 188, Near Ayurvedic Camp, Haider Pur, Delhi). I am doing the work of sanitary. On 06/06/2011, at about 10:00 a.m., I went (to) for my work 44 of 81 45 FIR No. 211/11 PS - Shalimar Bagh and came back at about 1:00 p.m. I saw my wife was weeping bitterly. On inquiry, she told me that the Prem Pal brother of Urmila (Jethani) has committed rape with her. I called the parents of my wife. They came in the evening. Then, I called at number 100 from my mobile No. 9910261783. Police officials came to my jhuggi alongwith one lady official. They took my wife, myself and accused Prem Pal present in the Court today to the PS - Shalimar Bagh. In the PS, statement of prosecutrix (name withheld) was recorded and thereafter, Police again visited my house and inspected the spot. Thereafter, my wife was taken to BJRM Hospital by the Police. I also accompanied my wife. My wife was medically examined at the BJRM Hospital. My statement was also recorded by the IO."
From the aforesaid narration of PW3 - Subhash, it is clear that the prosecutrix (name withheld) is his wife. He alongwith his wife and three children used to reside at Jhuggi No. 188, Near Ayurvedic Camp, Haider Pur, Delhi. He is doing the work of sanitary. On 06/06/2011, at about 10:00 a.m., he went for his work and came back at about 1:00 p.m. He saw his wife was weeping bitterly. On inquiry, she told him that the Prem Pal brother of Urmila (Jethani) has committed rape with her. He (PW3 Subhash) called the parents of his wife. They came in the evening. Then, he called at number 100 from his mobile No. 9910261783. Police officials came to his jhuggi alongwith one lady 45 of 81 46 FIR No. 211/11 PS - Shalimar Bagh official. They took his wife, himself and accused Prem Pal present in the Court today to the PS - Shalimar Bagh. In the PS, statement of prosecutrix (name withheld) was recorded and thereafter, Police again visited his house and inspected the spot. Thereafter, his wife was taken to BJRM Hospital by the Police. He also accompanied his wife. His wife was medically examined at the BJRM Hospital. His statement was also recorded by the IO.
During his crossexamination PW3 - Subhash, has negated the suggestions that a quarrel has taken place between his wife and accused Prem Pal prior to this incident or that due to quarrel between him and his family members, nobody accompanied them to the PS or that Police had asked him for the clothes of his wife which his wife had changed or that Babbu had got prepared jewellery for his wife or that due to quarrel with his Bhabhi and dispute regarding partition of property as well as amount of rent and accused Prem Pal used to interfere between them or that due to this reason, he in connivance with his wife as well her parents have implicated accused Prem Pal in this case in collusion of local Police or that no such incident has happened as told by his wife to 46 of 81 47 FIR No. 211/11 PS - Shalimar Bagh him or that they had lodged a false case against accused merely to blackmail the accused as well as other family members or that he is deposing falsely.
Inspite of incisive crossexamination of PW3 - Subhash, nothing material has been brought out so as to impeach his creditworthiness. He has withstood the rigors of crossexamination without being shaken. His testimony on careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] is found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in his statement to suggest that he had any animus against the accused Prem Pal to falsely implicate him in the case.
19. While analysing the testimony of PW1 - Prosecutrix and PW3 - Subhash as discussed hereinabove inspite of incisive cross examination of PW1 - Prosecutrix and PW3 - Subhash nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the 47 of 81 48 FIR No. 211/11 PS - Shalimar Bagh defence to PW1 Prosecutrix that brothers of her husband used to demand the rented amount collected by them (prosecutrix and her husband) or that quarrel used to take place on sharing of rent amount with the brothers of her husband or that Ramesh also used to quarrel with her or that there are two windows int he room where incident took place or that she got prepared jewellery from Babbu and his sister or that Ramesh was demanding equal share for all brothers or that she had taken bath before going to Hospital or that she and her husband are demanding money from Prem Pal or that she falsely implicated the accused in the present case in connivance with the accused (Be read as 'her husband') as there is dispute between her and sister of accused Prem Pal and the suggestions to PW3 - Subhash that a quarrel has taken place between his wife and accused Prem Pal prior to this incident or that due to quarrel between him and his family members, nobody accompanied them to the PS or that Police had asked him for the clothes of his wife which his wife had changed or that Babbu had got prepared jewellery for his wife or that due to quarrel with his Bhabhi and dispute regarding partition of property as well as amount of rent and accused Prem Pal used to interfere between them or that due to this reason, he in 48 of 81 49 FIR No. 211/11 PS - Shalimar Bagh connivance with his wife as well her parents have implicated accused Prem Pal in this case in collusion of local Police or that no such incident has happened as told by his wife to him or that they had lodged a false case against accused merely to blackmail the accused as well as other family members or that he is deposing falsely, were put, which were negated 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.
