Delhi District Court
State vs . Virender Yadav @ Githa on 24 February, 2014
1
FIR No. 240/12
PS - Maurya Enclave
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 21/13
Unique ID No. : 02404R0041702013
State Vs. Virender Yadav @ Githa
S/o Sh. Bhagwani Yadav
R/o Mushrania, PO Ratansara,
PS - Phool Paras,
District Madhubani, Bihar.
FIR No. : 240/12
Police Station : Maurya Enclave
Under Sections : 376/506 IPC
Date of committal to session Court : 05/01/2013
Date on which judgment reserved : 19/02/2014
Date on which judgment announced : 24/02/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 69 2 FIR No. 240/12 PS - Maurya Enclave That on 05/09/2012, on receipt of DD No. 35A regarding rape, SI Harjinder Rana reached at the spot where SI Kanhaiya Lal and SHO were found present alongwith staff. Arun from Krishna Placement Agency, NGO Prabha Muni alongwith prosecutrix (name withheld being a case u/s 376 IPC) were also present there. Prosecutrix D/o Shiv Nath R/o Village Barhotigi, PO Maithli, PS Jalpaigudi, Distt. Jalpaigudi, West Bengal, made a statement which is to the effect that, she is the permanent resident of the above said address. She came to Delhi in December, 2011 for work at Krishna Placement Service (Regd.), Punjabi Bagh. In January, 2012, she was employed to work as a maid for doing domestic work and for taking care of children at house no. HD50, Pitam Pura, at the amount of Rs. 3,600/ (January, 2012 Mei H. No. HD50, Pitam Pura Mei Gharelu Kaam Bachche Ko Sambhalne Ke Liye Rs. 3,600/ Par Lagi Thi). In the same house, Virender @ Githa was doing the work of sweeping and washing clothes. About one month back at about 8:00 p.m. in the night, when she had gone for bathroom in the room of the store room made on the roof, then she was caught by Virender @ Githa and after closing her mouth took her in the room and after taking her in the room and after removing her salwar and forcibly 2 of 69 3 FIR No. 240/12 PS - Maurya Enclave without her consent committed galat kaam (rape) upon her. When she tried to raise alarm, on which he threatened her if she make a noise, then he will throw her down from the roof, because of fear she did not tell about the incident to anyone (Jo Usi Ghar Mei Virender @ Githa Jo Safai Va Kapde Dhone Ka Kaam Karta Hai Ne Karib Ek Mahine Pehle Mere Saath Chat Pat Bane Store Room Wale Kamre Mei Raat Karib 8:00 Baje Jab Mai Bathroom Ke Liye Upar Gai To Usne Mujhe Pakad Liya Aur Mera Muh Band Kar Ke Kamre Mei Le Gaya. Kamre Mei Le Ja Kar Meri Salwar Utaar Kar Mere Saath Zabardasti Bina Meri Marzi Ke Galat Kaam (Balatkaar) Kiya. Jab Maine Shor Machana Chaha To Usne Mujhe Dhamki Di Ki Yadi Shor Machayegi To Chat Se Niche Gira Dunga. Maine Dar Ke Mare Kisi Ko Nahi Batlaya). When she did not have her menses, then she told about the incident to her bhabhi Vimla on which her bhabhi called for bhaiya Arun Yadav of placement agency, on which, bhaiya Arun Yadav came with Prabha Muni didi (NGO) and he also made call at no. 100 on which Police had come (Jab Mujhe Is Baar Mahina Nahi Aaya To Maine Bhabhi (Vimla) Ko Batlaya To Inhone Placement Wale Bhaiya Arun Yadav Ko Bulaya To Bhaiya Prabha Muni Didi (NGO) Ko Saath Le Kar Aaye Aur Unhone 100 Number Par Call 3 of 69 4 FIR No. 240/12 PS - Maurya Enclave Kar Di Aur Police Aa Gai). After interrogating her in front of Prabha didi (NGO), her statement was recorded. Virender Yadav @ Githa had committed galat kaam forcibly with her without her consent. Legal action be taken against him. Statement has been heard and is correct. After recording the statement of the prosecutrix, her medical examination was got conducted vide MLC No. 151/12 on which doctor had endorsed "Alleged H/o sexual assault". From the statement of the prosecutrix, on inspection of the MLC from the circumstances and from the copy of report, on finding that offences u/s 376/506 IPC appeared to have been committed, the case was got registered. Accused Virender Yadav @ Githa was arrested and his medical examination was got conducted. Site plan was prepared. The sealed exhibits handed over by the doctor after the medical examination of the prosecutrix and that of accused Virender Yadav @ Githa were taken into police possession and were deposited in the Malkhana. The statement of the prosecutrix was got recorded u/s 164 Cr.PC. Statement of the witnesses were recorded. The ossification test of the accused Virender Yadav @ Githa was also got conducted. The sealed exhibits were deposited in the FSL for DNA result vide R/C no. 78/21/12 on 13/09/2012.
4 of 69 5 FIR No. 240/12 PS - Maurya Enclave Upon completion of the necessary further investigation, challan for the offences u/s 376/506 IPC was prepared against accused Virender Yadav @ Githa 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.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 376/506 IPC was made out against accused Virender Yadav @ Githa. 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 HC Angad Singh, PW2 Arun Kumar Yadav, Owner Placement Agency, PW3 Dr. Meet Kumar, CMO, BSA 5 of 69 6 FIR No. 240/12 PS - Maurya Enclave Hospital, Rohini, PW4 Dr. Hem Lata, SR, BSA Hospital, Rohini, PW5 HC Hoshiar Singh, PW6 - Constable Ashok Kumar, PW7 Satpal Jain, PW8 Prabha Muni, PW9 Prosecutrix, PW10 Constable Ravinder, PW11 Lady Constable Gita, PW12 SI Kanhaiya Lal, PW13 Dr. Faizan Khalid Shah, JR, Deptt. of Forensic Medicine, Dr. BSA Hospital, Rohini, PW14 - SI Harjinder Rana, PW15 Ms. L. Babyto Devi, Senior Scientific Officer, FSL, Rohini, Delhi and PW16 - Sh. Dharmender Singh, Learned MM, Rohini, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Angad Singh, is the MHC (M), who deposed that on 05/09/12, he was posted as MHC(M) in P.S. Maurya Enclave. On that day, WSI Harjinder Rana has deposited one sealed pulinda sealed with the seal of casualty DR BSA, Hospital Govt. of Delhi along with sample seal and one more sealed pullinda sealed with the seal of FM, DR BSA Hospital, Govt. of NCT along with sample seal in the Malkhana. He made entry at Sr. No. 1510 of Reg. No. 19. On 13/09/2012 abovesaid exhibits were sent to FSL through Constable Ravinder vide RC No. 6 of 69 7 FIR No. 240/12 PS - Maurya Enclave 78/21/12. After depositing the exhibits in the FSL he (Ct. Ravinder) has deposited the acknowledgment receipt with him. He has brought the register No. 19 and 21, copy of the relevant entry of register No. 19 is collectively Ex. PW1/A, the copy of the relevant entry of register No. 21 is Ex. PW1/B and the copy of acknowledgment receipt is Ex. PW1/C (OSR).
PW2 Arun Kumar Yadav, is the owner of the placement agency, who deposed that he is running a placement agency by the name and style of M/s Krishna Placement Service at Punjabi Bagh. In January, 2012 he got employed prosecutrix (name withheld) D/o Shiv Nath R/o Village Bara Dighi, District Jalpaiguri, West Bengal at the house of Smt. Bimla Jain W/o Satpal Jain R/o H. No. HD50, Pitam Pura, Delhi as domestic servant for Rs. 3,600/ p.m. On 04/09/2012 he was called at the house of Smt. Bimla Jain. He went there where prosecutrix told him that accused Virender Yadav @ Githa who was working as a servant in the same house has committed rape upon her. He called the NGO Prabha Muni and she made inquiries from the prosecutrix. Thereafter, he made call at 100 number. Police came there and Police made 7 of 69 8 FIR No. 240/12 PS - Maurya Enclave inquiries from the prosecutrix and FIR was registered. Accused Virender Yadav was arrested from the house by the Police. Accused Virender @ Githa is present in the Court (correctly identified).
