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1. This judgment pertain to a rape committed upon an old lady of 77 years of age (who is hereinafter called as P, as her name is withheld in STATE VS BHOLA ADIVASHI FIR NO.105/11//PS­K.N.KATJU MARG U/S. 307/328/376/506 IPC view of the Supreme Court guidelines) on the intervening night of 11/12.3.2011

2. Brief facts of the prosecution story are that on 11.03.2011 prosecutrix came to her sister's house at C­10/21, Sector­15, Rohini and at about 6.30 pm, her sister arranged one rickshaw for her for Rohini Metro Station (West), and the said rickshaw puller (accused Bhola Adivashi) brought one white handkerchief near her face two/three times, due to which she became unconscious and regained consciousness when she fallen down on the stones. Thereafter, said rickshaw puller dragged her to a lonely place, where he gave her beating and committed sexual intercourse forcefully and thereafter left her. Two persons found her weeping in the morning in the bushes of Japanese Park, near Gole Chakkar in the morning of 12.3.2011 at about 6/6.30 a.m. came in the morning and took the prosecutrix to her house and from there her son taken her to the BSA Hospital and police was informed. The IO recorded STATE VS BHOLA ADIVASHI FIR NO.105/11//PS­K.N.KATJU MARG U/S. 307/328/376/506 IPC her statement and on the basis of said statement FIR No.105/11 was registered in the PS­K.N. Katju Marg, u/s.323/328/506/376 IPC. On 13.03.2011accused was arrested. After completion of investigations chargesheet was filed u/s. 376/307/328/506 IPC.

However, in Devender Singh & Others Vs. State of H.P. AIR 2003 SC 3365, it was held by the Hon'ble Supreme Court that:­ the law is well settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.p. Vs. Gian Chand (2001) SCC 71, on a review of decisions of this Court, it was held that conviction for an offence or rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. This court further held : "if evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance of her testimony, short STATE VS BHOLA ADIVASHI FIR NO.105/11//PS­K.N.KATJU MARG U/S. 307/328/376/506 IPC of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive or its responsibility and be sensitive while dealing with cases involving sexual molestations.........." The most important witness of the prosecution case is the PW1/P. She has stated that on 11.3.2011 she had taken rickshaw of accused on hire for going to West Metro Station, Rohini from her sister's (Smt. Sudesh ) house at Sector­15, Rohini, at about 6/6.30 p.m., but accused had waived one white colour handkerchief near her face and mouth twice or thrice, due to which she felt giddiness (Achet si Ho Gayi) and she regained consciousness, when she fell on the stones. Thereafter rickshaw puller dragged her to a lonely place, in the bushes and where he pressed her mouth and also threatened her that, if she raised alarm or cried, then he will stab her. Accused had given her fist blow on her both eyes and committed forcible sexual intercourse with her after removing her clothes. She has also stated that her statement Ex.PW1/B recorded by the STATE VS BHOLA ADIVASHI FIR NO.105/11//PS­K.N.KATJU MARG U/S. 307/328/376/506 IPC ld. MM Ms. Vandana (PW11). On perusal of the statement Ex.PW1/B, I found that, she has deposed almost same facts wich she has deposed in her statement recorded in this court. She identified the accused Bhola Adivashi as the rickshaw puller. She has also stated that she identified the accused in the TIP proceedings, conducted by the PW10, Shri Jagmohan, ld. MM on 05.04.2011 and proved the same as Ex.PW1/C. Nothing has come out in the cross examination by the ld. Amicus Curiae for the accused, which could dent the testimony of PW1/P. I am not agree with the contention of ld. Amicus Curiae that since she has deposed that she was taken to hospital in the same TSR, whereas, PW13 & PW14 has deposed that, they dropped P to her house and thereafter driver of the TSR went away from there. In my view said contradiction is minor in nature and do not affect the credibility of the witness. It is held by the Hon'ble Supreme Court of India in a case titled as Bharwada Bhoginbhai Hirjibhai Vs State of Gujrat, AIR 1983 SC 753(1) that "Over much importance cannot STATE VS BHOLA ADIVASHI FIR NO.105/11//PS­K.N.KATJU MARG U/S. 307/328/376/506 IPC be attached to minor discrepancies. The reasons are obvious:­ (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 the mental screen.

37. As far as charge u/s. 328 IPC is concerned, the prosecutrix in her testimony had deposed that accused waived a white colour handkerchief in front of her face three/four times, due to which she felt STATE VS BHOLA ADIVASHI FIR NO.105/11//PS­K.N.KATJU MARG U/S. 307/328/376/506 IPC giddiness and became sub­conscious (Achet si Ho Gayi). The testimony of PW21 WASI Krishna proved that accused had got recovered one white colour handkerchief from the bed and one small bottle of diluter from the House No. G­16/41, Sector­15, Rohini, Delhi, which was seized by her vide Seizure memo Ex.PW19/F. Her testimony is corroborated by the PW19 HC Surender Singh with PW21 at the time of arrest and recovery of these articles with the IO. The contention of the ld. Counsel for the accused that at the time of recovery of these articles no public person had joined the proceedings, therefore, recovery is doubtful. Even otherwise, recovery of handkerchief and diluter is not of any help to the prosecution, as same has not been sent for chemical examination, whether it contains any poisonous, stupefying or intoxicating substance. But in my view due to lapse of the IO the testimony of PW1 cannot be discarded. She has stated that accused has brought one handkerchief in front of her mouth and due to which she felt like unconsciousness, due to which accused managed to take her at STATE VS BHOLA ADIVASHI FIR NO.105/11//PS­K.N.KATJU MARG U/S. 307/328/376/506 IPC secluded place, instead. Therefore, I am of the view that the handkerchief might have some substances which make P unconscious. Hence, I held that offence u/s. 328 IPC is also proved against the accused.

Convict is sentenced to undergo Life Imprisonment for offence u/s. 376 IPC.
FOR OFFENCE U/S. 328 IPC:
Convict is sentenced to undergo Rigorous Imprisonment of Five Years for offence u/s. 328 IPC.
FOR OFFENCE U/S. 323 IPC:
Convict is sentenced to undergo Simple Imprisonment for Six Months u/s. 323 IPC.
STATE VS BHOLA ADIVASHI FIR NO.105/11//PS­K.N.KATJU MARG U/S. 307/328/376/506 IPC FOR OFFENCE U/S. 506 IPC: