IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL FAST TRACK COURT), DWARKA COURTS, NEW DELHI. [CASE NUMBER]. Unique Case ID No.02405R0061032013. [ENTITY] Vs. [ENTITY], S/o Sh. Somdutt [ENTITY], R/o B-64, IDC Apartment, Sector-11, Dwarka, New Delhi. Date of Institution : 07.2.2013. FIR No.253 dated 05.11.2012. U/[SECTION] [ACT]. P.S. Dwarka South. Date of reserving judgment/Order : 07.3.2014. Date of pronouncement : 18.3.2014. JUDGMENT
1. The above named accused has been arraigned in this case on the allegation that he committed rape upon the maid working in his house on 01.10.2012.
2. The prosecution case, in short, is that the prosecutrix namely 'D' (real name withheld in order to conceal her identity) was working as a domestic maid in the flat of the accused since 15.1.2012 and on 01.10.2012, when accused and prosecutrix were alone in the house at about 3 p.m., accused caught hold of her, took off of her clothes and raped her. Thereafter, the accused left his flat and made a call to the prosecutrix from outside twice threatening her that he would kill her if she narrated the incident to anybody.
3. It is further the case of the prosecution that a PCR call was received in the police station on 05.11.2012 at about 1.50 p.m., in which caller had stated that she has been raped and she is standing near Metro Station, Nawada. The information was recorded as DD No.23A and was entrusted to SI [ENTITY] for suitable action. Accordingly, SI [ENTITY] alongwith PSI [ENTITY] reached P.S. Uttam Nagar where the prosecutrix was produced before them by ASI [ENTITY] and ASI [ENTITY]. ASI [ENTITY] told SI [ENTITY] that the PCR call was received in their police station also and the same has been recorded there as DD No.26A but on reaching the spot, they found that the place of offence fell within the jurisdiction of P.S. Dwarka South and hence the information about the call was given to P.S. Dwarka South. SI [ENTITY] recorded the statement of the prosecutrix and got the FIR registered u/[SECTION] [ACT]. After registration of the case, investigation was entrusted to SI [ENTITY]. She took the prosecutrix to DDU Hospital and got her medically examined vide [CASE NUMBER]. She also prepared site plan of the spot of incident at the instance of the prosecutrix. Accused came to be arrested from his flat. He confessed to have committed the crime in question. He was got medically examined. His potency test was also got conducted. [ENTITY]ments of all material witnesses were recorded. The prosecutrix was produced before the concerned Ld. M.M., who recorded her statement u/[SECTION] [ACT]. The ossification test of the prosecutrix was also got conducted at DDU Hospital and her age was opined to be between 20 - 25 years. The IO obtained the call details record of the landline telephone no.25086224 on the telephone installed at the flat of the accused and the mobile no.9582300533 of Sh. [ENTITY], the placement agency owner, who had provided the prosecutrix as maid to the accused.
4. After completion of the investigation, Charge Sheet was prepared and laid before the concerned Ilaqa Magistrate. Upon committal of the case to the court of Sessions, charge u/[SECTION] [ACT] and u/[SECTION] [ACT] was framed against the accused on 01.7.2013. The accused abjured his guilt and accordingly trial was held. At trial, the prosecution examined 16 witnesses to prove the guilt of the accused. The accused was examined u/[SECTION] [ACT] on 11.2.2014. He denied the prosecution case and claimed false implication. He stated that the prosecutrix has filed a false complaint against him in order to extort money from him. He further stated that on the date of incident i.e. 01.10.2012 he was present in the meeting of [ENTITY] of their society in the society office from 2 p.m. to 4 p.m. The accused examined Sh. [ENTITY], Vice President of [ENTITY] of their society as DW1, who proved relevant entry in the register of [ENTITY] pertaining to the meeting of [ENTITY] held on 01.10.2012 in the society office from 2 p.m. to 4 p.m.
5. I have heard Ld. APP, Ld. Counsel for the accused and have perused the entire oral as well as documentary evidence on record.
