Delhi District Court
State vs . 1. Narender Kumar Giri on 20 August, 2014
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FIR No. 55/10
PS - Shahbad Dairy
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 26/13
Unique ID No. : 02404R0157642010
State Vs. 1. Narender Kumar Giri
S/o Sh. Rama Shankar
R/o Village Gusai Ka Parwa,
PS - Kamrouri,
District - Sultan Ganj, U.P.
2. Ravinder Kumar Giri
S/o Sh. Rama Shankar
R/o Village Gusai Ka Parwa,
PS - Kamrouri,
District - Sultan Pur, U.P.
(JUVENILE)
FIR No. : 55/10
Police Station : Shahbad Dairy
Under Sections : 363/366/506/34 IPC and 376 IPC
Date of committal to session Court : 07/07/2010
Date on which judgment reserved : 26/07/2014
Date on which judgment announced : 20/08/2014
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FIR No. 55/10
PS - Shahbad Dairy
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 11/03/2010, on receipt of DD No. 43A, ASI Satbir Singh with Constable Parveen reached at Jhuggi No. F 156, Shahbad Dairy where complainant Wazir Ahmed S/o Md. Islamuddin, R/o Jhuggi No. F156, Shahbad Dairy met who made the statement which is to the effect that, he lives at the abovesaid address with his family and is having his Kabadi Shop in B - Block, Shahbad Dairy. He is having three children and the youngest is his daughter/prosecutrix (name withheld being a case u/s 376 IPC) aged about 13 years, who studies in 7th Class. Today on 11/03/2010, in the day time at about 2:00 p.m. she had gone to take examination (paper dene gai thi) in the Lal School at A - Block, S. B. Dairy and the examination ends at 5:00 p.m. in the evening but his daughter has not returned to the house till 9:00 p.m. His brotherinlaw (Sala) Ravinder aged about 20/21 years who also lives with him, has also not returned to the house. The description of his daughter/prosecutrix is 2 of 145 3 FIR No. 55/10 PS - Shahbad Dairy colour - wheatish, round face, average built, height about 4½ feet, wearing baingni shirt, white pajami, white chunni, the school dress and is wearing black colour shoes in her feet and has not returned to the house. He is having two wives. Ravinder is the real brother of his younger wife Reshma. He (complainant) now suspects that his daughter has been enticed away by Ravinder after inducing her and has taken her somewhere else (Jo Mujhe Ab Shaq Hai Ki Meri Beti (name withheld) Ko Mera Sala Ravinder Behla Fusla Kar Kahin Le Gaya Hai). Legal action be taken against Ravinder. The statement has been heard and is correct. From the statement, on finding that offence u/s 363 IPC appeared to have been committed, the case was got registered and the investigation was proceed with by ASI Satbir Singh. Due to ASI Satbir Singh being out of station further investigation was handed over to ASI Anil Kumar. On 13/03/2010 on receipt of information from PS - Alipur, ASI Anil Kumar with Constable Ram Avtar reached at PS - Alipur where custody of prosecutrix was given to Lady Constable Sharmila and the custody of Ravinder was given to Constable Ram Avtar and they were sent for their medical examination at MB Hospital, Pooth Khurd where medical examination of Ravinder was conducted vide MLC No. 3 of 145 4 FIR No. 55/10 PS - Shahbad Dairy 727/10 and that of prosecutrix vide MLC No. 735/10 and the sealed exhibits handed over by the Doctor after their medical examination were taken into Police possession and were deposited in the Malkhana. Both of them were produced before the Court. By the orders of the Court, the custody of the prosecutrix was given to her father and accused Ravinder was sent to Judicial Custody. On 15/03/2010, statement of the prosecutrix was got recorded u/s 164 Cr.P.C. On the basis of her such statement, Sections 376/506 IPC were added in the case. The sealed exhibits were sent to the FSL. The date of birth documents of the prosecutrix having the date of birth as 02/01/1997 were obtained from the School. The investigation against accused Narender who is the real brother of accused Ravinder is pending and the appropriate proceedings shall be taken against him.
Upon completion of the necessary further investigation, challan for the offences u/s 363/366/506/34 IPC and 376 IPC was prepared against accused Ravinder Kumar Giri and was sent to the Court for trial.
2. During the course of further investigation, accused Narender 4 of 145 5 FIR No. 55/10 PS - Shahbad Dairy Kumar Giri was arrested and upon completion of the necessary further investigation, supplementary challan u/s 363/366/506/34/174A IPC r/w Section 376 IPC was prepared against him and was sent to the Court for trial.
3. Since the offences u/s 366/376 IPC are exclusively triable by the Court of Section, therefore, after compliance of the section 207 Cr.P.C., the challan against accused Ravinder Kumar Giri and the supplementary challan against accused Narender Kumar Giri were committed to the Court of Session u/s 209 Cr.P.C.
4. Upon hearing on charge, prima facie, initially a case u/s 363/366/376/506/34 IPC was made out against accused Ravinder Kumar Giri and the charge was framed accordingly on 28/07/2010, which was later on amended on 20/04/2011 and the amended charge u/s 363/366/34, 376(2)(g), 506/342/34 IPC was framed against accused Ravinder Kumar Giri which was read over and explained to the said accused to which he pleaded not guilty and claimed trial.
Upon hearing on charge, prima facie a case u/s 363/366/34, 5 of 145 6 FIR No. 55/10 PS - Shahbad Dairy 376 (2)(g), 506/342/34 IPC was made out against accused Narender Kumar Giri and charge was framed accordingly on 20/04/2011 which was later on amended on 19/09/2012 and the amended charge u/s 363/34 IPC, u/s 366/34 IPC u/s 376(2)(g) IPC and u/s 506/342/34 IPC was framed against accused Narender Kumar Giri which was read over and explained to accused Narender Kumar Giri to which he pleaded not guilty and claimed trial.
5. It is to be mentioned that on 16/07/2012, the Learned Predecessor Court declared accused Narender Kumar Giri as Juvenile in Conflict with Law on the date of incident and his case was separated and on 22/08/2012 directed for the production of accused Ravinder Kumar Giri before the Learned Juvenile Justice Board.
6. It is also to be mentioned that after the separation of the case of accused Ravinder Kumar Giri, being a juvenile, by the Learned Predecessor Court as discussed hereinabove, that on 6 of 145 7 FIR No. 55/10 PS - Shahbad Dairy 19/09/2012, the charge was amended and an amended charge for the offences u/s 363/34 IPC, u/s 366/34 IPC, u/s 376 (2)(g) IPC and u/s 506/342/34 IPC was framed against accused Narender Kumar Giri.
7. In support of its case against accused Narender Kumar Giri, prosecution has infact produced and examined 20 witnesses. At PW11, two witnesses have been examined namely PW11 HC Ramesh Chand, PW11 Sh. Naveen Gupta, Learned Metropolitan Magistrate.
PW1 Prosecutrix, PW2 W/Constable Kamla, PW3 - W/Constable Poonam, PW4 Lady Constable Sharmila, PW5 HC Malwa Ram, PW6 HC Ishwar, PW7 - Constable Praveen Kumar, PW8 Constable Ram Avtar, PW9 Dr. S. K. Aggarwal, CMO, MB Hospital, Pooth Khurd, Delhi, PW10 Sh. Mukesh Vashist, Incharge, MC Primary School, BBlock1, Shahbad Dairy, Delhi42, PW11 HC Ramesh Chand, PW11 Sh. Naveen Gupta, Learned Metropolitan Magistrate, PW12 Dr. Virender Kumar, Medical Officer, Central Jail Tihar, Delhi, PW13 Wazir Ahmed, PW14 SI Prem Singh, PW15 SI Satbir Singh, PW16 Dr. Saroj Aggarwal, Specialist Incharge O & G, 7 of 145 8 FIR No. 55/10 PS - Shahbad Dairy M. V. Hospital, PW17 - Ms. Shashi Bala, SSO (Biology), FSL, Rohini, PW18 - Constable Sushil and PW19 - ASI Anil Kumar.
It is to be mentioned that PW2 W/Constable Kamla has been examined twice on 03/03/2011 and 20/05/2011; PW3 - W/Constable Poonam has also been examined twice on 28/03/2011 and 20/05/2011 by the Learned Predecessor Court.
8. In brief the witnessography of the prosecution witnesses is as under : PW1 Prosecutrix is the victim who deposed regarding the incident and proved her statement u/s 164 Cr.P.C., Ex. PW1/A, bearing her signature at points 'A' & 'B'. She was also crossexamined by the Learned Addl. PP on the aspect of identification of her clothes and identified and proved her clothes as Ex. P1 (colly.).
PW2 W/Constable Kamla, who deposed that on the intervening night of 1213/03/2010, she was posted at PS - Mangol Puri 8 of 145 9 FIR No. 55/10 PS - Shahbad Dairy and was on duty at Outer District Control Room from 8:00 p.m. to 8:00 a.m. At about 9:00 p.m., she accompanied IOASI Anil Tiwari of PS - Shahbad Dairy from PS - Shahbad Dairy to MB Hospital, Pooth Khurd with prosecutrix (name withheld) D/o Wazir Ahmad for her medical examination. Prosecutrix was medically examined. She (PW2) collected the MLC, one pullinda sealed with the seal of casualty, MB Hospital, Pooth Khurd, Delhi and one sample seal of same specimen from the Hospital and handed over the same to ASI Anil Tiwari at PS - Shahbad Dairy. Same were taken into possession by him vide memo Ex. PW2/A which bears her signature at point 'A'. IO recorded her statement in this regard on 13/03/2010 at PS - Shahbad Dairy.
PW3 - W/Constable Poonam, who deposed that on 13/03/2010, she was working as DD Writer at PS Alipur from 8:00 a.m. to 4:00 p.m. At about 10:10 a.m., she received an information from Wireless Operator that "in village Singhu, Shiv Mandir, Dabbu ki factory, ek ladka ek ladki ko mere plot par bhaga kar laya hai". She recorded this message in the daily diary vide DD no. 34B. She has brought the original DD Register pertaining to DD No. 34B. The said 9 of 145 10 FIR No. 55/10 PS - Shahbad Dairy entry is in her hand and true copy of the same is Ex. PW3/A which is in her hand and bears her signature at point 'A'. She informed to HC Ramesh of PS Alipur on telephone regarding the facts of the DD for necessary action (Original seen and returned).
PW4 Lady Constable Sharmila, who deposed that on 13/03/2010, she was present on duty at Delhi Engineering University, Shahbad Daulat Pur, Delhi. On that day, she joined the investigation with ASI Anil Kumar in the present case. She alongwith ASI Anil and Constable Ram Avtar reached at PS - Alipur where HC Ramesh handed over accused Ravinder Kumar Giri and prosecutrix (name withheld) D/o Wazir Ahmad. IO prepared the recovery memo of prosecutrix which is Ex. PW4/A which bears her signature at point 'A'. thereafter, prosecutrix and accused were taken to MB Hospital, Pooth Khurd where they were medically examined, however, prosecutrix (name withheld refused for her internal examination before the Doctors. IO collected the MLC of accused and prosecutrix. Thereafter, they came back to PS - Shahbad Dairy. IO recorded her statement in this regard.