20. 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 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 49 of 81 50 FIR No. 211/11 PS - Shalimar Bagh 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 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."
50 of 81 51 FIR No. 211/11 PS - Shalimar Bagh On analysing the testimony of PW1 - Prosecutrix in the light of medical evidence, biological and serological evidence vide reports Ex. PW13/A and Ex. PW13/B, gynaecological examination on MLC Ex. PW8/A of the prosecutrix together with the MLC of accused Prem Pal Ex. PW8/B, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, 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 Prem Pal with PW1 - Prosecutrix without her consent.
21. Learned Counsel for the accused submitted that prosecutrix is the mother of the three children. Husband of the prosecutrix are four brothers namely, Subhash, Ramesh, Kailash and Suresh. Ramesh is married with the sister namely Urmila of accused Prem Pal 1617 years ago. They are residing in joint property. Out of 11 rooms, the six rooms are in the possession of prosecutrix and her husband. A quarrel used to 51 of 81 52 FIR No. 211/11 PS - Shalimar Bagh take place on sharing on the rent amount with the brothers of the husband of the prosecutrix. Ramesh used to quarrel with prosecutrix, who is real brotherinlaw of accused Prem Pal and husband of Smt. Nirmala. Smt. Urmila used to quarrel with the prosecutrix. One or two times scuffling had taken place between prosecutrix and sister of accused. There was a dispute among the family members of the prosecutrix over the shares of the rooms and its rent and the accused Prem Pal being the relative of theirs used to intervene in favour of his sister.
I have carefully perused and analysed the evidence on record.
The theory that, "There was a dispute among the family members of the prosecutrix over the shares of the rooms and its rent and the accused Prem Pal being the relative of theirs used to intervene in favour of his sister" so propounded has not been made probable much established by any cogent evidence.
PW1 - prosecutrix has clearly and specifically deposed during her crossexamination which is reproduced & reads as under : 52 of 81 53 FIR No. 211/11 PS - Shalimar Bagh "There are three rooms on the ground floor in my jhuggi. It is correct that there are six rooms on the ground floor. It is correct that there are five rooms on the first floor. My husband Subhash is having three brothers namely Ramesh, Kailash and Suresh. It is correct that six rooms are in our possession. The rest of the brothers of my husband are having possession of other rooms. Kailash is having four children out of which son of Kailash is about 10 years old and other three are daughters younger to the son. Suresh is having three daughters out of which one has been married. Ramesh is having only one daughter. Ramesh is real brotherinlaw of Prem Pal. Ramesh and Kailash are having possession of two rooms each. Suresh is having possession of one room. I used to live in one room and rest of the five rooms are given on rent. The rent of the five rooms is used by us. Nothing is shared with other brothers of the rented amount. It is wrong to suggest that brothers of my husband used to demand the rented amount collected by us. It is wrong to suggest that quarrel used to take place on sharing of rent amount with the brothers of my husband. It is wrong to suggest that Ramesh also used to quarrel with me. It is correct that wife of Ramesh namely Urmila used to quarrel with me. It is correct that one or two times scuffling also took place between me and wife of Ramesh."
"It is wrong to suggest that Ramesh was demanding equal share for all brother."
Further PW3 - Subhash, husband of the prosecutrix during his crossexamination has clearly and specifically deposed that : "It is correct hat accused Prem Pal is real brotherinlaw of my real elder brother. It is correct that sister (Urmila) of accused Prem 53 of 81 54 FIR No. 211/11 PS - Shalimar Bagh Pal is my Bhabhi and she also resides in the same Jhuggi. There are 56 rooms on the ground floor. It is incorrect to suggest that there is dispute between me and my brothers regarding partition of said property."