6. Both the Ld. APP and Ld. Counsel for the accused have taken me through the deposition of material witnesses including that of the prosecutrix. It was submitted by Ld. APP that the testimony of the prosecutrix before this court is consistent with her statements recorded during the course of investigation and her testimony nowhere indicates that she is not a reliable witness. She further submitted that the delay of one month in reporting the matter to the police is not fatal to the prosecution case for the reason that prosecutrix belongs to a poor and downtrodden section of the society and there was nobody in Delhi, with whom she could confide. She submitted that the prosecutrix met her friend Ms. [ENTITY] (PW4) on 04.11.2012 and narrated the incident to her, pursuant to which the call was made at telephone no.100 and the case was registered. According to Ld. APP, the prosecution has successfully proved the charges against the accused beyond reasonable doubt.
7. On the other hand, Ld. Counsel for the accused vehemently argued that no such incident or rape has ever taken place and the accused has been falsely implicated by the prosecutrix in order to extort money from him. He submitted that when the accused, being Secretary to [ENTITY] of their society, was present in the meeting of [ENTITY] in society office on 01.10.2012 from 2 p.m. to 4 p.m. there arose no question that he would have committed rape upon the prosecutrix on that day at 3 p.m. He further argued that the fact that there has been delay of more than one month in lodging the complaint also demonstrates that it is a totally false case. He further submitted that even otherwise also the accused being a 70 years old person and having various ailments, is not capable of performing sexual act and by reason of that also he is entitled to acquittal. The Ld. Counsel urged this court to acquit the accused.
8. In cases involving the offence of rape, the testimony of prosecutrix is the most vital and material piece of evidence. Her statement if found to be worthy of credence and reliable, requires no corroboration and court may convict the accused on her sole testimony. A prosecutrix of sex offence cannot be put on par with an accomplice. She is in fact a victim of crime. The [ACT] nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtable and competent witness under [SECTION] and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. In case involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. While evaluating evidence, the court must remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour. At the same time, it is also settled position that if for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in case of an accomplice. If the court of facts finds it difficult to accept the version of the prosecutrix at its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. (See- [ENTITY] of Maharashtra vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658, [ENTITY] of U.P. vs. Pappu @ Yunus and anr., AIR 2005 SC 1248, [ENTITY] of Punjab vs. [ENTITY] and Ors., AIR 1966 SC 1393).
9. It would also be useful to keep in mind the following observations of the Supreme Court made in Raju vs. [ENTITY] of M.P., (2008) 5 SCC 133 :
"12. Reference has been made in [ENTITY]'s case to the amendments in 1983 to [SECTION] and [SECTION] of the [ACT] making the penal provisions relating to rape more stringent, and also to [SECTION] of the [ACT] with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that [SECTION] and [SECTION] too were inserted in [ACT] by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under [SECTION] is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
10. It can be aptly said that in cases involving sexual assault upon women, the evidence of the victim should be of sterling quality as the fate of the case depends upon the quality and face value of her testimony. Who can be termed as a 'Sterling Witness' has been dealt with in the case of Rai Sandeep @ Deepu vs. [ENTITY] of NCT of Delhi, 2012 (131) DRJ 3 (SC) wherein the quality of the testimony of the prosecutrix, which can be made as a basis to convict the Appellant, was considered in detail and it was so held:
"15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime, should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
11. Keeping in view the aforesaid golden principles, laid by the Supreme Court, in mind, let me proceed to scrutinize the testimony of prosecutrix and other witnesses in this case.
12. The prosecutrix has been examined as PW3. She stated her age as 20 years and deposed that she was brought to Delhi from her native village by a co-villager namely [ENTITY] on 07.1.2012 and on reaching Delhi, [ENTITY] left her with [ENTITY], who runs M/s. [ENTITY] Placement Agency. [ENTITY] got her the job of domestic servant in the house of accused and she started working there w.e.f. 13.1.2012. She used to stay in the house of the accused during the night also. She further deposed that on 01.10.2012 at about 3 p.m., she and accused alone were present in the house. The wife of the accused had gone to the house of somebody else. His son had gone for his job and his daughter-in-law alongwith her child had gone to Mumbai. At that time, the accused was watching an obscene movie on the computer and asked her to fetch some water for him. When she went to him with a glass of water, the accused caught hold of her and kissed her on her mouth and pressed her breast. Thereafter accused took off her shirt and [ENTITY], laid her on the bed, unzipped his pant and committed rape upon her. She could not raise alarm as he was continuously kissing her mouth. The accused inserted his penis into her vagina only once but thereafter could not do so as her legs were hanging down from the bed. Thereafter accused released her hands. She hit him with her hands asking him why he had done so. The accused told her that he has not done anything and only wanted to see her pubic hair. She raised alarm but accused asked her not to do so as he would be ridiculed if anybody hears her shouts. She was also bleeding from her private part. Thereafter, she put on her clothes and went towards [ENTITY]. The accused called her inside and told her that he would give her Rs. 50,000/- and would make her like a queen and if she did not narrate the incident to anybody. Accused then asked her to prepare tea for him. She prepared tea for him and gave it to him. The accused offered apology to her saying that he has done a mistake and caught hold of his ears. Thereafter the accused went out of the house and closed the door from outside. She was inside the house. She dialled the mobile number of [ENTITY] from the landline telephone installed in the house of the accused. [ENTITY] and his wife reached there. They called accused and after arrival of the accused, all the three entered the house. At that time, she did not disclose the incident to them as she felt that the accused is a man of status and would get ridiculed and shamed. Thereafter [ENTITY] and his wife took her alongwith them and left her in the house of one [ENTITY], who is associated with an NGO. After she had made call to [ENTITY], accused made a call on the landline telephone in the house and asked her whether she had called [ENTITY] and she replied in negative. He again threatened her not to reveal the incident to anybody or otherwise, he would kill her.
13. She further deposed that she remained in the house of [ENTITY] for about one month. Then she heard that her friend [ENTITY], who was also working as maid in a house at Dwarka, had come to the house of [ENTITY]. She went to the house of [ENTITY] on 04.11.2012 to meet her friend [ENTITY]. She and [ENTITY] slept together in the house of [ENTITY] and she narrated the incident of rape to [ENTITY]. [ENTITY] asked her that why she remained silent and did not report the matter to police. [ENTITY] further told her that the accused needs to be taught a lesson. In the morning on 05.11.2012 she alongwith [ENTITY] came to Nawada Metro Station from where she made a call at telephone no.100. Police reached the spot and took them to P.S. Uttam Nagar where inquiries were made from her. Then police officials of P.S. Dwarka came there and brought them to P.S. Dwarka. She showed the house of the accused to police officials but accused was not present there at that time. She was brought back to the police station and her statement Ex.PW3/A was recorded, which was signed by [ENTITY] also. She was then produced before the Ld. M.M. on 06.11.2012, who also recorded her statement which she proved as Ex.PW3/B.
14. In the cross examination, she denied that she was having menstrual periods on 01.10.2012. She was confronted with her statement to the police as Ex.PW3/A and statement u/[SECTION] [ACT] Ex.PW3/B wherein she had not mentioned that the accused was watching an obscene movie at the time of incident and had offered her Rs.50,000/-, if she did not narrate the incident to anybody. She further deposed that on the date of incident, wife of the accused had told her that she is going to flat no.51. She had been told that a friend of accused's wife resides in that flat. She used to go to that flat to deliver cooked dishes and the landlady of that flat used to give her chocolate etc. She deposed that after the incident of rape, she had changed clothes and had left the clothes which she was wearing at that time in the bathroom in the flat of the accused when she left alongwith [ENTITY] and his wife. The wife of the accused had returned to the flat before arrival of jatin and his wife but she did not show those clothes to her. [ENTITY] and his wife reached the flat of the accused at about 5 p.m. She was not having the phone number of any other flat number or the gatekeeper of the apartment and therefore, she could not make call to anybody when the accused left the flat after the incident. At another place in cross examination, she deposed that [ENTITY] had come to the flat of the accused alone on receipt of her call. She further deposed that the accused caught hold of her both hands while kissing her. She had tried to escape from the clutches of the accused but did not succeed. Her lower lip started bleeding as the accused had beaten her from inside the lip. She did not apprise [ENTITY] about the lip injury also. She further deposed that she knew [ENTITY] for a long time as their native villages are adjacent to each other. She used to meet [ENTITY] in the compound of the apartment while she was working in the house of the accused. She had met [ENTITY] for the last time in the month of July, 2012 and thereafter [ENTITY] had left the apartment and had taken a job somewhere else. [ENTITY] had not given her telephone number to her. The accused given her Rs.1,000/- when she left alongwith [ENTITY] and she did not refuse to receive that amount. Accused had given that amount as part of her salary. She had not demanded the money from the accused but the accused gave the said sum of money to her on his own. She further deposed that on 05.11.2012 [ENTITY] had not accompanied her and [ENTITY] to Nawada Metro Station. According to her, [ENTITY] is a married lady. She had seen [ENTITY]'s husband when she was staying with her in her house. She did not know whether the name of [ENTITY]'s husband is [ENTITY] and that he is a friend of [ENTITY]. She further denied all the suggestions put to her by the Ld. Counsel for the accused.
15. Before proceeding to the testimony of other material witnesses of the prosecution, it would be relevant to reproduce here the statement u/[SECTION] [ACT] of the prosecutrix, which is Ex.PW3/B. The statement is in Hindi and free translation of its relevant portion is reproduced hereunder :
" I had come to Delhi alongwith [ENTITY]. She left me with the agency. Agency employed me in Sector-11, Dwarka, within two to three days. I have been working in the house of [ENTITY] uncle since January, 2012. His wife, his son, his daughter-in-lawan and his grandchild stayed with him. I did not face any difficulty since January. On 01.10.2012 aunty had gone to some other house at about 2 p.m. [ENTITY] had left for his office at about 8 a.m. [ENTITY] and the child had gone to Mumbai one day before. At 3 p.m. [ENTITY] uncle was operating computer. He told me that his work is done and asked me to given him some water. I was drying clothes in the [ENTITY]. I gave him water. After taking water, he put the glass on the table and asked me to show my hands. I asked him why he wants to see my hands. [ENTITY]'s door was already closed. He did not close the door of the room. He pulled my hands and laid me on the bed and kissed me on my lips. He had caught hold of my both hands with one hand and opened my Salwar. He untied the string of my Churidar and then unzipped his pant. Thereafter he raped me. He inserted his long urinary organ into my urinary organ. He inserted only a little bit and could not insert the whole. I moved here and there, as a result of which he could not insert the whole. I started bleeding. He inserted only once and then took it out. Thereafter he took off my shirt and all this time, he continued to kiss my lips, on account of which I could not shout. After taking off my shirt, he lifted my brasserie and started touching me with his mouth. I shouted loudly and set free my hands. I beat him. Thereafter he left me. I started weeping on the bed. He asked me why I was weeping and then went out. He then made a call to me on intercom and threatened me that if I told this to anybody including [ENTITY], he would kill me. He had called me twice. At first occasion, he told me that he would beat me and on the second occasion, he told me that he would kill me. I made a call to the agency owner at 4 p.m. and told him that I would proceed on leave. Agency owner came to the house. Aunty and uncle also came to the house. I left alongwith agency owner. I told aunty that I want two days leave. Uncle told me that why only two days, I can go on leave for 3/4 days. He also gave me Rs.1,000/-. Thereafter, I left alongwith agency owner. After 3 or 4 days, I told the agency owner that I would not go for work. He asked me the reason and I told him that I do not feel like doing any work. Thereafter my friend [ENTITY] came there on 4th November came there as she was proceeding towards her home. She asked me whether I would also go home or continue to work. I narrated the incident to her and told her that for this reason, I would neither go home nor for work. She told me that why I did not narrate the incident to anybody. Then on 05.11.2012 I made a call at telephone no.100 from Nawada Metro Station. "