10 of 145 11 FIR No. 55/10 PS - Shahbad Dairy PW5 HC Malwa Ram, who deposed that on 11/03/2010 he was posted at PS Shahbad Dairy and working as Duty Officer from 4:00 p.m. to 12:00 midnight. On that day, at about 9:30 p.m. he received message from Wireless Operator on telephone in the DO room that "F Block, H. No. 156, Shahbad Dairy, prosecutrix (name withheld) Ko Ravinder Bhaga Kar Le gaya". He recorded this message in the daily diary vide DD No. 43A. He has brought the DD Register and the same is in his hand and true copy of the same is Ex. PW5/A which bears his signature at point 'A' (Original seen and returned). He has brought the FIR Register. The FIR was got recorded on the computer through the Computer Operator by SI Rajender Singh (since returned). He identified his signature on the FIR, photocopy of the same is Ex. PW5/B which bears the signature of SI Rajender at point 'A', as he received charge from him as DO in the same night and he (PW5) had seen him (SI Rajender) writing and signing during the course of their official duty.
PW6 HC Ishwar, who deposed that on 13/03/2010, he was posted at PS - Shahbad Dairy and was on duty as MHC(M). On that day, ASI Anil Tiwari deposited five pullindas sealed with the seal of Dr. 11 of 145 12 FIR No. 55/10 PS - Shahbad Dairy S. K. Aggarwal, M. B. Hospital and one sample seal of same specimen pertaining to the present case and he made entry in Register No. 19 at S. No. 346. He has brought the original Register No. 19 and the said entry is in his hand and correct. Copy of aforesaid entry is Ex. PW6/A. On 14/03/2010, ASI Anil Tiwari deposited one pullinda sealed with the seal of Casualty, M. B. Hospital, Pooth Khurd and one sample seal of same specimen pertaining to the present case and he made entry in Register No. 19 at S. No. 348. Copy of aforesaid entry is Ex. PW6/B. Same is in his hand and correct. On 03/05/2010, aforesaid six sealed pullindas, sample seals, forwarding letter etc. were sent to FSL, Rohini for analysis through ASI Anil Kumar vide RC No. 25/21/10 and the exhibits were received back on 23/05/2011 through Constable Amar Singh from the FSL Officer alongwith FSL result. The pullindas were deposited in the Malkhana duly sealed with the seal of FSL and the result was handed over to the IO for filing the same in the Court. He made entry in this regard in Register No. 19 and same is Ex. PW6/C which bears his signature at point 'A'. He has also brought the original RC and photocopy of the same is Ex. PW6/D. So long as the parcels and exhibits remained in his possession, no one tampered the same in any 12 of 145 13 FIR No. 55/10 PS - Shahbad Dairy manner.
PW7 - Constable Praveen Kumar, who deposed that on the intervening night of 1112/03/2010, he was on emergency duty with ASI Satbir Singh from 8:00 p.m to 8:00 a.m. DD No. 43A was marked to ASI Satbir Singh for necessary action, therefore, he alongwith ASI Satbir Singh reached to the Jhuggi No. E - 156, Shahbad Dairy where one Wazir Ahmed met them and ASI Satbir Singh recorded his statement and prepared rukka on the same and the same was handed over to him and he took the same to the PS - Shahbad Dairy and gave the same to the DO on the basis of which the present case was registered. After the registration of the case Duty Officer handed over original rukka and copy of FIR to him and he handed over the same to ASI Satbir Singh. IO recorded his statement in this regard.
PW8 - Constable Ram Avtar, who deposed that on 13/03/2010,he joined the investigation with ASI Anil Kumar in the present case. On that day, he alongwith Lady Constable Sharmila reached to PS - Alipur where HC Ramesh handed over the accused 13 of 145 14 FIR No. 55/10 PS - Shahbad Dairy Ravinder Giri present in the Court (correctly identified by the witness) and one girl namely prosecutrix (name withheld) D/o Wazir Ahmed to ASI Anil Kumar in his presence. IO prepared the recovery memo of the girl which is Ex. PW4/A. Accused Ravinder Kumar Giri was arrested in this case and his personal search was taken, arrest memo of the accused Ravinder Kumar Giri is Ex. PW8/A which bears his signature at point 'A', personal search memo of the accused is Ex. PW8/B which bears his signature at point 'A'. Accused Ravinder Kumar Giri made disclosure statement Ex. PW8/C which bears his signature at point 'A'. Thereafter, the prosecutrix and Ravinder Giri were taken to M. B. Hospital for their medical examination by him, Lady Constable Sharmila where they were medically examined. After the medical examination of accused Ravinder Giri handed over five pullindas sealed with the seal of Casualty, MB Hospital and one sample seal of same specimen to the IO which were taken into possession vide memo Ex. PW8/D which bears his signature at point 'A'.
PW9 Dr. S. K. Aggarwal, CMO, MB Hospital, Pooth Khurd, Delhi, who deposed that on 13/03/2010, at about 3:05 p.m., 14 of 145 15 FIR No. 55/10 PS - Shahbad Dairy patient Ravinder Kumar Giri S/o Ram Shankar Giri, aged about 20 years was brought to the MB Hospital, Pooth Khurd by Constable Ram Avtar of PS - Shahbad Dairy for medical examination being accused in sexual assault case. Patient was examined by him. He found no external injury on his person. He opined that there was nothing to suggest that the said person was not capable of performing sexual intercourse. His detailed MLC in this regard is Ex. PW9/A which is in his hand and bears his signature at point 'A'.
PW10 Sh. Mukesh Vashist, Incharge, MC Primary School, BBlock1, Shahbad Dairy, Delhi - 42, who deposed that he has been deputed by Principal of above mentioned School to produce the summoned record on her behalf, pertaining to the admission of prosecutrix (name withheld) D/o Wazir Ahmad R/o Jhuggi No. F - 156, Shahbad Dairy. He has brought the Admission Register pertaining to the year, 2002. As per Admission Register, prosecutrix (name withheld) D/o Wazir Ahmad was admitted in Class 1st on 15/07/2002 vide Admission No. 1515. As per record, the date of birth of prosecutrix (name withheld) is mentioned as 02/01/1997. Prosecutrix (name withheld) has 15 of 145 16 FIR No. 55/10 PS - Shahbad Dairy passed 5th Class from the above mentioned School and School Leaving Certificate was issued to her on 31/03/2008. Photocopy of the Admission Register is Ex. PW10/A (Original seen and returned). He has also brought the office copy of admission form of prosecutrix (name withheld) and the photocopy of the same is Ex. PW10/B (Original seen and returned).
PW11 HC Ramesh Chand, who deposed that on 13/03/2010, he was posted at PS - Alipur and was on emergency duty from 8:00 a.m. to 8:00 p.m. on that day. At about 10:10 a.m. Duty Officer handed over the copy of DD No. 34B, copy of the same is Ex. PW3/A, regarding the information that "near Shiv Mandir, Dabbu Ki Factory, Singhu Village, Ek Ladka Ek Ladki Ko Mere Plot Par Bhaga Kar Laya Hai". He reached at the place mentioned above where he found one boy namely Ravinder Kumar Giri, accused present in the Court (correctly identified by witness) and one girl/prosecutrix (name withheld), who revealed her name as prosecutrix (name withheld) D/o Wazir Ahmad present there. He inquired from them and came to know that a case has been registered in this regard at PS Shahbad Dairy.
16 of 145 17 FIR No. 55/10 PS - Shahbad Dairy Therefore, he gave information at PS Shahbad Dairy in this regard. Thereafter, ASI Anil Tiwari from PS Shahbad Dairy alongwith his staff reached at PS Alipur and he handed over accused and prosecutrix (name withheld) to him. ASI Anil Tewari prepared recovery memo of prosecutrix (name withheld) at PS - Alipur. One Lady Constable was also with ASI Anil Kumar at that time. IO recorded his statement in this regard.
PW11 Sh. Naveen Gupta, Learned MM, who deposed that on 15/03/2010, he was posted as MM at Rohini Courts. On that day, an application moved by the IO before Learned Duty MM on 14/03/2010 was assigned to him to record the statement of prosecutrix (name withheld) D/o Sh. Wazir Ahmed, R/o Jhuggi No. F - 156, Shahbad Dairy, aged about 15 years, u/s 164 Cr.P.C. On 15/03/2010, the prosecutrix was produced before him by the IO ASI Anil Kumar was was correctly identified by him. The signature of the IO were obtained in this regard. He asked some rational questions to the prosecutrix about her age and about the name of her parents etc. as to ascertain the voluntariness of the witness. Thereafter, he was satisfied that the 17 of 145 18 FIR No. 55/10 PS - Shahbad Dairy prosecutrix was making her statement voluntarily and without any pressure and she is competent to depose. Therefore, he recorded statement of prosecutrix (name withheld) u/s 164 Cr.P.C. the statement u/s 164 Cr.P.C. of witness/prosecutrix (name withheld) is Ex. PW1/A which bears his signature at point 'C' & 'D' and prosecutrix signed the same at point 'A' on both the pages. He certified regarding correctness of the statement. The certificate thereof is Ex. PW11/A which bears his signature at point 'A'. IO moved an application for obtaining the copy of the proceedings and the same was allowed which bears his signatures at point 'C'. He directed the Ahlmad of the Court to keep the statement of the prosecutrix and the application mentioned above in a sealed cover after supplying the copy of the statement to the IO.
PW12 Dr. Virender Kumar, Medical Officer, Central Jail Tihar, Delhi, who deposed that on 13/03/2010, he was posted at Maharishi Balmiki Hospital and on the said day, the prosecutrix whose name is mentioned in the MLC (name not disclosed for the reasons of secrecy) was brought to the Hospital for medical examination and at about 10:55 p.m., he medically examined her and referred the patient for 18 of 145 19 FIR No. 55/10 PS - Shahbad Dairy Gynae for further evaluation. The MLC is Ex. PW12/A which bears his signature at point 'A'. He has also seen another MLC of the same Hospital on the Judicial record which was prepared on the same date at about 3:00 p.m. where the said prosecutrix refused to undergo medical examination.
PW13 Wazir Ahmed is the father of the prosecutrix, who deposed that he is running a Kabadi shop at B Block, Shahbad Dairy. He is having three children. The prosecutrix is his youngest child who is running in 14th year of her age. On 11/03/2010, his daughter was studying in 7th standard in a Government School which is called by the name of Lal School, B - Block, Shahbad Dairy. Her exams were going on during those days and the timings of her exams (were) from 2:00 p.m. to 5:00 p.m. Till 9:00 p.m. prosecutrix (name withheld) did not come back. He made inquiries from her friends, from neighbours and from his relations but all in vain. His brotherinlaw accused Ravinder (real brother of his second wife Gayatri) who was residing with him was also missing since that time. He lodged a complaint on the next day as he was searching for his daughter and since it was the matter of reputation 19 of 145 20 FIR No. 55/10 PS - Shahbad Dairy of the family, he did not lodge complaint on the said night. His complaint is Ex. PW13/A which bears his signature at point 'A'. He accompanied the Police in the nearby area for the search of his daughter and accused but they could not be traced. His statement was recorded by the Police also. He correctly identified the accused Ravinder and Narender present in the Court who are his brotherinlaw.
PW14 SI Prem Singh, who deposed that he has brought the PCR forms from the PCR RecordRoom Branch, Model Town - II Delhi dated 11/03/2010 and 13/03/2010 and attested copies of the same are Ex. PW14/A and Ex. PW14/B respectively.
PW15 SI Satbir Singh is the initial Investigating Officer (IO) of the case who deposed that on the night intervening 1112/03/2010, he was posted at PS - Shahbad Dairy as ASI and was on emergency duty. On receipt of DD No. 43A Ex. PW5/A, he alongwith Constable Praveen reached at the spot i.e. F - 156, Shahbad Dairy, Delhi where one Wazir Ahmed met him and got his statement Ex. PW13/A recorded regarding the kidnapping of his daughter by Ravinder. On the 20 of 145 21 FIR No. 55/10 PS - Shahbad Dairy basis of the said statement, he made his endorsement from points 'X' to 'X' on Ex. PW13/A and handed it over to Constable Praveen for getting the case registered who came back at the spot with the copy of FIR and original rukka after registration of FIR and handed it over to him. He made local inquiries and he recorded statement of Wazir Ahmad u/s 161 Cr.P.C. Thereafter, the further investigation of the case was entrusted to ASI Anil Tiwari.
PW16 Dr. Saroj Aggarwal, who deposed that she has been deputed in this case to depose before the Court. She has seen MLC No. 735/10 of prosecutrix (name withheld) D/o Wazir Ahmed, Age around 15 years, female who was brought to Hospital on 13/03/2010 for medical examination. The patient was initially examined by CMO on duty and thereafter she was referred to S.R. Gynae where she was examined by Dr. Rupali. As per MLC, the patient was brought to Hospital with the alleged history of sexual assault. As per patient she was taken by a person (brotherinlaw) of father's second wife and kept her for two days and raped her. On local examination no external sign of injury was found. On P/S examination hymen ruptured, no tear, no bleeding, P/V no 21 of 145 22 FIR No. 55/10 PS - Shahbad Dairy discharge all relevant samples were collected. At present Dr. Rupali is not working in their Hospital and her present whereabouts are not known as per record. She is acquainted with her handwriting and signatures as she has seen her while writing and signing during the course of her duties. The findings of Dr. Rupali on the MLC is Ex. PW16/A, bearing signature of Dr. Rupali at point 'A'.
PW17 - Ms. Shashi Bala, SSO (Biology), FSL, Rohini who proved the biological and serological reports Ex. PW17/A & Ex. PW17/B respectively, bearing her signatures at point 'A'.
PW18 - Constable Sushil who deposed that on 24/02/2011 he was posted as Constable in PS - Shahbad Dairy. On that day, he alongwith HC Malwa Ram had left the Police Station in the investigation of the present case vide DD No. 56B in search of accused Narender Giri at village Pure Gosai, PS - Kamrohi, District - Sultanpur, U.P. They reached in PS - Kamrohi and made their entry there. On 26/02/2011, they reached in village Pure Gosai and from the outside of the house of the accused Narender, he (accused) was apprehended at the instance of 22 of 145 23 FIR No. 55/10 PS - Shahbad Dairy the villagers, he was interrogated and arrested vide arrest memo Ex. PW18/A, his personal search memo was conducted vide memo Ex. PW18/B and he made disclosure statement Ex. PW18/C, all bearing his signature at point 'A'. Accused was medically examined and thereafter he produced in the Court and Transit Remand was obtained. They came back to Delhi on 27/02/2011 and after the medical examination he (accused) was produced in the Court and was sent to JC. Accused Narender Giri is present in the Court.
PW19 - ASI Anil Kumar is the subsequent Investigating Officer (IO) of the case who deposed that on 13/03/2010, he was posted as ASI at PS Shahbad Dairy. On that day, investigation of the present case was handed over to him. On that day, he alongwith Constable Ram Avtar, W/Constable Sharmila were present near Delhi Engineering College and there he received the information from the SHO that prosecutrix (name withheld) and accused Ravinder Kumar (juvenile) are present in PS Alipur and SHO instructed him to take their custody and to get them medically examined. Thereafter, they reached in PS Alipur where they met HC Ramesh, who handed over juvenile Ravinder Kumar 23 of 145 24 FIR No. 55/10 PS - Shahbad Dairy Giri and prosecutrix (name withheld). Prosecutrix was taken into possession vide memo Ex. PW4/A bearing his signatures at point 'B'. Thereafter, Prosecutrix and juvenile Ravinder were taken to MV Hospital where they were medically examined, however, prosecutrix refused to get herself internally medically examined. He collected their MLC. After medical examination of juvenile Ravinder, Doctor handed over the sealed pullindas containing the exhibits which were seized vide memo Ex. PW8/D bearing his signature at point 'B'. Thereafter, they came at Police Station and case property was deposited in the Malkhana. Juvenile Ravinder was interrogated and he was arrested vide arrest memo Ex. PW8/A and his personal search was conducted vide memo Ex. PW8/B, both bearing his signatures at point 'B'. He made disclosure statement Ex. PW8/C bearing his signatures at point 'B'. Accused Ravinder was sent to lock up. Again, the mother of prosecutrix (name withheld) came in the Police Station and she wanted to get her daughter medically examined. Thereafter, prosecutrix (name withheld) was sent to Hospital through Lady Constable Kamla. She was medically examined and after medical examination, Doctor handed over the sealed pullinda containing exhibits and the same were seized vide memo Ex.
24 of 145 25 FIR No. 55/10 PS - Shahbad Dairy PW2/A bearing his signatures at point 'B'. Case property was deposited in the Malkhana. On 14/03/2010, accused Ravinder was produced in the Court and was sent to JC. He moved an application for recording statement u/s 164 Cr.P.C. of prosecutrix (name withheld) which is Ex. PW19/A bearing his signatures at point 'A'. Her statement was recorded on 15/03/2010 and thereafter, he obtained the copy of the same vide application Ex. PW19/B bearing his signatures at point 'A'. He searched the accused Narender Kumar Giri but he was not found. On 03/05/2013, the exhibits were deposited in the FSL. After completing the investigation, the challan was prepared against accused/juvenile Ravinder and filed in the Court. On 08/01/2011, accused Narender Kumar Giri was got declared PO. On 27/02/2011, HC Malwa Ram and Constable Sushil had brought accused Narender Kumar Giri to Delhi from Village Purva Gosai, PS Kamroli, District Sultanpur, and he was produced in the Court and was sent to JC. He recorded the statements of the witnesses and thereafter, supplementary charge sheet against accused Narender, present in the Court, was filed in the Court. FSL result was collected and filed in the Court.
25 of 145 26 FIR No. 55/10 PS - Shahbad Dairy The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
9. Statement of accused Narender Kumar Giri was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused initially opted to lead defence evidence but did not lead any defence evidence.
10. Learned Counsel for accused Narender Kumar Giri submitted that PW1 (name withheld) is the prosecutrix and in her cross examination she improved her statement and there are major contradictions in her statement and crossexamination. In her statement she has alleged that she is 13 years old and in MLC Ex. PW12/A she stated to the Doctor that she is fifteen years old. The prosecutrix in her examinationinchief has alleged that she was kidnapped by two persons i.e. accused Ravinder Kumar Giri and Narender Kumar Giri but as per MLC Ex. PW12/A, the prosecutrix stated to the attending Doctor that she was taken by a single person who kept her alongwith him for two days and she is fifteen years old and on this point she was confronted 26 of 145 27 FIR No. 55/10 PS - Shahbad Dairy with MLC Ex. PW12/A and Ex. PW1/DA as in her examinationinchief she has alleged that she was thirteen years old at the time of incident and she was kidnapped by the above said two persons. After going through the writing at point 'A' in Ex. PW1/DA, PW1 admits this handwriting to be in her own hand although the same is not signed by her. In fact PW1 (name withheld) deposed falsely against the accused persons at the instance of her father, mother and Uncle Munna and infact on 11/03/2010 after leaving her School she called Ravinder Kumar Giri on telephone and she had gone with Ravinder Kumar of her free will and she was never kidnapped either by Ravinder Kumar Giri or Narender Kumar Giri as on 11/03/2010 Narender Kumar was not present with Ravinder Kumar Giri and in this regard the prosecutrix wrote letter dated 24/05/2011 to the Learned Predecessor of this Court and also to the DCP and SHO of PS - Shahbad Dairy which are Ex. PW1/DB, Ex. PW1/DD and Ex. PW1/DE sent to the Learned Predecessor of this Court, SHO and DCP respectively. In Ex. PW1/DB, Ex. PW1/DD and Ex. PW1/DE, the prosecutrix clearly stated that she has deposed against Narender Kumar and Ravinder Kumar Giri under the pressure of her father, mother and Tau Munna and accused Ravinder Kumar Giri did not kidnap her and on 27 of 145 28 FIR No. 55/10 PS - Shahbad Dairy 11/03/2010 she herself had called Ravinder Kumar by telephone as she loved him and after getting solemnized marriage with him she was to live with Ravinder Kumar Giri. The prosecutrix further stated in the said letter that her father, mother and Tau Munna had threatened her that in case she (prosecutrix) would not depose against the accused persons in that event they would kill her. The prosecutrix further stated in the letter Ex. PW1/DB that both the accused are innocent and she is sending the abovesaid letter on her own and today she is leaving her house due to the fear of her father, mother and Tau Munna.
Learned Counsel for accused further submitted that the prosecutrix also left her parent's house and went with Aunt of the accused on 24/05/2011 as she was under threat from her parents and Tau Munna and this fact was told by her to the Learned Predecessor of this Court when she was produced before the Court in Police protection in the presence of her parents. The prosecutrix has admitted that the Learned Predecessor Judge had asked her to accompany and reside with her parents but she refused for the same as she was under threat from her parents. Learned Counsel submitted that the prosecutrix did not tell the 28 of 145 29 FIR No. 55/10 PS - Shahbad Dairy Judge about the threats given by her (Gayatri) Aunt. Learned Counsel submitted that in her crossexamination PW1 stated that she resided with her (Gayatri) aunt for about 03 months in confinement and the aunt of Gayatri did not allow her to go out of the house and she has stated in her crossexamination thats he telephoned to her Tau that she is in confinement of the aunt and he came to the house of his aunt and took her but no report has been lodged by the parents of the prosecutrix in this regard and this fact clearly shows that she resided with the aunt of Gayatri from 24/05/2010 for some time due to the fear of her parents and Tau Munna.
Learned Counsel for accused further submitted that in her examinationinchief the prosecutrix has stated that when Police came to Village Singhola to arrest the accused, accused Narender had left prior to the reaching of Police and in her crossexamination the prosecutrix has stated that when Police arrived there both the accused were present the and accused Narender had gone to bathroom and Police did not apprehend him. In her examinationinchief the prosecutrix has alleged that she was forcibly got married with accused Ravinder Kumar Giri at 29 of 145 30 FIR No. 55/10 PS - Shahbad Dairy the instance of accused Narender Kumar Giri in Hanuman Mandir, Village Singhola, Delhi and due to fear of accused persons she did not disclose anything to the Priest at Temple or any public person present there, but in her crossexamination she has stated that one more boy with me except accused Narender and Ravinder took me in a Van and no public person and Priest were present in the Temple at that time.
Learned Counsel for accused further submitted that the prosecutrix in her examinationinchief has alleged that she was thirteen years old but at that time she was more than 18 years old. Learned Counsel further submitted that from Delhi she telephoned to accused Narender Kumar in his native Village in District Sultan Pur, U.P. on 13/04/2010 and requested him to take her to his Village in District Sultan Pur as she did not want to live with her parents and on 13/04/2010 the prosecutrix alongwith accused Narender Giri had left for Bareily in a Bus from Anand Vihar Bus Terminal, Delhi and from there she had gone to Lucknow, U.P. by train and from Lucknow she alongwith Narender Kumar Giri had gone to Jagdish Pur and from Jagdish Pur she alongwith accused Narender Kumar Giri reached the house of Bua of accused 30 of 145 31 FIR No. 55/10 PS - Shahbad Dairy Narender Kumar Giri at Rai Bareily, U.P. and she remained there for about 1½ months and during her stay she also had gone to Rudra Pur with Sonu @ Pramod Kumar, son of Bua of accused Narender Kumar Giri. On 28/05/2010 she came back to Delhi with accused Narender Kumar Giri at the Chamber of Advocate of accused Narender Kumar Giri at Tis Hazari Court, Delhi and asked his Advocate to make the efforts for getting the bail of accused Ravinder Kumar Giri at the earliest and on 28/05/2010 itself the prosecutrix had gone back to Rai Bariely along with accused Narender Kumar Giri. The prosecutrix has denied the above said facts that she had gone to Rai Bariely alongwith accused Narender Kumar Giri on 13/04/2010 but PW13 - Wazir Ahmad, father of the prosecutrix has stated in his crossexamination that on 13/04/2010 his daughter/prosecutrix (name withheld) was again kidnapped by accused Narender Kumar Giri, however, no report has been lodged by PW13 - Wazir Ahmed in this regard and this fact goes to show that the prosecutrix had left Delhi on 13/04/2010 with accused Narender Kumar Giri on her own free will. Learned Counsel submitted that PW13 - Wazir Ahmed in his crossexamination has admitted that on 24/05/2011 his daughter/prosecutrix (name withheld) had gone from his house to the 31 of 145 32 FIR No. 55/10 PS - Shahbad Dairy house of Usha, who is Bua of Gayatri and the accused persons but the prosecutrix in her crossexamination has alleged that she was kidnapped by Gayatri and the father of the accused persons and was confined in the house of Bua of accused persons. The prosecutrix in her cross examination has stated that on 24/05/2011 she was kidnapped by Gayatri and father of the accused from Sulabh Sauchalaya near the house of the prosecutrix and she was taken to Tis Hazari Court by Bus and which took about half an hour to reach Tis Hazari from Shahbad Dairy which is quite impossible as the Bus from Shahbad Dairy to Tis Hazari Court takes minimum of 1½ hour and this fact has been admitted by PW13 - Wazir Ahmad that 1 or 1½ hours will be taken by Bus to reach Tis Hazari from Shahbad Dairy.
Learned Counsel for accused further submitted that so far as the age of the prosecutrix is concerned, she herself has admitted in Ex. PW1/DB that she is 19 years old, however she has been giving different versions in respect of her age as in MLC Ex. PW12/A and Medical history Form Ex. PW1/DA, wherein she has stated that she is fifteen years old. Learned Counsel submitted that the age in the admission 32 of 145 33 FIR No. 55/10 PS - Shahbad Dairy register Ex. PW10/A is mentioned as 02/01/1997 and date of birth of his brother Salim has been mentioned as 16/12/1995 and the same date of births were entered in the School record by an affidavit produced by the mother of the prosecutrix which is not authentic and the mother of the prosecutrix had given the date of birth of the prosecutrix by approximation as no birth certificate has ever been produced issued either by Delhi Government or by any Hospital. So far as the age of the prosecutrix is concerned she stated that her eldest brother is going to be of 19 years of age and her elder brother is about 1 to 1½ years older to her. A suggestion was given to the prosecutrix that the date of birth of her elder brother Shafiq Ahmad is 21/12/1988 but she neither admitted nor denied the suggestion and PW13 - Wazir Ahmad, father of the prosecutrix has admitted that as per birth certificate issued by the MCD the date of birth of Shafiq is 21/12/1988 and today he is about 24 years old and in his crossexamination PW13 - Wazir Ahmad has stated that prosecutrix is about three years younger to his son Saleem and he also admitted that he did not get entered the dates of birth of his son Saleem and daughter/prosecutrix (name withheld) in MCD. Learned Counsel submitted that as per admission register Ex. PW10/A the date of birth of 33 of 145 34 FIR No. 55/10 PS - Shahbad Dairy Salim is 16/12/1995 and of prosecutrix (name withheld) is 02/01/1997 which goes to show that prosecutrix is only about one year younger to her brother Salim. PW13 - Wazir Ahmad in his crossexamination has stated that the second son i.e. Salim is three years younger than the eldest son i.e. Shafiq and from the above stated facts it is clear that Shafiq on 11/03/2010, the day of incident was about 21 years and 03 months old and elder brother of the prosecutrix was about 18 years 03 months and as per School Certificate the prosecutrix is about one year younger to his elder brother and on the date of incident the prosecutrix was above 17 years of age. The statement of the prosecutrix is not trustworthy and there are major contradictions and improvements in her statement before the Court. Accused Narender Kumar Giri is a driver by profession and he was not in Delhi on 11/03/2010, the day of incident as on 11/03/2010 at about 5:00 a.m. he had left Delhi and had gone to Yamuna Nagar for delivery of some goods and had returned to Delhi on 13/03/2010 at 5:00 p.m. Learned Counsel for accused further submitted that from the evidence of the prosecution witnesses it has not been proved that 34 of 145 35 FIR No. 55/10 PS - Shahbad Dairy accused Narender Kumar with accused Ravinder Kumar Giri kidnapped the prosecutrix (name withheld) as the prosecutrix herself has stated to the Doctor that she was taken by a single person who kept her alongwith him for two days as mentioned in the MLC Ex. PW12/A and Ex. PW1/DA. The fact that accused Narender Kumar was with accused Ravinder Kumar on 11/03/2010 at the time of incident is also falsified from the evidence of PW5 - HC Malwa Ram who deposed that on 11/03/2010 at about 9:30 p.m. he received a message from Wireless Operator on telephone in the DO Room that "Prosecutrix (name withheld) Ko Ravinder Bhaga Ke Le Gaya" and this message has been entered in daily diary vide DD No. 43A and the true copy of the same is Ex. PW5/A. PW3 W/Constable Poonam also deposed that at about 10:10 a.m. she received an information from Wireless Operator that in the Village Singhum Shiv Mandir, Dabbu Ki Factory, "Ek Ladka Ek Ladki Ko Mere Plot Par Bhaga Kar Laya Hai" and this message was recorded in daily diary vide DD No. 34B in Daily Diary register and copy of the said entry is Ex. PW3/A. These facts clearly show that accused Narender Kumar Giri was not with accused Ravinder Kumar Giri and he has been falsely implicated in the above noted case by the prosecutrix at the 35 of 145 36 FIR No. 55/10 PS - Shahbad Dairy instance of her parents and Uncle Munna.
Learned Counsel for accused further submitted that the evidence of the prosecutrix PW1 and her father PW13 - Wazir Ahmad is not reliable and trustworthy as there are major contradictions in the statement of prosecutrix and Wazir Ahmad and prosecution has failed to prove its case beyond reasonable doubt. Learned Counsel for accused further submitted that no sexual intercourse was committed by accused Narender Kumar Giri as the prosecutrix had gone with Ravinder Kumar Giri on her own voluntarily and further no injury marks on the private parts of the prosecutrix have been found which can prove that she was sexually assaulted by accused Ravinder Kumar Giri. Learned Counsel for accused further submitted that from the acts of the prosecutrix it has been established that the prosecutrix was habitual of sexual intercourse as she left her parents house many times with many persons. Learned Counsel for accused further submitted that the prosecutrix has deposed against the accused persons at the instance of her parents and under the threat that if the prosecutrix would not depose against the accused she would be killed. Learned Counsel for accused further submitted that the 36 of 145 37 FIR No. 55/10 PS - Shahbad Dairy prosecutrix in her statement u/s 164 Cr.P.C. before the Learned Metropolitan Magistrate deposed against the accused persons at the instance of her parents and Uncle Munna. Learned Counsel for accused further submitted that on 29/03/2011 PW13 - Wazir Ahmad had gone to Jail to meet accused Ravinder and threatened him that if he would not pay money to him in that event his daughter/prosecutrix (name withheld) will depose against him and his brother before the Court and this fact shows that the accused Narender Kumar Giri and Ravinder Kumar Giri have been falsely implicated in this case. Learned Counsel for accused prayed for the acquittal of accused Narender Kumar Giri on all the charges levelled against him.
Learned Counsel for the accused referred to a case and is reported as 'Jitender Vs. State' IV (2009) DLT (Crl.) 141.
11. 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 37 of 145 38 FIR No. 55/10 PS - Shahbad Dairy the witnesses and the prosecution has proved its case beyond reasonable doubt.
12. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Dharamvir Singh, Learned Counsel for the accused Narender Kumar Giri and have also carefully perused the entire record.
13. The amended charge framed on 19/09/2012 for the offences punishable u/s 363/34 IPC, u/s 366/34 IPC, u/s 376 (2)(g) IPC and u/s 506/342/34 IPC against accused Narender Kumar Giri is that on 11/03/2010, at about 5:00 a.m., near M. C. Primary School, Shahbad Dairy, BBlock - I, Rohini, Delhi 110042, within the jurisdiction of PS
- Shahbad Dairy, he alongwith his coaccused Juvenile Ravinder Kumar Giri in furtherance of their common intention kidnapped the prosecutrix (name withheld) D/o Sh. Wazir Ahmed, aged about 13 years from the lawful guardianship without the consent of her parents and that on the above said date, time and place, he alongwith his coaccused Juvenile Ravinder Kumar Giri in furtherance of their common intention kidnapped the said minor girl with intent that she may be compelled to 38 of 145 39 FIR No. 55/10 PS - Shahbad Dairy marry with his coaccused juvenile Ravinder Kumar Giri and that on the abovesaid date, time and place he alongwith his coaccused juvenile Ravinder Kumar Giri in furtherance of their common intention after kidnapping the said minor girl, he alongwith his coaccused Ravinder Kumar Giri took her to village Singhola and confined her in a room and he remained outside the room and his coaccused Juvenile Ravinder Kumar Giri committed rape upon the said minor girl against her wish and without her consent and that on the above said, date, time and place, he alongwith his coaccused Juvenile Ravinder Kumar Giri in furtherance of their common intention criminally intimidated and threatened to kill the said minor girl after wrongfully confining her in the said room.
14. 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.
39 of 145 40 FIR No. 55/10 PS - Shahbad Dairy AGE OF THE PROSECUTRIX
15. PW13 - Sh. Wazir Ahmed, father of the prosecutrix during his crossexamination has specifically deposed that : "It is incorrect to suggest that I have given the date of birth of prosecutrix (name withheld) and Saleem on approximation. Vol. I was aware of their correct date of birth and an affidavit was filed by me to that effect in the School at the time of their admission. It is incorrect to suggest that no affidavit was given by me at the time of admission of my daughter/prosecutrix (name withheld) in the School. It is incorrect to suggest that my wife had mentioned the date of birth of prosecutrix in the School on approximation. My wife is illiterate. However, she knew the date of birth of my children namely prosecutrix (name withheld) and Saleem."
"It is incorrect to suggest that prosecutrix had completed the age of 18 years at the time of incident."
PW10 Sh. Mukesh Vashist, Incharge, MC Primary School, BBlock1, Shahbad Dairy, Delhi - 42 has deposed that he has been deputed by Principal of above mentioned School to produce the summoned record on her behalf, pertaining to the admission of prosecutrix (name withheld) D/o Wazir Ahmad R/o Jhuggi No. F - 156, Shahbad Dairy. He has brought the Admission Register pertaining to the year, 2002. As per Admission Register, prosecutrix (name withheld) D/o 40 of 145 41 FIR No. 55/10 PS - Shahbad Dairy Wazir Ahmad was admitted in Class 1st on 15/07/2002 vide Admission No. 1515. As per record, the date of birth of prosecutrix (name withheld) is mentioned as 02/01/1997. Prosecutrix (name withheld) has passed 5th Class from the above mentioned School and School Leaving Certificate was issued to her on 31/03/2008. Photocopy of the Admission Register is Ex. PW10/A (Original seen and returned). He has also brought the office copy of admission form of prosecutrix (name withheld) and the photocopy of the same is Ex. PW10/B (Original seen and returned).
During his crossexamination, PW10 - Sh. Mukesh Vashist has deposed that : "Prosecutrix (name withheld) was admitted in School on the basis of affidavit of one Aisha, mother of prosecutrix (name withheld). No birth certificate issued by any authority was produced by Aisha at the time of admission."
There is nothing in the crossexamination of PW10 - Sh. Mukesh Vashist so as to impeach his creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
41 of 145 42 FIR No. 55/10 PS - Shahbad Dairy In the circumstances, it stands proved on the record that the date of birth of the prosecutrix is 02/01/1997.
The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
42 of 145 43 FIR No. 55/10 PS - Shahbad Dairy As the date of alleged incident is 11/03/2010 and the date of birth of prosecutrix is 02/01/1997, on simple arithmetical calculation, the age of prosecutrix comes to 13 years, 02 months and 09 days as on the date of incident on 11/03/2010.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 13 years, 02 months and 09 days as on the date of alleged incident on 11/03/2010.
16. Learned Counsel for accused submitted that so far as the age of the prosecutrix is concerned, she herself has admitted in Ex. PW1/DB that she is 19 years old, however she has been giving different versions in respect of her age as in MLC Ex. PW12/A and Medical history Form Ex. PW1/DA wherein she has stated that she is fifteen years old. Learned Counsel submitted that the age in the admission register Ex. PW10/A is mentioned as 02/01/1997 and date of birth of his brother Salim has been mentioned as 16/12/1995 and the same date of births were entered in the School record by an affidavit produced by the mother of the prosecutrix which is not authentic and the mother of the prosecutrix had given the 43 of 145 44 FIR No. 55/10 PS - Shahbad Dairy date of birth of the prosecutrix by approximation as no birth certificate has ever been produced issued either by Delhi Government or by any Hospital. So far as the age of the prosecutrix is concerned she stated that her eldest brother is going to be of 19 years of age and her elder brother is about 1 to 1½ years older to her. A suggestion was given to the prosecutrix that the date of birth of her elder brother Shafiq Ahmad is 21/12/1988 but she neither admitted nor denied the suggestion and PW13 - Wazir Ahmad, father of the prosecutrix has admitted that as per birth certificate issued by the MCD the date of birth of Shafiq is 21/12/1988 and today he is about 24 years old and in his cross examination PW13 - Wazir Ahmad has stated that prosecutrix is about three years younger to his son Saleem and he also admitted that he did not get entered the dates of birth of his son Saleem and daughter/prosecutrix (name withheld) in MCD. Learned Counsel submitted that as per admission register Ex. PW10/A the date of birth of Salim is 16/12/1995 and of prosecutrix (name withheld) is 02/01/1997 which goes to show that prosecutrix is only about one year younger to her brother Salim. PW13 - Wazir Ahmad in his crossexamination has stated that the second son i.e. Salim is three years younger than the eldest 44 of 145 45 FIR No. 55/10 PS - Shahbad Dairy son i.e. Shafiq and from the above stated facts it is clear that Shafiq on 11/03/2010, the day of incident was about 21 years and 03 months old and elder brother of the prosecutrix was about 18 years 03 months and as per School Certificate the prosecutrix is about one year younger to his elder brother and on the date of incident the prosecutrix was above 17 years of age. The statement of the prosecutrix is not trustworthy and there are major contradictions and improvements in her statement before the Court.
I have carefully perused and analysed the evidence on record.
With regard to the age of the prosecutrix, as to what has been discussed hereinabove under the heading "Age of the Prosecutrix", the mentioning of the age in her testimony by the prosecutrix and of her stating her age in the MLC Ex. PW12/A, Medical History Form Ex. PW1/DA, and the deposition of PW13 - Wazir Chand, father of the prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence and at the cost of repetition, the age of the prosecutrix 45 of 145 46 FIR No. 55/10 PS - Shahbad Dairy stands established on record that PW1 prosecutrix was aged 13 years, 02 months and 09 days as on the date of alleged incident on 11/03/2010.
In case "Jarnail Singh Vs. State of Haryana", 2013 VII AD (S.C.) 313 in para 20, the Hon'ble Supreme Court has held that, it would be just and appropriate to apply Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
In the instant case, since the date of birth certificate from the School (Other than a Play School), first attended by PW1 - prosecutrix, as provided under Rule 12 (3)(a)(ii) is available, therefore, the same is adopted as the highest rated first available basis in terms of the scheme of options under clause (a) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
It is pertinent to reproduce para 20 of Jarnail Singh's case 46 of 145 47 FIR No. 55/10 PS - Shahbad Dairy (Supra) of the Hon'ble Supreme Court which reads as under : "On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to hereinabove reads as under : "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, 47 of 145 48 FIR No. 55/10 PS - Shahbad Dairy the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those 48 of 145 49 FIR No. 55/10 PS - Shahbad Dairy disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the 49 of 145 50 FIR No. 55/10 PS - Shahbad Dairy absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
MEDICAL EVIDENCE OF THE PROSECUTRIX
17. PW12 Dr. Virender Kumar, Medical Officer, Central Jail Tihar, Delhi has deposed that on 13/03/2010, he was posted at Maharishi Balmiki Hospital and on the said day, the prosecutrix whose name is mentioned in the MLC (name not disclosed for the reasons of secrecy) was brought to the Hospital for medical examination and at about 10:55 p.m., he medically examined her and referred the patient for Gynae for further evaluation. The MLC is Ex. PW12/A which bears his signature at point 'A'. He has also seen another MLC of the same Hospital on the Judicial record which was prepared on the same date at about 3:00 p.m. 50 of 145 51 FIR No. 55/10 PS - Shahbad Dairy where the said prosecutrix refused to undergo medical examination.
Despite grant of opportunity, PW12 Dr. Virender Kumar was not crossexamined on behalf of the accused.
PW16 Dr. Saroj Aggarwal has deposed that she has been deputed in this case to depose before the Court. She has seen MLC No. 735/10 of prosecutrix (name withheld) D/o Wazir Ahmed, Age around 15 years, female who was brought to Hospital on 13/03/2010 for medical examination. The patient was initially examined by CMO on duty and thereafter she was referred to S.R. Gynae where she was examined by Dr. Rupali. As per MLC, the patient was brought to Hospital with the alleged history of sexual assault. As per patient she was taken by a person (brotherinlaw) of father's second wife and kept her for two days and raped her. On local examination no external sign of injury was found. On P/S examination hymen ruptured, no tear, no bleeding, P/V no discharge all relevant samples were collected. At present Dr. Rupali is not working in their Hospital and her present whereabouts are not known as per record. She is acquainted with her handwriting and signatures as she has seen her while writing and signing during the course of her 51 of 145 52 FIR No. 55/10 PS - Shahbad Dairy duties. The findings of Dr. Rupali on the MLC is Ex. PW16/A, bearing signature of Dr. Rupali at point 'A'.
PW16 - Dr. Saroj Aggarwal in her crossexamination has deposed that : "Dr. Rupali has left the Hospital about one year. It is wrong to suggest that I had never worked with Dr. Rupali."
There is nothing in the crossexamination of PW16 Dr. Saroj Aggarwal so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW12/A and the gynaecological examination Ex. PW16/A on MLC Ex. PW12/A of PW1 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED RAVINDER KUMAR GIRI (JUVENILE)
18. PW9 Dr. S. K. Aggarwal, CMO, MB Hospital, Pooth Khurd, Delhi has deposed that on 13/03/2010, at about 3:05 p.m., patient Ravinder Kumar Giri S/o Ram Shankar Giri, aged about 20 years was 52 of 145 53 FIR No. 55/10 PS - Shahbad Dairy brought to the MB Hospital, Pooth Khurd by Constable Ram Avtar of PS
- Shahbad Dairy for medical examination being accused in sexual assault case. Patient was examined by him. He found no external injury on his person. He opined that there was nothing to suggest that the said person was not capable of performing sexual intercourse. His detailed MLC in this regard is Ex. PW9/A which is in his hand and bears his signature at point 'A'.
Despite grant of opportunity, PW9 Dr. S. K. Aggarwal was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Ravinder Kumar Giri (Juvenile) was capable of performing sexual intercourse. BIOLOGICAL AND SEROLOGICAL EVIDENCE
19. PW17 - Ms. Shashi Bala, SSO (Biology), FSL, Rohini who proved the biological and serological reports Ex. PW17/A & Ex. PW17/B respectively, bearing her signatures at point 'A'.
53 of 145 54 FIR No. 55/10 PS - Shahbad Dairy As per biological report Ex. 17/A the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '1', kept in an injection vial. Exhibit '1' : Four nail clippings described as 'Nail clipping of accused Ravinder Kumar'.
Parcel '2' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '2.
Exhibit '2' : Gauze cloth piece having dark brown stains described as 'Blood sample gauze of accused Ravinder Kumar'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '3', kept in an injection vial. Exhibit '3' : Few strands of black hair described as 'Pubic hair of accused Ravinder Kumar'.
Parcel '4' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
54 of 145 55 FIR No. 55/10 PS - Shahbad Dairy containing exhibit '4', kept in an injection vial. Exhibit '4' : Pale yellowish putrefied liquid described as 'Semen of accused Ravinder Kumar'.
Parcel '5' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibits '5a' & '5b'.
Exhibit '5a' : Two microslides described as 'Swab of accused & '5b' Ravinder Kumar'. Parcel '6' : One sealed cloth parcel sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '6a', '6b', '6c', '6d', '6e', '6f', '6g', '6h', '6i', '6j', '6k', '6l', '6m' & '6n', described of prosecutrix.
Exhibit '6a' : Few strands of black hair labelled as scalp hair, kept in an envelope.
Exhibit '6b' : One microslide having dirty stains kept in an envelope labelled as Right hand nail scrapping. Exhibit '6c' : One microslide having dirty stains kept in an envelope labelled as Left hand nail scrapping. Exhibit '6d1' : One microslide labelled as vaginal smear, kept in an envelope.
Exhibit '6d2' : Cotton wool swab on a wooden stick, kept in an envelope labelled as vaginal swab.
Exhibit '6e' : Three nail clippings labelled as nails hand, kept in an envelope.
55 of 145 56 FIR No. 55/10 PS - Shahbad Dairy Exhibit '6f' : Four nail clippings labelled as nails (feet), kept in an envelope.
Exhibit '6g' : Few strands of black hair kept in an envelope labelled as pubic hair.
Exhibit '6h1' : One microslide labelled as cervical smear kept in an envelope.
Exhibit '6h2' : Cotton wool swab on a wooden stick, kept in an envelope.
Exhibit '6i' : Few strands of black hair kept in an envelope labelled as head hair combing.
Exhibit '6j1' : Two cotton wool swab on a wooden stick kept
& '6j2' in an envelope labelled as oral swab.
Exhibit '6k' : Cotton wool swab on a wooden stick kept in an
envelope labelled as 'vulval swab'.
Exhibit '6l' : Liquid material kept in an injection vial
labelled as oral rinsed material.
Exhibit '6m' : Liquid material kept in an injection vial
labelled as oral rinsed material.
Exhibit '6n' : Dark brown liquid kept in a test tube.
Parcel '7' : One sealed cloth parcel sealed with the seal of
"CASUALTY MB HOSPITAL POOTH KHURD DELHI 39"
containing exhibit '7a', '7b' & '7c', described as Clothes of prosecutrix.
Exhibit '7a' : One lady's shirt.
Exhibit '7b' : One pyjami having dirty stains.
Exhibit '7c' : One chunni.
56 of 145
57
FIR No. 55/10
PS - Shahbad Dairy
RESULT OF ANALYSIS
1. Human semen was detected on exhibits '6h1', '6h2', '6k', '7b' & '7c'.
2. Semen couldn't be detected on exhibits '1', '3,' '5a', '5b', '6a', '6b', '6c', '6d1', '6d2', '6e', '6f', '6g', '6i', '6j1', '6j2', '6l', '6m' & '7a'.
3. Blood was detected on exhibits '2' & '6n'.
4. Hair couldn't be detected on exhibits '7a', '7b', & '7c'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'SB FSL DELHI'.
The serological report Ex. 17/B reads as under : Exhibits Species of origin ABO Grouping/Remarks Blood stains:
'2' Gauze cloth piece Human 'A' Group '6n' Blood sample Sample was putrefied hence no opinion Semen Stains: '4' Semen sample Sample was putrefied hence no opinion '6h2' Cotton wool swab 'A' Group '6k' Cotton wool swab 'A' Group '7b' Pyjami 'A' Group '7c' Chunni 'A' Group
As per the biological report Ex. PW17/A, with regard to the description of the articles contained in the parcels, it is noticed that 57 of 145 58 FIR No. 55/10 PS - Shahbad Dairy Parcel Nos. 1 to 5 belong to accused Ravinder Kumar (Juvenile) which were seized vide seizure memo Ex. PW8/D dated 13/03/2010 and parcel nos. 6 & 7 belong to the prosecutrix which were seized vide seizure memo Ex. PW2/A dated 13/03/2010.
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '2' (Blood sample on gauze cloth piece of accused Ravinder Kumar/Juvenile) and exhibit '6n' (Blood sample of the prosecutrix); Human semen was detected on exhibit '6h1' (Cervical smear of the prosecutrix), exhibit '6h2' (Cotton wool swab of the prosecutrix), exhibit '6k' (vulval swab of the prosecutrix), exhibit '7b' (Pyjami of the prosecutrix) and exhibit '7c' (Chunni of the prosecutrix) and semen could not be detected on exhibit '1' (Nail clipping of accused Ravinder Kumar/Juvenile), exhibit '3' (Pubic hair of accused Ravinder Kumar/Juvenile), exhibit '5a' (Swab of accused Ravinder Kumar/Juvenile), exhibit '5b' (Swab of accused Ravinder Kumar/Juvenile), exhibit '6a' (Scalp hair of the prosecutrix), exhibit '6b' (Right hand nail scrapping of the prosecutrix), exhibit '6c' (Left hand nail scrapping of the prosecutrix), exhibit '6d1' (Vaginal smear of the 58 of 145 59 FIR No. 55/10 PS - Shahbad Dairy prosecutrix), exhibit '6d2' (Vaginal swab of the prosecutrix), exhibit '6e' (Nails hand of the prosecutrix), exhibit '6f' (Nails (feet) of the prosecutrix), exhibit '6g' (Pubic hair of the prosecutrix), exhibit '6i' (Head hair combing of the prosecutrix), exhibit '6j1' & exhibit '6j2' (Both containing oral swab of the prosecutrix), exhibit '6l' (Oral rinsed material of the prosecutrix), exhibit '6m' (Oral rinsed material of the prosecutrix) and exhibit '7a' (Lady's shirt of the prosecutrix). As per the serological report Ex. PW17/B 'Sample was putrefied hence no opinion' could be given on the exhibit '6n' (Blood Sample of the prosecutrix) and exhibit '4' (Semen Sample of accused Ravinder Kumar/Juvenile). However, blood Group 'A' detected on exhibit '2' (Blood sample on gauze cloth piece of accused Ravinder Kumar/Juvenile) MATCHED with the blood Group 'A' on exhibit '6h2' (Cotton wool swab of the prosecutrix), exhibit '6k' (vulval swab of the prosecutrix), exhibit '7b' (Pyjami of the prosecutrix) and exhibit '7c' (Chunni of the prosecutrix) on which the human semen was detected.
As per the biological report Ex. PW17/A, prosecution 59 of 145 60 FIR No. 55/10 PS - Shahbad Dairy has discharged its initial burden of proving the presence of Human semen on exhibit '6h1' (Cervical smear of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '6h2' (Cotton wool swab of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '6k' (vulval swab of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '7b' (Pyjami of the prosecutrix seized vide seizure memo Ex. PW2/A) and exhibit '7c' (Chunni of the prosecutrix seized vide seizure memo Ex. PW2/A). Accused Narender Kumar Giri was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '6h1', exhibit '6h2', exhibit '6k', exhibit '7b' and exhibit '7c' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Narender Kumar Giri and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
20. Now let the testimonies of PW1 Prosecutrix and PW13 - Wazir Ahmed, father of the prosecutrix be perused and analysed.
60 of 145 61 FIR No. 55/10 PS - Shahbad Dairy PW1 prosecutrix, in her examinationinchief recorded on 13/01/2011 has deposed which is reproduced and reads as under : "I am residing at my above mentioned address (F156, Shahbad Dairy, Delhi) with my father Wazir Ahmad, my mother Asha Begam and my brothers namely Shafiq Ahmad and Saleem Ahmad. My father Wazir Ahmad is also having second wife whose name is Gayatri and she was also residing with my father and family with her brother Ravinder Kumar Giri. Ravinder Kumar Giri was working at the Kabadi Shop of my father. On 11/03/2010, I had gone to my School which was Govt. School, Shahbad Dairy where I was studying in 7th Class. When I was coming to my house from School at about 5:00 p.m. and when I was coming at road, one TSR stopped near me from which two persons get down. They were identified by me as Ravinder Kumar Giri, accused present in the Court today (correctly identified) who is brother of my Step Mother Gayatri. The second person was Narender who is brother of accused Ravinder Kumar Giri. He was known to me as he used to visit our house prior to the incident to meet his sister Gayatri, my Step Mother. Accused Narender is not present in the Court today (now got declared PO). Accused Narender shut my mouth with his hand and accused Ravinder Kumar Giri dragged me from my hand and forced me to sit in the TSR. Thereafter, the driver of the TSR started the same at the instance of the accused persons and they took me towards Singhola Village, Delhi, where accused get down me from the TSR and took me inside a room by opening the lock of the said room by accused Ravinder Kumar Giri. Both the accused entered into the said room and slapped me. Thereafter, accused Narender came out from the said room and 61 of 145 62 FIR No. 55/10 PS - Shahbad Dairy accused Ravinder Kumar Giri did "Galat Kaam" with me. "Galat Kaam" means he had committed sexual intercourse with me forcibly without my consent and will. Both the accused kept confine me in the said room. During this period, accused Ravinder Kumar Giri committed rape upon me four times. I requested the accused persons to set me free, so that I can go (to) my house. Then both the accused persons threatened me to kill me. Thereafter, Delhi Police reached at the spot and in their presence, I was taken out from the possession of accused Ravinder Kumar Giri who was with me at that time inside the said room and accused Narender had left the room at that time before reaching the Police. During the above mentioned period of two days, I was forcibly got married with accused Ravinder Kumar Giri at the instance of accused Narender in Hanuman Mandir, Village Singhola, Delhi. Due to fear of accused persons, I did not disclosed the fact to the Priest at the Temple or any public person present there. Police of PS - Shahbad Dairy recorded my statement in this case. I was taken to Maharishi Balmiki Hospital, Pooth Khurd by Lady Constable Sharmila where I Was medically examined there. My statement was also recorded by Learned Metropolitan Magistrate u/s 164 Cr.P.C. and I signed that statement.
At this stage, a sealed envelope sealed with the seal of 'NG' is opened. It is found to contain the original statement of witness/prosecutrix (name withheld) u/s 164 Cr.P.C., same is taken out and witness states that he has signed the said statement. The statement is Ex. PW1/A which bears the signature of witness at points 'A' & 'B'.
My clothes were which I was wearing at the time of incident, were sealed by the Doctor in the Hospital at the time of my medical examination. I can identify the said clothes, if shown to me."
62 of 145 63 FIR No. 55/10 PS - Shahbad Dairy During her further examinationinchief recorded on 20/05/2011, PW1 - prosecutrix has deposed which is reproduced and reads as under : "Accused Narender Giri who was sitting outside the room where accused Ravinder Kumar Giri had committed rape upon me, is present in the Court today and correctly identified by the witness. I can identity my clothes which I was wearing at the time of incident, if same is shown to me."
During her further examinationinchief recorded on 21/10/2011, PW1 - prosecutrix has deposed which is reproduced and reads as under : "(At this stage, a sealed parcel bearing no. 7 given by the FSL sealed with the seal of FSL is open. One ladies shirt, pajami and one dupatta are taken out and shown to the witness.
The said three clothes did not belong to me (witness denied to have worn the said clothes on the date of incident). It is correct that one shirt of the salwar suit, one salwar and one chunni which I was wearing at the time of incident were seized by the Doctor in the Hospital. I do not recollect the colours of the said three clothes which were seized at the Hospital."
Since PW1 - prosecutix was resiling on certain aspects, after obtaining Court permission, she was also crossexamined by the 63 of 145 64 FIR No. 55/10 PS - Shahbad Dairy Learned Addl. PP for the State.
During her crossexamination by Learned Addl. PP for the State recorded on 21/10/2011, PW1 - prosecutrix has deposed that : "I was wearing school uniform when I was taken in the TSR by the accused and these were exams days due to which I was not having my school bag. The accused Ravinder got purchased one shirt, salwar and chunni for me having motif of stars in embroidery but I do not recollect the colour of the same. I had worn those clothes only for 20/25 minutes when the Police had come there. It is correct that the clothes shown to me now collectively Ex. P1 in the Court may be or may not be the same clothes which I was wearing at the time of incident but it is correct that I do not remember the same."
From the aforesaid narration of PW1 - prosecutrix, it is clear that she is residing at the address at F156, Shahbad Dairy, Delhi with her father Wazir Ahmad, her mother Asha Begam and her brothers namely Shafiq Ahmad and Saleem Ahmad. Her father Wazir Ahmad is also having second wife whose name is Gayatri and she was also residing with her father and family with her brother Ravinder Kumar Giri. Ravinder Kumar Giri was working at the Kabadi Shop of her father. On 11/03/2010, she had gone to her School which was Govt. School, Shahbad Dairy where she was studying in 7th Class. When she was 64 of 145 65 FIR No. 55/10 PS - Shahbad Dairy coming to her house from School at about 5:00 p.m. and when she was coming at road, one TSR stopped near her from which two persons get down. They were identified by her as Ravinder Kumar Giri, accused present in the Court (correctly identified) who is brother of her Step Mother Gayatri. The second person was Narender who is brother of accused Ravinder Kumar Giri. He was known to her as he used to visit their house prior to the incident to meet his sister Gayatri, her Step Mother. Accused Narender who was got declared PO had shut her mouth with his hand and accused Ravinder Kumar Giri dragged her from her hand and forced her to sit in the TSR. Thereafter, the driver of the TSR started the same at the instance of the accused persons and they took her towards Singhola Village, Delhi, where accused get down her from the TSR and took her inside a room by opening the lock of the said room by accused Ravinder Kumar Giri. Both the accused entered into the said room and slapped her. Thereafter, accused Narender came out from the said room and accused Ravinder Kumar Giri did "Galat Kaam" with her. "Galat Kaam" means he had committed sexual intercourse with her forcibly without her consent and will. Both the accused kept confine her in the said room. During this period, accused 65 of 145 66 FIR No. 55/10 PS - Shahbad Dairy Ravinder Kumar Giri committed rape upon her four times. She requested the accused persons to set her free, so that she can go to her house. Then both the accused persons threatened her to kill her. Thereafter, Delhi Police reached at the spot and in their presence, she was taken out from the possession of accused Ravinder Kumar Giri who was with her at that time inside the said room and accused Narender had left the room at that time before reaching the Police. During the above mentioned period of two days, she was forcibly got married with accused Ravinder Kumar Giri at the instance of accused Narender in Hanuman Mandir, Village Singhola, Delhi. Due to fear of accused persons, she did not disclose the fact to the Priest at the Temple or any public person present there. Police of PS - Shahbad Dairy recorded her statement in this case. She was taken to Maharishi Balmiki Hospital, Pooth Khurd by Lady Constable Sharmila where she was medically examined. Her statement was also recorded by Learned Metropolitan Magistrate u/s 164 Cr.P.C. Ex. PW1/A bearing her signatures at point 'A' & 'B'. Her clothes which she was wearing at the time of incident, were sealed by the Doctor in the Hospital at the time of her medical examination. Accused Narender Giri who was sitting outside the room where accused Ravinder 66 of 145 67 FIR No. 55/10 PS - Shahbad Dairy Kumar Giri had committed rape upon her, is present in the Court (correctly identified). On being shown clothes, one ladies shirt, pajami and one dupatta she deposed that the said three clothes did not belong to her and denied to have worn the said clothes on the day of incident. One shirt of the salwar suit, one salwar and one chunni which she was wearing at the time of incident were seized by the Doctor in the Hospital. She does not recollect the colours of the said three clothes which were seized at the Hospital. During her crossexamination by Learned Addl. PP she deposed that she was wearing school uniform when she was taken in the TSR by the accused and these were exams days due to which she was not having her school bag. The accused Ravinder got purchased one shirt, salwar and chunni for her having motif of stars in embroidery but she does not recollect the colour of the same. She had worn those clothes only for 20/25 minutes when the Police had come there. It is correct that the clothes shown to her now collectively Ex. P1 in the Court may be or may not be the same clothes which she was wearing at the time of incident but it is correct that she does not remember the same.
PW1 - Prosecutrix during her crossexamination has 67 of 145 68 FIR No. 55/10 PS - Shahbad Dairy negated the suggestions that the age of her said elder brothers (Shafiq and Salim) are 32 years and 20 years respectively or that at present her age is 19 years or that accused Narender was not present at that time (on 11/03/2010) or that she went alongwith accused Ravinder who was alone at that time (on 11/03/2010) or that when she was being medically examined at the Hospital, she disclosed her age to the Doctor as 15 years or that she also disclosed in writing to the Doctor that she was taken by a single person who kept her alongwith him for two days or that the said letter Ex. PW1/DB was written of her own or that it takes 1½ hour in reaching to Tis Hazari Courts from Shahbad Dairy and that too if a direct bus route is available or that she went to the said Advocate voluntarily and not under threat, as alleged by her or that she herself contacted the Defence Counsel on phone one day prior to her going to Tis Hazari Courts or that she herself met the said Defence Counsel in front of Family Court of Ms. Poonam Bamba, Learned ADJ, Delhi and begged before the Lawyer to save her from her father and brothers who were bent upon killing her in case she would not depose against the accused in the present case or that thereafter, she accompanied the Lawyer to Tis Hazari Courts by Metro Train or that neither with the said Lawyer nor 68 of 145 69 FIR No. 55/10 PS - Shahbad Dairy with her, the said Gayatri and her father accompanied or that contents of the letter Ex. PW1/DB were written by her of her own and the said facts were also disclosed by her of her own to the said Lawyer before writing the same or that she had given the copies of the letter Ex. PW1/DB to the SHO and the said DCP also or that said copies of the letter were posted to the SHO and the DCP vide Ex. PW1/DD and Ex. PW1/DE respectively or that the said letters were posted by her to the said Court and said Police authorities from GPO, Kashmiri Gate, Delhi or that the original postal receipts were delivered by her to the said Advocate. Vol., the Advocate himself has posted the same and kept the receipts of the same with him or that the said aunt never locked or confined her in the said house or that she used to go for purchasing household articles for the said aunt or that she accompanied the said aunt to the Chamber of the said Lawyer at Tis Hazari Courts twice or thrice or that she (prosecutrix) advised the said Lawyer to get recorded her deposition soon so that she may marry accused Ravinder or that she refused to go with her parents as she was under threat from her parents or that then the Judge directed the Police officials in her protection to take her alongwith them. Vol. as the said aunt had threatened her, she had refused to go with her parents 69 of 145 70 FIR No. 55/10 PS - Shahbad Dairy and so submitted before the said Predecessor Judge also or that she did not escape from the house of the said aunt on the pretext of giving food to the son of the said aunt or that the said aunt was keeping her very well and she used to frequently visit outside the said house of the said aunt or that she was not kept in any confinement, whatsoever or that no complaint against the said conduct of the said aunt was made by her or her parents or her great uncle because she was kept in a calm and quite atmosphere at the said house of the aunt and even her parents were having no grudge against the said aunt or that she was asked about her well being at the said house of the aunt by the said Lawyer when she had visited his Chamber at Tis Hazari Courts once with the said aunt and her son or that during the trial before the Predecessor Court of this case, she had given mobile phone calls to the said Advocate from the mobile phones of her brother and a distant brotherinlaw in relation or that from mobile phone no. 9873284289, she had given a call to the said Advocate saying that she was talking from the mobile phone of her brother and requested the Advocate for the said actions early or that after the exam. she had given a phone call to accused Ravinder to take her alongwith him or that she accompanied him in a bus of her own or that at the said 70 of 145 71 FIR No. 55/10 PS - Shahbad Dairy place, there were 20 rooms and about 50 persons were residing there or that toilet and bath were outside the said room and she was living there with all comforts or that Narender was not accompanying at the relevant time (on 11/03/2010) or that no threat was given to her by the accused persons or that accused Narender was not present at that time (on 11/03/2010) or that Narender was not present at the time when the Police had reached or that she was present with Ravinder only or that the statement made on 13/03/2010 and on 15/03/2010 were given on the tutoring of her parents. Vol. The said statements were made regarding the incident which happened with her and through which she passed or that on 11/03/2010 at about 5:00 a.m. accused Narender Giri left Delhi with a vehicle to Yamuna Nagar and had returned to Delhi on 13/03/2010 at 5:00 a.m. or that on 13/04/2010 at about 5:00 p.m. she (prosecutrix) had telephoned to Narender Giri from a PCO asking him to take her to his village in District Sultan Pur as she want to live with her parents or that on the same day i.e. 13/04/2010, she and accused Narender Giri had left for Barelie, U.P. in a Bus from Anand Vihar Bus Terminal, Delhi or that on the same day i.e. 13/04/2010 from Barelie, she and accused Narender Giri had gone to Lucknow, U.P. by train or that thereafter on 71 of 145 72 FIR No. 55/10 PS - Shahbad Dairy the same day i.e. 13/04/2010 from Lucknow, U.P., she and accused Narender Giri had gone to Jagdish Pur, U.P. or that from Jagdish Pur, she and accused Narender Giri by Tempo had reached to the house of Bua of accused Narender Giri at Rai Barelie, U.P. or that she is deposing falsely on the aspect that she had never gone to Rai Baralie, U.P. or that she had remained for about a month at the house of Bua of accused Narender Giri at Rai Barelie, U.P. or that she had gone to Rudra Pur with Sonu @ Pramod Kumar S/o Bua of accused Narender Giri or that she had remained for about 15 days at Rudra Pur with Sonu @ Pramod Kumar S/o Bua of accused Narender Giri or that from Rudra Pur, she came to Rai Barelie, U.P. or that from Rai Brelie, U.P. on 28/05/2010 she came back to Delhi with accused Narender Giri at the Chamber of the Advocate of accused Narender Giri at Tis Hazari or that she had asked the Advocate at Tis Hazari Courts to make the efforts for getting the bail of accused Ravinder (Juvenile) at the earliest or that on 28/05/2010 itself she had gone back with Ravinder to Rai Barelie, U.P. from Tis Hazari Courts, Delhi or that the photograph Mark DX1 was photographed with her at point 'X' and with accused Narender Giri and Kusum D/o Bua of accused Narender Giri points 'Y' & 'Z' respectively at Rai Barelie, U.P. or 72 of 145 73 FIR No. 55/10 PS - Shahbad Dairy that after fifteen days of 28/05/2010 at Rai Barelie, she came from there to her house at Shahbad Dairy, Delhi with Sonu @ Pramod Kumar S/o Bua of accused Narender Giri or that Sonu @ Pramod S/o Bua of accused Narender Giri had stayed with her for about 15 days at her house at Shahbad Dairy, Delhi or that accused Narender Giri had not kidnapped her or that on 11/03/2010, accused Narender Giri was not present with Ravinder (Juvenile) or that accused Narender Giri had not kidnapped her by way of dragging her inside a TSR or that accused Narender Giri had not kept her confined in any room or that he had not given threatening of any kind to her or that accused Narender Giri had not forcibly performed her marriage with Ravinder (Juvenile) or that she is deposing against accused Narender Giri at the instance of her parents and her uncle Munna or that she was of age of 18 yeas on the date of the alleged incident on 11/03/2010 or that she had gone of her own with Ravinder (Juvenile) after making a call to him or that she had made the statement u/s 164 Cr.P.C. Ex. PW1/A at the instance of her parents and her uncle Munna or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - prosecutrix 73 of 145 74 FIR No. 55/10 PS - Shahbad Dairy nothing material has been brought out on the record 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 testimony of PW1 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused Narender Kumar Giri to falsely implicate him in the case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence as well as the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW1/A bearing her signatures at point 'A' and 'B'.
The testimony of PW1 - Prosecutrix is also found to be corroborated by PW13 - Wazir Ahmed, her father, to whom 74 of 145 75 FIR No. 55/10 PS - Shahbad Dairy prosecutrix 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.
PW13 - Wazir Ahmed in his examinationinchief has deposed that : "I am running a Kabadi shop at B Block, Shahbad Dairy. I have three children. The prosecutrix is my youngest child who is running in 14th year of her age. On 11/03/2010, my daughter was studying in 7th standard in a Government School which is called by the name of Lal School, B - Block, Shahbad Dairy. Her exams were going on during those days and the timings of her exams (were) from 2:00 p.m. to 5:00 p.m. Till 9:00 p.m. prosecutrix (name withheld) did not come back. I made inquiries from her friends, from neighbours and from my relations but all in vain. My brotherinlaw accused Ravinder (real brother of my second wife Gayatri) who was residing with me was also missing since that time. I lodged a complaint on the next day as I was searching for my daughter and since it was the matter of reputation of the family, I did not lodge complaint on the said night. My complaint is Ex. PW13/A which bears my signatures at point 'A'.
