Delhi District Court
State vs . Rajesh @ Raj on 16 April, 2014
1
FIR No. 192/10
PS - Sultan Puri
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 174/13
Unique ID No. : 02404R0135542011
State Vs. Rajesh @ Raj
S/o Shri Jagdish
R/o Village Piprali,
PS & District - Sikar,
Rajasthan.
FIR No. : 192/10
Police Station : Sultan Puri
Under Sections : 363/366/368/328/376/34 IPC
Date of committal to session Court : 31/05/2011
Date on which judgment reserved : 31/03/2014
Date on which judgment announced : 16/04/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 78 2 FIR No. 192/10 PS - Sultan Puri That on 11/05/2010 Smt. Jamna W/o Shri Bhagwan Dass R/o C3/150, Sultan Puri, Delhi with her husband came to the PS - Sultan Puri and made the statement to the effect that, she lives at the above address with her family and is a household lady. She is having five children, one son and four daughters. Prosecutrix (name withheld being a case u/s 376 IPC) is the eldest who on 09/05/2010 at about 3:00 p.m. had gone from the house without informing anyone and they had been since then searching her. On the same day at about 9:40 p.m. in the night they received a call on their phone from PCO, of her daughter/prosecutrix that, 'Mummy where she is, she is well and don't worry about her' and thereafter disconnected the phone (Mummy Main Jahan Bhi Hu Thik Thak Hu Meri Chinta Mat Karna Aur Phone Kaat Diya). The age of her daughter/prosecutrix is about 17½ years, colour gora, height 5"3 inch, body thin, face round who is wearing Gajari colour suit and salwar of Kathai colour and chunni of Kathai colour and wearing golden colour sandle in her feet who had gone from the house without informing and on checking her (Smt. Jamna) articles (Saaman) she (Smt. Jamna) found Rs. 4000/, one pair Jhumki, one pair gold ring and four pairs Pajeb Silver missing from Almirah and the said articles 2 of 78 3 FIR No. 192/10 PS - Sultan Puri had been taken away by her daughter after taking them out from the Almirah. In her neighbourhood boys namely Raju, Pawan and Mahesh lives. They be inquired into and she (Smt. Jamna) has come for lodging the report. Legal action be taken. Statement has been heard and is correct. From the statement on finding that an offence u/s 363 IPC appeared to have been committed, ASI DO Sultan Singh registered the case and the investigation was handed over to SI Rajesh Kumar. During the course of investigation SI Rajesh Kumar interrogated the suspects and obtained the age proof of the prosecutrix. MPS Form was filled up. Ishtare shore goga was published and call details of the mobile phone of the prosecutrix were obtained. WT Message was flashed. On the transfer of SI Rajesh Kumar, further investigation was handed over to ASI Rajender Singh. During the course of investigation ASI Rajender Singh searched for the prosecutrix and the accused and recovered the prosecutrix whose medical examination was got conducted but she refused for her external and internal (blood, USG) examination. Counseling of the prosecutrix was got done through NGO. Statement of the prosecutrix was recorded. Statements of the witnesses were recorded. Statement of the prosecutrix was got recorded u/s 164 Cr.P.C.
3 of 78 4 FIR No. 192/10 PS - Sultan Puri She (prosecutrix) also made the statement to Smt. Najma Khan of NGO Nav Srishti. On the basis of her such statements Sections 328/344/376/34 IPC were added in the case and further investigation was handed over to Inspector Balbir Singh. During the course of investigation on finding sufficient evidence against accused Rajesh @ Raj he was arrested and his disclosure statement was recorded and his Police Remand was taken. Accused Micheal and Sonia were searched but they could not be found. On the transfer of Inspector Balbir Singh, further investigation was handed over to Inspector Samarjeet Singh. NBWs against accused Sonia and her husband Micheal were obtained and on their arrest appropriate proceedings shall be taken up. Medical examination of accused Rajesh @ Raj was also got conducted.
Upon completion of necessary further investigation Challan for the offences u/s 363/366/368/328/376/34 IPC was prepared against accused Rajesh @ Raj and was sent to the Court for trial.
2. Since the offences under section 376/328/366 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 4 of 78 5 FIR No. 192/10 PS - Sultan Puri 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 u/s 120B IPC, section 363 r/w section 120B IPC, section 366 IPC r/w section120B IPC, section 328 r/w section 120B IPC and u/s 344/368 IPC r/w section 120B IPC was made out against accused Rajesh @ Raj. The charge was framed accordingly on 04/08/2011 by the Learned Predecessor Court, which was read over and explained to the accused to which he pleaded not guilty and claimed trial. However, during the course of the trial, the charge was amended and an additional charge u/s 376 IPC was also framed on 31/07/2013 which was read over and explained to the accused Rajesh @ Raj to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 16 witnesses. PW1 Inspector Samarjeet Singh, PW2 Retd. SI Sultan Singh, PW3 Prosecutrix, PW4 Dr. M. Dass, CMO, SGM Hospital, Mangol Puri, Delhi, PW5 Dr. Ajay Kumar, CMO, SGM Hospital, Mangol Puri, Delhi, PW6 Dr. Kirti Verma, SR Gynae, SGM 5 of 78 6 FIR No. 192/10 PS - Sultan Puri Hospital, Mangol Puri, Delhi, PW7 Sh. Neeraj Gaur, MM, Tis Hazari Courts, Delhi, PW8 - Constable Vineeta Devi, PW9 - Constable Kanta, PW10 HC Rajender Prasad, PW11 - Constable Charan Singh, PW12 Rajeev Ranjan, Nodal Officer, TATA Teleservices Ltd., PW13 SI Rajesh Kumar, PW14 - ASI Rajender Singh and PW15 - Smt. Jamna Devi and PW16 Inspector Balbir Singh.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Inspector Samarjeet Singh, who deposed that on 18/03/2011 he was posted at PS - Sultan Puri. On that day, the investigation of this case was handed over to him. He obtained the NBWs against accused Michal and Sonia issued by the concerned Court who were absconding in this case and the same remained unexecuted during his tenure and thereafter he had handed over the Police file to the MHC(R) at the time of his transfer. Accused Rajesh who was also arrested in this case was got medically examined after his production pursuant to the production warrants on 27/04/2011. After completion of 6 of 78 7 FIR No. 192/10 PS - Sultan Puri investigation against accused Rajesh, challan was prepared and was filed in the Court as per procedure.
PW2 Retired SI Sultan Singh who deposed that on 11/05/2010, he was posted at Police Station - Sultan Puri as Duty Officer and his duty timings were 8:00 a.m. to 4:00 p.m. On that day Smt. Jammuna W/o Sh. Bhagwan Dass came to the Police Station alongwith her husband and he (PW2) got recorded from the Computer Operator the FIR No. 192/10 u/s 363 IPC on her statement. He has brought the original FIR Register and the other computerized copy is Ex. PW2/A signed by him at point 'A'. After registration of the FIR the copy of the FIR was handed over to SI Rajesh for further investigation of the case (OSR). He has also made kayami DD No. 22A regarding registration of the case.
PW3 Prosecutrix is the victim who deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW7/B and deposed regarding the investigational aspects which she joined.
7 of 78 8 FIR No. 192/10 PS - Sultan Puri PW4 Dr. M. Dass, CMO, Sanjay Gandhi Memorial Hospital, Mangol Puri Delhi, who deposed that on 23/10/2010, he was working as Casualty Medical Officer in the aforesaid hospital and examined patient/prosecutrix (name withheld) D/o Bhagwan Dass, female, aged about 18 years who was brought for medical examination by Lady Constable Kanta and after initial examination, he referred the patient/prosecutrix (name withheld) to SR Gynae for further examination and treatment accordingly the patient was examined by SR Gynae Dr. Kirti Verma. He had also prepared the MLC No. 15512 regarding his examination of patient/prosecutrix (name withheld). The same is Ex. PW4/A which also bears his signature at point 'A'. However, portion 'X' to 'X' on the MLC is in the hand writing of SR Gynae.
PW5 Dr. Ajay Kumar, CMO, SGM Hospital, Mangol Puri, Delhi who deposed that on 27/04/2011, he examined patient Rajesh @ Raj S/o Jagdish male aged about 22 years who was brought by Constable Rakesh with the alleged history of sexual assault done last year as told by Constable Rakesh. On examination he found that the secondary sexual characters of the patient were well developed, pubic hair present, scrotal 8 of 78 9 FIR No. 192/10 PS - Sultan Puri sacs and testicles were of normal adult pattern. There was nothing to suggest that the patient was not capable of performing sexual intercourse. He had also prepared MLC No. 5922. The same is Ex. PW5/A which is in his handwriting and it also bears his signature at point 'A'.
PW6 Dr. Kirti Verma, SR Gynae, SGM Hospital, Mangol Puri, Delhi who deposed that on 23/10/2010 she was working as SR Gynae in SGMH. On that day, patient/prosecutrix (name withheld) D/o Sh. Bhagwan Dass, female, aged 18 years who was referred to her for gynae examination with the alleged history of eloping from her house with her boy friend Rajesh five months back and further alleged history of sexual intercourse one month back. On examination LMP 04/09/2010. She was unmarried. Vitals were stable. She was not willing for her internal examination and the endorsement in this regard of the prosecutrix is at point 'Y' which was also signed by the prosecutrix at point 'Y1' and by her mother at point 'Y2' on the top of the MLC. Her urine pregnancy test was negative. She (PW6) has made entries on MLC Ex. PW4/A which are from portion 'X' to 'X' regarding her aforesaid examination which also bears her signature at point 'B'.
9 of 78 10 FIR No. 192/10 PS - Sultan Puri PW7 Sh. Neeraj Gaur, MM, Tis Hazari Courts, Delhi, who deposed that at this stage, one sealed envelope sealed with the seal of "NG" is opened. The same is found containing the proceedings with respect to the statement u/s 164 Cr.P.C. On 24/10/2010, he was posted as Duty MM, Rohini when IO ASI Rajender Singh moved an application for recording statement u/s 164 Cr.P.C. of girl/prosecutrix (name withheld). He (PW7) posted the matter forthwith for recording statement vide his endorsement Ex. PW7/A bearing his signature at point 'A'. He recorded the statement of the prosecutrix (name withheld) vide proceedings running into five pages marked as Ex. PW7/B bearing his signature at point 'A' on respective pages. The signatures of the prosecutrix were obtained by him on her statement which are at point 'B'. He appended his certificate with respect to the conduct of the proceedings which is Ex. PW7/C. IO identified the prosecutrix and the signatures of IO are at point 'C'. IO thereafter, moved an application for obtaining a copy of the above mentioned proceedings which was allowed by him vide endorsement Ex. PW7/D bearing his signature at point 'A'.
10 of 78 11 FIR No. 192/10 PS - Sultan Puri PW8 Constable Vineeta Devi, who deposed that on 23/10/2010, she was posted as Constable in PS - Sultan Puri. On that day, she alongwith IO SI Rajender and HC Rajender Prasad remained in the investigation of the present case and left the PS in search of prosecutrix (name withheld). When they reached at bus stand of Sultan Puri, Bhagwan Dass, father of the prosecutrix (name withheld) met them. They reached at Dabari Mor and from there one more person was also joined in the investigation and they reached at Chanakya Place at the House of Hari Hijara. There Bhagwan Dass pointed out towards a girl who was coming in the gali and told that she is his daughter/prosecutrix (name withheld). Prosecutrix was recovered vide memo Ex. PW8/A, bearing her (PW8) signature at point 'A'. Thereafter, while searching accused Rajesh, they came back to PS. Statement of the prosecutrix was recorded after counseling from the NGO.
PW9 Constable Kanta, who deposed that on 23/10/2010, she was posted as Constable in PS Sultan Puri. On that day she alongwith IO ASI Rajender remained in the investigation of the present case. They took victim/prosecutrix (name withheld) alongwith her 11 of 78 12 FIR No. 192/10 PS - Sultan Puri mother in SGM Hospital for medical examination. Victim/prosecutrix (name withheld) refused to get herself internally medically examined. Thereafter, they reached at Nirmal Chhaya and from there they came back to PS. Prosecutrix told that she wants to go with her mother so the prosecutrix was handed over to her mother.
PW10 HC Rajender Prasad who deposed that on 23/10/2010 he was posted as Head Constable in PS - Sultan Puri. On that day he alongwith ASI Rajender Singh and W/Constable Vinita left the Police Station in search of prosecutrix (name withheld). They reached at Bus Stand of route no. 908 of Sultan Puri and there Bhagwan Dass, father of the prosecutrix (name withheld) met them. Thereafter, they all reached Dabri Mor and there they met a secret informer and from there as per secret informer they reached at Chanakya Place near the house of Hari Hijra (Eunuch) and from there at the instance of Bhagwan Dass apprehended girl/prosecutrix and she was taken into possession vide memo already exhibited as Ex. PW8/A. Thereafter, they came back to PS while searching Rajesh but he was not found.
12 of 78 13 FIR No. 192/10 PS - Sultan Puri PW11 Constable Charan Singh who deposed that on 18/02/2011, he was posted as Constable at PS Sultan Puri. On that day, he alongwith IO Inspector Balbir Singh reached at CBlock, Sultan Puri and Bhagwan Dass, father of the prosecutrix was also joined in the investigation. Thereafter, they reached outside C3/204, Sultan Puri where at the instance of Bhagwan Dass, they apprehended accused Rajesh, present in the Court. He was interrogated and arrested vide arrest memo Ex. PW11/A, his personal search was conducted vide memo Ex. PW11/B and he made disclosure statement Ex. PW11/C, all bearing his signature at point 'A'.
PW12 Sh. Rajeev Ranjan, Nodal Officer, TATA Tele Services Ltd. who deposed that he has brought the summoned record. As per their record mobile number 9268477894 belongs to Yamuna W/o Bhagwan Dass R/o 150, Block C3, Sultan Puri, New Delhi. The copy of the Customer Application Form alongwith ID Proof is collectively Ex. PW12/A (OSR), copy of the call details from 20/04/2010 to 31/05/2010 is Ex. PW12/B, Cell ID Chart is Ex. PW12/C and Certificate u/s 65B (Evidence Act 1872) is Ex. PW12/D, bearing his signature at point 'A'.
13 of 78 14 FIR No. 192/10 PS - Sultan Puri PW13 SI Rajesh Kumar who deposed that on 11/05/2010, he was posted as SI in PS - Sultan Puri. On that day, Duty Officer handed over to him copy of the FIR of the present case, after its registration and he had also produced complainant Smt. Jamna to him. Investigation of the case was handed over to him. He completed the formalities of missing persons. He tried to search the suspects as mentioned in the FIR namely Raju, Pawan and Mahesh but they were not found. On 13/06/2010, he was transferred from PS - Sultan Puri and he handed over the case file to MHC(M).
PW14 - ASI Rajender Singh is the Investigating Officer (IO) of the case who deposed that on 14/06/2010 he was posted at PS - Sultan Puri. On that day investigation of the present case was entrusted to him on the oral direction of the SHO. He received the case file from MHC(R). He searched for prosecutrix. On 23/10/2010, he alongwith Lady Constable Vinita, HC Rajender and Bhagwan Dass, father of prosecutrix left the Police Station in search of prosecutrix and reached at Chankya Place, Dabari, Delhi and when they were present near the house 14 of 78 15 FIR No. 192/10 PS - Sultan Puri of Hari eunuch (Hijra), Bhagwan Dass pointed towards a girl coming from the opposite side to be as his missing girl/prosecutrix. Prosecutrix was stopped by them there and he (PW14) made inquiry from her. He prepared her recovery memo which is already exhibited as Ex. PW8/A, bears his signature at point 'A'. Thereafter, they came back to Police Station - Sultan Puri. He recorded the statement of the prosecutrix (name withheld), her father Bhagwan Dass and HC Rajender u/s 161 Cr.P.C. Thereafter, he alongwith prosecutrix (name withheld), her mother and lady/Constable Kanta went to SGM Hospital where the prosecutrix (name withheld) was produced before Doctor for medical examination but the prosecutrix (name withheld) and her mother refused for medical examination of prosecutrix. Thereafter, he took prosecutrix to Nirmal Chaya but the official posted there refused to admit the prosecutrix in Nirmal Chaya stating that the order of the Court is required. Thereafter, they reached at Police Station - Sultan Puri. Prosecutrix was counseled by Najma Khan, NGO Member. Thereafter, Prosecutrix was handed over to her mother. On the next day Prosecutrix was produced before the Learned Metropolitan Magistrate and he moved an application before the Learned Metropolitan Magistrate, Rohini Court 15 of 78 16 FIR No. 192/10 PS - Sultan Puri to record the statement of prosecutrix (name withheld) u/s 164 Cr.P.C. His said application is Ex. PW7/A, bears his signature at point 'B' and thereafter statement of prosecutrix was recorded by Sh. Neeraj Gaur, Learned Metropolitan Magistrate. His said application is Ex. PW7/D, bears his signature at point 'B'. He collected the copy of the statement u/s 164 Cr.P.C. As per the order of the Court, the prosecutrix was handed over to her mother. Thereafter, Section 376 IPC was added in the investigation. Thereafter, he handed over the case file to the MHC(R).
PW15 - Smt. Jamna Devi is the mother of the prosecutrix who deposed that prosecutrix (name withheld) is her eldest daughter. At the time of incident she was 17 years and 05 months of age. On 09/05/2010 at around 3:00/3:30 p.m., her daughter had left the house without disclosing to anyone. They searched their daughter but not found. She (PW15) checked her (PW15) articles and found that about five thousand rupees, one pair of jhumki of gold, one pair of gold bali, one gold ring and one gold locket, four pairs of silver pajeb and some other silver items of about 750 gms in weight were found missing. They had a suspicion over Raju, Pawan and Mahesh. On the next day, they 16 of 78 17 FIR No. 192/10 PS - Sultan Puri reported the matter to the Police and an FIR was lodged. About six months later they came to know that prosecutrix (name withheld) has been found. She (PW15) alongwith her husband had gone to Police Station where they met prosecutrix (name withheld). Police recorded the statement of the prosecutrix (name withheld) by ASI Rajender. Medical examination of her daughter/prosecutrix (name withheld) was got conducted but they refused to get herself internally medically examined. Prosecutrix (name withheld) was handed over to her. On her (PW15) inquiry, prosecutrix (name withheld) told that she has been taken away by accused Rajesh who was residing as a tenant in the backside gali of their house. Accused Rajesh is present in the Court.