There is nothing in the crossexamination of PW1 - prosecutrix and PW3 - Subhash so as to impeach their creditworthiness.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for the accused submitted that the entire story of the prosecutrix is unnatural, improbable and unbelievable. PW1
- prosecutrix in her crossexamination has stated that : "It is correct that at the time of present incident, the door of the house was in open condition. I raised alarm at the time of incident but accused shut my mouth with his hand and threatened that in case tell this fact to anybody, he will kill me. I raised alarm several time. I was raising alarm "bachaobachao". All the neighbours were present but no one came to rescue or help me. I Was raising alarm for more than one hour but again no one came. It is correct that alarm raised by me can go to the other houses also. Even the tenants did not help me on my raising alarm, only my jeth Kailash came to help me Kailash did not lead me to the PS and he only made a call to my husband. My husband did not 54 of 81 55 FIR No. 211/11 PS - Shalimar Bagh come immediately but he came only at 1:00 p.m. My husband after his coming first of all went to Prem Pal. Thereafter, we did not go to anyone. It is correct that on that day, a quarrel had taken place between me and the sister of the accused Prem Pal."
Learned Counsel for accused argued that when the accused had already shut the mouth of the prosecutrix with his hand and threatened that in case she will tell this fact with anybody,, he will kill me, despite this fact the prosecutrix raised alarm several times about one hour and despite the presence of neighbour, tenants and other family members, no one came to rescue her. Meaning thereby there is no such incident has ever happened. In fact on that day, there was a dispute and quarrel among the family members of the prosecutrix and that is why the people had assembled there and were viewing the quarrel. Even there was no any physical scuffling or fighting that is why no one had come forward to intervene among the dispute and quarrel with the family of the prosecutrix. The accused is neither ruffian not goonda nor dada nor muscleman of the locality. He is a poor and belongs to a labour class. There is no any evidence which suggest that the accused could commit alleged rape with the prosecutrix in the above facts and circumstances in 55 of 81 56 FIR No. 211/11 PS - Shalimar Bagh the day time and in the crowded area.
He further submitted that the 'door' of the house was open and in this circumstances, no any such incident can be done as alleged by the prosecutrix. If such, it may be only with the consent of the prosecutrix or not at all.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. From the testimony of PW1 - prosecutrix it transpired that she described the scenario implicating the accused to be the author of the crime. The accused failed to elicit any material or relevant discrepancies or inconsistencies despite searching crossexamination. The version of the prosecutrix on the core spectrum of crime has remained intact.
In the circumstance, the theory that, "when the accused 56 of 81 57 FIR No. 211/11 PS - Shalimar Bagh had already shut the mouth of the prosecutrix with his hand and threatened that in case she will tell this fact with anybody,, he will kill me, despite this fact the prosecutrix raised alarm several times about one hour and despite the presence of neighbour, tenants and other family members, no one came to rescue her. Meaning thereby there is no such incident has ever happened", further, the theory that, "the 'door' of the house was open and in this circumstances, no any such incident can be done as alleged by the prosecutrix" so propounded do not hold water and falls flat on the ground. It does not take ages for the committal of the sexual offence upon the women. Further, the "door of the house was open" does not ipso facto prove that the offence cannot be committed.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for the accused submitted that as per the prosecutrix, the jeth had come and who instead of informing the Police, had made a call to her husband did not came utmost surprising that husband did not came immediately despite his wife had allegedly been 57 of 81 58 FIR No. 211/11 PS - Shalimar Bagh raped and he did not come immediately. Meaning thereby the husband of the prosecutrix was well aware that the routine quarrel was going on and no any such alleged incident was told to him because there was no such alleged incident which had happened.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix during her crossexamination has deposed that : "On my raising alarm, only my jeth Kailash came to help me. Kailash did not lead me to the PS and he only made a call to my husband. My husband did not come immediately but he came only at 1:00 p.m."
PW3 - Subhash, husband of the prosecutrix during his crossexamination has deposed that : "I used to go for my work at 10:00 a.m. and came back to house for lunch at 1:00 p.m. Nobody called or informed me at my work about the incident. I had stated in my statement to Police that when I came back to my house, my wife was weeping at that time and that on inquiry, she told me that Prem Pal, brother of Urmila had committed rape with her. Confronted with statement Ex. PW3/DA where it is not so exactly recorded, but it is recorded that my wife herself told me that Prem Pal, brother of Urmila had committed rape with her."
58 of 81 59 FIR No. 211/11 PS - Shalimar Bagh From above, it is clearly indicated that PW3 - Subhash has specifically deposed that "nobody called or informed me at my work place about the incident."
In the circumstances, the theory that, "the husband of the prosecutrix was well aware that the routine quarrel was going on and no any such alleged incident was told to him because there was no such alleged incident which had happened", so propounded does not hold water.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that in her cross examination prosecutrix has stated that "It is correct whatever I had told to the Police about Prem Pal were not known to anyone except me and my husband." In fact, the quarrel had taken place in the morning time when the husband of prosecutrix had gone at his work nearby the locality. When he had come and after thoughts and planning and 59 of 81 60 FIR No. 211/11 PS - Shalimar Bagh consulting to each other, they had made a call to the Police and approached the Police accordingly with these alleged facts of rape. Because the prosecutrix had already involved a person, namely, Shiv Prasad @ Babbu S/o Shri Asha Ram in FIR bearing No. 392/2008, U/s 376/506 IPC, PS - Shalimar Bagh, Delhi in which, the case now the accused had been acquitted. The certified copy is already on record which is exhibited as Ex. 'DX'.
He further submitted that PW1 - prosecutrix in her cross examination has stated that "I do not know any Shiv Prasad @ Babbu. I have also lodged a case of rape against Babbu prior to the present case. It is correct that Babbu has been acquitted from the said case. I do not know the wife of Babbu. It is correct that I know her by face. I never met wife of Babbu. It is wrong to suggest that I got prepared jewellery from Babbu and his sister". This inspiration of lodging FIR had also led them (prosecutrix and her husband) to lodge false FIR on the basis of false facts and concocted story because the alleged incident had allegedly taken place prior to 12 O'Clock but the information and General Diary bearing No. 26A had been made at 8:05 p.m. and accordingly, the FIR had been lodged after 8 hours delay and the delay of which has not been 60 of 81 61 FIR No. 211/11 PS - Shalimar Bagh explained by the prosecution.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix during her examinationinchief had deposed that : "At about 1:00 p.m., my husband came to house from his work for lunch. I narrated the entire incident to him. Thereafter, I alongwith my husband went to PS and lodged a complaint."
During her crossexamination, PW1 - prosecutrix has deposed that : "My husband did not come immediately but he came only at 1:00 p.m. My husband after his coming first of all went to Prem Pal. Thereafter, we did not go to anyone."
"It is correct that I alongwith my husband consulted to each other and only after discussion, we approached the Police. In the PS, we had approached with our oral statement and not in writing."
"Immediately at about 1:00 p.m., we had called to the Police. Whatever I have deposed today, I had stated to the Police official namely Durga. All the statement recorded today were got reduced into writing by the Police Ex. PW1/A on which I had put my signature. My statement was read over to me by the Police and it was correct."
61 of 81 62 FIR No. 211/11 PS - Shalimar Bagh PW3 - Subhash, husband of the prosecutrix, in his examinationinchief had deposed that : "On 06/06/2011, at about 10:00 a.m., I went (to) for my work and came back at about 1:00 p.m. I saw my wife was weeping bitterly. On inquiry, she told me that the Prem Pal brother of Urmila (Jethani) has committed rape with her. I called the parents of my wife. They came in the evening. Then, I called at number 100 from my mobile No. 9910261783. Police officials came to my jhuggi alongwith one lady official."
PW3 - Subhash, during his crossexamination has deposed that : "I did not make a call immediately to Police nor went to PS. I called my brothers also after the incident. I had stated this fact to Police in my statement. Confronted with statement Ex. PW3/DA where it is not so recorded. My brothers, brotherinlaw, motherinlaw and fatherinlaw also accompanied us to the PS."
On careful perusal and analysis of the aforesaid narration of PW1 - prosecutrix and PW3 - Subhash, it is clearly indicated the delay in reporting the matter has been satisfactorily and sufficiently explained by PW1 - prosecutrix and PW3 - Subhash as per their own perceptions.
62 of 81 63 FIR No. 211/11 PS - Shalimar Bagh There is nothing in the testimonies of PW1 - prosecutrix and PW3 - Subhash, her husband to indicate that inspiration for lodging the FIR in the present case has been drawn by them from the previous case bearing FIR No. 392/2008, u/s 376/506 IPC, PS - Shalimar Bagh, Delhi lodged by PW1 - prosecutrix, the certified copy of the judgment passed in the said case is Ex. DX. A futile attempt has been made by the Learned Counsel for the accused for creating a doubt in the testimony of PW1 - prosecutrix made in the present case which is held to be clear, cogent, convincing and trustworthy by clubbing it with the judgment passed (Ex. DX) in the case bearing FIR No. 392/2008, PS - Shalimar Bagh.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
63 of 81 64 FIR No. 211/11 PS - Shalimar Bagh 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)."