16. In her statement Ex.PW3/A, on the basis of which FIR has been registered in this case, the prosecutrix narrated the incident of rape in the following manner :
" On 01.10.2012 only myself and [ENTITY] were present in the house. Landlady had gone to some other house and her daughter-in-law and grandchild had gone to Mumbai. At 3 p.m., I had gone out to try the clothes. [ENTITY] called me to his room and asked me to fetch some water for him. When I went to him alongwith water, he caught hold of my hands and took off my all clothes. I shouted intensely but my shouts did not reach outside the room. Thereafter, [ENTITY] committed rape upon me. At about 4 p.m., he went downstairs and thereafter made call to me twice and threatened me that he would kill me if I narrated the incident to anybody. Thereafter I left work on the same day. "
17. Ms. [ENTITY] has been examined as PW4. She deposed that she knew the prosecutrix from her native village and in the year 2012, they were employed as maids in two different flats in IDC Apartment, Sector-11, Dwarka. She was working in a flat on the second floor and the prosecutrix was working in a flat on the 6th floor. She did not know the name of the employer of the prosecutrix. She left the job in the said flat in July, 2012 and thereafter was sent by the placement agency to Gujrat for working as a maid where she remained for one month. She fell ill and accordingly returned to Delhi. She further deposed on 04.11.2012, which was a Sunday, she went to the house of [ENTITY] to meet him and told him as she is leaving for her native village. Prosecutrix was also present there. She noticed that the prosecutrix was in a depressed state and not talking to her freely. Prosecutrix gave short replies to what was asked from her. She asked the prosecutrix the reason for her unusual conduct and during the night when they were sleeping together, prosecutrix told her that her employer had committed rape upon her. She told the prosecutrix that they should not remain silent and should report the matter to the police. Next morning, they reached Nawada Metro Station and from there made a call at telephone no. 100 from a PCO. Police officials reached there and they were brought to P.S. Uttam Nagar. After making inquiries from them, they were taken to P.S. Dwarka where their statements were recorded. From the police station, they were taken to hospital where medical examination of the prosecutrix was conducted. They spent night in the police station. Next day, they were brought to the court where statement of the prosecutrix was recorded by the Ld. Magistrate. She identified her signatures on the said statement Ex.PW3/A. In the cross examination, she deposed that the prosecutrix was working in the flat of the accused but she did not remember his name. She also deposed that she used to visit the flat of the accused at the behest of her own employer and his family members. She never used to talk to the prosecutrix through intercom. According to her, the prosecutrix was not having any mobile phone.
18. PW7 is [ENTITY], the owner of the placement agency M/s. Mohan Parvati Placement Agency at Uttam Nagar, Nawada. As per his deposition, he provides boys and girls for work as domestic servants in the houses in the locality around Uttam Nagar. In the month of July, 2012 he had sent the prosecutrix 'D' to the flat of accused Mr. [ENTITY] in IDC Apartment, Sector-11, Dwarka, to work as a maid at a salary of Rs.2,000/- per month. According to him the prosecutrix worked in the house of the accused for about nine months and thereafter made a phone call to him saying that she wants to obtain leave from work. He talked to the accused and accused agreed to grant two days leave to the prosecutrix. Accordingly, he visited the flat of accused on 01.10.2012 and brought the prosecutrix alongwith him. He further deposed that after two days, the prosecutrix was not willing to go for work and when he asked her the reason for the same, she did not tell him anything. After about 7 to 8 days, another girl namely [ENTITY] came to his room. On 05.11.2012, he had gone to arrange train ticket for prosecutrix and [ENTITY] to their native village. Meanwhile, they had made a call to the police at his back and had reached P.S. Uttam Nagar. He received a call from P.S. Uttam Nagar and he also reached there. On reaching police station, he came to know that the prosecutrix has lodged a complaint that she has been raped by the accused [ENTITY]. In the cross examination, he deposed that he did not visit the flat of the accused after 01.10.2012 to collect the dues of the prosecutrix. He denied that he had brought prosecutrix alongwith him on 01.10.2012 after accused had made full and final settlement of her dues and that the prosecutrix had also collected all her belongings from the flat of the accused.
19. PW11 is the Nodal Officer from M/s. Vodafone Mobile Services Limited and has proved the call details record of mobile phone no.9582300533 for 01.10.2012 which is in the name of [ENTITY].
20. Ms. [ENTITY], Commercial Officer, M.T.N.L., Sector-6, Dwarka, has appeared as PW12 and has produced the customer details in respect of landline telephone no.25086224, according to which this telephone connection was issued in the name of [ENTITY], son of the accused, and thereafter the same was transferred in the name of [ENTITY], another son of the accused and has been installed in the flat of the accused at B-64, IDC Apartment, Sector-11, Dwarka. She has also proved the call details record of landline phone from 01.9.2012 to 31.10.2012.
21. PW16 is Dr. [ENTITY], who has conducted the potency test of the accused and as per his deposition and the findings recorded by him, he did not find anything during the examination of the accused to suggest that the accused is incapable of performing sexual intercourse. He proved the MLC of the accused as Ex.PW16/A. In the cross examination, he deposed that he did not inject any medicine into the body of the accused to check his potency.
22. These are material witnesses examined by the prosecution to prove the charges against the accused.
23. Having perused the statement of the prosecutrix Ex.PW3/A, which is the basis of the FIR in this case, her statement u/[SECTION] [ACT] Ex.PW3/B and her deposition before this court. I do not find any inconsistency or any vital contradiction between them. In my opinion, there are no improvements or embellishments in the testimony of the prosecutrix, which may indicate that she is not a reliable witness. The prosecutrix has described the incident of rape consistently in almost similar language in her statements recorded during the course of investigation and in her testimony before this court. It is the consistent statement of the prosecutrix that on 01.10.2012 at about 3 p.m., she and the accused were alone in the flat of the accused, accused asked her to fetch some water for him, when she came with water, accused caught hold of her hands, took off her clothes and committed rape upon her. Manifestly, the statement Ex.PW3/A of the prosecutrix is a concise one and she has explained the incident of rape in detail in her statement u/s.
164 [ACT] Ex.PW3/B. The description of the incident of rape by her in her testimony before this court is in consonance with her statement Ex.PW3/B. The additional details mentioned by the prosecutrix in statement Ex.PW3/B and in her testimony that accused was operating computer, watching obscene movie, he kissed her first on her lips and could insert his male organ into her female organ only once, cannot be termed as an improvement. These are merely explanatory in nature.
24. It may be noted that the statement Ex.PW3/A of the prosecutrix was recorded by a police official on 05.11.2012 and her statement u/[SECTION] [ACT] Ex.PW3/B was recorded by the Ld. M.M. On 06.11.2012. I feel that it is not necessary that the statement u/[SECTION] [ACT] of the prosecutrix, which is recorded later in time, should be verbatim similar that of the FIR statement. Minor discrepancies or shortcomings or explanations are bound to occur in the statement u/[SECTION] [ACT] and in the testimony of the prosecutrix before this court and in fact, these guarantee the truth of the prosecutrix's version of the incident. It has to be seen that whether improvements or contradictions appearing in the testimony of the prosecutrix or any other witnesses go to the root of the prosecution case and have a bearing upon the core spectrum of the prosecution case. Minor discrepancies or embellishments which in no way effect the core of the prosecution case deserve to be ignored.
25. In the instant case, I do not find any such discrepancy or embellishment in the testimony of the prosecutrix, which goes on to effect the core spectrum of the prosecution case. In my opinion, the prosecutrix is a truthful and reliable witness. Her testimony inspires the confidence of this court. There is nothing in her testimony or any of her other statements to suggest that she is deposing falsely. Importantly nothing adverse to prosecution case could be elicited from her in the cross examination. In my opinion, the discrepancies pointed out by the Ld. Counsel for the accused are of very significant nature and do not militate with the prosecution case in any manner.
26. It may be noted here that while scrutinizing the testimony of prosecutrix in a rape case, Court should not give any weightage to insignificant discrepancies which are not fatal to the prosecution case. The courts trying a rape case shoulder a great responsibility and must deal with such case with utmost sensitivity. Following observations made by the Supreme Court in [ENTITY] of Andhra Pradesh vs. Gangula Satyamurthy, JT 1996 (10) SCC 550, are apt in this context :
"27. Before parting with the case, we would like to point out that the Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with the 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 witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with the rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation."
27. The Supreme Court has again held in [ENTITY] of Himachal Pradesh vs. Lekh Raj and another, AIR 1999 Supreme Court 3916 as under :
"Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ous Varghese vs. [ENTITY] of Kerala, (1974) 3 SCC 767 (AIR 1974 SC 739; 1974 Cri. LJ 624) held that minor variations in the accounts of the witnesses are oftenly the hallmark of the truth of their testimony. In Jagdish vs. [ENTITY] of Madhya Pradesh, 1981 SCC (Cri) 676; (AIR 1981 SC 1167: 1981 Cri. LJ 630) this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in [ENTITY] of Rajasthan vs. Kalki, (1981) 2 SCC 752: (All.1981 SC 1390: 1981 Cri LJ 1012) held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
28. Moreover, the testimony of the prosecutrix is corroborated by that of PW4 Ms. [ENTITY], whose testimony is in sync with that of the prosecutrix. She too has not deposed anything contrary to the prosecution case. She has corroborated the version of the prosecutrix.
29. The deposition of PW7 shows that the prosecutrix had called him saying that she wants two days leave and after talking to the accused who agreed to grant two days leave to the prosecutrix, he brought her from the house of accused on 01.10.2012. His testimony further corroborates the fact that on 04.11.2012, prosecutrix & [ENTITY] (PW4) were together in his house for the night and in the morning, they had called police, when he had gone to book tickets for them.
30. Ld. Counsel for the accused had vehemently argued that the accused has been implicated falsely in this case in order to extort from him. However, he has failed to point out anything from the record to support his arguments. When questioned in this regard, he was unable to say who had made demand for money from the accused. Nothing in this regard has been put to PW4 and PW7 in their cross examination. Just only one line suggestion has been put to the prosecutrix that she had lodged a false case against the accused at the instance of [ENTITY] in order to extort Rs.50 Lacs from him, which she denied. However, there is no positive evidence from the side of the accused as to how, where and when was such demand of Rs.50 Lacs was made to him and by whom. There seems to be no basis for such suggestion. Further, if [ENTITY] intended to extort money from the accused, she would have asked the prosecutrix to lodge complaint as soon as prosecutrix was kept with her by PW7. Evidently the prosecutrix had not made call to the police during her stay with [ENTITY]. In fact, [ENTITY] was totally unaware about the rape incident as the prosecutrix did not apprise her about the same. Evidence on record demonstrates that the prosecutrix narrated the incident for the first time to her friend PW4 on 04.11.2012 in the house of PW7. Therefore, there is no evidence to suggest that the prosecutrix had acted at the behest of [ENTITY].
31. Even though there is a delay of about one month in reporting the matter to the police, however, I do not consider that the delay would be fatal to the prosecution case. The prosecutrix was employed as a maid in the house of the accused when she had been sexually assaulted by the accused on 01.10.2012. She belongs to Assam and had come to Delhi for the first time to earn some livelihood. She did not know anybody at Delhi except PW7 and her friend PW4. Since PW7 is a male person, she would have felt ashamed of revealing the incident to him. However, it is evident that she called PW7 on the same day i.e. 01.10.2012 telling him that she wants two days leave and it is on the same day that PW7 came to the flat of the accused and took her alongwith him. The prosecutrix met her friend i.e. PW4 for the first time after the incident on 05.11.2012 in the house of PW7 and narrated the incident to her. In view of these circumstances of the instant case, the delay of one month in reporting the matter to police deserves to be ignored.