PW16 Inspector Balbir Singh is also the Investigating Officer (IO) of the case who deposed that on 19/11/2010, he was posted as Inspector in PS - Sultan Puri. On that day, investigation of the present case was marked to him. He perused the file and found that prosecutrix (name withheld) has already been recovered and accused Rajesh @ Raj, Sonia & Micheal were not arrested. He searched for the accused but not found. On 18/02/2011, he alongwith Constable Charan Singh and 17 of 78 18 FIR No. 192/10 PS - Sultan Puri Bhagwan Dass, father of the prosecutrix had left the Police Station and reached at C3/204, Sultan Puri, where at the instance of Bhagwan Dass they apprehended the accused Rajesh @ Raj. He was interrogated and arrested vide arrest memo Ex. PW11/A, his personal search was conducted vide memo Ex. PW11/B and he made disclosure statement Ex. PW11/C, all bearing his signature at point 'X'. Accused Rajesh @ Raj was taken to Hospital where he was medically examined and thereafter, he was produced in the Court. Two days PC Remand of accused Rajesh @ Raj was taken and searched for accused Sonia and Micheal but not found. The copy of the birth certificate of prosecutrix (name withheld) was collected which is Ex. PX (Learned Defence Counsel does not dispute the exhibition of the document). On 20/02/2011, accused Rajesh @ Raj was produced in the Court and was sent to JC. On 17/03/2011, he (PW16) was transferred from PS - Sultan Puri and he handed over the case file to MHC(R). Accused Rajesh @ Raj is present in the Court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
18 of 78 19 FIR No. 192/10 PS - Sultan Puri
6. Statement of accused Rajesh @ Raj was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that PW3 Prosecutrix admitted in her crossexamination that while going from Najafgarh to Palam they had passed through pubic way. She has further stated that they went to Palam through auto rickshaw. She has further admitted that she did not raise alarm on the way while going to Palam nor told anything to the auto rickshaw driver. Meaning thereby she has left the house of her own. She has also admitted in her cross examination that there were many houses around the house of Sonia. Suggestion was put to the prosecutrix that she used to go to the market for strolling in the morning and evening from the house of Sonia and she had not disclosed the fact regarding the incident to any person in the neighbourhood. Learned Counsel for the accused further submitted that a question was put to the prosecutrix in respect of forcible physical relation by the accused with her to which she answered that she had told this fact to the police in her statement and also in statement recorded u/s 19 of 78 20 FIR No. 192/10 PS - Sultan Puri 164 Cr.P.C. She was confronted with the statements Mark PW3/DX and Ex. PW7/B where the factum of forcible physical relation was not mentioned or recorded. Meaning thereby, no forcible physical relation was made with the prosecutrix. Had there been any forcible physical relation with the prosecutrix by the accused, then the same would have been mentioned or recorded in the statements Mark PW3/DX and Ex. PW7/B. Learned Counsel for the accused further submitted that PW3 prosecutrix in her examinationinchief deposed that Sonia was not allowing her to go anywhere and Rajesh used to visit off and on. She was confronted with the statements Mark PW3/DX, Mark PW3/DX1 and Ex. PW7/B where it is not so recorded. Had she made such facts in her statements, then the same would have been reflected / mentioned in the Exhibits mentioned above, meaning thereby no incident happened with the prosecutrix. Learned Counsel for the accused further submitted that the prosecutrix in her examinationinchief has deposed that Rajesh used to beat her and also burnt her with the butts of lighted cigarette. She was confronted with the statements Mark PW3/DX, Mark PW3/DX1 and Ex. PW7/B where it is not so recorded. If any such incident had happened, then the same would have been mentioned in the statements referred 20 of 78 21 FIR No. 192/10 PS - Sultan Puri above. Learned Counsel for the accused further submitted that the PW3 prosecutrix in her statement to NGO Mark PW3/DX1 has stated that after two months she went to the house of her Didi where she stayed for one month and 15 days. This shows that the prosecutrix also stayed with her sister during this period. Learned Counsel for the accused further submitted that the prosecutrix in her crossexamination has admitted that she went by train to Agra. Public persons were present at the railway station as well as in their train. The conduct of the prosecutrix shows that she had left the house of her own. If there had been any pressure or compulsion on the prosecutrix, then she would have raised alarm, but she did not do the same, meaning thereby she was the consenting party. Learned Counsel for the accused further submitted that suggestions were put to the prosecutrix that she left her house of her own as she was in love with Rajesh and she wanted to marry him. It was further suggested that Rajesh did not make any forcible physical relations with her or that she was the consenting party to the physical relations made with her by the accused. It was further suggested that the accused has been falsely implicated in this case at the instance of her parents. Learned Counsel for the accused further submitted that PW3 prosecutrix in her cross 21 of 78 22 FIR No. 192/10 PS - Sultan Puri examination deposed that she does not recollect as to whether she had told in her statement to the police that Rajesh had sexual intercourse a few times (Kai Baar) with her own consent. She was confronted with the statement Mark PW3/DX where it is recorded "Mere saath koi galat kaam nahi kiya, kewal Rajesh ne meri marji se mere saath kai baar sambhog kiya, yaha bayan main apni maa Smt. Jamna Devi ke sath pure hoso hawas se de rahi huin". Meaning thereby, no rape was committed upon the prosecutrix as alleged by the prosecution. Learned Counsel for the accused further submitted that PW3 prosecutrix in her cross examination has deposed that she does not recollect as to whether in the statement Mark PW3/DX1 made to NGO, she has told that they (Rajesh and herself) were loving each other. She was confronted with the statement Mark PW3/DX1 where it is so recorded. She has further stated that she does not recollect as to whether in her statement u/s 164 Cr.P.C. Ex. PW7/B she had stated "she was in love affair with Rajesh for one year". She was confronted with statement Ex. PW7/B where it is so recorded. Learned Counsel for the accused further submitted that there is no evidence of the accused having extended any promise or allurement to the prosecutrix and also there is no evidence that the accused induced 22 of 78 23 FIR No. 192/10 PS - Sultan Puri the prosecutrix. Admittedly, the prosecutrix is about 17½ years old who had obtained the age of discretion and understanding. She left the house of her father of her own accord without any enticement or lure from the accused nor any force was used to take her away from the custody of her parents/guardian. The prosecutrix willingly accompanied the accused to number of places and stayed with him. In the statement u/s 161 Cr.P.C. Mark PW1/DX she stated that she made a call to Rajesh and Rajesh met her at Mangol Puri and she reached Rajesh by auto. The prosecutrix has further admitted in her crossexamination "my one tenant had dropped me from my house at Mangol Puri". Meaning thereby, prosecutrix herself accompanied the accused. If the prosecutrix had been kidnapped then she would have not been dropped by her tenant as admitted by her.
Learned Counsel for the accused referred to the cases and are reported as Masauddin Ahmed Vs. State of Assam, 2009 (3) JCC 2002; State of HP Vs. Suresh Kumar @ Chhotu, 2008 (10) SC 366; State Vs. Sanjay Kumar & Anr., 2012 (4) JCC 2409; Sonu Vs. State (NCT) of Delhi, 2010 (2) JCC 1337; Ramvir Vs. State, 2010 (3) JCC 1706; Avadh Bihari Vs. State, 2010 (4) JCC 2918; Kulwant Singh Vs. State, 2010 (4) JCC 2510 and Satvinder Singh Vs. State, 2011 (2) 23 of 78 24 FIR No. 192/10 PS - Sultan Puri JCC 1175.
Learned Counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt and prayed for the acquittal of the accused from all the charges leveled against him.
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. V. S. Yadav, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 120B IPC, section 363 r/w section 120B IPC, section 366 IPC r/w section 120B IPC, section 328 r/w section 120B IPC and u/s 344/368 IPC r/w section 24 of 78 25 FIR No. 192/10 PS - Sultan Puri 120B IPC against accused Rajesh @ Raj is that in the year, 2010 he entered into criminal conspiracy alongwith the coaccused i.e. his sister Soniya and her husband Michal (against whom process u/s 82 Cr.P.C. has been initiated by the Learned Trial Court) to kidnap the prosecutrix (name withheld) D/o Sh. Bhagwan Das aged about 18 years and that he in furtherance of aforesaid criminal conspiracy had kidnapped the prosecutrix on 09/05/2010 at about 3:00 p.m. from her house i.e. House No. C3/150 Sultan Puri, Delhi within the jurisdiction of PS - Sultan Puri out of the lawful custody of her parents/legal guardians without their consent and that in furtherance of said criminal conspiracy he kidnapped prosecutrix (name withheld), D/o Sh. Bhagwan Dass from her house in the aforesaid manner and left her at the house of coaccused Sonia at Palam, Delhi so that she may be forced or seduced for illicit intercourse and that he in furtherance of said criminal conspiracy kidnapped prosecutrix (name withheld) on 09/05/2010 (from her) house i.e. House No. C3/150, Sultan Puri, Delhi and his coaccused Soniya & Michal (had) given her intoxicating or stupefying unwholesome drugs to force and to make her to accept his illegal demand of indulging herself in prostitution and that he in furtherance of criminal conspiracy kidnapped 25 of 78 26 FIR No. 192/10 PS - Sultan Puri prosecutrix on 09/05/2010 from her house i.e. House No. C3/150, Sultan Puri, Delhi and his coaccused Soniya and Michal wrongfully confined her in their house at Palam for more than 10 days and wrongfully concealed this fact from the public.
The ADDITIONAL CHARGE for the offence punishable u/s 376 IPC framed on 31/07/2013 against accused Rajesh @ Raj is that between 09/05/2010 to 23/10/2010, at different places i.e. house of his maternal aunt at Najafgarh, at the house of his sister Sonia, at the house of Rani, at his rented room and at the house of his aunty at Shastri Nagar, he forcibly established physical relations with prosecutrix (name withheld), aged around 19 years.
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 26 of 78 27 FIR No. 192/10 PS - Sultan Puri
12. PW15 - Smt. Jamna Devi, mother of the prosecutrix in her examinationinchief has deposed that prosecutrix (name withheld) is her eldest daughter. At the time of incident, she was 17 years and 05 months of age.
PW16 - Inspector Balbir Singh in his examinationinchief has deposed that the copy of the birth certificate of the prosecutrix (name withheld) was collected which is Ex. PX.
During her crossexamination by the Learned Counsel for the accused recorded on 10/09/2013, PW3 - prosecutrix has admitted it to be correct that her date of birth is 21/10/1992.
I have carefully perused the copy of the birth certificate of the prosecutrix Ex. PX. On perusal of the same, it is found to contain the date of birth of the prosecutrix as 21/10/1992 as to what has been deposed by PW3 - prosecutrix during her crossexamination as mentioned hereinabove.
In the circumstances, it stands proved on the record that the date of birth of the prosecutrix is 21/10/1992.
