Delhi District CourtState vs Harish S/O Sh. Anil Kumar on 18 July, 20091


    IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
 SESSIONS JUDGE - I : North- East / KARKARDOOMA COURTS:
                          DELHI.


Case ID Number.                     02402R0737162008
Sessions Case No.                   138/08
Assigned to Sessions.               31.10.2008
Arguments heard on                  14.07.2009
Date of order.                      18.07.2009
FIR No.                             247/08
State Vs                            Harish s/o Sh. Anil Kumar
                                    R/o H. No.-1/3184, Ram Nagar,
                                    Shahdara, Delhi.
Police Station                      M.S. Park
UnderSection                       376/506IPC


JUDGEMENT1. Briefly facts of the case are that on 05.08.2008 at around 6:30 a.m.

  at house No.1/3184, Ram Nagar, Shahdara, Delhi within the

  jurisdiction of Police Station M.S. Park accused Harish committed

  rape upon prosecutrix Smt. Tanu w/o Deepak Kumar against her

  consent and also threatened her to kill. In this regard, DD No.9A

  was recorded at Police Station M.S. Park. This DD was assigned to

  IO SI Ajit Kumar for investigation. On receipt of this DD IO SI Ajit

  Kumar alongwith lady Ct. Yashwati reached at the spot i.e. house

  No.1/3184, Ram Nagar, Shahdara and recorded statement of2prosecutrix. She was sent for medical examination through W/Ct.

  Yashwati. After medical examination doctor handed over four

  pullandas to IO which he further handed over to Inspector Sushma

  Rawat. Thereafter, he made endorsement upon the statement of

  Tannu vide Ex.PW13/A and got recorded FIR at Police Station M.S.

  Park against the accused. Thereafter, the police party reached at

  the spot along with prosecutrix. IO prepared site plan at the instance

  of prosecutrix.   Accused was arrested vide arrest memo Ex.PW1/B

  and his personal search memo         Ex.PW1/C and was booked for

  offenceu/s 376/506IPC.2. This case was committed to the Court of Sessions on 31.10.2008 for

  trial as it pertains to the heinous crime i.e. committal of rape upon

  prosecutrix by accused.3. To prove and substantiate its case the prosecution has examined 14

  witnesses namely PW1 Smt. Tannu, PW2 Smt. Usha, PW3 Insp.

  Sushma Rawat, PW4 Dr. Sarika, PW5 ASI Saroj, PW6 Ct. Sheovir

  Singh, PW7 Lady Ct. Yashwati, PW8 Ct. Mahaveer Singh, PW9 Ct.

  Om Prakash, PW10 HC Pramod, PW11 Naresh Kumar, PW12 HC

  Yogesh Kumar, PW13 SI Ajit Kumar and PW14 Dr. M. Das.34. In this case the most material witness is PW1 Smt. Tannu w/o

  Deepak Kumar, being victim. During the course of her examination

  she has deposed that she is a house wife. She testified that on

  05.08.2008 around 6:00 a.m. a quarrel had taken place with her

  mother in law and father in law as well as her husband since her in-

  laws were saying that she has not brought anything from her parents

  house.   On this, she called her mother through telephone. Her

  mother reached at her matrimonial house and her in-laws as well as

  her husband quarreled with her also. Her mother made a call to the

  police. Police took her mother, brother and her to Police Station.

  Police sent her for medical examination. Thereafter, she returned to

  her house. Police obtained her signatures on some papers which

  already written by them but she could not read out the contents of

  those documents. She further testified that      Ex.PW1/A i.e her

  statement bears her signature at point A but she does not know

  about the contents of the same.       She categorically stated that

  accused is her devar and he did nothing with her nor he quarreled

  with her. Consequent upon her deposition in the chief ld. APP got

  her declared hostile. She was cross examined.             She was

  contradicted with the statement recordedu/s 161Cr.P.C.         On

  perusal of her testimony it is revealed that no where it has come on

  record in the statement of prosecutrix that accused has raped4upon her. PW2 Smt Usha who is the mother of the prosecutrix