32. Coming to the evidence led by the accused to prove his innocence. He has examined one [ENTITY] as DW1, who claims to be Vice President of the [ENTITY] of the society, in which accused resides. According to him, accused is a Secretary of [ENTITY]. He further deposed that [ENTITY] had convened a meeting of the members of the association on 01.10.2012 and meeting took place in the office of the society from 2 p.m. to 4 p.m. He proved the relevant page of the register maintained in the society office as Ex.DW1/A. In the cross examination, he admitted that Ex.DW1/A does not mention the timings of the meeting.
33. It was on the basis of the testimony of aforesaid DW1 that the Ld. Counsel for the accused vehemently argued that the accused could not have been in his flat at 3 p.m. on 01.10.2012 when the prosecutrix alleges to have been raped by him as he was present in the [ENTITY] meeting from 2 p.m. to 4 p.m. The arguments of the Ld. Counsel as well as the testimony of DW1 are patently not acceptable. Firstly, no document has been proved to show that DW1 is the President of the [ENTITY] and the accused its Secretary. There is also nothing on record to show why, when and for that purpose was the meeting of the members of the association convened for 01.10.2012. Even if it is assumed as correct that the meeting of the members of the [ENTITY] was held on 01.10.2012, still there is nothing on record to show that meeting was held between 2 p.m. to 4 p.m. Ex.DW1/A does show that the meeting started at 2 p.m. but it does not mention as to when did the meeting end. Moreover, it has not been put to either prosecutrix (PW3) or the IO (PW12) that the accused was not present in his flat at 3 p.m. on 01.10.2012 as he was present at the meeting of [ENTITY] in the society between 2 p.m. to 4 p.m. It is for this reason, no investigation has been made by the IO in this regard. This manifestly demonstrates that the accused has fabricated his defence later on in collusion with DW1. Had it been true, he would have said so to the IO soon after his arrest in this case and would have handed over the relevant copies of the register of [ENTITY] to her in order to show his innocence.
34. So far as the potency of the accused is concerned, the same has been duly proved by PW16, who had conducted his medical examination in Maulana Azad Medical College, Delhi. It was argued by the Ld. Counsel for the accused that the accused takes a medicine named 'HSQS' for his arthritis disease, which makes a person incapable of indulging in sexual intercourse. However, there is nothing on record to show that the accused is a patient of arthritis disease and is taking 'HSQS' medicine for the same. The accused has not entered the witness box to prove this fact. He has not produced medical documents to establish the same. Further the Ld. Counsel for the accused has not drawn my attention to any medical literature to demonstrate that the consuming of 'HSQS' medicine reduces the potency of a male. Further, it has not been put to the prosecutrix that it was not possible for the accused to sexually assault her as he lacked potency.
35. The aforenoted discussion leads only to the irresistible conclusion that the accused has committed rape upon the prosecutrix, who was working as a maid in his flat. It is manifest from the evidence on record that the accused and the prosecutrix were alone in the flat on the date of incident i.e. 01.10.2012 at about 3 p.m. and the sexual lust engulfed the accused, who took advantage of the loneliness of the poor and helpless prosecutrix and committed rape upon her. It is also evident that thereafter accused firstly tried to pacify the prosecutrix by offering to pay her Rs.50,000/- and then threatened her not to disclose the incident to anybody or otherwise, he would kill her.
36. Therefore I consider that the prosecution has succeeded in proving the charges against the accused beyond reasonable doubt. The accused is liable to be convicted and is hereby convicted of having committed the offences u/[SECTION] [ACT] and u/[SECTION] [ACT].
Announced in open (VIRENDER BHAT) Court on 18.3.2014. Addl. Sessions Judge (Special Fast Track Court) Dwarka Courts, New Delhi.