As the date of alleged incident is 09/05/2010 and the date of birth of prosecutrix is 21/10/1992, on simple arithmetical calculation, the 27 of 78 28 FIR No. 192/10 PS - Sultan Puri age of prosecutrix comes to 17 years, 06 months and 18 days as on the date of incident on 09/05/2010.
In view of above and in the circumstances, it stands established on record that PW3 prosecutrix was aged 17 years, 06 months and 18 days as on the date of alleged incident on 09/05/2010. MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW4 Dr. M. Dass, CMO, Sanjay Gandhi Memorial Hospital, Mangol Puri Delhi, has deposed that on 23/10/2010, he was working as Casualty Medical Officer in the aforesaid hospital and examined patient/prosecutrix (name withheld) D/o Bhagwan Dass, female, aged about 18 years who was brought for medical examination by Lady Constable Kanta and after initial examination, he referred the patient/prosecutrix (name withheld) to SR Gynae for further examination and treatment accordingly the patient was examined by SR Gynae Dr. Kirti Verma. He had also prepared the MLC No. 15512 regarding his examination of patient/prosecutrix (name withheld). The same is Ex. PW4/A which also bears his signature at point 'A'. However, portion 'X' 28 of 78 29 FIR No. 192/10 PS - Sultan Puri to 'X' on the MLC is in the hand writing of SR Gynae.
PW6 Dr. Kirti Verma, SR Gynae, SGM Hospital, Mangol Puri, Delhi has deposed that on 23/10/2010 she was working as SR Gynae in SGMH. On that day, patient/prosecutrix (name withheld) D/o Sh. Bhagwan Dass, female, aged 18 years who was referred to her for gynae examination with the alleged history of eloping from her house with her boy friend Rajesh five months back and further alleged history of sexual intercourse one month back. On examination LMP 04/09/2010. She was unmarried. Vitals were stable. She was not willing for her internal examination and the endorsement in this regard of the prosecutrix is at point 'Y' which was also signed by the prosecutrix at point 'Y1' and by her mother at point 'Y2' on the top of the MLC. Her urine pregnancy test was negative. She (PW6) has made entries on MLC Ex. PW4/A which are from portion 'X' to 'X' regarding her aforesaid examination which also bears her signature at point 'B'.
Despite grant of opportunity, PW4 - Dr. M. Dass and PW6
- Dr. Kirti Verma, SR Gynae were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical 29 of 78 30 FIR No. 192/10 PS - Sultan Puri and the gynaecological examination from portion 'X' to 'X' on the MLC Ex. PW4/A of PW3 - prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED
14. PW5 Dr. Ajay Kumar, CMO, SGM Hospital, Mangol Puri, Delhi has deposed that on 27/04/2011, he examined patient Rajesh @ Raj S/o Jagdish male aged about 22 years who was brought by Constable Rakesh with the alleged history of sexual assault done last year as told by Constable Rakesh. On examination he found that the secondary sexual characters of the patient were well developed, pubic hair present, scrotal sacs and testicles were of normal adult pattern. There was nothing to suggest that the patient was not capable of performing sexual intercourse. He had also prepared MLC No. 5922. The same is Ex. PW5/A which is in his handwriting and it also bears his signature at point 'A'.
Despite grant of opportunity, PW5 - Dr. Ajay Kumar was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Rajesh @ Raj was capable of performing sexual intercourse.
30 of 78 31 FIR No. 192/10 PS - Sultan Puri
15. Now let the testimonies of PW3 Prosecutrix and PW15
- Smt. Jamna Devi, her mother be perused and analysed.
PW3 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I have passed 8th standard and at the time of incident I was studying in 9th class. One boy Rajesh who was residing as a tenant on the back lane of our house. One Mukesh and his wife Menu who were residing as tenant at our house used to keep on instigating me to leave my house. The wife of Mukesh namely Menu asked me to leave with all the goods whatever I have in my house. Thereupon whatever goods (Saman) I had, I had given to Menu and then Rajesh took me alongwith him to the house of his maternal aunt (Mammy). Rajesh used to work with Mukesh and used to visit the house of Mukesh and during such visits my acquaintance was developed with him (Rajesh). The goods (Saman) which I had given to Menu consisted of 750 grms. Silver (Teen Pau chandi), two pairs of gold Jhumki (Ear rings), one gold ring, one pendant (Neck) of gold on the pattern of "OM" and cash of about 5,000/. Rajesh on leaving me at the house of his maternal aunt (Mammy) he came back to Sultan Puri, Delhi at his rented house. The house of maternal aunt of Rajesh was at Najafgarh, Delhi. On the same evening, when I was left by Rajesh at the house of his maternal aunt, again said on the next morning Rajesh came there (at the house of his maternal aunt) and took me from there to the house of his sister Sonia and after leaving me at the house of 31 of 78 32 FIR No. 192/10 PS - Sultan Puri his sister, he (Rajesh) went away. Sonia was not allowing me to move/go anywhere and there at the house of Sonia Rajesh used to visit of and on. The name of the husband of Sonia was Michal. I stayed at the house of Sonia for about 1½ months and during that period the quarrel started taking place between Sonia and her husband Michal because of me. Sonia sent me to the house of her friend Rani. There at the house of Rani I stayed for about one month and from there Rajesh took me to the rented room, the place where that room was situated I do not recollect now at present. Myself and Rajesh (stayed) in that rented room for one night from there Rajesh took me to the house of his aunty residing at Shastri Nagar, Delhi. Where ever I stayed, whenever Rajesh used to come he used to have forcible physical relations with me. At the house of his aunty residing at Shastri Nagar, Delhi, Rajesh introduced me to his aunty as his wife and had also stated to his aunty that he had not performed marriage with me. On which the said aunty of Rajesh asked him to take me away from there whereupon Rajesh took me to Uttam Nagar, Delhi and on the same day Rajesh took me to Uttam Nagar to the house of his maternal aunt (Mammy) and there we stayed for one night and on the next day, the daughter of her (his) maternal aunt arranged a tenanted room for us in the Uttam Nagar itself and thereafter, we shifted to the rented room in Uttam Nagar. There Rajesh used to beat me and also burnt me with the butts of lighted cigarettes."
During her further examinationinchief recorded on 20/03/2013, PW3 - prosecutrix has deposed that : "Accused Rajesh used to quarrel with me frequently, thereafter Deepak, the son of maternal uncle of Rajesh and his 2/3 32 of 78 33 FIR No. 192/10 PS - Sultan Puri friends namely Babu, Kalu, Sulti took me (to) Agra at the house of the Massi of Kalu. I was kept there for about 3/4 days. They were talking there to leave me permanently. I requested them that I want to go back at my house with my parents. Thereafter, they brought me back to Delhi. I made telephone call to my father from Janak Puri. My father came at the Janak Puri and brought me at Police Station, Sultan Puri. The sister of Rajesh namely Sonia wanted to indulge me in the immoral activities. Police made inquiries from me. I was medically examined in SGM Hospital. My statement was also recorded u/s 164 Cr.P.C. The same is already exhibited as Ex. PW7/B, bearing my signature at point 'B'."
During her further examinationinchief recorded on 08/07/2013, PW3 prosecutrix has deposed that : "Sonia, the sister of accused Rajesh was a call girl. She (Sonia) her husband Michel and Rohtash who was the friend of Sonia also used to say me to become a call girl. But I refused. Sonia, Michel and Rohtash also used to give me some drink laced with intoxicant and after taking the same, I used to become unconscious. When I used to regain consciousness then they (Sonia, Michel and Rohtash) used to say something (same thing) to me and then used to give beatings to me and they were confining me in a locked room (band karke kamre me rakhte the).
When I was recovered by the Police, my medical examination was got conducted.
I can identify the accused Rajesh @ Raj if shown to me. At this stage, the wooden partition has been removed. Accused Rajesh @ Raj present in the Court (correctly 33 of 78 34 FIR No. 192/10 PS - Sultan Puri identified)"
From the aforesaid narration of PW3 - prosecutrix, it is clear that she had passed 8th standard and at the time of incident she was studying in 9th class. One boy Rajesh was residing as a tenant on the back lane of their house. One Mukesh and his wife Menu who were residing as tenant at their house used to keep on instigating her (PW3 - prosecutrix) to leave her (PW3 prosecutrix) house. The wife of Mukesh namely Menu asked her to leave with all the goods whatever she had in her (PW3 prosecutrix) house. Thereupon whatever goods (Saman) she had, she had given to Menu and then Rajesh took her alongwith him to the house of his maternal aunt (Mammy). Rajesh used to work with Mukesh and used to visit the house of Mukesh and during such visits her acquaintance was developed with him (Rajesh). The goods (Saman) which she had given to Menu consisted of 750 grms.
Silver (Teen Pau chandi), two pairs of gold Jhumki (Ear rings), one gold ring, one pendant (Neck) of gold on the pattern of "OM" and cash of about 5,000/. Rajesh on leaving her at the house of his maternal aunt (Mammy) came back to Sultan Puri, Delhi at his rented house. The 34 of 78 35 FIR No. 192/10 PS - Sultan Puri house of maternal aunt of Rajesh was at Najafgarh, Delhi. On the next morning Rajesh came there (at the house of his maternal aunt) and took her from there to the house of his sister Sonia and after leaving her (PW3 prosecutrix) at the house of his sister, he (Rajesh) went away. Sonia was not allowing her to move/go anywhere and there at the house of Sonia Rajesh used to visit of and on. The name of the husband of Sonia was Michal. She (PW3 prosecutrix) stayed at the house of Sonia for about 1½ months and during that period the quarrel started taking place between Sonia and her husband Michal because of her (PW3 prosecutrix). Sonia sent her to the house of her (Sonia) friend Rani. There at the house of Rani she stayed for about one month and from there Rajesh took her to the rented room, the place where that room was situated she does not recollect now at present. Prosecutrix and Rajesh stayed in that rented room for one night from there Rajesh took her to the house of his aunty residing at Shastri Nagar, Delhi. Where ever she stayed, whenever Rajesh used to come he used to have forcible physical relations with her. At the house of his aunty residing at Shastri Nagar, Delhi, Rajesh introduced her (PW3 prosecutrix) to his aunty as his (Rajesh) wife and had also stated to his aunty that he had not performed 35 of 78 36 FIR No. 192/10 PS - Sultan Puri marriage with her (PW3 prosecutrix). On which the said aunty of Rajesh asked him to take her (PW3 prosecutrix) away from there whereupon Rajesh took her to Uttam Nagar, Delhi and on the same day Rajesh took her (PW3 - prosecutrix) to Uttam Nagar to the house of his maternal aunt (Mammy) and there they stayed for one night and on the next day, the daughter of his maternal aunt arranged a tenanted room for them in the Uttam Nagar itself and thereafter, they shifted to the rented room in Uttam Nagar. There Rajesh used to beat her (PW3 prosecutrix) and also burnt her with the butts of lighted cigarettes. Accused Rajesh used to quarrel with her frequently, thereafter Deepak, the son of maternal uncle of Rajesh and his 2/3 friends namely Babu, Kalu, Sulti took her to Agra at the house of the Massi of Kalu. She (PW3 prosecutrix) was kept there for about 3/4 days. They were talking there to leave her permanently but she requested them that she want to go back at her house with her parents. Thereafter, they brought her back to Delhi. She made telephone call to her father from Janak Puri. Her father came at the Janak Puri and brought her at Police Station, Sultan Puri. The sister of Rajesh namely Sonia wanted to indulge her (PW3 - prosecutrix) in the immoral activities. Police made 36 of 78 37 FIR No. 192/10 PS - Sultan Puri inquiries from her (PW3 prosecutrix). She was medically examined in SGM Hospital. Her statement was also recorded u/s 164 Cr.P.C. The same is already exhibited as Ex. PW7/B, bearing her signature at point 'B'. Sonia, the sister of accused Rajesh was a call girl. She (Sonia) her husband Michel and Rohtash who was the friend of Sonia also used to say her (PW3 - prosecutrix) to become a call girl. But she refused. Sonia, Michel and Rohtash also used to give her some drink laced with intoxicant and after taking the same, she used to become unconscious. When she used to regain consciousness then they (Sonia, Michel and Rohtash) used to say same thing to her and then used to give beatings to her and they were confining her in a locked room. When she was recovered by the Police, her medical examination was got conducted. She correctly identified accused Rajesh @ Raj present in the Court.
PW3 - Prosecutrix during her crossexamination has negated the suggestions that she and Rajesh were in love with each other (ek dusre se pyar karte the) or that she used to go to the market for strolling in the morning and evening from the house of Sonia or that she was not sent by Sonia to the house of Rani or that she was not taken 37 of 78 38 FIR No. 192/10 PS - Sultan Puri anywhere by Deepak or that Rohtash is not in the relation of Sonia or that Sonia, the sister of accused Rajesh was not a call girl or that she (Sonia), her husband Michel and Rohtash who was the friend of Sonia did not used to say her to become a call girl or that Sonia, Michel and Rohtash not used to give her some drink laced with intoxicant or that they (Sonia, Michel and Rohtash) not used to say something to her and then not used to give beatings to her and they were not confining her in a locked room or that she left her home of her own or that she left the home of her own as she was in love with Rajesh and wanted to marry him or that Rajesh did not make forcible physical relations with her or that she was a consenting party to the physical relations made with her by Rajesh or that she had filed a false case against accused Rajesh at the instance of her parents or that accused Rajesh has been falsely implicated in this case or that she is deposing falsely.
Inspite of incisive crossexamination of PW3 - Prosecutrix, nothing material has been brought out so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The version of 38 of 78 39 FIR No. 192/10 PS - Sultan Puri this witness on the core spectrum of crime has remained intact. The testimony of PW3 - prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused Rajesh @ Raj to falsely implicate him in the case.
The testimony of PW3 - Prosecutrix is also found to be corroborated by the medical/gynaecological evidence as discussed here inbefore.
The testimony of PW3 - prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW7/B bearing her signature at point 'B'.
The testimony of PW3 - prosecutrix is also found to be corroborated by PW15 - Smt. Jamna Devi, her mother to whom she disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
39 of 78 40 FIR No. 192/10 PS - Sultan Puri PW15 - Smt. Jamna Devi in her examinationinchief has deposed that : "Prosecutrix (name withheld) is my eldest daughter. At the time of incident she was 17 years and 05 months of age. On 09/05/2010 at around 3:00/3:30 p.m., my daughter had left the house without disclosing to anyone. We searched our daughter but not found. I checked my articles and found that about five thousand rupees, one pair of jhumki of gold, one pair of gold bali, one gold ring and one gold locket, four pairs of silver pajeb and some other silver items of about 750 gms in weight were found missing. We had a suspicion over Raju, Pawan and Mahesh. On the next day, we reported the matter to the Police and an FIR was lodged.
About six months later we came to know that prosecutrix (name withheld) has been found. I alongwith my husband had gone to Police Station where we met prosecutrix (name withheld). Police recorded the statement of the prosecutrix (name withheld) by ASI Rajender. Medical examination of my daughter/prosecutrix (name withheld) was got conducted but we refused to get herself internally medically examined. Prosecutrix (name withheld) was handed over to me. On my inquiry, prosecutrix (name withheld) told that she has been taken away by accused Rajesh who was residing as a tenant in the backside gali of our house. Accused Rajesh is present in the Court today."
From the aforesaid narration of PW15 - Smt. Jamna Devi it is clear that the prosecutrix (name withheld) is her eldest daughter. At 40 of 78 41 FIR No. 192/10 PS - Sultan Puri the time of incident she was 17 years and 05 months of age. On 09/05/2010 at around 3:00/3:30 p.m., her daughter had left the house without disclosing to anyone. They searched their daughter but not found. She (PW15) checked her (PW15) articles and found that about five thousand rupees, one pair of jhumki of gold, one pair of gold bali, one gold ring and one gold locket, four pairs of silver pajeb and some other silver items of about 750 gms in weight were found missing. They had a suspicion over Raju, Pawan and Mahesh. On the next day, they reported the matter to the Police and an FIR was lodged. About six months later they came to know that prosecutrix (name withheld) has been found. She alongwith her husband had gone to Police Station where they met prosecutrix (name withheld). Police recorded the statement of the prosecutrix (name withheld) by ASI Rajender. Medical examination of her daughter/prosecutrix was got conducted but they refused to get herself internally medically examined. Prosecutrix (name withheld) was handed over to her. On her (PW15) inquiry, prosecutrix (name withheld) told that she has been taken away by accused Rajesh who was residing as a tenant in the backside gali of their house. She correctly identified the accused Rajesh present in the Court today.
41 of 78 42 FIR No. 192/10 PS - Sultan Puri During her crossexamination PW15 - Jamna Devi has negated the suggestions that she was knowing accused Rajesh previously (pehle se) or that the prosecutrix and Rajesh used to love each other or that the prosecutrix of her own will had gone with Rajesh or that Rajesh had not taken away the prosecutrix with him or that the prosecutrix had not disclosed to her about the factum of her taking away by Rajesh or that she is deposing falsely being the mother of the prosecutrix or that about five thousand rupees, one pair or jhumki or gold, one pair of gold bali, one gold ring and one gold locket, four pairs of silver pajeb and some other silver items of about 750 gms in weight were not missing or that she has falsely deposed about the missing of the said articles or that she is deposing falsely.
Inspite of incisive crossexamination of PW15 - Smt. Jamna, nothing material has been brought out so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors.
42 of 78 43 FIR No. 192/10 PS - Sultan Puri Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] her testimony is found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused Rajesh @ Raj to falsely implicate him in the case.
16. While analysing the testimonies of PW3 - Prosecutrix and PW15 - Smt. Jamna Devi, her mother as discussed hereinabove inspite of incisive crossexamination of PW3 - Prosecutrix and PW15 - Smt. Jamna Devi nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions by the defence to PW3 Prosecutrix that she and Rajesh were in love with each other (ek dusre se pyar karte the) or that she used to go to the market for strolling in the morning and evening from the house of Sonia or that she was not sent by Sonia to the house of Rani or that she was not taken anywhere by Deepak or that Rohtash is not in the relation of Sonia or that Sonia, the sister of accused Rajesh was not a call girl or that she (Sonia), her husband Michel and Rohtash who was the friend of Sonia did not used to say her to become a call girl or that Sonia, Michel and Rohtash not used to give her some drink laced 43 of 78 44 FIR No. 192/10 PS - Sultan Puri with intoxicant or that they (Sonia, Michel and Rohtash) not used to say something to her and then not used to give beatings to her and they were not confining her in a locked room or that she left her home of her own or that she left the home of her own as she was in love with Rajesh and wanted to marry him or that Rajesh did not make forcible physical relations with her or that she was a consenting party to the physical relations made with her by Rajesh or that she had filed a false case against accused Rajesh at the instance of her parents or that accused Rajesh has been falsely implicated in this case or that she is deposing falsely and the suggestions to PW15 - Jamna Devi that she was knowing accused Rajesh previously (pehle se) or that the prosecutrix and Rajesh used to love each other or that the prosecutrix of her own will had gone with Rajesh or that Rajesh had not taken away the prosecutrix with him or that the prosecutrix had not disclosed to her about the factum of her taking away by Rajesh or that she is deposing falsely being the mother of the prosecutrix or that about five thousand rupees, one pair or jhumki or gold, one pair of gold bali, one gold ring and one gold locket, four pairs of silver pajeb and some other silver items of about 750 gms in weight were not missing or that she has falsely deposed about the 44 of 78 45 FIR No. 192/10 PS - Sultan Puri missing of the said articles or that she is deposing falsely, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
It is also to be noticed from the suggestions put to PW3 - prosecutrix during her crossexamination recorded on 10/09/2013 on behalf of accused Rajesh @ Raj that the said accused Rajesh @ Raj has not disputed/denied the factum of establishing/making of pysical relations with PW3 - prosecutrix.
The relevant part of crossexamination of PW3 - prosecutrix is reproduced and reads as under : "It is wrong to suggest that Rajesh did not make forcible relations with me or that I was a consenting party to the physical relations made with me by Rajesh."
17. 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.
45 of 78 46 FIR No. 192/10 PS - Sultan Puri It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the 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 46 of 78 47 FIR No. 192/10 PS - Sultan Puri offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW3 - Prosecutrix in the light of medical evidence, gynaecological examination from portion 'X' to 'X' on the MLC Ex. PW4/A of the prosecutrix together with the MLC of accused Rajesh @ Raj Ex. PW5/A, as discussed hereinbefore, the performance of the act of sexual intercourse activity stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by the accused Rajesh @ Raj with PW3 - Prosecutrix without her consent.
18. Learned Counsel for the accused submitted that PW3 Prosecutrix admitted in her crossexamination that while going from Najafgarh to Palam they had passed through pubic way. She has further 47 of 78 48 FIR No. 192/10 PS - Sultan Puri stated that they went to Palam through auto rickshaw. She has further admitted that she did not raise alarm on the way while going to Palam nor told anything to the auto rickshaw driver. Meaning thereby she has left the house of her own. She has also admitted in her cross examination that there were many houses around the house of Sonia. Suggestion was put to the prosecutrix that she used to go to the market for strolling in the morning and evening from the house of Sonia and she had not disclosed the fact regarding the incident to any person in the neighbourhood.
I have carefully perused and analysed the evidence on record.
PW3 Prosecutrix in her examinationinchief has specifically deposed that : "I have passed 8th standard and at the time of incident I was studying in 9th class. One boy Rajesh who was residing as a tenant on the back lane of our house. One Mukesh and his wife Menu who were residing as tenant at our house used to keep on instigating me to leave my house. The wife of Mukesh namely Menu asked me to leave with all the goods whatever I have in my house. Thereupon whatever goods (Saman) I had, I had given to Menu and then Rajesh took me alongwith him to the house of his maternal aunt (Mammy). Rajesh used to work with Mukesh 48 of 78 49 FIR No. 192/10 PS - Sultan Puri and used to visit the house of Mukesh and during such visits my acquaintance was developed with him (Rajesh)......."
PW3 Prosecutrix during her crossexamination recorded on 10/09/2013 has deposed that : "Rajesh took me to Najafgarh at the house of his Mami. We went by bike. We passed through public places, the red light signals, the police van parked on the side ways etc. on the way to Najafgarh. I was picked by Rajesh from Mangol Puri. My one tenant had dropped me from my house at Mangol Puri. I remained for one day at the house of Mami of Rajesh at Najafgarh. I did not notice about the houses in the vicinity of the house of Mami of Rajesh.
Q. Is it correct that when you went from Mangol Puri to Najafgarh on the way you did not raise any alarm (shor nahi machaya)? Ans. Yes.
From the aforesaid narration as well as as to what has been discussed hereinbefore the testimony of PW3 Prosecutrix has been found to be natural, clear, cogent and convincing. PW3 Prosecutrix has specifically deposed that accused Rajesh took her to Najafgarh at the house of his Mami. She was picked up by Rajesh from Mangol Puri. She did not raise any alarm (Shor nahi machaya). Accused has no where disputed or crossexamined PW3 Prosecutrix that she was not picked 49 of 78 50 FIR No. 192/10 PS - Sultan Puri up by him from Mangol Puri or that he had not taken her to Najafgarh at the house of his Mami. PW3 Prosecutrix has categorically deposed in her examinationinchief as reproduced hereinabove that Rajesh used to work with Mukesh and used to visit the house of Mukesh and during such visits her acquaintance was developed with him (Rajesh). It is nowhere been disputed by accused Rajesh that he had not developed acquaintance with prosecutrix. Had there been no inducement on the part of accused Rajesh then why prosecutrix would have reached at Mangol Puri. In the circumstances, it cannot be said that PW3 Prosecutrix of her own had gone with him (accused Rajesh) and that she was not picked up by accused Rajesh from Mangol Puri and had not taken her to Najafgarh at the house of his Mami. When a minor girl has been encouraged and induced with green pastures and has come under the total dominance and inducement of the accused, one is left wandering as to how it is expected that she would gather the courage in such circumstances to raise hue and cry. In the circumstances, non raising of alarm by PW3 Prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by clear cogent and convincing evidence.
50 of 78 51 FIR No. 192/10 PS - Sultan Puri In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
19. Learned Counsel for the accused submitted that a question was put to the prosecutrix in respect of forcible physical relation by the accused with her to which she answered that she had told this fact to the Police in her statement and also in statement recorded u/s 164 Cr.P.C. She was confronted with the statements Mark PW3/DX and Ex. PW7/B where the factum of forcible physical relation was not mentioned or recorded. Meaning thereby, no forcible physical relation was made with the prosecutrix. Had there been any forcible physical relation with the prosecutrix by the accused, then the same would have been mentioned or recorded in the statements Mark PW3/DX and Ex. PW7/B. I have carefully perused and analysed the evidence on record.
It is pertinent to reproduce the relevant part of the cross examination of PW3 Prosecutrix which reads as under : 51 of 78 52 FIR No. 192/10 PS - Sultan Puri "Q. You have deposed in your examinationinchief recorded on 05/06/2012 "wherever I stayed, whenever Rajesh used to come, he used to have forcible relations with me". Have you told this fact to the Police in your statement and also in your statement recorded u/s 164 Cr.P.C. Ex. PW7/B?
A. I have stated so in my both the statements.
(Confronted with the statement Mark PW3/DX and statement u/s 164 Cr.P.C. Ex. PW7/B where it is not so recorded)."
In view of above, the same is an explainable variation and does not, in any way adversely effect the case of the prosecution, for the reason that PW3 Prosecutrix has categorically stated that she had informed the Police of what she stated under oath before the court but why it was not so recorded in her statement u/s 161 Cr.P.C. Mark PW3/DX recorded by the Investigating Officer PW14 ASI Rajender Singh would be a reason best known to the Investigating Officer. Strangely, when PW14 ASI Rajender Singh was being crossexamined, no such question was put to him as to why he did not completely record the statement of the witness/PW3 Prosecutrix or whether this witness had made such aforementioned statement.
PW7 Sh. Neeraj Gaur, Learned MM recorded the 52 of 78 53 FIR No. 192/10 PS - Sultan Puri statement of PW3 Prosecutrix u/s 164 Cr.P.C. Ex. PW7/B. Despite grant of opportunity PW7 Sh. Neeraj Gaur, Learned MM was not cross examined on behalf of the accused.
In case titled as 'Kuria & Anr. Vs. State of Rajasthan', 2012 XI AD (S.C.) 376, while dealing with a similar situation, where witness stated under oath before the Court that he had informed the Police of what he stated under oath before the Court but it was not so recorded in his statement under Section 161 Cr.P.C. recorded by the Investigating Officer (IO) the Hon'ble Supreme Court has held the reason for the same would be best known to the Investigating Officer (IO). (Para 20 & 21).
Para 20 and 21 of Kuria's Case (Supra) reads as under :
20. These cannot be termed as contradictions between the statements of the witnesses. They are explainable variations which are likely to occur in the normal course and do not, in any way, adversely affect the case of the prosecution. Thus, there are no material contradictions in the statement of the witnesses or the documents, nor can the presence of PW15 be doubted at the place of occurrence.
21. For instance PW15, in his crossexamination, had stated before the Court that Laleng had twisted the neck of the deceased. According to the accused, it was not so recorded in his statement under 53 of 78 54 FIR No. 192/10 PS - Sultan Puri Section 161, Exhibit D/2 upon which he explained that he had stated before the Police the same thing, but he does not know why the Police did not take note of the same. Similarly, he also said that he had informed the Police that the four named accused had dragged the body of the deceased and thrown it near the hand pump outside their house, but he does not know why it was not so noted in Exhibit D/2. There are some variations or insignificant improvements in the statements of PW3 and PW7. According to the Learned Counsel appearing for the appellants, these improvements are of such nature that they make the statement of these witnesses unbelievable and unreliable. We are again not impressed with this contention. The witnesses have stated that they had informed the Police of what they stated under oath before the court, but why it was not so recorded in their statements under Section 161 recorded by the Investigating Officer would be a reason best known to the Investigating Officer, PW16, was being crossexamined, no such question was put to him as to why he did not completely record the statements of the witnesses or whether these witnesses had made such aforementioned statements. Improvements or variations of the statements of the witnesses should be of such nature that it would create a definite doubt in the mind of the Court that the witnesses are trying to state something which is not true and which is not duly corroborated by the statements of the other witnesses. That is not the situation here. These improvements do not create any legal impediment in accepting the statements of PW3, PW4, PW7 and PW15 made under oath."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
54 of 78 55 FIR No. 192/10 PS - Sultan Puri
20. Learned Counsel for the accused submitted that PW3 prosecutrix in her examinationinchief deposed that Sonia was not allowing her to go anywhere and Rajesh used to visit off and on. She was confronted with the statements Mark PW3/DX, Mark PW3/DX1 and Ex. PW7/B where it is not so recorded. Had she made such facts in her statements, then the same would have been reflected / mentioned in the Exhibits mentioned above, meaning thereby no incident happened with the prosecutrix. Learned Counsel for the accused further submitted that the prosecutrix in her examinationinchief has deposed that Rajesh used to beat her and also burnt her with the butts of lighted cigarette. She was confronted with the statements Mark PW3/DX, Mark PW3/DX1 and Ex. PW7/B where it is not so recorded. If any such incident had happened, then the same would have been mentioned in the statements referred above. Learned Counsel for the accused further submitted that the PW3 prosecutrix in her statement to NGO Mark PW3/DX1 has stated that after two months she went to the house of her Didi where she stayed for one month and 15 days. This shows that the prosecutrix also stayed with her sister during this period.