  appeared in the court. She has also been got declared hostile by the

  Ld. APP. She has also not deposed any fact with regard to rape

  committed by accused. Therefore the conviction for committal of

  rape, solely on their statements, cannot be held.5. PW3 Inspector Sushma Rawat is the formal as well as material

  witness in this case.      She appeared in the witness box on

  23.04.2009 and proved the material documents i.e. Site Plan as

  Ex.PW3/A, seizure memo of two pullandas as Ex.PW3/B and

  PW3/C. She has further proved the arrest memo of accused vide

  Ex.PW1/D and personal search memo Ex.PW1/C.              This witness

  also identified the photographs of the place of occurrence as Ext. P1,

  P2 and P3 respectively. She has sent pullandas to CFSL and proved

  the result of same as Ex.PW3/E and PW3/F.           She has correctly

  identified the accused. She has been cross examined by Ld. counsel

  Sh. Bhu Dutt Sharma and she denied all the suggestions put to her

  by the counsel in cross examination.6. PW4 Dr. Sarika came to the witness box and deposed that on

  5.8.2008 prosecutrix was brought by Lady Ct. Yashwati in GTB

  Hospital with the history of sexual assault by the brother in law. Dr.5Sarika found no fresh injury marks.      Hymen was ruptured. She

  proved the MLC of the victim as Ex.PW4/A. She has been cross

  examined by the Ld. defence counsel. I do not find any material on

  record which can suggest that this witness is false one.7. PW5 ASI Saroj is the formal witness being DD writer. She proved

  DD No.8A and 9A as Ex.PW6/A and PW6/B. She has not been

  cross examined by the defence counsel.8. PW6 Sheovir Singh is also a formal witness since one 25.8.2008 he

  deposited two sealed pullandas to FSL Office, Rohini. This witness

  has been cross examined by defence counsel.                In his cross

  examination, he denied the suggestion that he has deposed falsely.9. PW7 Lady Ct. Yashwati is the material witness. She has deposed

  that on 5.8.2008 she has joined the investigation of the present case

  with SI Ajit. She accompanied the IO to the place of occurrence i.e.

  01/3184, Ram Nagar, Delhi where HC Pramod met them.                She

  categorically stated that statement of prosecutrix was recorded. She

  got her medically examined at GTB Hospital. She again stated that

  IO prepared a rukka and sent her to the Police Station for getting

  the FIR registered. She got registered the case at Police Station.6This witness further stated that further investigation conducted by

  Inspector Sushma Rawat. Accused was arrested. She has been

  cross examined by the defence cousnel.           I have perused the

  same.    On perusal of her testimony I found some minor of

  contradictions which are attributable due to long duration of time and

  memory of human being.10.PW8 Ct. Mahaveer Singh is a formal witness being a

  photographer. He proved the photographs of the place of incident as

  Ex.P1 to P3 and negative of the same as Ex.P4 to P6. This witness

  has not been cross examined.11.PW9 Ct. Om Prakash is the formal witness who handed over two

  pullandas to the IO after medical examination of prosecutrix which

  were given to him by the doctor. This witness has also been cross

  examined by defence counsel. No contradiction of material in nature

  has come on record which can suggest that this witness is false one.12.PW10 HC Pramod is the witness who on receiving DD NO.8A

  reached at the spot prior to SI Ajit and Lady Ct. Yashwati.        He

  categorically stated that prosecutrix told that her devar Harish

  committed rape with her. Accordingly, he informed this fact to the7officers.   Consequent upon this SI Ajit Singh alongwith Lady Ct.

  Yashwati reached at the spot. He further testified that prosecutrix

  was medically examined,     Inspector Sushma Rawat also reached

  there, crime team officials were called at the spot who took

  photographs of the place of incident.    He specifically stated that

  accused Harish was arrested and he was also medically examined

  at GTB Hospital. This witness has correctly identified the accused.

  Ld. defence counsel cross examined this witness at length. I

  have perused the same very carefully. I found so many minor type

  of contradictions which are attributable due to long duration of time

  and memory of human being.13.PW11 Naresh Kumar, Sr. Scientific Assistant (Biology), FSL,

  Madhuban Chowk, Sector-14, Rohini, Delhi, appeared in the witness

  box on 02.06.2009.      On careful perusal of his testimony, it is

  revealed that on 25.8.2008 six sealed parcels were received in his

  office in case FIR No.247/08u/s 376/506IPC. On opening the parcel

  containing underwear marked Ex.1, parcel no.2 containing a few

  strands of hair described as pubic hair clippings, parcel no.3

  containing cotton wool swab on stick labelled as Tannu HVS and

  vulval swab marked as Ex.3a and Ex.3b respectively, parcel no.4,

  containing two micro slides having whitish smear (one micro slide is8broken), parcel No.5, containing one underwear marked Ex.5 no hair

  could be detected in Ex.5, parcel No.6 containing gauze cloth piece

  having brown stains described as blood on guaze marked Ex.6. In

  biological examination blood was detected on Ex.6 and blood could

  not be detected on Ex.5. Human semen was detected on Ex.3a, 3b,

  4a and 4b. Semen could not be detected on Ex.1, 2 and 5. Vaginal

  epithelial cells could not be detected on Ex.5.      In serological

  examination blood detected on Ex.6 i.e. gauze cloth piece was

  human in origin and of " B" group. In semen examination of Ex.3a

  and 3b i.e. cotton wool swab give no reaction for ABO grouping.

  Remnant of exhibits were sealed with the seal of NK, FSL, Delhi.

  This witness proved both these reports as Ext. PW3/E and PW3/F

  which bears his signatures at point A, B and C. This witness has not

  been cross examined by the defence counsel.14.PW12 HC Yogesh Kumar is the formal witness being Duty Officer.

  This witness has proved the computerized copy of the present case

  Ex.PW12/A. The testimony of this witness has not been challenged

  by the defence counsel.15.PW13 SI Ajit Kumar, No.1202 is a material witness being IO. I

  have perused the testimony of this witness.      This witness has9deposed more or less similar facts as deposed by PW10              HC

  Pramod Kumar, PW7 Lady Ct. Yashwati and PW3 Inspector Sushma

  Rawat.   This witness further proved the endorsement which was

  made by him upon the statement of prosecutrix as Ex.PW13/A. This

  witness has also correctly identified the accused. This witness has

  been cross examined by the defence counsel at length.           I have

  perused the same. I found some minor type of contradictions.16.PW14 Dr. M. Das appeared in the witness box on 2.6.2009 on

  behalf of Dr. Akhlak who had medically examined accused Harish.

  He has further categorically stated that nothing was suggestive that

  accused is not unable to do sexual act.    He identified the signature

  and handwriting of Dr. Akhlak on the MLC of accused which is

  Ext.PW14/A.    The testimony of this witness was controverted by

  defence counsel. In the cross examination this witness stated that

  he has no personal knowledge of this case. Prosecution evidence

  was directed to be closed vide this court order dated 02.06.09.18.Thereafter, statement of accused undersection 313Cr. PC was

  recorded in which the defence of the accused was of denial in

  simplicitor. He has denied all the allegations and submitted that he

  has been falsely implicated in this case by the police. After this case10was fixed for arguments and the arguments were concluded on

  14.07.09.19.During the course of arguments, Ld. APP for the state submitted

  that it has come in the statement of PW11 Naresh Kumar, Sr.

  Scientific Assistant (Biology), FSL, that in biological examination

  blood was detected on Ex.6. Human semen was detected on Ex.3a,

  3b, 4a and 4b. In serological examination blood detected on Ex.6 i.e.

  gauze cloth piece was human in origin and of " B" group. He again

  argued that accused was arrested at the spot. On these grounds, he

  argued that incident of intercourse has taken place so the

  prosecution has proved its case against the accused beyond

  reasonable doubt for the offence punishableu/s 376IPC. Ld. APP

  further submitted that Hon' ble Apex Court observed in AIR 1973

  Supreme court 469 - Madho Ram and Another Vs The state of

  U.P. that:-" The only rule of law is the rule of prudence, namely,
                     the advisability of corroboration should be present in
                     the mind of the judge or the jury, as the case may be.
                     There is no rule of practice that there must, in every
                     case, be corroboration before a conviction can be
                     allowed to stand."Again ld. APP pointed out the observation made in AIR 1996

     Supreme Court 1393 (1) that:" ... ... .It is a sad reflection on the attitude of indifference of
                   the society towards the violation of human dignity of the
                   victims of sex of crimes. We must remembers that a rapist
                   not only violates the victim' s privacy and personal integrity,
                   but inevitably causes serious psychological as well as11physical harm in the process. Rape is not merely a physical
                  assault it is often destructive of the whole personality of the
                  victim. A murderer destroys the physical body of his victim,
                  a rapist degrades the very soul of the helpless female. The
                  courts, therefore, shoulder a great responsibility while trying
                  an accused on charges of rape. They must deal with such
                  cases with utmost sensitivity. The Courts should examine
                  the broader probabilities of a case and not get swayed by
                  minor contradictions or insignificant discrepancies in the
                  statement of the prosecutrix, which are not of a fatal in
                  nature, to throw out an otherwise reliable prosecution case.
                  If evidence of the prosecution 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 to her
                  testimony, short 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 to its responsibility and be sensitive
                  while dealing with cases involving sexual molestations."Again reiterated on the point of questions to the prosecutrix as to
     details of the rape observed that :" The provisions ofEvidence Actregarding relevancy of
                   facts notwithstanding, some defence counsel adopt the
                   strategy of continual questioning of the prosecutrix as to the
                   details of the rape. The victim is required to repeat again
                   and again the details of the rape incident not so much as to
                   bring out the facts on record or to test her credibility but to
                   test her story for inconsistencies with a view to attempt to
                   twist the interpretation of events given by her so as to make
                   them appear inconsistent with her allegations. The Court,
                   therefore, should not sit as a silent spectator while the victim
                   of crime is being cross-examined by the defence. It must
                   effectively control the recording of evidence I the Court.
                   While every latitude should be given to the accused to test
                   the veracity of the prosecutrix and the credibility of her
                   version through cross-examination, the Court must also
                   ensure that cross-examination is not made a means of
                   harassment for causing humiliation to be victim of crime. A
                   victim of rape, it must be remembered, has already
                   undergone traumatic experience and if she is made to
                   repeat again and again in unfamiliar surroundings, what
                   she had been subjected to , she may be took ashamed
                   and even nervous or confused to speak and her silence
                   or a confused stray sentence may be wrongly
                   interpreted as " discrepancies and contradictions" in her
                   evidence."20.Per contra, Ld. defence counsel Sh. Bhu Dutt Sharma for accused

  argued and submitted that main witness PW1 prosecutrix has been

  got declared hostile and no where in her statement it has come on

  record that incident of rape has taken place with the prosecutrix. He12again argued that on the medical evidence and FSL report the

  conviction cannot be held by relying upon medical evidence as sole

  ground. In support of his contentions ld. defence counsel has relied

  upon the judgment 'Verumalla Vs State (2006) 9 SCC 713', and

  submitted that it has been held by Hon'ble Supreme Court of India

  that where the evidence of prosecution is belied by the medical

  evidence the accused is entitled to acquittal.He again relied upon

  the another citation ie.'Sadashiv Vs. State(2006) 10 SCC -92'

  wherein it has been held by Hon'ble Supreme Court if the version

  given by the prosecutrix is unsupported by any medical evidence or

  the whole surrounding circumstances and highly improbable and

  belie the case set up by the prosecutrix, the court shall not act on the

  solitary evidence of the prosecutrix.In,Tukaram Vs. StateAIR

  1979 SC 185 it has been held by Supreme Court where the victim

  girl failed to appear to her companions who were none other than

  her near relations and meekly followed the accused appellant and

  allowed him to have his way with her to the extent of satisfying his

  lust in full it was held that the consent of the victim could not be

  brushed aside and the victim girl had actually consented.21.Definition of rape has been given undersection 375IPC. For the

  sake of claritysection 375IPC is being re-produced verbatim which13is as under:-" 375. Rape - A man is said to commit 'rape' who, except in the
             case hereinafter excepted, has sexual intercourse with a woman
             under circumstances falling under any of the six following
             descriptions:-First.- Against her will.Secondly.- Without her consent.Thirdly.- With her consent, when her consent has been obtained
            by putting her or any person in whom she is interested in fear of
            death or of hurt.Fourthly.- With her consent, when the man knows that he is not
            her husband, and that her consent is given because she believes
            that he is another man to whom she is or believes herself to be
            lawfully married.Fifthly.- With her consent, when, at the time of giving such
            consent, by reason of unsoundness of mind or intoxication or the
            administration by him personally or through another of any
            stupefying or unwholesome substance, she is unable to
            understand the nature and consequences of that to which she
            gives consent.Sixthly.- With or without her consent, when she is under sixteen
            years of age.Explanation.- Penetration is sufficient to constitute the sexual
            intercourse necessary to the offence of rape.Explanation.- Sexual intercourse by a man with his own wife,
            the wife not being under fifteen years of age, is not rape."22.In light of the above discussed facts and circumstances of the case I

  am of the view that in the catena of judgments delivered by the Apex

  Court it has been at number of times reiterated that conviction can

  be safely awarded to the accused on the sole testimony of the

  prosecutrix but the rule of prudence required that the testimony of

  prosecutrix is to be examined/ scanned with great caution and

  circumspection.         To my view in the present state of affairs

  prosecutrix PW1 has not supported the prosecution case on any

  count and has denied the incident of rape by accused Harish. The14prosecutrix is the sole witness who can only reveal the truth with

  regard to the allegation of the rape as in such cases it is difficult to

  prove the charge of rape. Hence, her testimony creates a doubt

  whether the incident of rape had taken place or not. Other material

  witnesses namely PW2 Smt. Usha,           PW11 Naresh Kumar, Sr.

  Scientific Asstt. (Bilogy) have also not supported the prosecution

  story in material particulars. Besides, in catena of judgments supra

  it has also been observed in number of cases that conviction can

  solely be based on the scientifically and technological principles with

  regard to the alleged incident of rape but in the present case these

  principles also do not meet out the requisite standard required for

  evidence based on substantive and corroborative evidence.23.Interestingly it is noted that the material witness who could have

  been corroborated the case, in case the substantive piece of

  evidence could have been given on the record from the mouth of

  prosecutrix, as the mother of the prosecutrix Smt. Usha has also

  denied the incident of rape with her daughter.24.It is also interesting to note that though the human semen on Ex.3a

  (Cotton wool swab on a stick kept in a test tube labelled as Tannu

  HVS) has been found as per the testimony of PW11 Naresh Kumar,15Sr. Scientific Assistant (Biology),FSL vide FSL report Ex.PW3/E but

  the same is not corroborated with the fact that the semen was of the

  accused. Therefore, facta probanda and facta probantia on larger

  scale for the non corroboration has been found of the substantive

  evidence.   Both   these having     big marks of distinction between

  substantive evidence and corroborative evidence with regard to the

  proof of case against the accused ex facie gives benefit of doubt to

  accused.25.In light of the above discussed facts and circumstances of the case
  and perusal of the statement of prosecutrix and her mother I found
  that neither the statement of prosecutrix is corroborated with the
  statement recordedu/s 161Cr. PC nor the statement of her mother
  PW2 Smt. Usha has been proved. These witnesses are only the
  material witnesses on whose statements the fate of the case could
  have been decided.     Since, the prosecutrix has denied to have
  committed the act of rape by the accused        so the conviction of
  accused does not deserve merit to succeed. Therefore, having kept
  this in mind I acquit the accused for the offenceu/s 376/506IPC.
  His bail bond is cancelled and surety is discharged.        File be
  consigned to record.ANNOUNCED IN THE OPEN
   COURT ON THIS 18.07.09

                                             (RAJ KAPOOR)
                          ADDL. SESSIONS JUDGE-I/NORTH EAST
                               KARKARDOOMA COURTS: DELHI