PW3 Dr. Meet Kumar, CMO, BSA Hospital, Rohini, who deposed that on 05/09/2012 one Virender Yadav S/o Bhagwani Yadav, age 18 years male was brought to the hospital for medical examination with alleged history of sexual assault with a female approximately one month back. On local examination no fresh external injury seen and patient was referred to forensic Department. He prepared the MLC same is Ex. PW3/A, bearing his signature at point 'A'.
PW4 Dr. Hem Lata, SR, BSA Hospital, Rohini, who gynaecologically examined the prosecutrix and deposed that on 05/09/2012 prosecutrix (name withheld), age 19 years female was brought to the hospital for medical examination with alleged H/o sexual assault approximately one month back by accused Virender @ Githa servant in a house in Pitam Pura. Patient was brought by lady Constable Geeta.
8 of 69 9 FIR No. 240/12 PS - Maurya Enclave On local examination : hymen was torn, no fresh mark of injury. On per vaginal examination : uterus was eight weeks size, UPT : positive.
Samples: (i) nail clipping, (ii) clipping of pubic hair, (iii) servical (cervical) mucus, (iv) vaginal secretion, (v) blood samples.
She prepared the MLC same is Ex. PW4/A, bearing her signature at point 'A'. Her findings on the OPD slip is Ex. PW4/B, bearing her signature at point 'A'.
PW5 HC Hoshiar Singh, is the duty officer, who deposed that on 05/09/2012, he was posted as Duty Officer in PS - Maurya Enclave and was on duty from 12:00 mid night to 8:00 a.m. On that day at about 04:50 a.m., W/SI Harjinder Rana had handed over to him rukka and on the basis of which and on his instruction, FIR No. 240/12, u/s 376/506 IPC was registered. After registration of FIR, he handed over the copy of FIR and original rukka to Constable Parveen for handing over the same to SI Harjinder Rana for further investigation. He has brought the original FIR, copy of FIR is Ex. PW5/A bearing his signature at point 'A'.
9 of 69 10 FIR No. 240/12 PS - Maurya Enclave PW6 Constable Ashok Kumar, who deposed that on intervening night of 0405/09/2012, he was posted as Constable in PS - Maurya Enclave. On that night, at about 11:00 SI Kanhaiya Lal received DD No. 35A and thereafter, he along with SI Kanhaiya Lal reached at the spot i.e. near HD50, Pitam Pura, Delhi on the road where they met landlord Satpal, NGO and other public persons. PCR van was also present there. SI Kanhiya Lal made inquiries and thereafter informed senior officer. At about 11:45 p.m. SI Harjinder Rana came there. She recorded statement of victim (name withheld) who was also present there. Satpal Jain had produced his servant Virender Yadav @ Githa present in the Court. He along with Constable Parveen took Virender Yadav in BSA Hospital where he was medically examined. After medical examination, they came back to PS. MLC of Virender Yadav and exhibits were handed over to IO SI Harjinder Rana. Accused Virender Yadav @ Githa was arrested vide arrest memo Ex. PW6/A, personal search was conducted Vide memo Ex. PW6/B, both bearing his signatures at point 'A'.
10 of 69 11 FIR No. 240/12 PS - Maurya Enclave PW7 Satpal Jain, is the owner of the house where the prosecutrix was working, who deposed that he is in business of steel. The prosecutrix (name withheld) D/o Shiv Nath was working as maid servant to look after the children in his house and she was employed through Krishna Placement Service, Punjabi Bagh. Accused Virender @ Githa present in the court was also working as servant in his house for last about 45 years and he was employed through one Shailender @ Chhotu. On 04/09/2012, prosecutrix (name withheld) prosecutrix told to his wife and daughterinlaw that accused Virender @ Githa has committed rape upon her and she called the placement agency owner. Thereafter police was informed on the 100 number. Accused Virender @ Githa was handed over to the Police.
PW8 Prabha Muni, is the NGO councellor, who deposed that she is the president of Sampuarn Gharelu Kamgar, Sarvekshan Avem Uthan Samiti (SGKSUS). On 04/09/2012, she was called by the owner of Krishan Placement Agency namely, Arun Kumar at his house and where she met prosecutrix who disclosed regarding the incident happened with her and thereafter, they left for HD50, Pitam Pura where 11 of 69 12 FIR No. 240/12 PS - Maurya Enclave prosecutrix was working and there from the owner the inquiry regarding his servant Virender was made, the owner said that one servant namely Virender was working in his house and from there the call was made to number 100 by Sh. Arun Kumar. Police came there and took Virender @ Githa to the PS. She along with Arun also reached at the PS. Interrogation was made from Virender by the Police. Statement of prosecutrix was recorded by the Police in her presence and she had also signed the same at point 'A'. Statement of prosecutrix is Ex. PW8/A and correctly identified the accused present in the Court.
PW9 Prosecutrix is the victim, who deposed regarding the incident and proved her statement made to the police Ex. PW8/A bearing her thumb impression at point 'B' and also proved her statement recorded u/s 164 Cr.P.C. Ex. PW9/B bearing her thumb impression at point 'A'. Accused Virender @ Githa is present in the Court (correctly identified).
PW10 - Constable Ravinder who deposited the sealed pullinda in the FSL and deposed that on 13/09/2012, he was posted as Constable in PS - Maurya Enclave. On that day, on the instructions of 12 of 69 13 FIR No. 240/12 PS - Maurya Enclave IO, he took sealed pullinda from the MHC(M) for depositing it in Rohini FSL vide RC No. 78/21/12. He deposited the same in FSL Rohini and thereafter deposited the acknowledgment receipt of the sealed pullinda with the MHC(M).
PW11 Lady Constable Gita, who joined investigation with IO SI Harjinder Rana and deposed that on the intervening night of 0405/09/2012, she was posted as Constable in District Line as Reserve Duty. On that night after receiving an information from PS Maurya Enclave, she reached PS Maurya Enclave and made her arrival at PS Maurya Enclave vide DD No. 39A. From there she reached at the spot i.e. HD50, Pitam Pura where she met IO SI Harjinder Rana alongwith staff. Victim (name withheld) was also present there and she was handed over to her. IO recorded statement of victim (name withheld). She took victim (name withheld) in BSA Hospital where she was got medically examined. After medical examination doctor handed over the sealed pullinda containing the exhibits. They came back at Police Station and she handed over to IO the sealed pullinda containing the exhibits and the same was seized vide memo Ex. PW11/A, bearing her signature at point 13 of 69 14 FIR No. 240/12 PS - Maurya Enclave 'A'. She also handed over to IO the MLC of victim. IO recorded her statement.
PW12 SI Kanhaiya Lal, who deposed that on the intervening night of 0405/09/2012, he was posted as SubInspector in PS - Maurya Enclave. On that night, at about 10:55 p.m. he received DD No. 35A, copy of which is Ex. PW12/A and thereafter he alongwith staff reached at the spot i.e. HD50, Pitam Pura where he met complainant (name withheld) alongwith NGO and some other public persons. SHO also reached at the spot since it was case of rape so SI Harjinder Rana was called at the spot who conducted the investigation of the present case.
PW13 Dr. Faizan Khalid Shah, Junior Resident, Deptt. of Forensic Medicine, Dr. BSA Hospital, Rohini, who deposed that on 05/09/2012 one Virender Yadav @ Githa S/o Bhagwani Yadav was brought to hospital for medical examination. The patient was initially examined by the CMO on duty and thereafter referred to Forensic Medicine whereupon he examined the patient. He opined that there is 14 of 69 15 FIR No. 240/12 PS - Maurya Enclave nothing to suggest that the person is incapable of performing sexual act. His examination is Ex. PW13/A, bearing his signature at point 'A'.
PW14 - SI Harjinder Rana is the Investigating Officer (IO) of the case who deposed that on the intervening night of 0405/09/2012, she received an information and reached at PS Maurya Enclave and there she came to know about DD No. 35A, copy of which is already exhibited as Ex. PW12/A. Thereafter, she alongwith staff reached at HD50, Pitam Pura, where she met SI Kanhiya Lal and other staff alongwith Arun of Krishna Placement Service, NGO Prabha Muni and prosecutrix (name withheld), the land lord of the house was also present there. She made inquiries from the prosecutrix and recorded her statement Ex. PW8/A and attested her signature at point 'B', bearing her (PW14) signature at point 'C'. Land lord Satpal Jain has produced his servant Virender Yadav @ Githa and prosecutrix told that Virender Yadav @ Githa had committed rape upon her about one month ago. Lady Constable Gita was called. Prosecutrix and accused Virender @ Githa were sent to hospital for their medical examination through Constable Ashok and Lady Constable Gita. She (PW14) came back to 15 of 69 16 FIR No. 240/12 PS - Maurya Enclave the Police Station. After medical examination, Constable Ashok & Lady Constable Gita alongwith accused and prosecutrix came at Police Station and they handed over to her the sealed pulindas containing the exhibits and the same were seized by her (PW14) vide memo Ex. PW11/A and Ex. PW14/A, bearing her signature at point 'A'. She prepared rukka Ex. PW14/B, bearing her signature at point 'A' and rukka was handed over to the Duty Officer for registration of FIR. Accused was left in the custody of Constable Ashok at Police Station and she alongwith the prosecutrix and NGO Prabha Muni reached at the spot i.e. in a room situated at the top floor of HD50, Pitam Pura and prepared the site plan Ex. PW14/C, bearing her (PW14) signature at point 'A'. Thereafter, they came back to the Police Station. Copy of the FIR and original rukka was received. Accused Virender Yadav @ Githa was interrogated and arrested vide arrest memo Ex. PW6/A and his personal search memo Ex. PW6/B, both bearing her (PW14) signature at points 'B'. She recorded the statements of witnesses. Accused was produced in the Court and sent to JC. She moved an application for recording the statement of the prosecutrix u/s 164 Cr.P.C. Ex. PW14/D, bearing her signature at point 'A'. Her (prosecutrix) statement was recorded and thereafter, she (PW14) 16 of 69 17 FIR No. 240/12 PS - Maurya Enclave obtained the copy of the statement vide her application Ex. PW14/E, bearing her signature at point 'A'. She collected the documents of Krishna Placement Agency through which prosecutrix was working. The documents are collectively Ex. PX. Case property was deposited in the Malkhana. The exhibits of the present case were sent to FSL through Constable Ravinder on 13/09/2012 and she (PW14) recorded their statements. After completing the investigation, challan was prepared and filed in the Court. She identified the accused Virender @ Githa present in the Court.
PW15 Ms. L. Babyto Devi, Senior Scientific Officer, FSL, Rohini, Delhi who proved the DNA Report Ex. PW15/A bearing her signature at point 'A'.
PW16 - Sh. Dharmender Singh, Learned MM, Rohini, Delhi who deposed that on 05/09/2012, he was posted as Metropolitan Magistrate in Rohini Courts. On that day an application u/s 164 Cr.P.C. for recording statement of prosecutrix (name withheld) D/o Late Sh. Shiv Nath R/o HD50, Pitam Pura, Delhi was marked to him. IO W/SI 17 of 69 18 FIR No. 240/12 PS - Maurya Enclave Harjinder Rana alongwith prosecutrix (name withheld) appeared before him. IO SI Harjinder Rana had identified prosecutrix (name withheld) and he recorded her statement in this regard. He put certain preliminary questions to the prosecutrix (name withheld) and from the answers given by her he was satisfied that she is making the statement voluntarily without any force, coercion and undue influence. The proceedings in this regard is Ex. PW16/A, bearing his signature at point 'A' on each page. He recorded statement of prosecutrix (name withheld), which is Ex. PW9/B, bearing his signature at point 'A'. After recording the statement, he issued certificate regarding its correctness which is Ex. PW9/C, bearing his signature at point 'A'. IO was allowed to take the copy of the statement and thereafter Ahlmad was directed to send the proceedings in the sealed cover to the concerned Court and same is Ex. PW9/D, bearing his signature at point 'A'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Virender Yadav @ Githa was recorded 18 of 69 19 FIR No. 240/12 PS - Maurya Enclave 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 accused submitted that he is innocent and has been falsely implicated in the case by the prosecutrix (name withheld), by misusing the process of law. Learned Counsel for accused further submitted that place of incident is a house where about 20 persons were residing at the time of incident, including 1415 family members of owner and 56 servants including 3 female maids. It cannot be said that in such kind of place accused can threat the prosecutrix and the alleged threat could be sustained for one month. Learned Counsel for accused further submitted that accused is not a strongly built man, where one can say that his appearance can cause terror in the mind of the prosecutrix, therefore she remained silent for one month. It is indigestible that she remained under the influence of threat for one month. Rather, he is a short height and is having lean built man, moreover his nick name suggestive of his personality 'Githa', which means short in height. Learned Counsel for accused further submitted that as per the version of prosecutrix offence was committed at about 19 of 69 20 FIR No. 240/12 PS - Maurya Enclave 8:00 p.m. She further deposed that at that time no member of the family went to sleep. It is beyond imagination that even after availability of so many persons for her rescue, neither she complained to anybody nor anyone came for her rescue. Learned Counsel for accused further submitted that in her testimony, PW9 - prosecutrix said that sexual assault was committed on her in August, 2012, whereas PW4 - Dr. Hem Lata proved MLC of the prosecutrix and deposed in her testimony that she was having uterus of eight weeks size. Meaning thereby is that on the date of examination i.e. on 05/09/2012, the prosecutrix was in the month of July, 2012. Meaning thereby is that either she was having physical intimacy with some other persons also or she has stated wrong date of incident, for the reasons best known to her. If she has stated wrong date of incident, then why she kept mum for 2 months, this is not explained by the prosecution. Furthermore, her silence for two months suggestive of her consent in the act alleged. Learned Counsel for accused further submitted that there is contradiction between the testimony of PW9 - prosecutrix and PW8 - Prabha Muni on material point regarding investigation. PW8 states that she was called by Sh. Arun Kumar, owner of Krishna Placement Agency at his house, where she met prosecutrix 20 of 69 21 FIR No. 240/12 PS - Maurya Enclave (name withheld) there and thereafter she alongwith prosecutrix and said Mr. Arun came at HD 50, Pitam Pura, Delhi, thereafter Police was informed. Thereafter she was crossexamined by the Learned Addl. PP on the point that she met prosecutrix at HD - 50, Pitam Pura firstly. But she denied the suggestion and remained firm in the sequence of facts happened in her presence. On contrary, PW9 prosecutrix (name withheld) deposed in her testimony that she was at HD - 50, Pitam Pura, Delhi and PW8 - Prabha Muni and PW2 Sh. Arun Kumar came there. This suggests that PW9 is not giving true version of facts. This made PW9 prosecutrix as unreliable witness, as she was hiding the truth from the Court. Learned Counsel for accused further submitted that testimony of PW15, give strength of the claim of innocence by the accused. DNA Report Ex. PW15/A, suggest that accused is not the person who did the alleged act. DNA of the accused did not match with the DNA taken from the prosecutrix. Either the prosecutrix was living immoral life and was having physical intimacy with some other persons out of her own wish, during her working in the same implicated the accused, in the pressure of real culprit, in order to save him. Learned Counsel for accused further submitted that SI Harjinder Rana, Investigating Officer has also not 21 of 69 22 FIR No. 240/12 PS - Maurya Enclave taken interest to investigate the case fairly. She deposed in her statement that she did not enquire about the facts from the other servants in the house. She did not bother to make inquiries from the other maid and servants in the house, whereas on the day of incident there were 6 maid and servants working in the house (as stated by owner of the house, PW7 in his deposition). Moreover, she should have inquired about the character and history of the complainant and the accused from the other servants and maids and relevant persons in the house before coming to the conclusion, but she did not bother. Learned Counsel for accused further submitted that conduct of the PW9 prosecutrix (name withheld) i.e. hiding the fact of rape for one month without any reason and contradiction in her testimony with independent witness, PW8, makes her unreliable. Moreover DNA report and MLC of the prosecutrix indicates about the innocence of the accused. Therefore, it would not be safe to convict the accused for the offence alleged. Learned Counsel for accused further submitted that the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused on all the charges leveled against him.
22 of 69 23 FIR No. 240/12 PS - Maurya Enclave
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. Deepak Sharma, Learned Amicus Curiae for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/506 IPC against the accused Virender Yadav @ Githa is that in the month of July, 2012 (be read as August 2012), at about 8:00 p.m. in the store room built up on the roof of the top floor of house no. HD - 50, Pitam Pura, Delhi, he forcibly committed rape upon the prosecutrix (name withheld), aged around 19 years without her consent and against her will and that on the above said date and time, he criminally intimidated the prosecutrix (name withheld) by threatening her to throw from the top floor of the 23 of 69 24 FIR No. 240/12 PS - Maurya Enclave house if she raised an alarm.
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. PW9 - prosecutrix in her statement recorded in the Court on 19/03/2013 while giving her particulars has stated her age as around 19 years.
PW9 - prosecutrix in her statement recorded u/s 164 Cr.P.C. on 05/09/2012 Ex. PW9/B has stated her age as 19 years.
Moreover, the said factum of age of PW9 - prosecutrix has not been disputed by the accused nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
Since PW9 - prosecutrix has stated her age as around 19 24 of 69 25 FIR No. 240/12 PS - Maurya Enclave years on 19/03/2013 at the time of recording her evidence/statement and has stated her age as 19 years on 05/09/2012 at the time of recording of her statement u/s 164 Cr.P.C. and the date of alleged incident is in August, 2012, on simple arithmetical calculation the age of the prosecutrix comes to around 19 years as on the date of alleged incident in August, 2012.
In view of above and in the circumstances, it stands proved on the record that PW9 - prosecutrix was aged around 19 years as on the date of the alleged incident in August, 2012. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW4 Dr. Hem Lata, SR, BSA Hospital, Rohini, who gynaecologically examined the prosecutrix and deposed that on 05/09/2012 prosecutrix (name withheld), age 19 years female was brought to the hospital for medical examination with alleged H/o sexual assault approximately one month back by accused Virender @ Githa servant in a house in Pitam Pura. Patient was brought by lady Constable Geeta.
On local examination : hymen was torn, no fresh mark of injury.
25 of 69 26 FIR No. 240/12 PS - Maurya Enclave On per vaginal examination : uterus was eight weeks size, UPT : positive.
Samples: (i) nail clipping, (ii) clipping of pubic hair, (iii) servical (cervical) mucus, (iv) vaginal secretion, (v) blood samples.
She prepared the MLC same is Ex. PW4/A, bearing her signature at point 'A'. Her findings on the OPD slip is Ex. PW4/B, bearing her signature at point 'A'.
During her crossexamination PW4 - Dr. Hem Lata has deposed that : "Prosecutrix (name withheld) was understanding Hindi and she knew Hindi. The history at point 'X' on the MLC Ex. PW4/A was told by the patient herself. It is incorrect to suggest that I prepared the MLC in mechanical manner at the instance of IO."
There is nothing in the crossexamination of PW4 - Dr. Hem Lata so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical/gynaecological examination vide MLC Ex. PW4/A and OPD slip Ex. PW4/B of PW9 - prosecutrix stands proved on the record.
26 of 69 27 FIR No. 240/12 PS - Maurya Enclave VIRILITY OF THE ACCUSED VIRENDER YADAV @ GITHA
14. PW3 Dr. Meet Kumar, CMO, BSA Hospital, Rohini has deposed that on 05/09/2012 one Virender Yadav S/o Bhagwani Yadav, age 18 years male was brought to the hospital for medical examination with alleged history of sexual assault with a female approximately one month back. On local examination no fresh external injury seen and patient was referred to Forensic Department. He prepared the MLC same is Ex. PW3/A, bearing his signature at point 'A'.
PW13 Dr. Faizan Khalid Shah, Junior Resident, Deptt. of Forensic Medicine, Dr. BSA Hospital, Rohini, has deposed that on 05/09/2012 one Virender Yadav @ Githa S/o Bhagwani Yadav was brought to Hospital for medical examination. The patient was initially examined by the CMO on duty and thereafter referred to Forensic Medicine whereupon he examined. He opined that there is nothing to suggest that the person is incapable of performing sexual act. His examination is Ex. PW13/A, bearing his signature at point 'A'.
Despite grant of opportunity neither PW3 Dr. Meet Kumar nor PW13 Dr. Faizan Khalid Shah, were crossexamined on behalf of the accused.
27 of 69 28 FIR No. 240/12 PS - Maurya Enclave In view of above and in the circumstances, it stands proved on the record that accused Virender Yadav @ Githa was capable of performing sexual act.
DNA FINGER PRINTING EVIDENCE
15. PW15 Ms. L. Babyto Devi, Senior Scientific Officer, FSL, Rohini, Delhi has proved the DNA Report Ex. PW15/A bearing her signature at point 'A'.
As per DNA Report Ex. PW15/A, the description of articles contained in parcel, DNA examination and conclusion reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "CASUALITY DR BSAH GOVT OF DELHI" 01/07/2012 containing exhibits '1A', '1B', '1C'.
Exhibit '1A' : Cotton wool swab labelled as step 9 Cervical mucus. Exhibit '1B' : Two microslides labelled as step 9 vaginal secretion.
28 of 69 29 FIR No. 240/12 PS - Maurya Enclave Exhibit '1C' : One vail having dark brown liquid labelled as step 14 blood sample.
Parcel '2' : One sealed envelope sealed with the seal of "DEPT. OF DR. BSAH GOVT OF DELHI" containing exhibit '2'. Exhibit '2' : Gauze cloth piece described as blood in gauze of accused.
DNA EXAMINATION Exhibits '1A' (Cervical swab), '1B' (Vaginal slides), '1C' (Blood Sample and '2' (Blood in gauze of accused) were subjected to DNA isolation. DNA was isolated from the source of exhibits '1A' (Cervical swab), '1B' (Vaginal slides), '1C' (Blood Sample and '2' (Blood in gauze of accused). Female DNA profile was generated from the source of exhibit '1C' (Blood Sample). Male DNA profile was generated from the source of exhibit '2' (Blood in gauze of accused). Mixed DNA profile was generated from the source of exhibits '1A' (Cervical swab) and '1B' (Vaginal slides). Identifiler plus amplification kit was used for each of the samples and date was analyzed by GeneMapper IDx Software. CONCLUSION DNA profile (STR) analysis were performed on exhibits '1A' (Cervical swab), '1B' (Vaginal slides) and '2' (Blood in gauze of accused) is sufficient to concludes that allele data from the source of exhibit '2' (Blood in gauze of accused) is not accounted in the allelic data from the source of exhibits '1A' (Cervical swab) and '1B' (Vaginal slides).
29 of 69 30 FIR No. 240/12 PS - Maurya Enclave Note :
Remnants of the exhibits have been sealed with seal of "BD FSL DELHI".
As per the DNA Report Ex. PW15/A with regard to the description of the articles contained in the parcels, it is noticed that parcel no. 1 belongs to PW9 prosecutrix which was seized vide seizure memo Ex. PW11/A dated 05/09/2012 and parcel no. 2 belongs to accused Virender Yadav @ Gittha which was seized vide seizure memo Ex. PW14/A dated 05/09/2012.
On careful perusal and analysis of the DNA Report Ex.
PW15/A, it clearly shows that DNA profile on the exhibit '1A' (Cervical swab of the prosecutrix), exhibit '1B' (Vaginal slides of the prosecutrix) and DNA profile on exhibit '2' (Blood in gauze of accused Virender Yadav @ Githa) is sufficient to conclude that the allele data from the source of exhibit '2' (Blood in gauze of accused Virender Yadav @ Githa) is not accounted in the allelic data from the source of exhibits '1A' (Cervical swab of the prosecutrix) and
30 of 69 31 FIR No. 240/12 PS - Maurya Enclave '1B' (Vaginal slides of the prosecutrix). But sight cannot be lost of the fact that as per DNA Examination, as reproduced hereinabove, Male DNA profile was generated from the source of exhibit '2' (Blood in gauze of accused) and Mixed DNA profile (that is both Male DNA and Female DNA) was generated from the source of exhibit '1A' (Cervical swab of the prosecutrix) and exhibit '1B' (Vaginal slides of the prosecutrix) which clearly indicates the presence of Male DNA also in exhibit '1A' (Cervical swab of the prosecutrix) and exhibit '1B' (Vaginal slides of the prosecutrix).
As per the DNA Report Ex. PW15/A, prosecution has discharged its initial burden of proving the presence of Male DNA also in exhibit '1A' (Cervical swab of the prosecutrix seized vide seizure memo Ex. PW11/A) and exhibit '1B' (Vaginal slides of the prosecutrix seized vide seizure memo Ex. PW11/A).
Accused was under an obligation to explain as to how and under what circumstances, the Male DNA also came to be present in exhibit '1A' (Cervical swab of the prosecutrix) and exhibit '1B' (Vaginal slides of the prosecutrix). The absence of such an 31 of 69 32 FIR No. 240/12 PS - Maurya Enclave explanation both in the section 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
16. Learned Counsel for accused submitted that testimony of PW15, give strength of the claim of innocence by the accused. DNA Report Ex. PW15/A, suggest that accused is not the person who did the alleged act. DNA of the accused did not match with the DNA taken from the prosecutrix. Either the prosecutrix was living immoral life and was having physical intimacy with some other persons out of her own wish, during her working in the same implicated the accused, in the pressure of real culprit, in order to save him.
I have carefully perused and analysed the evidence on record.
In view of as to what has been reproduced, discussed and analysed hereinabove under the heading, "DNA FINGER PRINTING EVIDENCE", the plea so raised is found to have no substance. Further the theory that, "Either the prosecutrix was living immoral life and 32 of 69 33 FIR No. 240/12 PS - Maurya Enclave was having physical intimacy with some other persons out of her own wish, during her working in the same implicated the accused, in the pressure of real culprit, in order to save him", so propounded has not at all been made probable, much established by any cogent evidence. In the circumstances, it appears that in order to save his skin from the clutches of law, such vague and baseless theory has been propounded, which falls flat on the ground.
It is also not made clear by Learned Counsel for accused as to what benefit he intends to reap from the said plea so raised. Does he intend to convey that PW1 - prosecutrix is a girl/woman of "easy virtues" or a girl/woman of "loose moral character".
If it is so, it is not permissible as every woman has a right to protect her dignity and cannot be subjected to rape only for that reason.
In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"
can be drawn. Such a woman has a right to protect her dignity and 33 of 69 34 FIR No. 240/12 PS - Maurya Enclave cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
17. Now let the testimonies of PW9 - Prosecutrix, PW2 Arun 34 of 69 35 FIR No. 240/12 PS - Maurya Enclave Kumar Yadav, Owner Placement Agency, PW7 Satpal Jain and PW8 Prabha Muni be perused and analysed.
PW9 prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "I had came (come) to Delhi in January, 2012 and started working in the house no. 50, at Pitam Pura for looking after the children. I was employed there through placement agency of Arun. Accused Virender @ Githa was also working in the same house as servant. In the month of August, 2012 at around 08:00 p.m. I had gone in the toilet/bathroom on the roof of the house and accused Virender also came there and caught hold me and he closed my mouth and took me in a store room. He put off/removed my salwar and he committed rape upon me. I raised alarm but nobody heard my cry. When I told accused that I will disclose this fact to the bhabhi then he took me on the top roof and threatened that if I will disclose this fact to anybody then he will throw me from there. Due to this I got frightened and kept mum. I missed my monthly mensuration date and I told bhabhi I do not want to stay here and let she telephone to the bhaiya of office agency. Thereafter, Arun Bhaiya along with Prabha Muni didi came there and I disclosed all the facts of the incident to Prabha Muni didi in the presence of Arun Bahiya. Police was telephoned and police came there and apprehended accused Virender. Police recorded my statement which is already exhibited as Ex. PW8/A bearing my thumb impression at point 'B'. I was taken to the hospital and was medically examined. My statement was also recorded U/s 164 Cr.P.C. Ex. PW9/B bearing my thumb impression at point 'A'."
35 of 69 36 FIR No. 240/12 PS - Maurya Enclave From the aforesaid narration of PW9 - prosecutrix, it is clear that she had come to Delhi in January, 2012 and started working in the house no. 50, at Pitam Pura for looking after the children. She was employed there through placement agency of Arun. Accused Virender @ Githa was also working in the same house as servant. In the month of August, 2012 at around 08:00 p.m. she had gone in the toilet/bathroom on the roof of the house and accused Virender also came there and caught hold her and he closed her mouth and took her in a store room. He put off/removed her salwar and he committed rape upon her. She raised alarm but nobody heard her cry. When she told accused that she will disclose this fact to the bhabhi then he took her on the top roof and threatened that if she will disclose this fact to anybody then he will throw her from there. Due to this she got frightened and kept mum. She missed her monthly mensuration date and she told bhabhi that she does not want to stay here and let she telephone to the bhaiya of office agency. Thereafter, Arun Bhaiya along with Prabha Muni didi came there and she disclosed all the facts of the incident to Prabha Muni didi in the presence of Arun Bahiya. Police was telephoned and police came there 36 of 69 37 FIR No. 240/12 PS - Maurya Enclave and apprehended accused Virender. Police recorded her statement which is already exhibited as Ex. PW8/A bearing her thumb impression at point 'B'. She was taken to the hospital and was medically examined. Her statement was also recorded U/s 164 Cr.P.C. Ex. PW9/B bearing her thumb impression at point 'A'.
PW9 - Prosecutrix during her crossexamination has negated the suggestions that she has been tutored by the Arun Bhaiya to depose in the Court or that she has been instructed and tutored by the Police official as to what she has to depose in the Court or that she was not read over her statement by the police or that due to her immoral activities when she was sacked by the owner of the house in order to save her job and dignity, she leveled false allegation against the accused or that accused has been falsely implicated in this case being an easy target as he is a poor person and has no backup from his family or that accused has not committed any rape upon her as alleged and that is why she did not make any complaint of it on the very day of incident or that the owner of the family on came to know about her immorality had himself gone to leave her in the office of the placement agency or that she had not accompanied the police to the store room i.e. the place of incident 37 of 69 38 FIR No. 240/12 PS - Maurya Enclave during the investigation or that she is deposing falsely.
Inspite of incisive crossexamination of PW9 - prosecutrix 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 cross examination and her testimony is consistent throughout. The testimony of PW9 - 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 accused to falsely implicate him in the case.
The testimony of PW9 - Prosecutrix is also found to be corroborated by the medical/gynaecological evidence as well as the DNA Finger Printing evidence as discussed hereinbefore.
The testimony of PW9 - Prosecutrix is also found to be in consonance with her statement Ex. PW8/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex PW9/B. The testimony of PW9 - Prosecutrix is also found to be 38 of 69 39 FIR No. 240/12 PS - Maurya Enclave corroborated by PW2 Arun Kumar Yadav, Owner Placement Agency, PW7 Satpal Jain and PW8 Prabha Muni, 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.