55 of 78 56 FIR No. 192/10 PS - Sultan Puri I have carefully perused and analysed the evidence on record.
On analysing the entire testimony of PW3 - prosecutrix, it transpires that she has described the scenario implicating the accused Rajesh to be the author of crime, committed upon her. The accused failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. She has withstood the rigors of crossexamination without being shaken. The witness has made some improvements and has deposed certain facts which were not stated in the statement u/s 161 Cr.P.C. Mark PW3/DX, statement made to the NGO Mark PW3/DX1 and statement recorded u/s 164 Cr.P.C. Ex. PW7/B. However, those facts deposed by her do not effect her credibility as these are mere details of the incident or of the collateral or subsidiary facts which the witness could not reasonably disclose in the statements u/s 161 Cr.P.C. Mark PW3/DX, Mark PW3/DX1 (made to NGO) and recorded u/s 164 Cr.P.C. Ex. PW7/B. In fact, so called improvements are the 'clarifications' or 'elaboration' of facts in response to the questions put to her which she was not supposed to state in the statements u/s 161 Cr.P.C.
56 of 78 57 FIR No. 192/10 PS - Sultan Puri Mark PW3/DX, Mark PW3/DX1 (made to NGO) and recorded u/s 164 Cr.P.C. Ex. PW7/B. The core facts about the kidnapping and the role attributed to the accused Rajesh @ Raj remained identical.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref.
57 of 78 58 FIR No. 192/10 PS - Sultan Puri 'Mahmood Vs. State', 1991 RLR 287).
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor 58 of 78 59 FIR No. 192/10 PS - Sultan Puri embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while 59 of 78 60 FIR No. 192/10 PS - Sultan Puri narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for the accused submitted that the prosecutrix in her crossexamination has admitted that she went by train to Agra. Public persons were present at the railway station as well as in their train. The conduct of the prosecutrix shows that she had left the house of her own. If there had been any pressure or compulsion on the 60 of 78 61 FIR No. 192/10 PS - Sultan Puri prosecutrix, then she would have raised alarm, but she did not do the same, meaning thereby she was the consenting party.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, it is pertinent to reproduce the relevant part of the examinationinchief of PW3 Prosecutrix which reads as under : "Accused Rajesh used to quarrel with me frequently, thereafter Deepak, the son of maternal uncle of Rajesh and his 2/3 friends namely Babu, Kalu, Sulti took me (to) Agra at the house of the Massi of Kalu. I was kept there for about 3/4 days. They were talking there to leave me permanently. I requested them that I want to go back at my house with my parents. Thereafter, they brought me back to Delhi. I made telephone call to my father from Janak Puri. My father came at the Janak Puri and brought me at Police Station, Sultan Puri....."
From the aforesaid narration of the PW3 Prosecutrix, it is clearly indicated that how and in what circumstances she was taken to Agra by Deepak, S/o Maternal Uncle of accused Rajesh with his 23 friends namely Babu, Kalu, Sulti, at the house of Massi of Kalu and of her keeping there for about 34 days and of their intention to leave her 61 of 78 62 FIR No. 192/10 PS - Sultan Puri there permanently and then on the request of her of bringing her back to Delhi. It also clearly indicates the plight of the prosecutrix of taking her to Agra by Deepak, son of maternal uncle of accused Rajesh with his friends and also keeping her there for 34 days. In such adverse circumstances and with a mind set of fear how it could have been expected from the prosecutrix to have raised alarm despite the presence of public persons at the Railway Station and in the Train.
In the circumstances, non raising of the alarm by the prosecutrix does not falsify the case of the prosecution which is otherwise proved on the record by clear, cogent and convincing evidence.
So far as the theory propounded by the Learned Counsel for the accused that, " the conduct of the prosecutrix shows that she had left the house of her own for going to Agra" is concerned, the same has not at all being made probable much established by any cogent evidence therefore, falls flat on the ground. A futile attempt has been made by accused Rajesh @ Raj to save his skin from the clutches of law by floating such baseless theory.
In the circumstances, there is no substance in the plea so 62 of 78 63 FIR No. 192/10 PS - Sultan Puri raised by the Learned Counsel for the accused.
22. Learned Counsel for the accused submitted that suggestions were put to the prosecutrix that she left her house of her own as she was in love with Rajesh and she wanted to marry him. It was further suggested that Rajesh did not make any forcible physical relations with her or that she was the consenting party to the physical relations made with her by the accused. It was further suggested that the accused has been falsely implicated in this case at the instance of her parents.
I have carefully perused and analysed the evidence on record.
During her crossexamination recorded on 10/09/2013, PW3 Prosecutrix has negated the suggestions that she left the home of her own as she was in love with Rajesh and wanted to marry him or that Rajesh did not make forcible physical relations with her or that she was a consenting party to the physical relations made with her by Rajesh or that she had filed a false case against accused Rajesh at the instance of her parents or that accused Rajesh has been falsely implicated in this 63 of 78 64 FIR No. 192/10 PS - Sultan Puri case or that she is deposing falsely.
The theories propounded by accused Rajesh by way of suggestions put to PW3 Prosecutrix as detailed herein above which have been negated by her that, "PW3 Prosecutrix left her home of her own as she was in love with him (accused Rajesh) and wanted to marry him", the theory that, "Rajesh did not make forcible relation with her" and the theory that, "PW3 Prosecutrix was a consenting party to the physical relation made with her by Rajesh" have also not at all being made probable much established by any cogent evidence, therefore falls flat on the ground. A futile attempt has been made by accused Rajesh to save his skin from the clutches of law by floating every possible theory.
Nor even a single word regarding the theory that, "Rajesh did not make forcible relation with her" and the theory that, "PW3 - prosecutrix was a consenting party to the physical relation made with her by Rajesh" was uttered by the accused during his statement recorded u/s 313 Cr.P.C. In his statement u/s 313 Cr.P.C., accused Rajesh 64 of 78 65 FIR No. 192/10 PS - Sultan Puri @ Raj has taken a complete Uturn to the said theories so propounded by him and has stated that, no physical relation was made with the prosecutrix at any point of time.
The relevant part of the statement recorded u/s 313 Cr.P.C. of accused Rajesh @ Raj is reproduced and reads as under : "Q33. Do you want to say anything else?
Ans. I am innocent and have been falsely implicated in the present case. The prosecutrix was having love affairs with me and she wanted to marry with me and her parents were against of this marriage. The prosecutrix had left her house of her own. The prosecutrix got registered a false case at the instance of her parents. No physical relation was made with the prosecutrix at any point of time by me."
(Underlined by me) Even otherwise to be of someone in love and her wish to marry with a person, does not give any license to that person to make forcible physical relations with her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
65 of 78 66 FIR No. 192/10 PS - Sultan Puri
23. Learned Counsel for the accused submitted that PW3 prosecutrix in her crossexamination deposed that she does not recollect as to whether she had told in her statement to the police that Rajesh had sexual intercourse a few times (Kai Baar) with her own consent. She was confronted with the statement Mark PW3/DX where it is recorded "Mere saath koi galat kaam nahi kiya, kewal Rajesh ne meri marji se mere saath kai baar sambhog kiya, yaha bayan main apni maa Smt. Jamna Devi ke sath pure hoso hawas se de rahi huin". Meaning thereby, no rape was committed upon the prosecutrix as alleged by the prosecution. Learned Counsel for the accused further submitted that PW3 prosecutrix in her crossexamination has deposed that she does not recollect as to whether in the statement Mark PW3/DX1 made to NGO, she has told that they (Rajesh and herself) were loving each other. She was confronted with the statement Mark PW3/DX1 where it is so recorded. She has further stated that she does not recollect as to whether in her statement u/s 164 Cr.P.C. Ex. PW7/B she had stated "she was in love affair with Rajesh for one year". She was confronted with statement Ex. PW7/B where it is so recorded.
66 of 78 67 FIR No. 192/10 PS - Sultan Puri I have carefully perused and analysed the evidence on record.
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.
At the cost of repetition, the theories propounded by accused Rajesh by way of suggestions put to PW3 Prosecutrix as detailed hereinbefore which have been negated by her that, "PW3 Prosecutrix left her home of her own as she was in love with him (accused Rajesh) and wanted to marry him", the theory that, "Rajesh did not make forcible relation with her" and the theory that, "PW3 Prosecutrix was a consenting party to the physical relation made with her by Rajesh" as discussed and analysed hereinbefore have fallen flat on the ground. Nor even a single word regarding the theory that, "Rajesh did not make forcible relation with her" and the theory that, "PW3 - prosecutrix was a consenting party to the physical relation made with her by Rajesh" was uttered by the accused during his statement recorded u/s 313 Cr.P.C. In his statement u/s 313 67 of 78 68 FIR No. 192/10 PS - Sultan Puri Cr.P.C., accused Rajesh @ Raj has taken a complete Uturn to the said theories so propounded by him and has stated that, no physical relation was made with the prosecutrix at any point of time.
It is pertinent to reproduce the relevant part of the cross examination of PW3 Prosecutrix recorded on 10/09/2013 which reads as under : "I do not recollect as to whether I had told in my statement to the police that Rajesh had sexual intercourse a few times (kai baar) with my own consent. I had not told in my statement to the police that after leaving the house I had telephoned my father and told him that I am well (Mai thik thak hu) (confronted with the statement Mark PW3/DX where it so recorded). I do not recollect as to whether in the statement made to the NGO I had told that we (myself and Rajesh) were loving each other (the statement made to the NGO Member is marked as Mark PW3/DX1 for the purpose of reference). My statement u/s 164 Cr.P.C. before the court was also recorded. I do not recollect as to whether in my statement u/s 164 Cr.P.C. (PW7/B) I had stated that, "I was in love affairs with Rajesh for the last one year"...... (confronted with the statement Ex. PW7/B where it is so recorded).