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 64 of 81 65 FIR No. 211/11 PS - Shalimar Bagh anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case 'Satyapal Vs. 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 65 of 81 66 FIR No. 211/11 PS - Shalimar Bagh attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused further submitted that it is report from the PCR vide DD No. 82B dated 06/06/2011, PS - Shalimar Bagh (Ex. PW4/A dated 06/06/2011) that at about 7:08 p.m. through 66 of 81 67 FIR No. 211/11 PS - Shalimar Bagh intercom it was informed that at Haider Pur in Jhuggi of Subhash, near Ayurvedic Hospital, a 'boy' has committed rape with his wife (Ki Haider Pur Subhash Ki Jhuggi Near Ayurvedic Hospital Pados Ke Ladke Ne Meri Wife Ke Sath Rape Kiya Hai). Accused Prem Pal was his well known close relative of 17 years old, aged about 45 years. Despite this fact the name of the accused Prem Pal was not told to the Police only with the moral obligation that the husband of the prosecutrix did not want to implicate him because there was no such type of incident which the prosecutrix has alleged. Otherwise the name of the accused Prem Pal might have been mentioned in this report,which exhibited as Ex. PW4/A dated 06/06/2011.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what he intends to convey and what benefit he intends to reap by raising the said plea.
As discussed hereinbefore, it has been submitted by the Learned Counsel for the accused consistently that accused has been 67 of 81 68 FIR No. 211/11 PS - Shalimar Bagh falsely implicated by the prosecutrix in connivance with her husband or that prosecutrix and her husband were demanding money from the accused Prem Pal or that prosecutrix and her husband had lodged a false case against the accused merely to blackmail the accused as well as other family members.
In the circumstances, it appears that accused is blowing hot and cold in the same breath and is making every possible attempt to save his skin from the clutches of law.
As regards, not disclosing the name of 'boy' by the informant/PW3 - Subhash to the Police in the PCR Call is concerned, Learned Counsel for the accused should have sought an explanation from him (PW3 - Subhash) during his crossexamination, who would have been fully capable of explaining correctly, the factual situation. For such failure accused is to blame himself and none else.
In the circumstances, the floating of Theory, "Accused Prem Pal was his well known close relative of 17 years old, aged about 45 years. Despite this fact the name of the accused Prem Pal was not told to the Police only with the moral obligation that the husband of the prosecutrix did not want to implicate him because 68 of 81 69 FIR No. 211/11 PS - Shalimar Bagh there was no such type of incident which the prosecutrix has alleged", does not hold water.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for the accused submitted that so far as the medical report of the prosecutrix is concerned, there is no any injuries on her body including her private part.
I have carefully perused and analysed the evidence on record.
PW8 Dr. V. K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi who deposed that on 06/06/2011 he was posted as CMO in BJRM Hospital. On that day prosecutrix (name withheld) W/o Subhash, Age 30 years female brought to hospital for medical examination with alleged history of sexual assault. The patient was initially examined by Dr. Ajit Tripathi, Junior Resident on duty under his supervision. On local examination no fresh external injury seen and 69 of 81 70 FIR No. 211/11 PS - Shalimar Bagh thereafter patient was referred to S.R. Gynae. where she was examined by Dr. Meenakshi. As per MLC on local examination no injury seen. No abnormal finding recorded and proved the MLC of the prosecutrix (name withheld) Ex. PW8/A, bearing signature of Dr. Ajit Tripathi at point 'A' and of Dr. Meenakshi Bansal at point 'B'.
Despite grant of opportunity, PW8 Dr. V. K. Jha was not crossexamined on behalf of accused.
As regards nonfinding of any signs of injury on the body parts of the prosecutrix is concerned, the absence of any injury does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda 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. (Vide Modi in Medical jurisprudence and Toxicology 70 of 81 71 FIR No. 211/11 PS - Shalimar Bagh (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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27. Learned Counsel for the accused submitted that when the prosecutrix had gone to the Hospital, she had changed her clothes. It is also evidence that in Hospital no clothes were taken from her by anyone so the sending of clothes of the prosecutrix for FSL Report in itself is doubtful.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix during her crossexamination, as was conducted by the Learned Addl. PP for the State has deposed that : "It is correct that after my medical examination, Doctor seized my salwar which I was wearing at the time of incident. It is also correct that Police seized bed sheet of the bed on which accused committed rape with me. I can identify the aforesaid articles if shown to me.
At this state one sealed envelope with the seal of FSL, Delhi produced from Malkhana is opened and it is found containing one blue shade dirty salwar. The witness identified the same Ex. P1 which belongs to her and which she was wearing at the time of incident."
During her crossexamination, PW1 - prosecutrix has deposed that : "It is correct that my salwar was taken by the Police from 72 of 81 73 FIR No. 211/11 PS - Shalimar Bagh my house presented by me on the instance of Police. It is correct that when I had gone to the Hospital. I had changed my clothes."
"It is correct that in hospital no clothes were taken from me by anyone."
PW16 - SI Durga Kapri in her crossexamination has specifically deposed that : "Prosecutrix (name withheld) was medically examined and after her medical examination, Doctor handed over the sealed pullinda containing exhibits to Constable Parul and she handed over the same to me and I seized the same vide memo Ex. PW7/A, bearing my signature at point 'B'."
"As per biological report Ex. 13/A the description of articles contained in parcel reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "MS BJRMH J.PURI DELHI" containing exhibits '1A', '1B', '1C', 1D, 1E, 1F, 1G, 1H, 1I, 1J(a) 1J(b), 1K, 1L, 1M(a) and 1M(b), each exhibits were kept in a paper envelops.
Exhibit '1A' : One dirty salwar labelled as 'Step 3A Outer Clothing'."
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On careful perusal and analysis of the evidence detailed hereinabove, it clearly indicates that interalia one dirty salwar of the prosecutrix was contained in the cardboard box which was seized and sealed by the Doctor at the time of her medical examination and which was taken into Police possession by the IO PW16 - SI Durga Kapri vide seizure memo Ex. PW7/A. In the circumstances, the salwar (Ex. P1) which was seized at the time of medical examination of the prosecutrix was sent to FSL on which PW13 - L. Baboti Devi, SSO, FSL gave the biological and serological reports Ex. PW13/A and Ex. PW13/B respectively.
In the circumstances, from the crossexamination of PW1 - prosecutrix, as detailed hereinabove, nothing turns much on the said submission of the Learned Counsel for the accused.
74 of 81 75 FIR No. 211/11 PS - Shalimar Bagh In case "Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat" (1983) 3 SCC 217, the Hon'ble Supreme Court, 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;
3) 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.
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 75 of 81 76 FIR No. 211/11 PS - Shalimar Bagh not render the evidence of eye witnesses unbelievable.
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 76 of 81 77 FIR No. 211/11 PS - Shalimar Bagh 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].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused submitted that the alleged incident had taken place in the day time, in the crowded area and in the presence of so many persons but no any person had come forward to intervene or corroborate the story of the prosecutrix nor the Police personnels/IO has made any effort to enquire the matter from the public nor there is any witness.
I have carefully perused and analysed the evidence on 77 of 81 78 FIR No. 211/11 PS - Shalimar Bagh record.
It is a matter of common experience that the public persons are reluctant to join the Police in the investigation of any case as they do not want to undertake the trouble of attending the Police Station and the Court for giving evidence.
PW16 - SI Durga Kapri during her crossexamination has deposed that : "I had tried to record the statements of the other family members of the prosecutrix and that of the tenants when I again visited the spot but the same could not be recorded as they gave one pretext or the other. I had not recorded the particulars of the other family members of the prosecutrix and that of the tenants. Despite efforts no neighbours joined the proceedings. I have not recorded the particulars of the neighbour who refused to join the proceedings."
There is nothing in the crossexamination of PW16 - SI Durga Kapri so as to impeach her creditworthiness. Her testimony is clear, cogent, reliable and is having a ring of truth.
Moreover, nonjoining of the public witnesses does not falsify the case of the prosecution, which is otherwise proved on record by clear, cogent and convincing evidence.
78 of 81 79 FIR No. 211/11 PS - Shalimar Bagh In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for the accused referred to the cases and are reported as 'Rajesh Patel Vs. State of Jharkhand' AIR 2013 SC 1497, 'Rajoo & Ors. Vs. State of M.P.', AIR 2009 SC 858 and 'Narender Kumar Vs. State (NCT of Delhi)', AIR 2012 SC 2281.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials 79 of 81 80 FIR No. 211/11 PS - Shalimar Bagh would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
30. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 06/06/2011, at about 11:30 a.m. at Jhuggi No. 188, Ayurvedic Camp, Haider Pur, Delhi, accused Prem Pal committed rape upon the prosecutrix aged around 30 years without her consent and against her will.
I accordingly hold accused Prem Pal guilty for the offence punishable u/s 376 IPC and convict him thereunder.
31. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Prem Pal 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 80 of 81 81 FIR No. 211/11 PS - Shalimar Bagh accused Prem Pal beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Prem Pal guilty for the offence punishable u/s 376 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 17th Day of December, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 81 of 81