Delhi District Court
State vs . Pawan Kumar @ Deepu on 27 March, 2014
1
FIR No. 83/11
PS - Begum Pur
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 100/13
Unique ID No. : 02404R0203262011
State Vs. Pawan Kumar @ Deepu
S/o Chedu Singh @ Sakra Baba
R/o Village Ganesh Pur,
Moja Khura, PS - Khaga,
District - Fateh Pur, U.P.
FIR No. : 83/11
Police Station : Begum Pur
Under Sections : 363/376/506/328 IPC
Date of committal to session Court : 16/09/2011
Date on which judgment reserved : 15/03/2014
Date on which judgment announced : 27/03/2014
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 : That on 16/04/2011 Sh. Santosh Kumar S/o Late Sh. Ram 1 of 109 2 FIR No. 83/11 PS - Begum Pur Kumar R/o A65, Rajiv Nagar Extension near M. R. Public School, Begum Pur came to the PS Begum Pur and got recorded his statement to ASI Prem Raj which is to the effect that, he lives at the above address with his family and does the work of preparing of plastic pouches at B18 Lawrence Road. On 15/04/2011 at about 2:00 p.m. her daughter/prosecutrix (named withheld being a case 376 IPC) aged about 15 years 06 months, height 4 ft. 10 inches, colour wheatish face longish (lambotra) who is wearing red colour T Shirt blue colour jeans pant and is having plastic chappals in her feet had gone stating that she is going to her friend/saheli and has not returned so far at the house. She has been searched by them in their own way but she has not been found out. He suspects that his daughter/prosecutrix has been kidnapped after inducing by some unknown person. She be traced out and legal action be taken against the kidnappers. The statement has been heard and understood. On the basis of the statement, on finding that offence u/s 363 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by ASI Prem Raj. During the course of investigation, the photocopies of school certificate and birth certificate of the prosecutrix were obtained. Birth certificate of the 2 of 109 3 FIR No. 83/11 PS - Begum Pur prosecutrix was obtained from vice principal of Govt. Girls Sr. Sec. School Begumpur, Delhi. For the search of the prosecutrix missing advertisement was published in the local area, NCRB form, CRO form, SCRB form were filled up. Advertisement was given in the newspaper. Request for reward was also made but nothing could be known about the prosecutrix nor any clue could be gathered. Further investigation was handed to SI Manwar Patwal who during the course of investigation recovered the prosecutrix and accused Pawan Kumar @ Deepu from his house at village Ganeshpur, Majrapura, PS Kharga, Distt. Fateh Pur, UP at the pointing out of the parents of the prosecutrix. Accused was arrested and his arrest documents were prepared and was produced before the judicial magistrate, Fateh Pur UP and his transit warrant was obtained. On 28/04/2011 accused was got medically examined at SGM Hospital Mangol Puri, Delhi vide MLC No. 6495/11. Prosecutrix was also got medically examined vide MLC No. 5925/11. The sealed exhibits as handed over by the Doctor after their medical examinations were taken into Police possession. Statements of witnesses were recorded. Statement of prosecutrix u/s 164 Cr.P.C. was got recorded. The sealed exhibits were sent to the FSL.
3 of 109 4 FIR No. 83/11 PS - Begum Pur Upon completion of the necessary further investigation challan for the offences u/s 376/506/328 IPC was prepared against accused Pawan Kumar @ Deepu and was sent to the Court for trial.
2. Since the offences under sections 376/328 IPC are 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 under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 363/366/328/376/506 IPC was made out against accused Pawan Kumar @ Deepu. The 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 18 witnesses. PW1 Prosecutrix, PW2 Constable Om Prakash, PW3 Santosh Kumar, PW4 Smt. Shivmati, PW5 HC Pramod Kumar, PW6 Constable Kuldeep Singh, PW7 Dr. Kirti 4 of 109 5 FIR No. 83/11 PS - Begum Pur Verma, SR Gyane., SGM Hospital, Mangol Puri, Delhi, PW8 Constable Rajani, PW9 HC Pramod, PW10 Ms. Seema Nain, Senior Scientific Officer (Biology) FSL Rohini, Delhi, PW11 Ms. Mani Sharma, Vice Principal, Govt. Girls, Sr. Sec. School, Begum Pur, Delhi, PW12 Dr. Shankar Gupta, CMO, Sanjay Gandhi Hospital, Mangol Puri, Delhi, PW13 Sh. Sachin Gupta, Ld. MM, Rohini Courts, Delhi, PW14 W/Constable Sunita, PW15 - Constable Rakesh Kumar, PW16 - SI Manwar Patwal, PW17 - ASI Prem Raj and PW18 Sh. Subhash Chander, Superintendent Birth & Death, NDMC, Mandir Marg, Delhi
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Prosecutrix is the victim who deposed regarding the incident and proved her recovery memo Ex. PW1/A, signed by her at point 'A', her statement u/s 164 Cr.P.C. Ex. PW1/B, thumb marked by her at points 'A' & 'B' and also signed by her at point 'C' & 'D' and also identified and proved her clothes, a dirty saree, a dirty petticoat, a dirty blouse and a dirty bra Ex. P1 to P4 respectively.
5 of 109 6 FIR No. 83/11 PS - Begum Pur PW2 Constable Om Prakash who deposed that on 23/06/2011 he was posted at Police Station Begum Pur. On that day, on the instruction of SI Prem Raj he took five pullindas from the MHC(M) and two sample seal and one FSL Form and took the same to the office of FSL, Rohini and after depositing the same, he took the receipt from FSL officials and copy of road certificate and the same were handed over to MLC(M). He took the pullindas vide road certificate No. 47/21/2011 and out of five pullindas four were sealed with the seal of SGM Hospital, and one was sealed with the seal of SGMH Govt. of NCT Delhi. So long as the pullindas remained in his possession it was not tampered with by anybody.
PW3 Santosh Kumar is the father of the prosecutrix who deposed that the name of his daughter is prosecutrix (name withheld). On 15/04/2011 as usual he had gone to his work place in the morning hours and his wife Shivmati and his daughter/prosecutrix (name withheld) were present in the house. Accused Pawan Kumar who was working in his (PW3) factory previously have visiting terms in their house and he used to come to their house during his employment. On 6 of 109 7 FIR No. 83/11 PS - Begum Pur that day, his daughter/prosecutrix (name withheld) was going to the house of her friend at about 2:00 p.m. and on the way accused Pawan Kumar met with his daughter and asked her to drop her the house of her friend and thereafter, he has given pepsi bottle and after drinking the same she became unconscious and accused had taken her to his native village Ganesh Pura Police Station Khaga, Fateh Puri U.P. as stated by his daughter after she has been recovered. He made a complaint to the Police on 16/04/2011 regarding missing of daughter/prosecutrix (name withheld). Police recorded his statement which is Ex. PW3/A which bears his signature at point 'A' and on his statement FIR was registered under section 363 IPC. Before that they have tried to search his daughter as their own but could not succeed in tracing her. On 26/04/2011, he alongwith ASI Prem Lal and Constable Kuldeep went to Police Station Khaga Distt. Fateh Pur U.P. in search of his daughter. They reached at Police Station Khaga at about 10:30 a.m on next day after informing them one lady Constable Sunita and some other Police officials from the Police Station Khaga accompanied them and they proceeded towards the village Khaga near village Khaga one person met to the Police officials who gave the information that a boy brought a girl in the village 7 of 109 8 FIR No. 83/11 PS - Begum Pur 2 days before and on this information, he also accompanied them and pointed out the house of that boy namely Pawan. The main gate of the house was opened when they entered into his house accused Pawan and one girl was found sitting in the house. At his pointing out his daughter/prosecutrix (name withheld) and accused Pawan Kumar were apprehended. Recovery memo of his daughter Ex. PW1/A was prepared signed by him at point 'B'. Accused was also interrogated, he was arrested vide arrest memo Ex. PW3/B and his personal search memo was also prepared by the IO. Both prosecutrix and accused Pawan Kumar were produced in the concerned Court of village Khaga and after taking due permission from the concerned Court his daughter and accused were brought to Delhi. Accused Pawan Kumar is present in the Court (correctly identified). His wife Smt. Shiv Mati Devi was also with him at the time of proceeding to village Khaga with Police officials got his daughter medically examined and also got recorded her statement under section 164 Cr.P.C. from the concerned Court. The date of birth of his daughter is 10/11/1995 as per her birth certificate. He has brought the original birth certificate of his daughter/prosecutrix (name withheld), the copy of the same is Ex. P1 (OSR). He has also brought the cumulative 8 of 109 9 FIR No. 83/11 PS - Begum Pur record of his daughter when she was in class VIII at GGSS (Govt. Girls Senior Secondary School) mentioning therein her date of birth as 10/11/1995 and the copy of the same is Ex. P2 (OSR).
PW4 Smt. Shivmati is the mother of the prosecutrix who deposed that the name of her daughter is prosecutrix (name withheld). On 15/04/2011 at about 2:00 p.m her daughter/prosecutrix (name withheld) was going to the house of her friend. She was present at her house and her husband had gone to his work place as usual. Her daughter did not return to the house on that day and they searched her as their own but could not succeed in tracing out her daughter/prosecutrix (name withheld). Her husband reported the matter to the Police on the next day and also raised suspicion over accused Pawan Kumar. Accused Pawan Kumar who was working in the factory of her husband previously and have visited their house during his employment. One day, she raised objection of visiting Pawan Kumar to their house then he stated that prosecutrix (name withheld) is like his sister and if anything found wrong he (accused) would have killed by them. Her husband ultimately made a complaint to the Police on 16/04/2011 regarding missing of their 9 of 109 10 FIR No. 83/11 PS - Begum Pur daughter/prosecutrix (name withheld). On 26/04/2011, she alongwith ASI Prem Raj and Constable Kuldeep and other Police official and her husband went to the native village of suspected accused Pawan Kumar in search of her daughter. They reached at the native village of accused Pawan Kumar on the next day at about 10:30 a.m. they directly went to Police Station Khaga and after informed all the circumstances, one lady Constable Sunita and some other Police officials from the Police Station Khaga accompanied them and they proceeded towards the village Khaga near village Khaga one person met to the Police officials who gave the information that a boy brought a girl in the village 2 days before and on this information, he also accompanied them and pointed out the house of that boy namely Pawan when they entered into the house of suspected accused Pawan and one girl was found sitting in the house in the room. After identification of their daughter by her and by her husband her daughter/prosecutrix (name withheld) and accused Pawan Kumar were apprehended. Recovery memo of her daughter Ex. PW1/A was prepared which was signed by her at point 'C'. Accused was also interrogated and thereafter, he was arrested vide arrest memo Ex. PW3/B and his personal search memo was also prepared by the IO.
10 of 109 11 FIR No. 83/11 PS - Begum Pur Both prosecutrix and accused Pawan Kumar were produced in the concerned Court of village Khaga and after taking due permission from the concerned Court her daughter and accused were brought to Delhi. Accused Pawan Kumar is present in the Court (correctly identified). After coming to Delhi Police officials got her daughter medically examined and also got recorded her statement under section 164 Cr.P.C. from the concerned Court. The age of her daughter/prosecutrix (name withheld) was about 15½ years at the time of the incident. However, she does not remember her date of birth. Her daughter was studying in VIII class at the time of the incident in a School at Begumpur. Statement of her daughter/prosecutrix (name withheld) was also recorded by the Police in her presence.
PW5 HC Pramod Kumar is the Duty Officer who deposed that on the intervening night of 1516/04/2011, he was working as Duty Officer at PS Begum Pur from 12:00 night to 8:00 a.m. On that day, ASI Prem Raj given a tehrir at about 4:20 a.m. for registration of FIR. He got recorded the FIR from computer operator on the basis of tehrir u/s 363 IPC and he also made DD No. 7A in this regard and made 11 of 109 12 FIR No. 83/11 PS - Begum Pur endorsement at point 'B' on Ex. PW3/A signed by him at point 'C'. After registration of FIR, original tehrir and other computerised copy of FIR No. 83/11 was given to ASI Prem Raj for further investigation. The computerised copy of FIR is Ex. PW5/A signed by him at point 'A' (OSR).
PW6 - Constable Kuldeep Singh who deposed that on 28/04/2011, ASI Prem Raj handed over accused Pawan Kumar @ Deepu to him for the purpose of getting his medical examination from SGM Hospital. He went to SGM Hospital alongwith accused Pawan Kumar. After got him medically examined by the Doctor, the concerned Doctor has given him 4 sealed pullindas and a sample seal sealed with the seal of SGMH, Mangol Puri, Delhi and the same was handed over to the IO after returning to Police Station. IO seized the pullindas Ex. PW6/A signed by him at point 'A'.
PW7 Dr. Kirti Verma, SR Gyane., SGM Hospital, Mangol Puri, Delhi who deposed that on 28/04/2011 patient/prosecutrix (name withheld) D/o Sh. Santosh Yadav was brought to the Hospital by 12 of 109 13 FIR No. 83/11 PS - Begum Pur L/Constable Rajni at about 10:20 a.m. in casualty ward and after preliminary examination, she was referred SR Gynae as the alleged history was a sexual assault. She examined the patient as SR Gynae at about 11:00 a.m. on the same day. The patient herself stated the alleged history that she was sexual assaulted on 17/04/2011 and 24/04/2011 in Khaga Village, U.P. at the house of Pawan's aunt in night. Patient was also stated that she was missing from home from 15/04/2011 at about 5:00 p.m. near Begum Pur near to her house. On examination, her vitals were stable and her hymen was torn. No fresh bleeding or stains were present. Vagina admitted two finger. She also took the sample and sealed i.e. of vulval, vaginal swab, vaginal smear, pubic hair (cutted), nail scrapping, nail cutted, blood samples and clothes and handed over to L/Constable Rajni. The examination was made by her and the noting and writing is at from point 'A' to 'A1' on MLC Ex. PW7/A signed by her at point 'B'.