On careful perusal and analysis of the said part of the testimony of PW3 Prosecutrix, it is clearly indicated that on the facts 68 of 78 69 FIR No. 192/10 PS - Sultan Puri with which she has been attempted to be confronted with/contradicted with by the Learned Counsel for the accused is not in a manner contemplated under section 145 of the Indian Evidence Act, 1872 for the reason that as to what she has deposed is that, she does not recollect as to whether she had told in her statement to the Police (Mark PW3/DX) that Rajesh had sexual intercourse a few times (kai baar) with her own consent and that she does not recollect as to whether in the statement made to the NGO (Mark PW3/DX1) she had told that they (herself and Rajesh) were loving each other and that she does not recollect as to whether in her statement u/s 164 Cr.P.C. (Ex. PW7/B) she had stated that, she was in love affairs with Rajesh for last one year, therefore, her confrontation/contradiction on these facts with the statements u/s 161 Cr.P.C. Mark PW3/DX, Mark PW3/DX1 made to the NGO, u/s 164 Cr.P.C. Ex. PW7/B does not come to the rescue of the accused.
Section 145 Indian Evidence Act, 1872 provides for cross examination as to previous statements in writing. It reads as under :
145. Crossexamination as to previous statements in writing. A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters 69 of 78 70 FIR No. 192/10 PS - Sultan Puri in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
It is to be noticed that in case Shaik Subhani @ Bombay Subhani and Another Vs. State of Andhra Pradesh 2000 Cri.L.J. 321(DB) it was held that, if a contradiction is put to witness and it is denied by him even then it will not amount putting contradiction to witness.
Para 24 of Shaik Subhani's case (Supra) reads as under : "24............As far as contradictions put by defence is concerned, we would like to say that the defence Counsel did not put the contradictions in the manner in which is ought to have been put. By putting suggestions to the witness and the witness denying the same will not amount putting contradiction to the witness. The contradiction has to be put to the witness as contemplated under Section 145 of the Evidence Act. If a contradiction is put to the witness and it is denied by him then his attention has to be drawn to the statement made by such witness before the Police or any other previous statement and he must be given a reasonable opportunity to explain as to why such contradiction appears and he may give any answer if the statement made by him is shown to him and if he confronted with such a statement and thereafter the said contradiction must be proved through the Investigating Officer. Then only it amounts to putting to contradiction to the witness and getting it 70 of 78 71 FIR No. 192/10 PS - Sultan Puri proved through the Investigating Officer."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that there is no evidence of the accused having extended any promise or allurement to the prosecutrix and also there is no evidence that the accused induced the prosecutrix. Admittedly, the prosecutrix is about 17½ years old who had obtained the age of discretion and understanding. She left the house of her father of her own accord without any enticement or lure from the accused nor any force was used to take her away from the custody of her parents / guardian. The prosecutrix willingly accompanied the accused to number of places and stayed with him. In the statement u/s 161 Cr.P.C. Mark PW1/DX she stated that she made a call to Rajesh and Rajesh met her at Mangol Puri and she reached Rajesh by auto. The prosecutrix has further admitted in her crossexamination "my one tenant had dropped me from my house at Mangol Puri". Meaning thereby, prosecutrix herself accompanied the accused. If the prosecutrix had 71 of 78 72 FIR No. 192/10 PS - Sultan Puri been kidnapped then she would have not been dropped by her tenant as admitted by her.
I have carefully perused and analysed the evidence on record.
The testimony of PW3 Prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition her testimony has been found to be natural, clear, cogent, convincing and trustworthy.
From the testimony of PW3 Prosecutrix, it is clearly indicated that she was enticed or lured by accused Rajesh. Had it not been so, she would not have reached at Mangol Puri and would have not been picked up by accused Rajesh from there and taken to Najafgarh at the house of his Mami (Maternal Aunt). It is also being indicated that from the house of his maternal aunt (Mami) at Najafgarh, Delhi accused Rajesh took her to the house of his sister Sonia at Palam where prosecutrix remained there for about 1½ months and since during that period quarrels started taking place between Sonia and her husband Micheal because of her (Prosecutrix) thereupon sent her (Prosecutrix) to 72 of 78 73 FIR No. 192/10 PS - Sultan Puri the house of her (Sonia) friend Rani where Prosecutrix stayed for about one month and from there accused Rajesh took her to a rented room where they stayed for one night and from there accused Rajesh took her to the house of his aunty residing at Shastri Nagar and there at the house of his aunty at Shastri Nagar, Delhi accused Rajesh introduced her to his aunty as his wife and also stated to his aunty that he had not performed marriage with her (Prosecutrix) on which the said aunty of accused Rajesh asked him to take her (Prosecutrix) away from there whereupon accused Rajesh took her to Uttam Nagar, Delhi and on the same date accused Rajesh took her to Uttam Nagar to the house of his maternal aunt (Mami) and there they stayed for one night and on the next day the daughter of his maternal aunt arranged a tenanted room in the Uttam Nagar itself and thereafter they shifted to rented room at Uttam Nagar. Had there been no allurement from accused Rajesh to the prosecutrix she would have not accompanied him to number of places as detailed here inabove and stayed with him.
As regards the plea of the Learned Counsel that in statement u/s 161 Cr.P.C. Mark PW3/DX, prosecutrix stated that she made a call to Rajesh and Rajesh met her at Mangol Puri and she reached Rajesh by 73 of 78 74 FIR No. 192/10 PS - Sultan Puri auto, is concerned, she (Prosecutrix) was not crossexamined on the said aspect. For such failure, accused is to blame himself and none else. In the circumstances, it does not lie in the mouth of accused Rajesh to utter that she (Prosecutrix) left the house of her father of her own accord without any enticement or lure from him to take her away from the custody of her parents.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused referred to the cases and are reported as Masauddin Ahmed Vs. State of Assam, 2009 (3) JCC 2002; State of HP Vs. Suresh Kumar @ Chhotu, 2008 (10) SC 366; State Vs. Sanjay Kumar & Anr., 2012 (4) JCC 2409; Sonu Vs. State (NCT) of Delhi, 2010 (2) JCC 1337; Ramvir Vs. State, 2010 (3) JCC 74 of 78 75 FIR No. 192/10 PS - Sultan Puri 1706; Avadh Bihari Vs. State, 2010 (4) JCC 2918; Kulwant Singh Vs. State, 2010 (4) JCC 2510 and Satvinder Singh Vs. State, 2011 (2) JCC 1175.
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".
26. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that in the year, 2010 accused Rajesh @ Raj entered into criminal conspiracy 75 of 78 76 FIR No. 192/10 PS - Sultan Puri with the coaccused i.e. his sister Sonia and her husband Michal (not arrested) to kidnap PW3 - prosecutrix, aged about 17 years (to be exact 17 years, 06 months and 18 days) and that he in furtherance of aforesaid criminal conspiracy kidnapped PW3 prosecutrix on 09/05/2010 from her house i.e. House No. C3/150 Sultan Puri, Delhi out of the lawful custody of her parents without their consent, with intent that she may be forced or seduced to illicit intercourse and took her to the house of his maternal aunt (Mami) at Najafgarh, Delhi and thereafter, in furtherance of the said criminal conspiracy left her at the house of his sister/co accused Sonia (not arrested) at Palam, Delhi and in furtherance of said criminal conspiracy coaccused Sonia & Michal (not arrested) gave her (PW3 - prosecutrix) intoxicating or stupefying unwholesome drugs to force and to make her (PW3 - prosecutrix) to accept their illegal demand of indulging herself (PW3 - prosecutrix) in prostitution and they confined her (PW3 - prosecutrix) in a locked room (Band Kar Ke Kamre Mei Rakhte The) and thereafter, in furtherance of the said criminal conspiracy coaccused Sonia (not arrested) sent her (PW3 - prosecutrix) to the house of her (coaccused Sonia) friend Rani where PW3 - prosecutrix stayed for about one month and from there accused Rajesh @ 76 of 78 77 FIR No. 192/10 PS - Sultan Puri Raj took her (PW3 - prosecutrix) in a rented room and then took her (PW3 - prosecutrix) to the house of his aunty residing at Shastri Nagar, Delhi and thereafter, accused Rajesh @ Raj took her to the house of his maternal aunt at Uttam Nagar, Delhi and after staying for one night took her (PW3 - prosecutrix) in a tenanted room at Uttam Nagar itself and there accused Rajesh @ Raj used to beat her (PW3 - prosecutrix) and also burnt her with the butts of lighted cigarettes and wherever PW3 - prosecutrix stayed whenever accused Rajesh @ Raj used to come he used to have forcible physical relations with her (PW3 - prosecutrix).
I accordingly hold accused Rajesh @ Raj guilty for the offences punishable u/s 120B IPC, section 363 IPC r/w section 120B IPC, section 366 IPC r/w section 120B IPC, section 328 IPC r/w section 120B IPC, u/s 344/368 IPC r/w section 120B IPC and under section 376 IPC and convict him thereunder.
27. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Rajesh @ Raj in the commission of the offences u/s 120B IPC, section 363 IPC r/w section 120B IPC, section 366 IPC r/w section 120B IPC, section 328 IPC r/w 77 of 78 78 FIR No. 192/10 PS - Sultan Puri section 120B IPC, u/s 344/368 IPC r/w section 120B IPC and under section 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Rajesh @ Raj beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Rajesh @ Raj guilty for the offences punishable u/s 120B IPC, section 363 IPC r/w section 120B IPC, section 366 IPC r/w section 120B IPC, section 328 IPC r/w section 120B IPC, u/s 344/368 IPC r/w section 120B IPC and under section 376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 16th Day of April, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 78 of 78