PW2 Arun Kumar Yadav, in his examinationinchief has deposed that : "I am running a placement agency by the name and style of M/s Krishna Placement Service at Punjabi Bagh. In January, 2012 I got employed prosecutrix (name withheld) D/o Shiv Nath R/o Village Bara Dighi, District Jalpaiguri, West Bengal at the house of Smt. Bimla Jain W/o Satpal Jain R/o H. No. HD50, Pitam Pura, Delhi as domestic servant for Rs. 3,600/ p.m. On 04/09/12 I was called at the house of Smt. Bimla Jain. I went there. Where prosecutrix (name withheld) told me that accused Virender Yadav @ Githa who was working as a servant in the same house has committed rape upon her. I called the NGO Prabha Muni and she made inquiries from prosecutrix (name withheld). Thereafter, I made call at 100 number. Police came there and Police made inquiries from prosecutrix (name withheld) and FIR was registered. Accused Virender Yadav was arrested from the house by the Police. Accused Virender Yadav is present in the Court today (correctly identified)."
From the aforesaid narration of PW2 Arun Kumar Yadav it 39 of 69 40 FIR No. 240/12 PS - Maurya Enclave is clear that the he is running a placement agency by the name and style of M/s Krishna Placement Service at Punjabi Bagh. In January, 2012, he got employed prosecutrix (name withheld) D/o Shiv Nath R/o Village Bara Dighi, District Jalpaiguri, West Bengal at the house of Smt. Bimla Jain W/o Satpal Jain R/o H. No. HD50, Pitam Pura, Delhi as domestic servant for Rs. 3,600/ p.m. On 04/09/12, he was called at the house of Smt. Bimla Jain. He went there. Where prosecutrix (name withheld) told him that accused Virender Yadav @ Githa who was working as a servant in the same house has committed rape upon her. He (PW2) called the NGO Prabha Muni and she made inquiries from prosecutrix (name withheld). Thereafter, he made call at 100 number. Police came there and Police made inquiries from prosecutrix (name withheld) and FIR was registered. Accused Virender Yadav was arrested from the house by the Police and he correctly identified the accused Virender Yadav present in the Court.
PW7 Satpal Jain in his examinationinchief has deposed that : "I am in business of steel. Prosecutrix (name withheld) D/o Shiv Nath was working as made (maid) servant to look after the children 40 of 69 41 FIR No. 240/12 PS - Maurya Enclave in my house and she was employed through Krishna Placement Service, Punjabi Bagh. Accused Virender @ Githa present in the Court today was also working as servant in my house for last about 45 years and he was employed through one Shailender @ Chhotu. On 04/09/2012, prosecutrix (name withheld) told to my wife and daughterinlaw that accused Virender @ Githa has committed rape upon her and I called the placement agency owner. Thereafter, Police was informed on the 100 number. Accused Virender @ Githa was handed over to the Police."
From the aforesaid narration of PW7 Satpal Jain it is clear that the he is in business of steel. Prosecutrix (name withheld) D/o Shiv Nath was working as maid servant to look after the children in his house and she was employed through Krishna Placement Service, Punjabi Bagh. Accused Virender @ Githa present in the Court was also working as servant in his house for last about 45 years and he was employed through one Shailender @ Chhotu. On 04/09/2012, prosecutrix (name withheld) told to his wife and daughterinlaw that accused Virender @ Githa has committed rape upon her and he (PW7) called the placement agency owner. Thereafter, Police was informed on the 100 number. Accused Virender @ Githa was handed over to the Police."
During his crossexamination PW7 Satpal Jain has negated the suggestion that he is deposing falsely.
41 of 69 42 FIR No. 240/12 PS - Maurya Enclave PW8 Prabha Muni in her examinationinchief has deposed that : "I am the president of Sampuarn Gharelu Kamgar, Sarvekshan Avem Uthan Samiti (SGKSUS). On 04/09/2012, I was called by the owner of Krishan Placement Agency namely, Arun Kumar at his house and where I met prosecutrix (name withheld) who disclosed regarding the incident happened with her and thereafter, we left for HD50, Pitam Pura where prosecutrix (name withheld) was working and there from the owner the inquiry regarding his servant Virender was made, the owner said that one servant namely Virender is working in his house and from there the call was made to number 100 by Sh. Arun Kumar. Police came there and took the Virender to the PS. Myself along with Arun also reached at the PS. Interrogation was made from Virender by the Police. Statement of prosecutrix (name withheld) was recorded by the Police in my presence and I had also signed the same at point 'A'. Statement of prosecutrix (name withheld) is Ex. PW8/A. I can identify the accused Virender, if shown to me. Accused Virender is present in the court (correctly identified)."
From the aforesaid narration of PW8 Prabha Muni it is clear that the she is the president of Sampuarn Gharelu Kamgar, Sarvekshan Avem Uthan Samiti (SGKSUS). On 04/09/2012, she was called by the owner of Krishan Placement Agency namely, Arun Kumar 42 of 69 43 FIR No. 240/12 PS - Maurya Enclave at his house and where she met prosecutrix (name withheld) who disclosed regarding the incident happened with her and thereafter, they left for HD50, Pitam Pura where prosecutrix (name withheld) was working and there from the owner the inquiry regarding his servant Virender was made, the owner said that one servant namely Virender is working in his house and from there the call was made to number 100 by Sh. Arun Kumar. Police came there and took the Virender to the PS. She herself along with Arun also reached at the PS. Interrogation was made from Virender by the Police. Statement of prosecutrix (name withheld) was recorded by the Police in her presence and she (PW8) had also signed the same at point 'A'. Statement of prosecutrix (name withheld) is Ex. PW8/A and she correctly identified accused Virender present in the Court.
A leading question in the form of a suggestion was put by the Learned Addl. PP for the State, she (PW8) negated the suggestion that firstly she had gone to house no. HD - 50, Pitam Pura where she met prosecutrix (name withheld) alongwith Arun Kumar.
During her crossexamination by the Learned Counsel for 43 of 69 44 FIR No. 240/12 PS - Maurya Enclave the accused, PW8 Prabha Muni has negated the suggestions that she did not join the investigation of the case or that she signed the statement while sitting in her office or that she is a stock witness of police or that she is deposing falsely.
Inspite of incisive crossexamination of PW2 Arun Kumar Yadav, Owner Placement Agency, PW7 Satpal Jain and PW8 Prabha Muni, nothing material has been brought out so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. Their testimonies on careful perusal and analyses and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused Virender Yadav @ Githa to falsely implicate him in the case.
18. While analysing the testimony of PW9 Prosecutrix, PW7 Satpal Jain and PW8 Prabha Muni as discussed hereinabove inspite of 44 of 69 45 FIR No. 240/12 PS - Maurya Enclave incisive crossexamination of PW9 Prosecutrix, PW7 Satpal Jain and PW8 Prabha Muni 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 defence to PW9 Prosecutrix that she has been tutored by the Arun Bhaiya to depose in the Court or that she has been instructed and tutored by the police official as to what she has to depose in the Court or that she was not read over her statement by the police or that due to her immoral activities when she was sacked by the owner of the house in order to save her job and dignity, she leveled false allegation against the accused or that accused has been falsely implicated in this case being an easy target as he is a poor person and has no backup from his family or that accused has not committed any rape upon her as alleged and that is why she did not make any complaint of it on the very day of incident or that the owner of the family on came to know about her immorality had himself gone to leave her in the office of the placement agency or that she had not accompanied the police to the store room i.e. the place of incident during the investigation or that she is deposing falsely and the suggestion to PW7 Satpal Jain that he is deposing falsely and the suggestions to PW8 Prabha Muni that she 45 of 69 46 FIR No. 240/12 PS - Maurya Enclave did not join the investigation of the case or that she signed the statement while sitting in her office or that she is a stock witness of police or that she 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.
19. 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 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 46 of 69 47 FIR No. 240/12 PS - Maurya Enclave 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."