PW8 Constable Rajani who deposed that on 28/04/2011, on the direction of the IO she took the prosecutrix (name withheld) to SGM Hospital for medical examination. After medical examination the 13 of 109 14 FIR No. 83/11 PS - Begum Pur concerned Doctor gave eight sealed parcels in an envelope in sealed condition which she handed over to the IO alongwith MLC. IO took the pullinda in possession vide memo Ex. PW8/A signed by her at point 'A'.
PW9 HC Pramod who deposed that on 28/04/2011, he was working as MHC(M) at Police Station Begumpur. On that day, SI Manwar Patwal deposited four sealed pullindas sealed with the seal of SGMH Mangol Puri Delhi. He also deposited on the same day one sealed pullinda sealed with the seal of SGMH NCT Delhi and he (PW9) made entry in Register No. 19 at Serial No. 207 and 207A, copy of the same is Ex. PW9/A (running into two pages) (OSR). All the above pullindas were sent to FSL Rohini through Constable Om Prakash vide road certificate No. 47/21/2011 and the entry in this respect is at point 'A' on Ex. PW9/A. Copy of the RC No. 47/21/11 is Ex. PW9/B (OSR) and the copy of the acknowledgment of receiving pullindas by the FSL officials given by Constable Om Prakash after returning to the Police Station Ex. PW9/C (OSR).
PW10 Ms. Seema Nain, Senior Scientific Officer (Biology) 14 of 109 15 FIR No. 83/11 PS - Begum Pur FSL Rohini, Delhi who deposed that on 23/06/2011, five sealed parcels were received in the Office of Director FSL, Rohini vide memo No. 1565/SHO/Begumpur, dated 23/06/2011 in case FIR No. 83/11, dated 16/04/2011, u/s 363/376 IPC, PS Begumpur. Case was marked to her for examination and reporting. All the seals were tallied with the sample seals. The exhibits were examined by her biologically and serologically. The detailed biological report is Ex. PW10/A and the serological report is Ex. PW10/B bearing her signature at points 'A'.
PW11 Ms. Mani Sharma, Vice Principal, Govt. Girls, Sr. Sec. School, Begum Pur, Delhi who deposed that she has brought the admission register of the student of the year, 2008. As per Entry No. 6974 the student/prosecutrix (name withheld) was admitted in 6th class on 04/04/2008 in the school on the basis of SLC issued by MCD, having the date of birth as 10th November, 1995. The copy of the relevant entry in the admission register of the student/prosecutrix (name withheld) is Ex. PW11/A (OSR).
PW12 Dr. Shankar Gupta, CMO, Sanjay Gandhi Hospital, 15 of 109 16 FIR No. 83/11 PS - Begum Pur Mangol Puri, Delhi who deposed that on 28/04/2011, at about 10:35 a.m. patient Pawan Kumar @ Deepu brought in casualty for medical examination with request to preserve undergarments, blood, semen and pubic hair. Preliminary examination was done and on local examination there was no external injury mark (fresh). Genital examination nothing suggest that patient is incapable of doing sexual activity. Secondly (secondary) sexual characteristics were developed. Blood sample, semen sample, pubic hair and underwear (mendi colour) were preserved and handed over to Constable Kuldeep for forensic opinion. The MLC is Ex. PW12/A bearing his (PW12) signatures at point 'A'. On the same day, i.e. 28/04/2011, at about 10:25 a.m. patient/prosecutrix (name withheld), 15 and ½ years brought for medical examination with request to preserve undergarments, vaginal swab, pubic hair. After preliminary examination patient was referred for gynae examination. His preliminary examination is from portion 'X' to 'X1' on the MLC already Ex. PW7/A bearing his signatures at point 'C'.
PW13 Sh. Sachin Gupta, Learned MM, Rohini Courts, Delhi who deposed that on 28/04/2011, he was posted as MM in Rohini 16 of 109 17 FIR No. 83/11 PS - Begum Pur Courts and on that day IO SI Manwar Patwal, PS - Begumpur had moved an application u/s 164 Cr.P.C. for recording statement of prosecutrix (name withheld) D/o Santosh Kumar, aged about 15½ years, R/o A65, Rajiv Nagar Extension, Begumpur, Delhi. The application was marked to him. SI Manwar Patwal produced prosecutrix (name withheld) and he had identified her. He (PW13) recorded his statement which is Ex. PW13/A bearing his signature at point 'A'. IO was sent outside the Chamber. He put certain question to prosecutrix to know about her voluntary state of mind, willingness to give statement. From the answers given by her he was satisfied that prosecutrix (name withheld) was in fit state of mind to depose and she was free from any fear, influence and coercion. His proceedings in this regard is Ex. PW13/B bearing his signature at point 'A'. He recorded statement of prosecutrix which is already Ex. PW1/B bearing his signature at point 'X' on each page. He gave the certificate regarding correctness of the statement and the same is Ex. PW13/C bearing his signature at point 'A'. IO moved an application for supply the copy of the statement. The same was allowed. Ahlmad was directed to send the statement of the prosecutrix in sealed cover to the concerned Court vide Ex. PW13/D 17 of 109 18 FIR No. 83/11 PS - Begum Pur bearing his signature at point 'A'.
PW14 W/Constable Sunita, no. 550, Police Line, Fateh Pur, U.P. who deposed that on 27/04/2011, she was posted as Lady Constable at PS Khaga, District Fateh Pur, U.P. On that day, Delhi Police officials came to the PS Khaga alongwith the father and mother of the missing prosecutrix (name withheld). On that day, she alongwith Police officials and parents of the prosecutrix (name withheld) and Constable Rakesh Bharti went to the village Ganeshpur, Majra Kura and went to the house of Pawan Kumar after confirming his house in the village. The outer door of the house was found open and on entering the house they found that in the room a boy and a girl were sitting on the floor. On identification by the parents of the prosecutrix of their daughter/prosecutrix (name withheld) and the boy who had taken their daughter, both were apprehended by the Police. On inquiry from the boy, who (he) confessed for taking away the prosecutrix with him, he was arrested vide memo Ex. PW3/B by the IO SI from the Delhi Police. His personal search was also conducted by the IO. The prosecutrix was recovered and a recovery memo was prepared, same is Ex. PW1/A, 18 of 109 19 FIR No. 83/11 PS - Begum Pur signed by her at point 'D'. The prosecutrix and accused were brought in the PS Khaga by the Police officials. After completing the procedural paper works, Delhi Police had taken the prosecutrix and accused to Delhi. She correctly identified the accused present in the Court.
PW15 - Constable Rakesh Kumar who deposed that on 27/04/2011, he was posted as Constable, PS Khaga, Distt. Fateh Pur, U.P. On that day, Delhi Police SI Manwar Patwal, ASI Prem Raj and one Constable Kuldeep alongwith one Santosh Kumar and his wife Devi Arya came at PS. He alongwith Lady Constable Sunita Devi has joined the investigation with the Delhi Police. Thereafter, they all reached village Ganesh Pur Majrekura and there they reached at the house of Pawan Kumar @ Deepu. When they entered into the house of Pawan Kumar @ Deepu, Pawan @ Deepu and one girl/prosecutrix (name withheld) were found there, sitting on the floor. Santosh Kumar and his wife Shivmati Devi Arya had identified that the girl sitting, is their daughter/prosecutrix (name withheld) and boy is Pawan @ Deepu who had kidnapped their daughter/prosecutrix (name withheld) on 15/04/2011 from Rajiv Nagar Extension, Delhi. Accused Pawan, present in the 19 of 109 20 FIR No. 83/11 PS - Begum Pur Court was interrogated and was arrested vide arrest memo Ex. PW3/B, bearing his (PW15) signature at point 'B', his personal search was conducted vide memo Ex. PW15/A, bearing his signature at point 'A'. Prosecutrix (name withheld) was also taken into possession vide memo Ex. PW1/A, bearing his signature at point 'E'. IO recorded statement of prosecutrix (name withheld).
PW16 - SI Manwar Patwal who deposed that on 26/04/2011, he was posted as Sub Inspector in PS Begum Pur. On that day, case file was handed over to him, thereafter, he alongwith ASI Prem Raj, Constable Kuldeep, Santosh Kumar and Shivmati Devi Arya (father and mother of the prosecutrix) had left the Police Station for search of accused and prosecutrix and on 27/04/2011 they reached PS Khaga, Distt. Fateh Pur, U.P. They made the arrival entry vide DD No. 24. Local Police Constable Rakesh Kumar Bharti and Sunita Devi were joined in the investigation and they all reached village Ganesh Pur Majrekura and there they reached at the house of Pawan Kumar @ Deepu. When they entered into the house Pawan Kumar @ Deepu, one girl/prosecutrix (name withheld) and Pawan Kumar @ Deepu were found 20 of 109 21 FIR No. 83/11 PS - Begum Pur there and sitting on the floor. Santosh Kumar and his wife Shivmati Devi Arya had identified that the girl sitting, is their daughter/prosecutrix (name withheld) and boy is Pawan @ Deepu who had kidnapped their daughter/prosecutrix (name withheld) on 15/04/2011 from Rajiv Nagar Extension, Delhi. Accused Pawan, present in the Court was interrogated and was arrested vide arrest memo Ex. PW3/B, bearing his signature at point 'C', his personal search was conducted vide memo Ex. PW15/A, bearing his signature at point 'B'. Prosecutrix (name withheld) was also taken into possession vide memo Ex. PW1/A, bearing his signature at point 'X'. He recorded statement of prosecutrix (name withheld) and other witnesses. He took the Transit Remand of accused Pawan and they came back to Delhi on 28/04/2011. Accused Pawan and prosecutrix (name withheld) were sent to Hospital for medical examination and after medical examination, Doctor handed over the sealed pullinda containing exhibits which were seized by him vide memo Ex. PW8/A and Ex. PW6/A, both bearing his signature at point 'B'. Accused was produced in the Court and was sent to JC. He moved an application for recording the statement of prosecutrix u/s 164 Cr.P.C. which is Ex. PW16/A, bearing his signature at point 'A'. Her statement 21 of 109 22 FIR No. 83/11 PS - Begum Pur was recorded and he obtained the copy of the statement vide his application Ex. PW16/B, bearing his signature at point 'A'. Prosecutrix was handed over to her parents. Case file was handed over to MHC(R). He correctly identified the accused Pawan present in the Court.
PW17 - ASI Prem Raj who deposed that on 16/04/2011, he was posted as ASI in PS Begum Pur. On that day, Santosh Kumar came in the Police Station and gave his statement Ex. PW3/A and he (PW17) attested his signature at point 'A', bearing his signature at point 'B'. He prepared rukka Ex. PW17/A, bearing his signature at point 'A' and handed over the same to Duty Officer for registration of FIR. Thereafter, he alongwith complainant left the Police Station in search of the accused and prosecutrix but they were not found. He came back to Police Station and Duty Officer handed over to him copy of FIR and original rukka. He completed the formalities of missing persons. On 26/04/2011 case file was handed over to SI Manwar Patwar, thereafter, he alongwith SI Manwar Patwar, Constable Kuldeep, Santosh Kumar and Shivmati Devi Arya (father and mother of the prosecutrix) had left the Police Station for search of accused and prosecutrix and on 27/04/2011, they reached PS 22 of 109 23 FIR No. 83/11 PS - Begum Pur Khaga, Distt. Fateh Pur, U.P. They made the arrival entry vide DD No.
24. Local Police Constable Rakesh Kumar Bharti and Sunita Devi were joined in the investigation and they all reached village Ganesh Pur Majrekura and there they reached at the house of Pawan Kumar @ Deepu. When they entered into the house Pawan Kumar @ Deepu, one girl Indu Kumari and Pawan Kumar @ Deepu were found there and sitting on the floor. Santosh Kumar and his wife Shivmati Devi Arya had identified that the girl sitting, is their daughter/prosecutrix (name withheld) and boy is Pawan @ Deepu who had kidnapped their daughter/prosecutrix (name withheld) on 15/04/2011 from Rajiv Nagar Extension, Delhi. Accused Pawan, present in the Court was interrogated and was arrested vide arrest memo Ex. PW3/B, bearing his signature at point 'D', his personal search was conducted vide memo Ex. PW15/A, bearing his signature at point 'D'. Prosecutrix (name withheld) was also taken into possession vide memo Ex. PW1/A. SI Manwar Patwar recorded statement of prosecutrix (name withheld) and other witnesses. SI Manwar Patwar took the Transit Remand of accused Pawan and they came back to Delhi on 28/04/2011. Accused Pawan and prosecutrix (name withheld) were sent to Hospital for medical examination and after 23 of 109 24 FIR No. 83/11 PS - Begum Pur medical examination, Doctor handed over the sealed pullinda containing exhibits which were seized by him vide memo Ex. PW8/A and Ex. PW6/A. Accused was produced in the Court and was sent to JC. SI Manwar Patwar moved an application for recording the statement of prosecutrix U/s 164 Cr.P.C. Her statement was recorded. Prosecutrix was handed over to her parents. Case file was again handed over to him. On 23/06/2011 the exhibits were sent to FSL through Constable Om Prakash and after depositing the same he had deposited the acknowledgment receipt with the MHC(M). He recorded their statements. He collected the age proof of prosecutrix (name withheld) and according to which her date of birth is 10/11/1995. After completing the investigation challan was prepared and filed in the Court. He correctly identified the accused Pawan present in the Court.
PW18 Sh. Subhash Chander, Superintendent Birth & Death, NDMC, Mandir Marg, Delhi who deposed that he has brought the summoned record. As per their record there is an entry regarding the birth of a female child D/o Sh. Santosh Kumar and mother name Smt. Shivmati at Serial No. 10945 dated 18/11/1995. As per their record, the 24 of 109 25 FIR No. 83/11 PS - Begum Pur Date of Birth of the child is 10/11/1995. She was born in Sucheta Kriplani Hospital. The copy of the relevant entry is Ex. PW18/A (OSR). The certificate which is already exhibited as 'P1' was issued from their Office and it bears the signatures of Dr. R. N. Singh, the then Registrar Birth & Death 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 Pawan Kumar @ Deepu was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and opted to lead defence evidence and in his defence accused Pawawn Kumar @ Deepu examined himself under section 315 Cr.P.C. as DW1.
DW1 Pawan Kumar @ Deepu, the accused, who deposed that he met with the prosecutrix first time at her home as he went to repair the T.V. at her home. He had cordial relations with prosecutrix and her family members. Then they came into good friendship and she told him that she is not in good terms with her family as her father used 25 of 109 26 FIR No. 83/11 PS - Begum Pur to beat her. She also told him that she is about 18 years old and she wanted to live her life in her own way joyfully. Then they got emotionally attached and fell in love with each other. She told him that her family will not consent her marriage to him so she wanted to run away with him and to marry with him. Then one day she in preplaned manner asked him to take her away from her family and marry with her. On 15/04/2011, prosecutrix contacted him and told him that she is waiting for him at Kali Mandir near Rajiv Nagar and asked him to come and take her from there. The prosecutrix was carrying a bag having her clothes and other needful things alongwith her. Thereafter, he alongwith prosecutrix went to Allahabad by train from New Delhi Railway Station. Then on 20/04/2011 they got married with each other with the consent of both and also signed a marriage agreement and got attested the same by Notary on the same day which is Ex. PW1/DX1. But they did not have physical intimacy with each other.
The testimony of the defence witness shall be dealt with in detail during the course of appreciation of evidence.
26 of 109 27 FIR No. 83/11 PS - Begum Pur
7. Learned Counsel for accused submitted that he is innocent and has been falsely implicated in the case. Learned Counsel for accused further submitted that the prosecution has failed to prove ingredients of section 328 IPC. The prosecution could not produce any evidence on record to prove the ingredients of this section. Prosecution has failed to produce/recover Pepsi bottle as alleged and MLC is also silent to bring any substance to prove this section. Learned Counsel for accused further submitted that prosecution has failed to bring the case u/s 366 IPC against the accused. Firstly, as per prosecution story, PW1 - prosecutrix (name withheld) and her family member were known to accused person very well. According to the PW1 the accused met her on the way to his friend home and he was on his bicycle. It is difficult to imagine that a person kidnaps another person on bicycle moreover when the person kidnapped is unconscious, so prosecution has failed to prove the first part of this section. Secondly, prosecution says that the accused had kidnapped PW1 and compelled her to marry him/accused. As PW1 married with the accused person after planning to run away with the accused. This assertion get force from the fact that in order to run away with the accused, PW1 had not gone to School without explaining any 27 of 109 28 FIR No. 83/11 PS - Begum Pur reason. Thirdly, she did not raise any alarm to anywhere/place and any time when she had various occasions to raise alarm and gather the public person and to make complaint against the accused. PW1 had a chance, firstly when they took the auto rickshaw; Secondly at New Delhi Railway Station; Thirdly while the accused was buying the railway ticket and she was standing/waiting at some distance; Fourthly in a general boggy of train; Fifthly during bus journey which was for about 34 hours; Sixthly when she had gone to market for buying the clothes; Seventhly at Advocate's office at the time of preparation of documents regarding their marriage, so all abovesaid acts of PW1 reflect her consent in associating/going away with the accused. Learned Counsel for accused further submitted that when the PW3 - Santosh Kumar and PW4 - Smt. Shivmati i.e. parents of the PW1 - prosecutrix alongwith other Police officer reached the house of the accused, they saw that the house door was open and accused and the prosecutrix were sitting together on floor. This reflects her consent in the alleged act of the accused. Learned Counsel for accused further submitted that PW1 - prosecutrix states in her evidence that the accused took her to a place where his Buaji lives and in the house of his Buaji her two married sons 28 of 109 29 FIR No. 83/11 PS - Begum Pur reside with their wives and children, but when the parents of the PW1 and any other Police officer reached their they found only PW1 and accused and no one else, thus this raises doubt on the narrations/depositions of PW1. Learned Counsel for accused further submitted that the PW3 - Santosh Kumar deposed in his evidence that he had talked with his daughter i.e. PW1, after 2/3 days of her missing on 15/04/2011. Meaning thereby is that the PW3 was well aware about the fact that his daughter has run away with accused and this is why they made no efforts to bring the prosecutrix back to their home for 12 days as recovery of the prosecutrix was effected on 27/04/2011. So the prosecution has failed to prove the allegations of Section 366 IPC against the accused. Learned Counsel for accused further submitted that PW1 - prosecutrix had run away with accused out of her own choice and got married with him out of her own will/consent. Learned Counsel for accused further submitted that testimonies of Doctors have also confirmed that PW1 - prosecutrix was not having fresh injuries or stain on her person, which further suggests she was not subjected to any forceful intercourse. Prosecution has failed to prove that the accused person committed rape u/s 376 IPC. Learned Counsel for accused 29 of 109 30 FIR No. 83/11 PS - Begum Pur further submitted that the section 506 IPC is also not made out against the accused as firstly PW1 was having ample opportunities to run away from the clutches of the accused and to come out of the shadow of alleged threat, but she could not. Moreover, threat alleged by prosecutrix is vague in nature as there was not immediate threat to the brother of the prosecutrix as alleged, because he was not with them when the threat was rendered. Therefore, getting effect by such kind of the common man as the accused threatened to kill her brother. Had she been shouted at the time of extension of threat, should could have easily saved herself and her brother as she was well aware at that time that his brother is safe in her house and he was in the custody of her parents. Moreover, no weapon was used to extend threat, which could have made the prosecutrix fearful. Learned Counsel for accused further submitted that prosecution has failed to prove the age of the prosecutrix as per the settled principals of Law of Evidence. The prosecution has not brought any clear evidence on record to prove the age of the prosecutrix on the date of incident. The birth certificate was not proved by the best witness i.e. official concerned from the Registrar of Birth and Death. Moreover, PW3 - Santosh Kumar admitted the fact he has made some insertions in 30 of 109 31 FIR No. 83/11 PS - Begum Pur column 3 of Birth certificate, which make it a forged document. Moreover the place of birth has not been mentioned in column no. 4 of the birth certificate brought by the prosecution on record. As far as the th School certificate is 8 class of prosecutrix is concerned; this School certificate is not any importance because it was not proved by the prosecution that on what basis, date of birth as 10/11/1995 was recorded by the School Authorities and the School witness is not saying anything on this point. Learned Counsel for accused further submitted that no public witnesses were joined at the time of pointing out of the alleged place of incident and during the other proceedings carried out by the Police officials. Learned Counsel for accused further submitted that u/s 315 Cr.P.C. accused himself came into the witness box to prove his innocence and he says that PW1 was in love affair with him and she told her age as 18 years old before the incident and it was the prosecutrix who asked for marriage with him. Learned Counsel for accused prayed for the acquittal of the accused on all the charges levelled against him. Learned Counsel for the accused referred to a case and is reported as 'Pawan Kumar & Anr. Vs. State & Ors.', W.P. (CRL.) 905/2009, date of order 15/02/2010 (DHC).
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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 363/366/328/376/506 IPC against the accused Pawan Kumar @ Pappu (be read as Pawan Kumar @ Deepu) is that on 15/04/2011, at about 2:00 p.m. at House No. A - 65, Rajeev Nagar Ext., Begum Pur, Delhi, within the jurisdiction of PS - Begum Pur he abducted and kidnapped the prosecutrix (name withheld) D/o Sh. Santosh from her house by inducing her by deceitful means and took her to Shakur Pur with intent 32 of 109 33 FIR No. 83/11 PS - Begum Pur that she may be forced or seduced for illicit intercourse and gave her some intoxication with intent to commit an offence and that at the abovesaid date, time and place, he forcefully raped the prosecutrix when she was under intoxication without her consent and that on the abovesaid date, time and place he criminally intimidated the prosecutrix for not disclosing the commission of rape by him on her to anybody.
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. PW3 Santosh Kumar is the father of the prosecutrix who proved the copy of the original birth certificate of his daughter/prosecutrix Ex. P1 and also proved the copy of the record of the Govt. Girls Senior Secondary school of VIII Class of his daughter/prosecutrix mentioning therein her date of birth as 10/11/1995 33 of 109 34 FIR No. 83/11 PS - Begum Pur Ex. P2.
The relevant part of the examinationinchief of PW3 - Santosh Kumar reads as under : "The date of birth of my daughter is 10/11/1995 as per her birth certificate. I have brought the original birth certificate of my daughter/prosecutrix, the copy of the same is Ex. P1(OSR). I have also brought the cumulative record of my daughter when she was in class VIII at GGSS (Govt. Girls Senior Secondary School) mentioning there in her date of birth as 10/11/1995 and the copy of the same is Ex. P2 (OSR)."
PW4 - Smt. Shiv Mati, mother of the prosecutrix in her examinationinchief had deposed that : "The age of my daughter/prosecutrix (name withheld) was about 15½ years at the time of the incident. However, I do not remember her date of birth. My daughter was studying in VIII class at the time of the incident in a school at Begumpur."
PW1 - prosecutrix, in her examinationinchief has deposed that : "At the time of commission of offence I was studying in GGSS, Begum Pur Delhi. I do not remember my date of birth but it was mentioned in the School. I do not know the year of my birth but I was 34 of 109 35 FIR No. 83/11 PS - Begum Pur about 15 years of age."
PW17 - ASI Prem Raj in his examinationinchief has deposed that : "I collected the age proof of prosecutrix (name withheld) and according to which her date of birth is 10/11/1995."
There is nothing in the crossexamination of PW3 Santosh Kumar, PW4 - Smt. Shiv Mati, PW1 - prosecutrix and PW17 - ASI Prem Raj so as to impeach their credit worthiness.
PW11 Ms. Mani Sharma, Vice Principal, Govt. Girls, Sr. Sec. School, Begum Pur, Delhi who deposed that she has brought the admission register of the student of the year, 2008. As per Entry No. 6974 the student/prosecutrix (name withheld) was admitted in 6th class on 04/04/2008 in the school on the basis of SLC issued by MCD, having the date of birth as 10th November, 1995. The copy of the relevant entry in the admission register of the student/prosecutrix (name withheld) is Ex. PW11/A (OSR).
35 of 109 36 FIR No. 83/11 PS - Begum Pur During her crossexamination, PW11 Ms. Mani Sharma, has deposed which is reproduced and read as under : "I joined as Head of the Govt. Girls Senior Secondary School, Begum Pur, Delhi in July, 2010.
Q. In the entry Ex.PW11/A is it correct that the basis of the admission of student/prosecutrix (name withheld) is not mentioned. Ans. As the admission of student/prosecutrix (name withheld) was done on 04/04/2008 and I was not in the School. It is correct that the basis of the admission is not mentioned in the said entry."
PW18 Sh. Subhash Chander, Superintendent Birth & Death, NDMC, Mandir Marg, Delhi who deposed that he has brought the summoned record. As per their record there is an entry regarding the birth of a female child D/o Sh. Santosh Kumar and mother name Smt. Shivmati at Serial No. 10945 dated 18/11/1995. As per their record, the Date of Birth of the child is 10/11/1995. She was born in Sucheta Kriplani Hospital. The copy of the relevant entry is Ex. PW18/A (OSR). The certificate which is already exhibited as 'P1' was issued from their Office and it bears the signatures of Dr. R. N. Singh, the then Registrar Birth & Death at point 'A'.
On careful perusal and analysis of the testimony of PW11 36 of 109 37 FIR No. 83/11 PS - Begum Pur Ms. Mani Sharma there is nothing in her crossexamination so as to impeach her credit worthiness.
Despite grant of opportunity, PW18 Shri Subhash Chander was not crossexamined on behalf of the accused. Nor any evidence to the contrary has been produced or proved on the record by the accused.
In the circumstances, the date of the birth of PW1 prosecutrix as 10/11/1995 stands proved on the record.
As the date of alleged incident is 15/04/2011 and the date of birth of prosecutrix is 10/11/1995, on simple arithmetical calculation, the age of prosecutrix comes to 15 years, 05 months and 05 days as on the date of incident on 15/04/2011.
The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any 37 of 109 38 FIR No. 83/11 PS - Begum Pur evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 15 years, 05 months and 05 days as on the date of alleged incident on 15/04/2011.
13. Learned Counsel for accused submitted that prosecution has failed to prove the age of the prosecutrix as per the settled principals of Law of Evidence. The prosecution has not brought any clear evidence on record to prove the age of the prosecutrix on the date of incident. The birth certificate was not proved by the best witness i.e. official concerned from the Registrar of Birth and Death. Moreover, PW3 - Santosh Kumar admitted the fact he has made some insertions in column 3 of Birth 38 of 109 39 FIR No. 83/11 PS - Begum Pur certificate, which make it a forged document. Moreover the place of birth has not been mentioned in column no. 4 of the birth certificate brought by the prosecution on record. As far as the School certificate is th 8 class of prosecutrix is concerned; this School certificate is not any importance because it was not proved by the prosecution that on what basis, date of birth as 10/11/1995 was recorded by the School Authorities and the School witness is not saying anything on this point.
I have carefully perused and analysed the evidence on record.
As to what has been discussed, analysed and detailed here inabove, at the cost of repetition, it stands established on the record that PW1 - prosecutrix was aged 15 years, 05 months and 05 days as on the date of the alleged incident on 15/04/2011. In the circumstances, no further discussion is called for on the plea so raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
39 of 109 40 FIR No. 83/11 PS - Begum Pur MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW12 Dr. Shankar Gupta, CMO, Sanjay Gandhi Hospital, Mangol Puri, Delhi has deposed that on 28/04/2011, at about 10:25 a.m. patient/prosecutrix (name withheld), 15 and ½ years brought for medical examination with request to preserve undergarments, vaginal swab, pubic hair. After preliminary examination patient was referred for gynae examination. His preliminary examination is from portion 'X' to 'X1' on the MLC already Ex. PW7/A bearing his signatures at point 'C'.
Despite grant of opportunity, PW12 Dr. Shankar Gupta was not crossexamined on behalf of the accused.
PW7 Dr. Kirti Verma, SR Gyane., SGM Hospital, Mangol Puri, Delhi has deposed that on 28/04/2011 patient/prosecutrix (name withheld) D/o Sh. Santosh Yadav was brought to the Hospital by L/Constable Rajni at about 10:20 a.m. in casualty ward and after preliminary examination, she was referred SR Gynae as the alleged history was a sexual assault. She examined the patient as SR Gynae at about 11:00 a.m. on the same day. The patient herself stated the alleged history that she was sexual assaulted on 17/04/2011 and 24/04/2011 in 40 of 109 41 FIR No. 83/11 PS - Begum Pur Khaga Village, U.P. at the house of Pawan's aunt in night. Patient was also stated that she was missing from home from 15/04/2011 at about 5:00 p.m. near Begum Pur near to her house. On examination, her vitals were stable and her hymen was torn. No fresh bleeding or stains were present. Vagina admitted two finger. She also took the sample and sealed i.e. of vulval, vaginal swab, vaginal smear, pubic hair (cutted), nail scrapping, nail cutted, blood samples and clothes and handed over to L/Constable Rajni. The examination was made by her and the noting and writing is at from point 'A' to 'A1' on MLC Ex. PW7/A signed by her at point 'B'.
There is nothing in the crossexamination of PW7 Dr. Kirti Verma so as to impeach her credit worthiness. She has candidly deposed regarding the facts which she observed during the gynecological examination of the patient/prosecutrix.
In view of above and in the circumstances, the medical/gynaecological examination from point 'X' to 'X1' and from point 'A' to 'A1' on MLC Ex. PW7/A of PW1 - prosecutrix stands 41 of 109 42 FIR No. 83/11 PS - Begum Pur proved on the record.
15. Learned Counsel for accused submitted that testimonies of Doctors have also confirmed that PW1 - prosecutrix was not having fresh injuries or stain on her person, which further suggests she was not subjected to any forceful intercourse. Prosecution has failed to prove that the accused person committed rape u/s 376 IPC.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, the testimony of PW12 - Dr. Shanker Gupta, CMO, Sanjay Gandhi Hospital, Mangol Puri, Delhi and that on PW7 - Dr. Kirti Verna, SR, Gynae, SGM Hospital, Mangol Puri, Delhi have been discussed, analysed and detailed hereinabove and the medical/gynaecological examination of the prosecutrix from point 'A' to 'A1' and from point 'X' to 'X1' on MLC Ex. PW7/A has stood proved on the record.
As regards nonfinding of any external injury on the body 42 of 109 43 FIR No. 83/11 PS - Begum Pur part of the prosecutrix, is concerned, the absence of any external injury does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. 43 of 109 44 FIR No. 83/11 PS - Begum Pur State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. VIRILITY OF THE ACCUSED PAWAN KUMAR @ DEEPU
16. PW12 Dr. Shankar Gupta, CMO, Sanjay Gandhi Hospital, Mangol Puri, Delhi has deposed that on 28/04/2011, at about 10:35 a.m. patient Pawan Kumar @ Deepu brought in casualty for medical examination with request to preserve undergarments, blood, semen and pubic hair. Preliminary examination was done and on local examination 44 of 109 45 FIR No. 83/11 PS - Begum Pur there was no external injury mark (fresh). Genital examination nothing suggest that patient is incapable of doing sexual activity. Secondly (secondary) sexual characteristics were developed. Blood sample, semen sample, pubic hair and underwear (mendi colour) were preserved and handed over to Constable Kuldeep for forensic opinion. The MLC is Ex. PW12/A bearing his (PW12) signatures at point 'A'.
Despite grant of opportunity, PW12 Dr. Shankar Gupta was not cross examined on behalf of accused.
In view of above and in the circumstances, it stands proved on the record that accused Pawan Kumar @ Deepu was capable of performing any sexual activity.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
17. PW10 Ms. Seema Nain, Senior Scientific Officer (Biology) FSL Rohini, Delhi has proved the Biological and Serological Reports Ex. PW10/A and Ex. PW10/B respectively, signed by her at points 'A'.
As per biological report Ex. 10/A the description of 45 of 109 46 FIR No. 83/11 PS - Begum Pur articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibits '1a' and '1b' kept in tube stated to be of accused.
Exhibit '1a' : Dark brown foul smelling liquid described as & '1b' 'Blood Sample'. Parcel '2' : One sealed cloth parcel sealed with the seal
of "SGMH MANGOLPURI DELHI" containing exhibit '2' kept in tube stated to be of accused.
Exhibit '2' : Dirty yellowish foul smelling viscous liquid described as 'Semen Sample'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibit '3' kept in a paper stated to be of accused.
Exhibit '3' : A small bunch of black strands of hair described as 'Pubic hair'.
Parcel '4' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibit '4' stated to be of accused.
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PS - Begum Pur
Exhibit '4' : One dirty underwear.
Parcel '5' : One sealed paper envelope sealed with the seal
of "SGMH MANGOLPURI DELHI" containing exhibits '5a', '5b', '5c', '5d', '5e', '5f1', '5f2', '5g', '5h', '5i', '5j', '5k', '5l', '5m', '5n', '5o1', '5o2', '5o3' and '5o4'.
Exhibit '5a' : A few dirty nail clippings described as 'Nail cuttings of right hand'.
Exhibit '5b' : A few dirty nail clippings described as 'Nail cuttings of left hand'.
Exhibit '5c' : One cotton wool swab on stick described as 'Nail scrapping of right hand'.
Exhibit '5d' : One cotton wool swab on stick described as 'Nail scrapping of left hand'.
Exhibit '5e' : A few black strands of hair described as 'Cutting of pubic hair'.
Exhibit '5f1' : Two microslides having faint smear described & '5f2' as 'Vaginal smear'. Exhibit '5g' : One cotton wool swab on stick in tube
described as 'Right lateral Vaginal wall swab'. Exhibit '5h' : One cotton wool swab on stick in tube described as 'Left lateral Vaginal wall swab'. Exhibit '5i' : One cotton wool swab on stick in tube described as 'Anterior vaginal wall swab'.
Exhibit '5j' : One cotton wool swab on stick in tube described as 'Posterior vaginal wall swab'.
Exhibit '5k' : One cotton wool swab on stick in tube described as 'Right vulval swab'.
47 of 109 48 FIR No. 83/11 PS - Begum Pur Exhibit '5l' : One cotton wool swab on stick in tube described as 'Left vulval swab'.
Exhibit '5m' : Dark brown foul smelling liquid described as 'Blood sample of victim'.
Exhibit '5n' : Dark brown foul smelling liquid described as 'Blood sample of victim'.
Exhibit '5o1' : One dirty saree.
Exhibit '5o2' : One dirty petticoat.
Exhibit '5o3' : One dirty blouse.
Exhibit '5o4' : One dirty brassier.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1a', '1b', '5m' and '5n'.
2. Blood could not be detected on exhibits '5a', '5b', '5c' and '5d'.
3. Human semen was detected on exhibits '4', '5f1', '5f2', '5g', '5h', '5i', '5j', '5k', '5l', '5o1' and '5o2'.
4. Semen could not be detected on exhibits '3', '5e', '5o3' and '5o4'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'S. Nn FSL DELHI'.
The serological report Ex. 10/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood stains: '1a' Blood sample of accused Sample putrefied hence no opinion '1b' Blood sample of accused Sample putrefied hence no opinion '5m' Blood sample of victim Sample putrefied hence no opinion 48 of 109 49 FIR No. 83/11 PS - Begum Pur '5n' Blood sample of victim Sample putrefied hence no opinion Semen stains : Sample putrefied hence no opinion '2' Semen sample '4' Underwear No reaction '5g' Cotton wool swab No reaction '5h' Cotton wool swab No reaction '5i' Cotton wool swab No reaction '5j' Cotton wool swab No reaction '5k' Cotton wool swab No reaction '5l' Cotton wool swab No reaction '5o1' Sari No reaction '5o2' Petticoat No reaction On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibits '1a' and '1b' (both blood samples of accused Pawan Kumar @ Deepu), exhibits '5m' and '5n' (both blood samples of victim/prosecutrix); blood could not be detected on exhibit '5a' (Nail cuttings of right hand of victim/prosecutrix)', exhibit '5b' (Nail cuttings of left hand of victim/prosecutrix), exhibit '5c' (Nail scrapping of right hand of victim/prosecutrix) and exhibit '5d' (Nail scrapping of left hand of victim/prosecutrix) and human semen was detected on exhibit 49 of 109 50 FIR No. 83/11 PS - Begum Pur '4' (dirty underwear of accused Pawan Kumar @ Deepu), exhibit '5f1' (vaginal smear of the prosecutrix) , exhibit '5f2' (vaginal smear of the prosecutrix), exhibit '5g' (Right lateral Vaginal wall swab of the prosecutrix), exhibit '5h' (Left lateral Vaginal wall swab of the prosecutrix), exhibit '5i' (Anterior vaginal wall swab of the prosecutrix), exhibit '5j' (Posterior vaginal wall swab of the prosecutrix), exhibit '5k' (Right vulval swab of the prosecutrix), exhibit '5l' (Left vulval swab of the prosecutrix), exhibit '5o1' (one dirty saree of prosecutrix) and exhibit '5o2' (one dirty petticoat of prosecutrix). Semen could not be detected on exhibit '3' (Pubic hair of accused), exhibit '5e' (Cutting of pubic hair of prosecutrix), exhibit '5o3' (One dirty blouse of victim/prosecutrix) and exhibit '5o4' (One dirty brassier of victim/prosecutrix). As per the serological report Ex. PW10/B, sample was putrefied hence no opinion could be given on the exhibits '1a' & '1b' (both blood samples of accused Pawan Kumar @ Deepu) and exhibits '5m' & '5n' (both blood samples of victim/prosecutrix).
As per the biological report Ex. PW10/A, with regard to 50 of 109 51 FIR No. 83/11 PS - Begum Pur the description of the articles contained in the parcels, it is noticed that Parcel Nos. 1 to 4 belongs to the accused Pawan Kumar @ Deepu which were seized vide seizure memo Ex. PW6/A dated 28/04/2011 and parcel no. 5 belongs to the prosecutrix which was seized vide seizure memo Ex. PW8/A dated 28/04/2011.
As per the biological report Ex. PW10/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '4' (dirty underwear of accused Pawan Kumar @ Deepu), exhibit '5f1' (vaginal smear of the prosecutrix) , exhibit '5f2' (vaginal smear of the prosecutrix), exhibit '5g' (Right lateral Vaginal wall swab of the prosecutrix), exhibit '5h' (Left lateral Vaginal wall swab of the prosecutrix), exhibit '5i' (Anterior vaginal wall swab of the prosecutrix),exhibit '5j' (Posterior vaginal wall swab of the prosecutrix), exhibit '5k' (Right vulval swab of the prosecutrix), exhibit '5l' (Left vulval swab of the prosecutrix), exhibit '5o1' (one dirty saree of prosecutrix) and exhibit '5o2' (one dirty petticoat of prosecutrix). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on 51 of 109 52 FIR No. 83/11 PS - Begum Pur exhibits '4', '5f1', '5f2', '5g', '5h', '5i', '5j', '5k', '5l', '5o1' and '5o2' as discussed and detailed hereinabove. The absence of such an explanation both in the Sec. 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.
18. Now let the testimonies of PW1 - Prosecutrix, PW3 - Santosh Kumar, her father and PW4 - Shivmati, her mother be perused and analyzed.
PW1 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I had been knowing accused Pawan Kumar who used to visit our house as he was employee in the factory of my father. He also visited my house in absence of my parents and told me that he wanted to marry me but I refused him not to marry. On 15/04/2011 when I was going to house of my friend, accused met me on the way and asked me that he will drop me at the house of my friend . He was on his bycycle (bicycle). I acceded his request and sat on his bycyle (bicycle). On the way he stoped (stopped) his bycyle (bicycle) and bring two bottled (bottles) of Pepsi and gave one bottle to me after drinking the same I felt unconscious. When I regain consciousness I was found present in a rented room of accused at Shakar Pur. I asked his (him) why he had 52 of 109 53 FIR No. 83/11 PS - Begum Pur brought me there and also threatened to kill my brother Deepak in case I shouted. Thereafter he has taken me on (to) his native village Ganesh Pur where he had forcefully did Court marriage with me. Thereafter accused has taken me to his house at his village and forcefully rape me after removing my clothes and tight (tied) my both the legs and holding my hands himself and he repeated the act of rape daily.
On 27/04/2011 I and accused was recovered by the Police from the house of accused at village Ganesh Pur. At that time my parents (were) with the Police. My recovery memo was also prepared by police and same is Ex. PW1/A signed by me at point 'A'. Police have (had) produced me in the concern Court of PS Khaga and from there they have taken me Delhi.
At Delhi Police got recorded my statement u/s 164 Cr.P.C. At this stage sealed with the seal of 'SG' is opened containing proceeding u/s 164 Cr.P.C. Statement is Ex. PW1/B and thumb mark by me at point 'A' and 'B' and also signed by me at point 'C' and 'D'. I got medically examined by the Police.
At the time of commission of offence I was studying in GGSS, Begum Pur Delhi. I do not remember my date of birth but it was mentioned in the School. I do not know the year of my birth but I was about 15 years of age. I am not knowing whether my birth was registered by my parents or not.
I have not signed any paper at the time of Court marriage." During her further examinationinchief recorded on 07/02/2012, PW1 - prosecutrix deposed that : "I have not brought any document regarding my age, today.
53 of 109 54 FIR No. 83/11 PS - Begum Pur I can identify the clothes which were taken into possession after my medical examination which I was wearing at the time of commission of rape.
At this stage Parcel No. 5 bearing the seal of FSL is opened from which a dirty saree, a dirty peticot, a dirty blouse and a dirty bra are only taken out and shown to the witness. Witness identify the clothes are the same. Same are Ex. P1 to P4 respectively. I can identify the accused if shown to me.
At this stage the wooden partition is removed. The witness identifies the accused Pawan present in the Court (correctly identified)."
From the aforesaid narration of PW1 - prosecutrix, it is clear that she had been knowing accused Pawan Kumar who used to visit their house as he was employee in the factory of her father. He also visited her house in absence of her parents and told her that he wanted to marry her but she refused him not to marry. On 15/04/2011 when she was going to house of her friend, accused met her on the way and asked her that he will drop her at the house of her friend. He was on his bicycle. She acceded his request and sat on his bicycle. On the way he stopped his bicycle and brought two bottles of Pepsi and gave one bottle to her after drinking the same she felt unconscious. When she regain consciousness she was found present in a rented room of accused at 54 of 109 55 FIR No. 83/11 PS - Begum Pur Shakar Pur. She asked him why he had brought her there and also threatened to kill her brother Deepak in case she shouted. Thereafter, he has taken her to his native village Ganesh Pur where he had forcefully did Court marriage with her. Thereafter, accused had taken her to his house at his village and forcefully rape her after removing her clothes and tight (tied) her both the legs and holding her hands himself and he repeated the act of rape daily. On 27/04/2011, she and accused was recovered by the Police from the house of accused at village Ganesh Pur. At that time her parents were with the police. Her recovery memo was also prepared by Police and same is Ex. PW1/A signed by her at point 'A'. Police had produced her in the concerned Court of PS Khaga and from there they had taken her to Delhi. At Delhi, Police got recorded her statement u/s 164 Cr.P.C. which is Ex. PW1/B and thumb marked by her at points 'A' and 'B' and also signed by her at points 'C' and 'D'. She was got medically examined by the Police. At the time of commission of offence she was studying in GGSS, Begum Pur Delhi. She does not remember her date of birth but it was mentioned in the School. She does not know the year of her birth but she was about 15 years of age. She was not knowing whether her birth was registered by her parents or not.
55 of 109 56 FIR No. 83/11 PS - Begum Pur She had not signed any paper at the time of Court marriage. She has not brought any document regarding her age and she identified her clothes, a dirty saree, a dirty peticot, a dirty blouse and a dirty bra as Ex. P1 to P4 respectively. She identified the accused Pawan present in the Court.
PW1 - Prosecutrix during her crossexamination has negated the suggestions that she was never taken to the room regarding which she has deposed or that on 20/04/2011 on a motorcycle alongwith accused Pawan she had gone to perform marriage at Kosambi or that the circular stamps appearing on Ex. PW1/DX1 were affixed in her presence or that she had gone to the house of Madhusudan, fatherinlaw of the son of accused bua at Fateh Pur or that she had stayed there for two days or that accused Pawan had taken her to Police Station - Khaga, District Fateh Pur on 26/04/2011 or that any talk was made by her from mobile phone no. 9899778654 of her father to the mobile phone no. 9716475329 of accused Pawan during the period from December, 2010 to 15/04/2011 or that during the lunch time of her father she used to give a "miss call"
from the mobile phone no. 9899778654 of her father, to the mobile phone no. 9716475329, of accused Pawan and thereupon accused Pawan
56 of 109 57 FIR No. 83/11 PS - Begum Pur used to call back on the said mobile phone no. of her father or that after 9:30 p.m. of the close of the factory of her father she used to give a "miss call" from the mobile phone no. 9899778654 of her father, to the mobile phone no. 9716475329, of accused Pawan and thereupon accused Pawan used to call back on the said mobile phone no. of her father or that on 15/04/2011, accused Pawan had met her at Kali Mandir at about 3:00 p.m. and from there they together had gone on foot to Bawana Road or that from Bawana Road an auto rickshaw was hired and from there they had gone to New Delhi Railway Station or that she was talking telephonically with her father and mother in Delhi from the house of bua of the accused or that on 15/04/2011 at about 11:00 or 11:30 a.m., she had contacted accused Pawan telephonically and fixed the place and time of meeting and eloping or that she was in love with accused Pawan and she has married with accused Pawan of her own free will as they were apprehending that their parents will not agree to their marriage as they belonged to different castes or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - prosecutrix nothing material has been brought out on the record so as to impeach her 57 of 109 58 FIR No. 83/11 PS - Begum Pur creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW1 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence as well as by the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW1/B. The testimony of PW1 - Prosecutrix is also found to be corroborated by PW3 - Santosh Kumar, her father and PW4 - Shivmati, her mother to whom prosecutrix had disclosed the facts 58 of 109 59 FIR No. 83/11 PS - Begum Pur relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW3 - Santosh Kumar in his examinationinchief has deposed that : "The name of daughter is prosecutrix (name withheld). On 15/04/2011 as usual I had gone to my work place in the morning hours and my wife Shivmati and my daughter/prosecutrix (name withheld) were present in the house. Accused Pawan Kumar who was working in my factory previously have visiting terms in our house and he used to come to our house during his employment. On that day, my daughter/prosecutrix was going to the house of her friend at about 2:00 p.m. and on the way accused Pawan Kumar met with my daughter and asked her to drop her the house of her friend and thereafter, he has given pepsi bottle and after drinking the same she became unconscious and accused had taken her to his native village Ganeshpura police Station Khaga, Fateh Puri U.P. as stated by my daughter after she has been recovered. I made a complaint to the police on 16/04/2011 regarding missing of daughter/prosecutrix. Police recorded my statement which is Ex. PW3/A which bears my signature at point 'A' and on (my) statement FIR was registered under section 363 IPC. Before that we have tried to search my daughter as our own but could not succeed in tracing her.
On 26/04/2011, I alongwith ASI Prem Lal and Constable Kuldeep went to Police Station Khaga Distt. Fateh Pur U.P. in search of 59 of 109 60 FIR No. 83/11 PS - Begum Pur my daughter. We reached at police station Khaga at about 10:30 a.m. on next day after informing them one lady Constable Sunita and some other Police officials from the police station Khaga accompanied us and we proceeded towards the village Khaga near village Khaga one person met to the police officials who gave the information that a boy brought a girl in the village 2 days before and on this information, he also accompanied us and pointed out the house of that boy namely Pawan. The main gate of the house was opened when we entered into his house accused Pawan and one girl was found sitting in the house. At my pointing out my daughter/prosecutrix and accused Pawan Kumar were apprehended. Recovery memo of my daughter Ex.PW1/A was prepared signed by me at point 'B'. Accused was also interrogated, he was arrested vide arrest memo Ex. PW3/B and his personal search memo was also prepared by the IO. Both prosecutrix and accused Pawan Kumar were produced in the concerned Court of village Khaga and after taking due permission from the concerned Court my daughter and accused were brought to Delhi. Accused Pawan Kumar is present in the Court today (correctly identified). My wife Smt. Shiv Mati Devi was also with me at the time of proceeding to village Khaga with the Police officials. After coming to Delhi police officials got my daughter medically examined and also got recorded her statement under section 164 Cr.P.C. from the concerned Court. The date of birth of my daughter is 10/11/1995 as per her birth certificate. I have brought the original birth certificate of my daughter/prosecutrix, the copy of the same is Ex. P1(OSR). I have also brought the cumulative record of my daughter when she was in class VIII at GGSS (Govt. Girls Senior Secondary School) mentioning there in her date of birth as 10/11/1995 and the copy of the same is Ex. P2 (OSR)."
60 of 109 61 FIR No. 83/11 PS - Begum Pur From the aforesaid narration of PW3 - Santosh Kumar it is clear that prosecutrix is his daughter. On 15/04/2011 as usual he had gone to his work place in the morning hours and his wife Shivmati and his daughter/prosecutrix were present in the house. Accused Pawan Kumar who was working in his factory previously had visiting terms in their house and he used to come to their house during his employment. On that day, his daughter/prosecutrix was going to the house of her friend at about 2:00 p.m and on the way accused Pawan Kumar met with his daughter and asked her to drop her the house of her friend and thereafter, he had given pepsi bottle and after drinking the same she became unconscious and accused had taken her to his native village Ganeshpura PS Khaga, Fateh Puri U.P. as stated by his daughter after she has been recovered. He made a complaint to the Police on 16/04/2011 regarding missing of daughter/prosecutrix. Police recorded his statement which is Ex.PW3/A which bears his signature at point A and on his statement FIR was registered under section 363 IPC. Before that they had tried to search his daughter as their own but could not succeed in tracing her. On 26/04/2011 he alongwith ASI Prem Lal and 61 of 109 62 FIR No. 83/11 PS - Begum Pur Constable Kuldeep went to PS - Khaga, Distt. Fateh Pur, U.P. in search of his daughter. They reached at PS Khaga at about 10:30 a.m on next day after informing them one Lady Constable Sunita and some other police officials from the PS Khaga accompanied them and they proceeded towards the village Khaga near village Khaga one person met to the police officials who gave the information that a boy brought a girl in the village 2 days before and on this information, he also accompanied them and pointed out the house of that boy namely Pawan. The main gate of the house was opened when they entered into his house accused Pawan and one girl was found sitting in the house. At his pointing out his daughter/prosecutrix and accused Pawan Kumar were apprehended. Recovery memo of his daughter Ex. PW1/A was prepared signed by him at point 'B'. Accused was also interrogated, he was arrested vide arrest memo Ex. PW3/B and his personal search memo was also prepared by the IO. Both prosecutrix and accused Pawan Kumar were produced in the concerned Court of village Khaga and after taking due permission from the concerned Court, his daughter and accused were brought to Delhi. He correctly identified the accused Pawan Kumar present in the Court. His wife Smt. Shiv Mati Devi was also with him at the time of 62 of 109 63 FIR No. 83/11 PS - Begum Pur proceeding to village Khaga with the police officials. After coming to Delhi, Police officials got his daughter medically examined and also got recorded her statement under section 164 Cr.P.C. from the concerned Court. The date of birth of his daughter is 10/11/1995 as per her birth certificate. He has brought the original birth certificate of his daughter/prosecutrix, the copy of the same is Ex. P1.(OSR). He had also brought the cumulative record of his daughter when she was in class VIII at GGSS (Govt. Girls Senior Secondary School) mentioning therein her date of birth as 10/11/1995 and the copy of the same is Ex. P2 (OSR).
During his crossexamination PW3 - Santosh Kumar has negated the suggestions that the name of prosecutrix was not filled at the time as he deposed or that the certificate Ex. P1 does not belonged to his daughter/prosecutrix or that the phone number on which he had telephoned his daughter was already existing in his phone record/phone contacts or that no boy had given him the mobile number of accused Pawan as deposed, as he was already having the mobile number of accused Pawan as the accused had called him several time during the period when his daughter had gone from the house or that they had 63 of 109 64 FIR No. 83/11 PS - Begum Pur mentioned wrong date of birth of his daughter in school record or that his daughter was 19 years old on the day of incident or that the accused is falsely implicated in this case or that birth certificate produced by him regarding age of prosecutrix is a fabricated document.
PW4 - Smt. Shivmati in her examinationinchief has deposed that : "The name of daughter is prosecutrix (name withheld). On 15/04/2011 at about 2:00 p.m. my daughter/prosecutrix was going to the house of her friend. I was present at my house and my husband had gone to his work place as usual. My daughter did not return to the house on that day and we searched her as our own but could not succeed in tracing out my daughter/prosecutrix. My husband reported the matter to the police on the next day and also raised suspicion over accused Pawan Kumar. Accused Pawan Kumar who was working in the factory of my husband previously and have visited our house during his employment. One day, I raised objection of visiting Pawan Kumar to our house then he stated that prosecutrix (name withheld) is like his sister and if anything found wrong he would have killed by us.
My husband ultimately made a complaint to the police on 16/04/2011 regarding missing of our daughter/prosecutrix (name withheld).
On 26/04/2011 I alongwith ASI Prem Raj and Constable Kuldeep and other Police official and my husband went to the native village of suspected accused Pawan Kumar in search of my daughter.
64 of 109 65 FIR No. 83/11 PS - Begum Pur We reached at the native village of accused Pawan Kumar on the next day at about 10:30 a.m. We directly went to police station Khaga and after informed all the circumstances, one lady Constable Sunita and some other Police officials from the Police Station Khaga accompanied us and we proceeded towards the village Khaga near village Khaga one person met to the police officials who gave the information that a boy brought a girl in the village 2 days before and on this information, he also accompanied us and pointed out the house of that boy namely Pawan when we entered into the house of suspected accused Pawan and one girl was found sitting in the house in the room. After identification of our daughter by me and by my husband my daughter/prosecutrix (name withheld) and accused Pawan Kumar were apprehended. Recovery memo of my daughter Ex. PW1/A was prepared which was signed by me at point 'C'. Accused was also interrogated and thereafter he was arrested vide arrest memo Ex.PW3/B and his personal search memo was also prepared by the IO. Both prosecutrix and accused Pawan Kumar were produced in the concerned court of village Khaga and after taking due permission from the concerned court my daughter and accused were brought to Delhi. Accused Pawan Kumar is present in the court today. (correctly identified). After coming to Delhi police officials got my daughter medically examined and also got recorded her statement under section 164 Cr.P.C. from the concerned Court. The age of my daughter/prosecutrix (name withheld) was about 15½ years at the time of the incident. However, I do not remember her date of birth. My daughter was studying in VIII class at the time of the incident in a school at Begumpur. Statement of my daughter/prosecutrix (name withheld) was also recorded by the Police in my presence."
65 of 109 66 FIR No. 83/11 PS - Begum Pur From the aforesaid narration of PW4 - Smt. Shivmati it is clear that the name of her is prosecutrix (name withheld). On 15/04/2011 at about 2:00 p.m. her daughter/prosecutrix was going to the house of her (prosecutrix) friend. She (PW4) was present at her (PW4) house and her (PW4) husband had gone to his work place as usual. Her daughter did not return to the house on that day and they searched her as their own but could not succeed in tracing out her daughter. Her husband reported the matter to the Police on the next day and also raised suspicion over accused Pawan Kumar. Accused Pawan Kumar who was working in the factory of her husband previously and had visited their house during his employment. One day, she (PW4) raised objection of visiting Pawan Kumar to their house then he stated that prosecutrix is like his sister and if anything found wrong he would have killed by them. Her husband ultimately made a complaint to the Police on 16/04/2011 regarding missing of their daughter/prosecutrix. On 26/04/2011, she alongwith ASI Prem Raj and Constable Kuldeep and other Police official and her husband went to the native village of suspected accused Pawan Kumar in search of her daughter. They reached at the native village of accused Pawan Kumar on the next day at about 10:30 a.m. They directly 66 of 109 67 FIR No. 83/11 PS - Begum Pur went to PS Khaga and after informed all the circumstances, one lady constable Sunita and some other Police officials from the PS Khaga accompanied them and they proceeded towards the village Khaga near village Khaga one person met to the Police officials who gave the information that a boy brought a girl in the village 2 days before and on this information, he also accompanied them and pointed out the house of that boy namely Pawan. When they entered into the house of suspected accused Pawan and one girl was found sitting in the house in the room. After identification of their daughter by her and by her husband her daughter/prosecutrix and accused Pawan Kumar were apprehended. Recovery memo of her daughter Ex. PW1/A was prepared which was signed by her at point 'C'. Accused was also interrogated and thereafter he was arrested vide arrest memo Ex. PW3/B and his personal search memo was also prepared by the IO. Both prosecutrix and accused Pawan Kumar were produced in the concerned Court of village Khaga and after taking due permission from the concerned Court her daughter and accused were brought to Delhi. She correctly identified accused Pawan Kumar present in the Court. After coming to Delhi Police officials got her daughter medically examined and also got recorded her statement 67 of 109 68 FIR No. 83/11 PS - Begum Pur under section 164 Cr.P.C. from the concerned Court. The age of her daughter/prosecutrix was about 15½ years at the time of the incident. However, she does not remember her date of birth. Her daughter was studying in VIII class at the time of the incident in a school at Begumpur. Statement of her daughter was also recorded by the Police in her presence.
During her crossexamination PW4 - Smt. Shivmati has negated the suggestions that her daughter/prosecutrix was not recovered from village Khaga and she has stayed at the house of Bhua of the accused which is situated in Village Dandihar PS Gosh District, Koshambi U.P. from there the accused Pawan Kumar had voluntarily taken her daughter to the PS - Khaga or that her daughter was in love with accused Pawan Kumar and she voluntarily eloped (with) accused Pawan as per her own free will and as per pre planning or that her daughter had having regular conversation with the accused Pawan Kumar or her daughter knows the fact that Pawan Kumar not belongs to their caste and they never accepted the proposal of marriage between her daughter and accused as such both have decided to run away from their 68 of 109 69 FIR No. 83/11 PS - Begum Pur respective houses and both have decided to inform later on about the alliance between them or that her daughter had informed about her marriage with the accused to them telephonically or that they had telephonic conversation with the accused and her daughter regularly prior to the date of recovery of her daughter.
Inspite of incisive crossexamination of PW3 - Santosh Kumar and PW4 - Smt. Shivmati, 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 (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 Pawan Kumar @ Deepu to falsely implicate him in the case.
19. While analysing the testimony of PW1 Prosecutrix, PW3 - Santosh Kumar, father of the prosecutrix and PW4 - Smt. Shivmati, 69 of 109 70 FIR No. 83/11 PS - Begum Pur mother of the prosecutrix as discussed hereinabove inspite of incisive crossexamination of PW1 Prosecutrix, PW3 - Santosh Kumar and PW4 - Smt. Shivmati 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 PW1 Prosecutrix that she was never taken to the room regarding which she has deposed or that on 20/04/2011 on a motorcycle alongwith accused Pawan she had gone to perform marriage at Kosambi or that the circular stamps appearing on Ex. PW1/DX1 were affixed in her presence or that she had gone to the house of Madhusudan, fatherinlaw of the son of accused bua at Fateh Pur or that she had stayed there for two days or that accused Pawan had taken her to Police Station - Khaga, District Fateh Pur on 26/04/2011 or that any talk was made by her from mobile phone no. 9899778654 of her father to the mobile phone no. 9716475329 of accused Pawan during the period from December, 2010 to 15/04/2011 or that during the lunch time of her father she used to give a "miss call"
from the mobile phone no. 9899778654 of her father, to the mobile phone no. 9716475329, of accused Pawan and thereupon accused Pawan used to call back on the said mobile phone no. of her father or that after
70 of 109 71 FIR No. 83/11 PS - Begum Pur 9:30 p.m. of the close of the factory of her father she used to give a "miss call" from the mobile phone no. 9899778654 of her father, to the mobile phone no. 9716475329, of accused Pawan and thereupon accused Pawan used to call back on the said mobile phone no. of her father or that on 15/04/2011, accused Pawan had met her at Kali Mandir at about 3:00 p.m. and from there they together had gone on foot to Bawana Road or that from Bawana Road an auto rickshaw was hired and from there they had gone to New Delhi Railway Station or that she was talking telephonically with her father and mother in Delhi from the house of bua of the accused or that on 15/04/2011 at about 11:00 or 11:30 a.m., she had contacted accused Pawan telephonically and fixed the place and time of meeting and eloping or that she was in love with accused Pawan and she has married with accused Pawan of her own free will as they were apprehending that their parents will not agree to their marriage as they belonged to different castes or that she is deposing falsely, the suggestions to PW3 - Santosh Kumar that the name of prosecutrix was not filled at the time as he deposed or that the certificate Ex. P1 does not belonged to his daughter/prosecutrix or that the phone number on which he had telephoned his daughter was already existing in his phone 71 of 109 72 FIR No. 83/11 PS - Begum Pur record/phone contacts or that no boy had given him the mobile number of accused Pawan as deposed, as he was already having the mobile number of accused Pawan as the accused had called him several time during the period when his daughter had gone from the house or that they had mentioned wrong date of birth of his daughter in school record or that his daughter was 19 years old on the day of incident or that the accused is falsely implicated in this case or that birth certificate produced by him regarding age of prosecutrix is a fabricated document and the suggestions to PW4 - Shivmati that her daughter/prosecutrix was not recovered from village Khaga and she has stayed at the house of Bhua of the accused which is situated in Village Dandihar PS Gosh District, Koshambi U.P from there the accused Pawan Kumar had voluntarily taken her daughter to the PS - Khaga or that her daughter was in love with accused Pawan Kumar and she voluntarily eloped (with) accused Pawan as per her own free will and as per pre planning or that her daughter had having regular conversation with the accused Pawan Kumar or her daughter knows the fact that Pawan Kumar not belongs to their caste and they never accepted the proposal of marriage between her daughter and accused as such both have decided to run away from their 72 of 109 73 FIR No. 83/11 PS - Begum Pur respective houses and both have decided to inform later on about the alliance between them or that her daughter had informed about her marriage with the accused to them telephonically or that they had telephonic conversation with the accused and her daughter regularly prior to the date of recovery of her daughter, 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.
However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examining himself as a witness as DW1.
DW1 Pawan Kumar @ Deepu, the accused, in his examinationinchief has deposed that : "I met with the prosecutrix first time at her home as I went to repair the T.V. at her home. I had cordial relations with prosecutrix and her family members. Then we came into good friendship and she told me that she is not in good terms with her family as her father used to 73 of 109 74 FIR No. 83/11 PS - Begum Pur beat her. She also told me that she is about 18 years old and she wanted to live her life in her own way joyfully. Then we got emotionally attached and fell in love with each other. She told me that her family will not consent her marriage to me so she wanted to run away with me and to marry with me. Then one day she in preplaned manner asked me to take her away from her family and marry with her. On 15/04/2011 prosecutrix contacted me and told me that she is waiting for me at Kali Mandir near Rajiv Nagar and asked me to come and take her from there. The prosecutrix was carrying a bag having her clothes and other needful things alongwith her. Thereafter, I alongwith prosecutrix went to Allahbad (Allahabad) by train from New Delhi Railway Station. Then on 20/04/2011 we got married with each other with the consent of both and also signed a marriage agreement and got attested the same by Notary on the same day which is Ex. PW1/DX1. But we did not have physical intimacy with each other."
During his crossexamination recorded on 16/01/2014, DW1
- Pawan Kumar @ Deepu has deposed which is reproduced and reads as under : "I was doing electronic goods repairing work at Shakurpur Delhi. I was working in the shop of Sushil which was being run under the name Shushil Electronics. I do not have any proof of my had been working in the shop of Sushil. It is wrong to suggest that I was not working at the said alleged shop and for this reason I do not have any proof regarding this. It is wrong to suggest that I was working the factory of the father of the prosecutrix (name withheld). Vol. I used to 74 of 109 75 FIR No. 83/11 PS - Begum Pur know her father Sh. Santosh Kumar and used to visit this (his) factory. It is correct that I used to go to the house of prosecutrix (name withheld) with her father Santosh Kumar. I was knowing prosecutrix (name withheld) and her father Santosh Kumar since October, 2010. I used to visit the house of prosecutrix (name withheld) on the interval of 23 days (do teen din baad uske ghar chala jata tha). I used to go to the house of prosecutrix (name withheld) even when her father was not present there. Prosecutrix (name withheld) was having one younger brother namely Deepak and he was aged about 10/11 years. I cannot say as to for how much years Deepak was younger to prosecutrix (name withheld). Q. In your examinationinchief you have deposed that she (prosecutrix (name withheld)) told you that her family will not consent her marriage to you so she wants to run away with you and to marry with you. Did you tell this to Sh. Santosh Kumar, father of prosecutrix (name withheld)?
A. I had not told this to Sh. Santosh Kumar, father of prosecutrix (name withheld) as prosecutrix (name withheld) had forbidden me not to tell this to her father (prosecutrix (name withheld) ne ye apne papa ko batane ke lie mujhe mana kia tha).
Q. In your examinationinchief you have deposed that she (prosecutrix (name withheld)) told you that her family will not consent her marriage to you so she wants to run away with you and to marry with you. Did you tell this, to the mother of prosecutrix (name withheld)? A. No. Vol. prosecutrix (name withheld) had forbidden me not to tell this to her parents as none of them would agree to the marriage. (prosecutrix (name withheld) ne apne mata pita ko batane se mana kia tha ki unme se koi bhi is shadi ke lie tyar nahi hoga). Q. Did you tell your parents that one girl wants to run away with you? (ek ladki tumhare saath bhagna chahti hai)?
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A. Yes.
Q. As you have deposed that you told your parents regarding running
away of one girl with you, did your parents talk to the parents of prosecutrix (name withheld)?
A. No. Q. In your examinationinchief you have deposed that on 15/04/2011
prosecutrix (name withheld) contacted you and told that she is waiting for you at near Kali Mandir, Rajeev Nagar and asked you to come and take her from there. How prosecutrix (name withheld) contacted you, where were you at the time of alleged contact?
A. She contacted me from her mobile phone, on my mobile phone and at that time I was at Shakarpur, Delhi.
I reached within 1520 minutes. Vol. I went by bus. Q. When prosecutrix (name withheld) had contacted you and asked you to come and take her from Kali Mandir Rajiv Nagar, did you inform her parents?
A. No. I also wanted to marry with prosecutrix (name withheld)."
During his crossexamination recorded on 16/01/2014, DW1
- Pawan Kumar @ Deepu has deposed that : "Q. Where you had taken prosecutrix (name withheld) for marriage?
Ans. Manjan Pur Court (Manjan Pur Court Le Kar Gaye The), Village Fatiyapur, Distt. Koshambi, Uttar Pradesh.
76 of 109 77 FIR No. 83/11 PS - Begum Pur Q. When you had taken her (Prosecutrix (name withheld)) for marriage?
Ans. On 20/04/2011.
Agreement Ex. PW1/DX (be read as Ex. PW1/DX1) was executed on 20/04/2011. Except for the execution of the agreement Ex. PW1/DX (be read as Ex. PW1/DX1), no other document was made/prepared/executed. Except for the execution of the agreement Ex. PW1/DX (be read as Ex. PW1/DX1), no other rites/ceremonies were performed. At the time of execution of agreement Ex. PW1/DX (be read as Ex. PW1/DX1), besides myself and Prosecutrix (name withheld), my father Sh. Chhedu Singh, my jija Sh. Madho Prashad, fatherinlaw of the son of my bua and the Advocate were present whose name I do not remember. It is wrong to suggest that the signatures of prosecutrix (name withheld) were taken forcibly, without her consent on the agreement Ex. PW1/DX (be read as Ex. PW1/DX1). It is wrong to suggest that I had taken prosecutrix (name withheld) to my house at village Ganesh Pur. It is wrong to suggest that myself and prosecutrix (name withheld) were apprehended (Pakda Tha) by the Police from my house at village Ganesh Pur. It is wrong to suggest that I have deposed falsely that on 15/04/2011 prosecutrix (name withheld) contacted me and told that she is waiting for me at near Kali Mandir, Rajeev Nagar and asked me to come and take her from there. It is further wrong to suggest that I have deposed falsely that prosecutrix (name withheld) had told me that she is not in good terms with her family as her father used to beat her. It is further wrong to suggest that I 77 of 109 78 FIR No. 83/11 PS - Begum Pur have deposed falsely that prosecutrix (name withheld) had told me that she is about 18 years old and she wants to live her life in her own way joyfully. It is further wrong to suggest that I have deposed falsely that prosecutrix (name withheld) has told me that her family will not consent her marriage with me so she wants to run away with me and to marry with me. It is further wrong to suggest that I have deposed falsely that one day prosecutrix (name withheld) in a preplaned manner asked me to take away from her family. It is wrong to suggest that on 15/04/2011 when prosecutrix (name withheld) was going to the house of her friend I met her on the way and asked her that I will drop her at the house of her friend or that I was on your bicycle and she acceded my request and sat on my bicycle or that on the way I stopped my bicycle and bring two bottles of pepsi and gave one bottle to her and after drinking the same she felt unconscious and when she regained consciousness, she found present in my rented room at Shakur Pur or that she asked me as to why I had brought her there and I also threatened to kill her brother Deepak in case she shout or that thereafter I had taken her at my village Ganesh Pur where I had forcibly did Court Marriage with her or that thereafter I had taken her to my house at my village and forcibly raped her after removing her clothes and tied her both legs and by holding her hands, I repeated the act of rape daily.
It is wrong to suggest that I was knowing that prosecutrix (name withheld) was less than 18 years when I had taken her for marriage. It is further wrong to suggest that I have got mentioned her age as 19 years wrongly and deliberately in the agreement Ex. PW1/DX(be read as Ex. PW1/DX1).
It is wrong to suggest that I have cooked up a false story in order to create a false defence and deposed falsely in order to save myself."
78 of 109 79 FIR No. 83/11 PS - Begum Pur On careful perusal and analysis of the entire testimony of DW1 - Pawan Kumar @ Deepu, it is found that the bottom of the defence of the accused of the fact regarding the performance of the marriage vide agreement Ex. PW1/DX1 has been knocked out by PW1 - prosecutrix during her crossexamination which, at the cost of repetition, is reproduced and reads as under : "Q. Please see a document which is a marriage agreement (Vaivahik Ikrarnama) does it bear your signatures at points 'A' at five places?
Ans. Yes. It bears my signatures at point 'A' at five places but my these signatures were obtained by accused forcibly. The marriage agreement is Ex. PW1/DX1.
It is correct that my photo is affixed at point 'B' on Ex. PW1/DX1. I do not know as to whether my photo in Saree at point 'B' on the Ex. PW1/DX1 was got photographed on 20/04/2011 or not. It is correct where my signatures at points 'A' on Ex. PW1/DX1 were taken forcibly by accused Pawan, it is a small room like office of an Advocate where one table and two chairs were lying with one person in black robes. I do not know as to whether the stamp papers where on the back of Ex. PW1/DX1, of which one Indu Kumari is mentioned at points 'C' (five places) were purchased on 20/04/2011. It is wrong to suggest that the circular stamps appearing on Ex. PW1/DX1 were affixed in my presence. I do not recollect as to whether at the place where a room like office of an Advocate was there, I had signed in any register of that 79 of 109 80 FIR No. 83/11 PS - Begum Pur Advocate. I do not know as to whether the witnesses Madho Prasad and Dhan Raj, cited in the document Ex. PW1/DX1, the relatives of the accused Pawan were also present there who had put their signatures and thumb impressions respectively at point 'D' and 'E' on Ex. PW1/DX1."
It is also to be noticed that during his examinationinchief, as reproduced hereinabove, DW1 - accused Pawan Kumar @ Deepu has floated the theory that, "she (prosecutrix) also told him that she is about 18 years old and she wants to live her life in her own way joyfully";
the theory that, "she (prosecutrix) told him that her family will not consent her marriage to him so she wants to run away with him and to marry with him";
the theory that, "the prosecutrix was carrying a bag having her clothes and other needful things alongwith her"
AND the theory that, "on 20/04/2011, they (accused and prosecutrix) got married with each other with consent of both" but the said theories so propounded have not at all being made probable,
80 of 109 81 FIR No. 83/11 PS - Begum Pur much established by any cogent evidence. Nor any suggestion was put/suggested either to PW1 - prosecutrix or to PW3 - Santosh Kumar, her father and PW4 - Smt. Shiv Mati, her mother during their incisive and lengthy crossexamination. Not even a single word regarding the said theories, so propounded, was uttered by the accused during his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theories, so floated, are merely an afterthought and the testimony of DW1 - accused Pawan Kumar @ Deepu does not inspire confidence.
In view of above and in the circumstances, the testimony of the said defence witness does not inspire confidence.
20. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : 81 of 109 82 FIR No. 83/11 PS - Begum Pur "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 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 82 of 109 83 FIR No. 83/11 PS - Begum Pur 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of medical/gynaecological examination from point 'A' to 'A1' and from point 'X' to 'X1' on MLC Ex. PW7/A of the prosecutrix, biological and serological evidence, together with the MLC of accused Ex. PW12/A as 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.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Pawan Kumar @ Deepu with PW1 - Prosecutrix without her consent.
21. Learned Counsel for accused submitted that the prosecution 83 of 109 84 FIR No. 83/11 PS - Begum Pur has failed to prove ingredients of section 328 IPC. The prosecution could not produce any evidence on record to prove the ingredients of this section. Prosecution has failed to produce/recover Pepsi bottle as alleged and MLC is also silent to bring any substance to prove this section.
I have carefully perused and analysed the evidence on record.
Undisputably, the alleged incident is of dated 15/04/2011 and the recovery of the prosecutrix was made by the Police vide recovery memo Ex. PW1/A on 27/04/2011.
As regards the plea for nonrecovery of the Pepsi bottle in respect of the material/object which was alleged to be mixed and which was offered to the prosecutrix by the accused Pawan, is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. Such fact regarding as to what was mixed in the Pepsi bottle of the prosecutrix and about the whereabouts of the pepsi bottle must be especially within the knowledge of the accused and the burden of proving that fact was upon him as provided u/s 106 of the Indian Evidence Act, 1872.
84 of 109 85 FIR No. 83/11 PS - Begum Pur Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
As regards any observation regarding any intoxicating substance in the MLC Ex. PW7/A, dated 28/04/2011 of PW1 - prosecutrix is concerned, undisputably, the incident is of dated 15/04/2011 and the recovery of the prosecutrix was made on 27/04/2011 vide recovery memo Ex. PW1/A and her medical examination was conducted on 28/04/2011 vide MLC Ex. PW7/A. During the period from the date of incident on 15/04/2011 till 28/04/2011 when her medical examination was conducted, prosecutrix must have taken food, must have answered the call of nature, must have urinated a number of times, in the circumstances, how it could have been expected, the presence of any intoxicating substance in the body of the prosecutrix and moreover, PW1
- prosecutrix in her examinationinchief has specifically deposed that 85 of 109 86 FIR No. 83/11 PS - Begum Pur after the drinking of the Pepsi bottle offered by the accused, when she regained consciousness, she found herself present in a rented room of accused at Shakur Pur.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for accused submitted that prosecution has failed to bring the case u/s 366 IPC against the accused. Firstly, as per prosecution story, PW1 - prosecutrix (name withheld) and her family member were known to accused person very well. According to the PW1 the accused met her on the way to his friend home and he was on his bicycle. It is difficult to imagine that a person kidnaps another person on bicycle moreover when the person kidnapped is unconscious, so prosecution has failed to prove the first part of this section. Secondly, prosecution says that the accused had kidnapped PW1 and compelled her to marry him/accused. As PW1 married with the accused person after planning to run away with the accused. This assertion get force from the fact that in order to run away with the accused, PW1 had not gone to 86 of 109 87 FIR No. 83/11 PS - Begum Pur School without explaining any reason. Thirdly, she did not raise any alarm to anywhere/place and any time when she had various occasions to raise alarm and gather the public person and to make complaint against the accused. PW1 had a chance, firstly when they took the auto rickshaw; Secondly at New Delhi Railway Station; Thirdly while the accused was buying the railway ticket and she was standing/waiting at some distance; Fourthly in a general boggy of train; Fifthly during bus journey which was for about 34 hours; Sixthly when she had gone to market for buying the clothes; Seventhly at Advocate's office at the time of preparation of documents regarding their marriage, so all abovesaid acts of PW1 reflect her consent in associating/going away with the accused.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, her testimony on careful perusal and analysis has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There 87 of 109 88 FIR No. 83/11 PS - Begum Pur is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
At the cost of repetition, PW1 - prosecutrix in her examinationinchief has specifically deposed which is reproduced and reads as under : "I had been knowing accused Pawan Kumar who used to visit our house as he was employee in the factory of my father. He also visited my house in absence of my parents and told me that he wanted to marry me but I refused him not to marry. On 15/04/2011 when I was going to house of my friend, accused met me on the way and asked me that he will drop me at the house of my friend . He was on his bycycle (bicycle). I acceded his request and sat on his bycyle (bicycle). On the way he stoped (stopped) his bycyle (bicycle) and bring two bottled (bottles) of Pepsi and gave one bottle to me after drinking the same I felt unconscious. When I regain consciousness I was found present in a rented room of accused at Shakar Pur. I asked his (him) why he had brought me there and also threatened to kill my brother Deepak in case I shouted. Thereafter he has taken me on (to) his native village Ganesh Pur where he had forcefully did Court marriage with me. Thereafter accused has taken me to his house at his village and forcefully rape me after removing my clothes and tight (tied) my both the legs and holding my hands himself and he repeated the act of rape daily.
On 27/04/2011 I and accused was recovered by the Police from the house of accused at village Ganesh Pur. At that time my parents (were) with the Police. My recovery memo was also prepared by 88 of 109 89 FIR No. 83/11 PS - Begum Pur police and same is Ex. PW1/A signed by me at point 'A'. Police have (had) produced me in the concern Court of PS Khaga and from there they have taken me Delhi.
At Delhi Police got recorded my statement u/s 164 Cr.P.C. At this stage sealed with the seal of 'SG' is opened containing proceeding u/s 164 Cr.P.C. Statement is Ex. PW1/B and thumb mark by me at point 'A' and 'B' and also signed by me at point 'C' and 'D'. I got medically examined by the Police.
At the time of commission of offence I was studying in GGSS, Begum Pur Delhi. I do not remember my date of birth but it was mentioned in the School. I do not know the year of my birth but I was about 15 years of age. I am not knowing whether my birth was registered by my parents or not.
I have not signed any paper at the time of Court marriage." During her crossexamination, PW1 - prosecutrix has categorically deposed which is reproduced and reads as under : "It is wrong to suggest that on 20/04/2011 on a motorcycle alongwith accused Pawan I had gone to perform marriage at Kaushambhi.
I can identify my signature.
Q. Please see a document which is a marriage agreement (Vaivahik Ikrarnama) does it bear your signatures at points 'A' at five places? Ans. Yes. It bears my signatures at point 'A' at five places but my these signatures were obtained by accused forcibly. The marriage 89 of 109 90 FIR No. 83/11 PS - Begum Pur agreement is Ex. PW1/DX1.
It is correct that my photo is affixed at point 'B' on Ex. PW1/DX1. I do not know as to whether my photo in Saree at point 'B' on the Ex. PW1/DX1 was got photographed on 20/04/2011 or not. It is correct where my signatures at points 'A' on Ex. PW1/DX1 were taken forcibly by accused Pawan, it is a small room like office of an Advocate where one table and two chairs were lying with one person in black robes. I do not know as to whether the stamp papers where on the back of Ex. PW1/DX1, of which one Indu Kumari is mentioned at points 'C' (five places) were purchased on 20/04/2011. It is wrong to suggest that the circular stamps appearing on Ex. PW1/DX1 were affixed in my presence. I do not recollect as to whether at the place where a room like office of an Advocate was there, I had signed in any register of that Advocate. I do not know as to whether the witnesses Madho Prasad and Dhan Raj, cited in the document Ex. PW1/DX1, the relatives of the accused Pawan were also present there who had put their signatures and thumb impressions respectively at point 'D' and 'E' on Ex. PW1/DX1."
As regards the nonraising of hue and cry at the time when PW1 - prosecutrix was taken in auto rickshaw, at the New Delhi railway station, in the train, in the bus, in the market and at the Advocate's Office, is concerned, it does not falsify the testimony of the prosecutrix which is otherwise proved on record by clear, cogent and convincing evidence. Nor, in any way, it imputes consent on the part of the prosecutrix. The sight cannot be lost of the fact that PW1 - prosecutrix 90 of 109 91 FIR No. 83/11 PS - Begum Pur was kidnapped by the accused after administering her some intoxicating substance in Pepsi on which she became unconscious and then she was taken to the different places and all throughout the prosecutrix remained under the total dominance and control of the accused. The prosecutrix has specifically deposed that at the rented room at Shakur Pur, when she asked accused as to why he has brought him there, he threatened to kill her brother Deepak, in case she shouted.