On analysing the testimony of PW9 - Prosecutrix in the 47 of 69 48 FIR No. 240/12 PS - Maurya Enclave light of medical evidence/gynaecological examination vide MLC Ex. PW4/A and OPD slip Ex. PW4/B of the prosecutrix, MLCs of accused Virender Yadav @ Githa Ex. PW3/A and Ex. PW13/A together with the DNA Report Ex. PW15/A, detailed and discussed hereinbefore, the act of performing 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 consequent upon which pregnancy occurred.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Virender Yadav @ Githa with PW9 - Prosecutrix without her consent whereupon PW9 - prosecutrix became pregnant.
20. Learned Counsel for accused submitted that place of incident is a house where about 20 persons were residing at the time of incident, including 1415 family members of owner and 56 servants including 3 female maids. It cannot be said that in such kind of place accused can threat the prosecutrix and the alleged threat could be sustained for one month. Learned Counsel for accused further submitted 48 of 69 49 FIR No. 240/12 PS - Maurya Enclave that accused is not a strongly built man, where one can say that his appearance can cause terror in the mind of the prosecutrix, therefore she remained silent for one month. It is indigestible that she remained under the influence of threat for one month. Rather, he is a short height and is having lean built man, moreover his nick name suggestive of his personality 'Githa', which means short in height. Learned Counsel for accused further submitted that as per the version of prosecutrix offence was committed at about 8:00 p.m. She further deposed that at that time no member of the family went to sleep. It is beyond imagination that even after availability of so many persons for her rescue, neither she complained to anybody nor anyone came for her rescue.
I have carefully perused and analysed the evidence on record.
It is well settled that different persons act and react differently in a given situation.
At the cost of repetition, PW9 - prosecutrix in her examinationinchief has specifically deposed that : "In the month of August, 2012 at around 08:00 p.m. I had gone in the toilet/bathroom on the roof of the house and accused 49 of 69 50 FIR No. 240/12 PS - Maurya Enclave Virender also came there and caught hold me and he closed my mouth and took me in a store room. He put off/removed my salwar and he committed rape upon me. I raised alarm but nobody heard my cry. When I told accused that I will disclose this fact to the bhabhi then he took me on the top roof and threatened that if I will disclose this fact to anybody then he will throw me from there. Due to this I got frightened and kept mum. I missed my monthly mensuration date and I told bhabhi I do not want to stay here and let she telephone to the bhaiya of office agency. Thereafter, Arun Bhaiya along with Prabha Muni didi came there and I disclosed all the facts of the incident to Prabha Muni didi in the presence of Arun Bahiya."
From the aforesaid narration, interalia it is clearly indicated that when she told accused that she will disclose this fact to the bhabhi then he took her on the top roof and threatened that if she will disclose this fact to anybody then he will throw her from there. Due to this she got frightened and kept mum. She missed her monthly mensuration date and she told bhabhi that she does not want to stay here and let she telephone to the bhaiya of office agency. Thereafter, Arun Bhaiya along with Prabha Muni didi came there and she disclosed all the facts of the incident to Prabha Muni didi in the presence of Arun Bahiya.
From above, PW9 - prosecutrix has specifically deposed 50 of 69 51 FIR No. 240/12 PS - Maurya Enclave that she was so frightened by the threat of accused that after the incident she kept mum. Had she not missed her monthly mensuration date than there was no chance of reporting the incident to anyone by her and her silence would have continued under the threat extended to her by the accused and her sufferance in silence would have continued. The sight cannot be lost of the fact that she was working as a maid servant and did not appear to have gathered the courage due to the threat of the accused, to report the incident immediately after the occurrence and when she missed her monthly mensuration date, in this compelled circumstance, she told Bhabhi (landlady of the house) only. She (PW9 - prosecutrix) was very much apprehensive due to the threat of accused, had it not been so, she would not have waited till the time of missing of her mensuration date.
In the circumstances, the theory that, "it is indigestible that she (PW9 - prosecutrix) remained under the influence of threat for one month", the theory that, "in such kind of place accused cannot threat the prosecutrix" and the theory that, "neither she (PW9 - prosecutrix) complained to anybody nor anyone came for her rescue" do not hold water therefore, falls flat on the ground.
51 of 69 52 FIR No. 240/12 PS - Maurya Enclave In view of above and in the circumstances, the delay in reporting the matter to the Police as on the intervening night of 0405/09/2012 has been sufficiently and satisfactorily explained by the prosecutrix.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P. (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint 52 of 69 53 FIR No. 240/12 PS - Maurya Enclave 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 Vs. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of 53 of 69 54 FIR No. 240/12 PS - Maurya Enclave 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 V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the 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.
54 of 69 55 FIR No. 240/12 PS - Maurya Enclave 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.
21. Learned Counsel for accused submitted that in her testimony, PW9 - prosecutrix said that sexual assault was committed on her in August, 2012, whereas PW4 - Dr. Hem Lata proved MLC of the prosecutrix and deposed in her testimony that she was having uterus of eight weeks size. Meaning thereby is that on the date of examination i.e. on 05/09/2012, the prosecutrix was in the month of July, 2012. Meaning thereby is that either she was having physical intimacy with some other persons also or she has stated wrong date of incident, for the reasons best known to her. If she has stated wrong date of incident, then why she kept mum for 2 months, this is not explained by the prosecution. Furthermore, her silence for two months suggestive of her consent in the act alleged.
I have carefully perused and analysed the evidence on 55 of 69 56 FIR No. 240/12 PS - Maurya Enclave record.
At the cost of repetition, PW9 - prosecutrix in her examinationinchief has deposed that : "In the month of August, 2012 at around 08:00 p.m. I had gone in the toilet/bathroom on the roof of the house and accused Virender also came there and caught hold me and he closed my mouth and took me in a store room. He put off/removed my salwar and he committed rape upon me...."
At the cost of repetition, PW4 Dr. Hem Lata, SR, BSA Hospital, Rohini, who gynaecologically examined the prosecutrix and deposed that on 05/09/2012 prosecutrix (name withheld), age 19 years female was brought to the hospital for medical examination with alleged H/o sexual assault approximately one month back by accused Virender @ Githa servant in a house in Pitam Pura. Patient was brought by lady Constable Geeta.
On local examination : hymen was torn, no fresh mark of injury. On per vaginal examination : uterus was eight weeks size, UPT : positive.
Samples: (i) nail clipping, (ii) clipping of pubic hair, (iii) servical 56 of 69 57 FIR No. 240/12 PS - Maurya Enclave (cervical) mucus, (iv) vaginal secretion, (v) blood samples.
She prepared the MLC same is Ex. PW4/A, bearing her signature at point 'A'. Her findings on the OPD slip is Ex. PW4/B, bearing her signature at point 'A'.
During her crossexamination PW4 - Dr. Hem Lata has deposed that : "Prosecutrix (name withheld) was understanding Hindi and she knew Hindi. The history at point 'X' on the MLC Ex. PW4/A was told by the patient herself. It is incorrect to suggest that I prepared the MLC in mechanical manner at the instance of IO."
From the aforesaid crossexamination of PW4 - Dr. Hem Lata, it is clearly indicated that history at point 'X' on the MLC Ex. PW4/A was told by the patient herself.
The history at point 'X' on the MLC Ex. PW4/A reads as under : "Alleged history of sexual assault, one month back by Virender Gittha, servant in a house in Pitam Pura."
In the circumstances, it stands clearly established on the record that on the first available opportunity, prosecutrix had given the 57 of 69 58 FIR No. 240/12 PS - Maurya Enclave history to Doctor Hem Lata (PW4), naming the accused Virender @ Gittha as the author of the crime of sexual assault committed upon her.
The perusal of MLC Ex. PW4/A also interalia indicates LMP - 15/07/2012; UPT - Positive (+ve) and also indicates, on per vaginal (P/V) examination.. uterus eight weeks.
As per PW4 - Dr. Hem Lata, prosecutrix (name withheld) was examined by her on 05/09/2012.
As far as UPT - Positive is concerned, it is also corroborated by the testimony of PW9 - prosecutrix, when during her examinationinchief she deposed that when she missed her monthly mensuration date she told Bhabhi (landlady of the house).
As regards the plea of the Learned Counsel for the accused that on the date of examination on 05/09/2012, prosecutrix was having uterus of eight weeks size meaning thereby the alleged incident pertain to July, 2012 not August, 2012 as prosecutrix deposed, either she was having physical intimacy with some other persons also or she has stated the wrong date of incident, for the reasons best known to her, is concerned, let the evidence of PW9 - prosecutrix and PW4 - Dr. Hem 58 of 69 59 FIR No. 240/12 PS - Maurya Enclave Lata be read conjointly and analysed against the backdrop that prosecutrix was pregnant as on the date of examination on 05/09/2012 by PW4 - Dr. Hem Lata.
At the cost of repetition, prosecutrix was examined by PW4
- Dr. Hem Lata on 05/09/2012 vide MLC Ex. PW4/A. It is also not in dispute that in the MLC Ex. PW4/A, the date of last menstrual period (LMP) is 15/07/2012 which means as on the date of her examination on 05/09/2012, her last mensural period (LMP) was on 15/07/2012 which also means that is, about seven weeks ago as on 15/07/2012, prosecutrix had last menstrual period (LMP), as on the date of her examination on 05/09/2012.
It is an established fact if there is fertilization of ovum of the female released during the menstrual period by the sperm of the male, the zygote is formed and the pregnancy occurs and the menstrual circle ceases to take place, till the delivery is completed.
Since last menstrual period (LMP) of PW9 Prosecutrix was on 15/07/2012 and she was being examined on 05/09/2012 by PW4 - Dr. Hem Lata and it was being observed by PW4 - Dr. Hem Lata in the MLC Ex. PW4/A and deposed that uterus was eight weeks size, the said 59 of 69 60 FIR No. 240/12 PS - Maurya Enclave observation and deposition of PW4 Dr. Hem Lata that uterus was eight weeks size fully corroborates the testimony of PW9 Prosecutrix that sexual assault was committed upon her by the accused in August,2012 and when she missed her monthly mensuration date she disclosed all the facts of incident to Prabha Muni Didi (PW8) in the presence of Arun Bhaiya (PW2) on 04/09/2012 and the police was informed on 04/09/2012 and her statement Ex. PW8/A was recorded by the police on 05/09/2012 and her medical examination was got conducted on 05/09/2012, because the last mensural period (LMP) provides the approximate numerical value about the size of uterus in the case of pregnancy to the examining doctor/gyneacologist.
In the instant case the last mensural period (LMP) of PW9 Prosecutrix was on 15/07/2012 and she was being examined by PW4 Dr. Hem Lata on 05/09/2012, on simple arithmetical calculation, the size of uterus comes to about seven weeks which was observed to be as eight weeks size (Approx.) by PW4 Dr. Hem Lata as on the date of examination of PW9 Prosecutrix on 05/09/2012.
At the cost of repetition, as discussed hereinabove, the testimony of PW9 - prosecutrix on careful perusal and analysis has been 60 of 69 61 FIR No. 240/12 PS - Maurya Enclave found to be in consonance with her gynaecological examination as was conducted by PW4 - Dr. Hem Lata vide MLC Ex. PW4/A. In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for accused further submitted that there is contradiction between the testimony of PW9 - prosecutrix and PW8 - Prabha Muni on material point regarding investigation. PW8 states that she was called by Sh. Arun Kumar, owner of Krishna Placement Agency at his house, where she met prosecutrix (name withheld) there and thereafter she alongwith prosecutrix and said Mr. Arun came at HD 50, Pitam Pura, Delhi, thereafter Police was informed. Thereafter she was crossexamined by the Learned Addl. PP on the point that she met prosecutrix at HD - 50, Pitam Pura firstly. But she denied the suggestion and remained firm in the sequence of facts happened in her presence. On contrary, PW9 prosecutrix (name withheld) deposed in her testimony that she was at HD - 50, Pitam Pura, Delhi and PW8 - Prabha Muni and PW2 Sh. Arun Kumar came there. This suggests that PW9 is 61 of 69 62 FIR No. 240/12 PS - Maurya Enclave not giving true version of facts. This made PW9 prosecutrix as unreliable witness, as she was hiding the truth from the Court.
I have carefully perused and analysed the evidence on record.
The said discrepancies do no reflect upon the substantive evidence and the probative value of the statement made by PW9 - prosecutrix on the material and relevant aspects. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW9 - prosecutrix version on the core spectrum of crime has remained intact. Moreover, the said discrepancies are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence. Nor do they, in any way, corrode the credibility of the evidence. There are bound to be some discrepancies in the narration of witnesses when they speak out details.
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Discrepancies which 62 of 69 63 FIR No. 240/12 PS - Maurya Enclave do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
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 63 of 69 64 FIR No. 240/12 PS - Maurya Enclave to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
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 64 of 69 65 FIR No. 240/12 PS - Maurya Enclave the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for accused submitted that SI Harjinder Rana, Investigating Officer has also not taken interest to investigate the case fairly. She deposed in her statement that she did not enquire about 65 of 69 66 FIR No. 240/12 PS - Maurya Enclave the facts from the other servants in the house. She did not bother to make inquiries from the other maid and servants in the house, whereas on the day of incident there were 6 maid and servants working in the house (as stated by owner of the house, PW7 in his deposition). Moreover, she should have inquired about the character and history of the complainant and the accused from the other servants and maids and relevant persons in the house before coming to the conclusion, but she did not bother.
I have carefully perused and analysed the evidence on record.
As far as nonmaking of the inquiry from the other maids and servants in the house and of nonmaking of inquiries about the character and history of the prosecutrix and the accused from the other servants and maids of the house by the IO PW14 - SI Harjinder Rana is concerned, PW14 - SI Harjinder Rana, during her crossexamination has explained the factual situation and the steps taken by her during the investigation and has categorically and very specifically deposed that : "When I reached at the spot, prosecutrix, NGO Counsellor 66 of 69 67 FIR No. 240/12 PS - Maurya Enclave Prabha Muni, Arun of the placement agency, SI Kanhaiya Lal, Landlord Satpal and senior police officials were found present there. In the house, where the prosecutrix was working, besides the family members other male servants like driver etc. were also working which I came to know during the enquiries made in the investigation. Except for the chowkidar working at that house, no inquiries were made from the other servants working in that house. No neighbours were joined as the incident confined to the house in question. Vol. No neighbour had gathered when the police had reached there. No inquiry was made either from the prosecutrix or from the accused about their background. It is wrong to suggest that a proper investigation was not conducted by me. It is wrong to suggest that the accused has been falsely implicated in this case. It is wrong to suggest that I am deposing falsely."
On careful perusal and analysis the testimony of PW14 - SI Harjinder Rana corroborated by other evidence on the record as discussed hereinbefore, is found to be clear, cogent and reliable. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
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 67 of 69 68 FIR No. 240/12 PS - Maurya Enclave 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.
24. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that in the month of August, 2012, at about 8:00 p.m. in the store room built up on the roof of the top floor of house no. HD - 50, Pitam Pura, Delhi, accused Virender Yadav @ Githa forcibly committed rape upon PW9 prosecutrix, aged around 19 years without her consent and against her will and he also criminally intimidated the prosecutrix by threatening her to throw from the top floor of the house if she disclosed the incident of rape to anybody consequent upon which PW9 - prosecutrix became pregnant.
I accordingly hold accused Virender Yadav @ Githa guilty for the offences punishable u/s 376/506 IPC and convict him thereunder.
25. In view of above discussion, I am of the considered opinion 68 of 69 69 FIR No. 240/12 PS - Maurya Enclave that as far as the involvement of the accused Virender Yadav @ Githa in the commission of the offences u/s 376/506 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Virender Yadav @ Githa beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Virender Yadav @ Githa guilty for the offences punishable u/s 376/506 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 24th Day of February, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 69 of 69