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 when the PW3
- Santosh Kumar and PW4 - Smt. Shivmati i.e. parents of the PW1 - prosecutrix alongwith other Police officer reached the house of the accused, they saw that the house door was open and accused and the prosecutrix were sitting together on floor. This reflects her consent in the alleged act of the accused. Learned Counsel for accused further submitted that PW1 - prosecutrix states in her evidence that the accused took her to a place where his Buaji lives and in the house of his Buaji her 91 of 109 92 FIR No. 83/11 PS - Begum Pur two married sons reside with their wives and children, but when the parents of the PW1 and any other Police officer reached their they found only PW1 and accused and no one else, thus this raises doubt on the narrations/depositions of PW1.
I have carefully perused and analysed the evidence on record.
It is not made clear as to what benefit he intends to take by raising the said plea.
PW3 - Sh. Santosh Kumar, father of the prosecutrix in his examinationinchief has specifically deposed that : "On 26/04/2011, she alongwith ASI Prem Lal and Constable Kuldeep went to Police Station Khaga Distt. Fateh Pur U.P. in search of my daughter. We reached at police station Khaga at about 10:30 a.m. on next day after informing them one lady Constable Sunita and some other Police officials from the police station Khaga accompanied us and we proceeded towards the village Khaga near village Khaga one person met to the police officials who gave the information that a boy brought a girl in the village 2 days before and on this information, he also accompanied us and pointed out the house of that boy namely Pawan. The main gate of the house was opened when we entered into his house accused Pawan and one girl was found sitting in the house. At my pointing out my daughter/prosecutrix and accused Pawan Kumar were apprehended.
92 of 109 93 FIR No. 83/11 PS - Begum Pur Recovery memo of my daughter Ex.PW1/A was prepared signed by me at point 'B'."
The testimony of PW3 has also been corroborated on the said aspect by PW4 - Smt. Shivmati, mother of the prosecutrix.
Inspite of incisive crossexamination of PW3 - Sh. Santosh Kumar and PW4 - Smt. Shivmati, nothing material has been brought out and they have withstood the rigors of crossexamination. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for accused submitted that the PW3 - Santosh Kumar deposed in his evidence that he had talked with his daughter i.e. PW1, after 2/3 days of her missing on 15/04/2011. Meaning thereby is that the PW3 was well aware about the fact that his daughter has run away with accused and this is why they made no efforts to bring 93 of 109 94 FIR No. 83/11 PS - Begum Pur the prosecutrix back to their home for 12 days as recovery of the prosecutrix was effected on 27/04/2011. So the prosecution has failed to prove the allegations of Section 366 IPC against the accused.
I have carefully perused and analysed the evidence on record.
PW3 - Sh. Santosh Kumar in his crossexamination has categorically deposed which is reproduced and reads as under : "On 15/04/2011 I had returned to my home from factory at about 6:00 p.m. in the evening. My wife had told me about my daughter was not being at home. I had talked with my daughter after 2/3 days of her missing on 15/04/2011. I had telephoned her. I do not recollect at whose phone number I had telephoned my daughter/prosecutrix (name withheld). I never received any call from that phone number from which I had telephoned my daughter/prosecutrix (name withheld). It is wrong to suggest that the phone number on which I had telephoned my daughter was already existing in my phone record/phone contacts. Q. Is it correct that the phone no. 9899778654 belonged to you?
Ans. It is correct.
Q. Please see one phone no. 9716475329. Is it correct it was the same phone number on which you had telephoned your daughter?
Ans. I do not recollect.
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Q. From where did you get the phone number on which you
had talked to your daughter?
Ans. I had received a missed call.
Q. Did you tell to the police that you had received a missed call
from phone no. 9716475329.
Ans. I had not stated to the police that I had received a missed
call from the phone no. 9716475329 but I had told the Police that I had talked with my daughter through this telephone number.
Q. For how many times did you talk to your daughter after having talk to her after 2/3 days of her missing on 15/04/2011?
Ans. Thereafter, I had talked to her ones, one day prior we departed for the place where PS Khaga, Allahabad Distt. is situated.
I had told to the Police regarding having talk to my daughter second time. (Vol. This talk was made in the presence of the police only).
Q. when did you tell the police regarding of your talk having first time with your daughter, after 2/3 days of her missing on 15/04/2011?
Ans. I had told to the police on the next day when I had gone to the Police Station.
I had only talked to my daughter and not my wife, when I had talked to my daughter after 2/3 days of her missing. I had told the fact regarding my talk with my daughter to my wife. I had a talk with the father of the accused during the period when my daughter was 95 of 109 96 FIR No. 83/11 PS - Begum Pur missing on the phone number of the father of the accused. I had talk to the father of the accused on the next day of 15.04.2011 on the phone number of the father of the accused. Father of the accused had not told that his son and my daughter have already performed the marriage. I had never met father of the accused prior to the incident nor I had ever talked on phone to the father of the accused prior to the incident. Nor I was having the phone number of the father of the accused prior to the incident.
Q. Who gave you the phone number of the father of the accused?
Ans. I was having the phone number of accused Pawan and I telephoned him (Pawan) but the call was received by father of accused Pawan and I inquired from him (father of Pawan) the misdeed committed by his son but he told that his son has not committed such misdeed and he is not like that. This was the phone number on which I talked.
Q. Did you complaint to the father of accused Pawan after having talk with your daughter, 2/3 days of her missing on 15/04/2011?
Ans. I did not."
From the aforesaid narration of PW3 - Sh. Santosh Kumar, it is clearly indicated that he has candidly deposed regarding the facts which he perceived, performed and experienced.
The sight cannot be lost of the fact that the Indian women 96 of 109 97 FIR No. 83/11 PS - Begum Pur 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 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)."
97 of 109 98 FIR No. 83/11 PS - Begum Pur The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
98 of 109 99 FIR No. 83/11 PS - Begum Pur The Hon'ble Supreme Court in Para 20 in case 'Satyapal Vs. State of Haryana AIR 2009 SC 2190' has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
99 of 109 100 FIR No. 83/11 PS - Begum Pur
25. Learned Counsel for accused submitted that PW1 - prosecutrix had run away with accused out of her own choice and got married with him out of her own will/consent.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, her testimony has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
At the cost of repetition, PW1 - prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "I had been knowing accused Pawan Kumar who used to visit our house as he was employee in the factory of my father. He also visited my house in absence of my parents and told me that he wanted to 100 of 109 101 FIR No. 83/11 PS - Begum Pur marry me but I refused him not to marry. On 15/04/2011 when I was going to house of my friend, accused met me on the way and asked me that he will drop me at the house of my friend . He was on his bycycle (bicycle). I acceded his request and sat on his bycyle (bicycle). On the way he stoped (stopped) his bycyle (bicycle) and bring two bottled (bottles) of Pepsi and gave one bottle to me after drinking the same I felt unconscious. When I regain consciousness I was found present in a rented room of accused at Shakar Pur. I asked his (him) why he had brought me there and also threatened to kill my brother Deepak in case I shouted. Thereafter he has taken me on (to) his native village Ganesh Pur where he had forcefully did Court marriage with me. Thereafter accused has taken me to his house at his village and forcefully rape me after removing my clothes and tight (tied) my both the legs and holding my hands himself and he repeated the act of rape daily.
On 27/04/2011 I and accused was recovered by the Police from the house of accused at village Ganesh Pur. At that time my parents (were) with the Police. My recovery memo was also prepared by Police and same is Ex. PW1/A signed by me at point 'A'....."
During her crossexamination, PW1 - prosecutrix has specifically deposed that : "It is wrong to suggest that on 20/04/2011 on a motorcycle alongwith accused Pawan I had gone to perform marriage at Kaushambhi.
I can identify my signature.
Q. Please see a document which is a marriage agreement (Vaivahik Ikrarnama) does it bear your signatures at points 'A' at five places?
101 of 109 102 FIR No. 83/11 PS - Begum Pur Ans. Yes. It bears my signatures at point 'A' at five places but my these signatures were obtained by accused forcibly. The marriage agreement is Ex. PW1/DX1.
It is correct that my photo is affixed at point 'B' on Ex. PW1/DX1. I do not know as to whether my photo in Saree at point 'B' on the Ex. PW1/DX1 was got photographed on 20/04/2011 or not. It is correct where my signatures at points 'A' on Ex. PW1/DX1 were taken forcibly by accused Pawan, it is a small room like office of an Advocate where one table and two chairs were lying with one person in black robes. I do not know as to whether the stamp papers where on the back of Ex. PW1/DX1, of which one Indu Kumari is mentioned at points 'C' (five places) were purchased on 20/04/2011. It is wrong to suggest that the circular stamps appearing on Ex. PW1/DX1 were affixed in my presence. I do not recollect as to whether at the place where a room like office of an Advocate was there, I had signed in any register of that Advocate. I do not know as to whether the witnesses Madho Prasad and Dhan Raj, cited in the document Ex. PW1/DX1, the relatives of the accused Pawan were also present there who had put their signatures and thumb impressions respectively at point 'D' and 'E' on Ex. PW1/DX1."
From the aforesaid narration, nothing is being indicated that PW1 - prosecutrix had run away with the accused out of her own choice and got married with him out of her own will/consent. During his cross examination, version of PW1 - prosecutrix remained intact on the core spectrum of the crime. There is nothing in the statement of PW1 -
102 of 109 103 FIR No. 83/11 PS - Begum Pur prosecutrix to suggest that she had any animus against the accused to falsely implicate him in the case.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused submitted that the Section 506 is also not made out against the accused as firstly PW1 was having ample opportunities to run away from the clutches of the accused and to come out of the shadow of alleged threat, but she could not. Moreover, threat alleged by prosecutrix is vague in nature as there was not immediate threat to the brother of the prosecutrix as alleged, because he was not with them when the threat was rendered. Therefore, getting effect by such kind of the common man as the accused threatened to kill her brother. Had she been shouted at the time of extension of threat, should could have easily saved herself and her brother as she was well aware at that time that his brother is safe in her house and he was in the custody of her parents. Moreover, no weapon was used to extend threat, which could have made the prosecutrix fearful.
103 of 109 104 FIR No. 83/11 PS - Begum Pur I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, her testimony has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
PW1 - prosecutrix in her examinationinchief has specifically deposed that when she asked accused as to why he had brought her in a rented room at Shakur Pur, he threatened to kill her brother in case she shouted.
The relevant part of the examinationinchief of PW1 - prosecutrix reads as under : "When I regain (regained) consciousness I was found present in a rented room of accused at Shakar Pur. I asked his (him) why he had brought me there and also threatened to kill my brother Deepak in case I shouted."
At the cost of repetition, the sight cannot be lost of the fact 104 of 109 105 FIR No. 83/11 PS - Begum Pur that PW1 - prosecutrix was kidnapped by the accused after administering her some intoxicating substance in pepsi on which she became unconscious and then she was taken to his rented room at Shakar Pur and throughout during this period, the prosecutrix remained under the total dominance and control of the accused and at the rented room at Shakar Pur, when she questioned him as to why he has brought her there, the accused threatened to kill her brother Deepak, in case she shouted.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for accused submitted that no public witnesses were joined at the time of pointing out of the alleged place of incident and during the other proceedings carried out by the Police officials.
I have carefully perused and analysed the evidence on record.
Nonjoining of the public witness does not falsify the case 105 of 109 106 FIR No. 83/11 PS - Begum Pur of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
PW16 - SI Manwar Patwal during his crossexamination has specifically deposed that, "I requested the public persons to join the investigation but none agreed."
It is a matter of common experience that the public persons do not come forward to assist the Police in the investigation.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused referred to a case and is 106 of 109 107 FIR No. 83/11 PS - Begum Pur reported as 'Pawan Kumar & Anr. Vs. State & Ors.', W.P. (CRL.) 905/2009, date of order 15/02/2010 (DHC).
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
29. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 15/04/2011, at about 2:00 or 3:00 p.m. accused Pawan Kumar @ Deepu kidnapped PW1 - prosecutrix, aged about 15 years (to be exact 15 years, 05 months and 05 days), from on the way when she was going 107 of 109 108 FIR No. 83/11 PS - Begum Pur from her house at A - 65, Rajeev Nagar Ext., Begum Pur, Delhi, to the house of her friend Kajal, by inducing her by deceitful means to drop her at the house of her friend on his bicycle with intent that she may be forced or seduced to illicit intercourse and on the way, he gave her some intoxicated mixed pepsi, on drinking the same, she became unconscious, with the intent to commit an offence and thereafter, took her to his rented room at Shakar Pur and there, on being asked from him by her as to why he has brought her there, on which he threatened to kill her brother Deepak in case she shouted and thereafter, he took her to his house at his native village Ganesh Pur and there at his house at village Ganesh Pur he forcefully raped her daily without her consent.
I accordingly hold accused Pawan Kumar @ Deepu guilty for the offences punishable under Section 363/366/328/376/506 IPC and convict him thereunder.
30. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Pawan Kumar @ Deepu in the commission of the offences under Section 363/366/328/376/506 IPC is concerned, the same is sufficiently established by the cogent and 108 of 109 109 FIR No. 83/11 PS - Begum Pur reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Pawan Kumar @ Deepu beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Pawan Kumar @ Deepu guilty for the offences punishable under Section 363/366/328/376/506 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) Additional Sessions Judge th on 27 Day of March, 2014 Special Fast Track Court (N/W District), Rohini, Delhi 109 of 109