I accompanied the Police in the nearby area for the search of my daughter and accused but they could not be traced. My statement was recorded by the Police also. Accused Ravinder and Narender are present in the Court today who are my brotherinlaw."
75 of 145 76 FIR No. 55/10 PS - Shahbad Dairy From the aforesaid narration of PW13 - Wazir Ahmed it is clear that he is running a Kabadi shop at B Block, Shahbad Dairy. He is having three children. The prosecutrix is his youngest child who is running in 14th year of her age. On 11/03/2010, his daughter was studying in 7th standard in a Government School which is called by the name of Lal School, B - Block, Shahbad Dairy. Her exams were going on during those days and the timings of her exams (were) from 2:00 p.m. to 5:00 p.m. Till 9:00 p.m. prosecutrix (name withheld) did not come back. He made inquiries from her friends, from neighbours and from his relations but all in vain. His brotherinlaw accused Ravinder (real brother of his second wife Gayatri) who was residing with him was also missing since that time. He lodged a complaint on the next day as he was searching for his daughter and since it was the matter of reputation of the family, he did not lodge complaint on the said night. His complaint is Ex. PW13/A which bears his signature at point 'A'. He accompanied the Police in the nearby area for the search of his daughter and accused but they could not be traced. His statement was recorded by the Police also. He correctly identified the accused Ravinder and Narender present in the Court who are his brotherinlaw.
76 of 145 77 FIR No. 55/10 PS - Shahbad Dairy During his crossexamination PW13 - Wazir Ahmed has negated the suggestions that his eldest son Safique Ahmed is aged about 30 years or that age of his second son Salim Ahmed is more than 20 years at present or that in the School, he had got recorded the age of his second son Salim 01 year elder than the age of the prosecutrix or that he had given the date of birth of prosecutrix (name withheld) and Saleem on approximation. Vol. he was aware of their correct date of birth and an affidavit was filed by him to that effect in the School at the time of their admission or that no affidavit was given by him at the time of admission of his daughter/prosecutrix (name withheld) in the School or that his wife had mentioned the date of birth of prosecutrix in the School on approximation or that he is deposing falsely that he had recorded the dates of birth of his children in the diary or that prosecutrix had completed the age of 18 years at the time of incident or that his daughter had given statement under the influence and at the instance of him and his wife or that his daughter had run away from the house for fifteen days with one Sameer who is brotherinlaw of his brother or that he met accused Ravinder in jail on 29/03/2011 and threatened him in case he 77 of 145 78 FIR No. 55/10 PS - Shahbad Dairy does not give money to him (PW13) his daughter/prosecutrix (name withheld) will depose against him and his brother before the Court or that his daughter had gone with accused Ravinder of her own will and she was not kidnapped by accused Ravinder or Narender or that on 13/04/2010 his daughter had gone with accused Narender to his village or that his daughter remained at Rai Bareilly with accused Narender and his cousin brother Sonu @ Pramod Kumar (Bua Ka Ladka) or that his daughter/prosecutrix (name withheld) came back to Delhi after about 2½ months from Ruder Pur and Rai Bareilly alongwith Sonu @ Pramod Kumar and Sonu @ Pramod also resided in his house for about 15 days or that he (PW13) used to visit the house of accused during the stay of his daughter at Rai Bareilly and Ruder Pur or that his daughter had made deposition before the Court under the threat of Munna, he (PW13) and his wife or that due to the fear and threats given by him, his daughter again ran away on 24/05/2011 and went to the house of Usha (daughter of Bua of accused) or that after one or two days of Idul Fiter festival, he had got his daughter married and she is living with her husband at Rohini or that his daughter had willingly gone with the accused Ravinder and deposed before the Court against accused persons at his instance or 78 of 145 79 FIR No. 55/10 PS - Shahbad Dairy that he is deposing falsely.
Inspite of incisive crossexamination of PW13 - Wazir Ahmed, nothing material has been brought out so as to impeach his creditworthiness. He 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. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] the testimony of PW13 - Wazir Ahmed is found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in his statement to suggest that he had any animus against the accused Narender Kumar Giri to falsely implicate him in the case.
21. While analysing the testimonies of PW1 - Prosecutrix and PW13 - Wazir Ahmed, her father as discussed hereinabove inspite of incisive crossexamination of PW1 - Prosecutrix and PW13 - Wazir Ahmed 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 PW1 Prosecutrix that, that the age of 79 of 145 80 FIR No. 55/10 PS - Shahbad Dairy her said elder brothers (Shafiq and Salim) are 32 years and 20 years respectively or that at present her age is 19 years or that accused Narender was not present at that time (on 11/03/2010) or that she went alongwith accused Ravinder who was alone at that time (on 11/03/2010) or that when she was being medically examined at the Hospital, she disclosed her age to the Doctor as 15 years or that she also disclosed in writing to the Doctor that she was taken by a single person who kept her alongwith him for two days or that the said letter Ex. PW1/DB was written of her own or that it takes 1½ hour in reaching to Tis Hazari Courts from Shahbad Dairy and that too if a direct bus route is available or that she went to the said Advocate voluntarily and not under threat, as alleged by her or that she herself contacted the Defence Counsel on phone one day prior to her going to Tis Hazari Courts or that she herself met the said Defence Counsel in front of Family Court of Ms. Poonam Bamba, Learned ADJ, Delhi and begged before the Lawyer to save her from her father and brothers who were bent upon killing her in case she would not depose against the accused in the present case or that thereafter, she accompanied the Lawyer to Tis Hazari Courts by Metro Train or that neither with the said Lawyer nor with her, the said Gayatri 80 of 145 81 FIR No. 55/10 PS - Shahbad Dairy and her father accompanied or that contents of the letter Ex. PW1/DB were written by her of her own and the said facts were also disclosed by her of her own to the said Lawyer before writing the same or that she had given the copies of the letter Ex. PW1/DB to the SHO and the said DCP also or that said copies of the letter were posted to the SHO and the DCP vide Ex. PW1/DD and Ex. PW1/DE respectively or that the said letters were posted by her to the said Court and said Police authorities from GPO, Kashmiri Gate, Delhi or that the original postal receipts were delivered by her to the said Advocate. Vol., the Advocate himself has posted the same and kept the receipts of the same with him or that the said aunt never locked or confined her in the said house or that she used to go for purchasing household articles for the said aunt or that she accompanied the said aunt to the Chamber of the said Lawyer at Tis Hazari Courts twice or thrice or that she (prosecutrix) advised the said Lawyer to get recorded her deposition soon so that she may marry accused Ravinder or that she refused to go with her parents as she was under threat from her parents or that then the Judge directed the Police officials in her protection to take her alongwith them. Vol. as the said aunt had threatened her, she had refused to go with her parents and so 81 of 145 82 FIR No. 55/10 PS - Shahbad Dairy submitted before the said Predecessor Judge also or that she did not escape from the house of the said aunt on the pretext of giving food to the son of the said aunt or that the said aunt was keeping her very well and she used to frequently visit outside the said house of the said aunt or that she was not kept in any confinement, whatsoever or that no complaint against the said conduct of the said aunt was made by her or her parents or her great uncle because she was kept in a calm and quite atmosphere at the said house of the aunt and even her parents were having no grudge against the said aunt or that she was asked about her well being at the said house of the aunt by the said Lawyer when she had visited his Chamber at Tis Hazari Courts once with the said aunt and her son or that during the trial before the Predecessor Court of this case, she had given mobile phone calls to the said Advocate from the mobile phones of her brother and a distant brotherinlaw in relation or that from mobile phone no. 9873284289, she had given a call to the said Advocate saying that she was talking from the mobile phone of her brother and requested the Advocate for the said actions early or that after the exam. she had given a phone call to accused Ravinder to take her alongwith him or that she accompanied him in a bus of her own or that at the said 82 of 145 83 FIR No. 55/10 PS - Shahbad Dairy place, there were 20 rooms and about 50 persons were residing there or that toilet and bath were outside the said room and she was living there with all comforts or that Narender was not accompanying at the relevant time (on 11/03/2010) or that no threat was given to her by the accused persons or that accused Narender was not present at that time (on 11/03/2010) or that Narender was not present at the time when the Police had reached or that she was present with Ravinder only or that the statement made on 13/03/2010 and on 15/03/2010 were given on the tutoring of her parents. Vol. The said statements were made regarding the incident which happened with her and through which she passed or that on 11/03/2010 at about 5:00 a.m. accused Narender Giri left Delhi with a vehicle to Yamuna Nagar and had returned to Delhi on 13/03/2010 at 5:00 a.m. or that on 13/04/2010 at about 5:00 p.m. she (prosecutrix) had telephoned to Narender Giri from a PCO asking him to take her to his village in District Sultan Pur as she want to live with her parents or that on the same day i.e. 13/04/2010, she and accused Narender Giri had left for Barelie, U.P. in a Bus from Anand Vihar Bus Terminal, Delhi or that on the same day i.e. 13/04/2010 from Barelie, she and accused Narender Giri had gone to Lucknow, U.P. by train or that thereafter on 83 of 145 84 FIR No. 55/10 PS - Shahbad Dairy the same day i.e. 13/04/2010 from Lucknow, U.P., she and accused Narender Giri had gone to Jagdish Pur, U.P. or that from Jagdish Pur, she and accused Narender Giri by Tempo had reached to the house of Bua of accused Narender Giri at Rai Barelie, U.P. or that she is deposing falsely on the aspect that she had never gone to Rai Baralie, U.P. or that she had remained for about a month at the house of Bua of accused Narender Giri at Rai Barelie, U.P. or that she had gone to Rudra Pur with Sonu @ Pramod Kumar S/o Bua of accused Narender Giri or that she had remained for about 15 days at Rudra Pur with Sonu @ Pramod Kumar S/o Bua of accused Narender Giri or that from Rudra Pur, she came to Rai Barelie, U.P. or that from Rai Brelie, U.P. on 28/05/2010 she came back to Delhi with accused Narender Giri at the Chamber of the Advocate of accused Narender Giri at Tis Hazari or that she had asked the Advocate at Tis Hazari Courts to make the efforts for getting the bail of accused Ravinder (Juvenile) at the earliest or that on 28/05/2010 itself she had gone back with Ravinder to Rai Barelie, U.P. from Tis Hazari Courts, Delhi or that the photograph Mark DX1 was photographed with her at point 'X' and with accused Narender Giri and Kusum D/o Bua of accused Narender Giri points 'Y' & 'Z' respectively at Rai Barelie, U.P. or 84 of 145 85 FIR No. 55/10 PS - Shahbad Dairy that after fifteen days of 28/05/2010 at Rai Barelie, she came from there to her house at Shahbad Dairy, Delhi with Sonu @ Pramod Kumar S/o Bua of accused Narender Giri or that Sonu @ Pramod S/o Bua of accused Narender Giri had stayed with her for about 15 days at her house at Shahbad Dairy, Delhi or that accused Narender Giri had not kidnapped her or that on 11/03/2010, accused Narender Giri was not present with Ravinder (Juvenile) or that accused Narender Giri had not kidnapped her by way of dragging her inside a TSR or that accused Narender Giri had not kept her confined in any room or that he had not given threatening of any kind to her or that accused Narender Giri had not forcibly performed her marriage with Ravinder (Juvenile) or that she is deposing against accused Narender Giri at the instance of her parents and her uncle Munna or that she was of age of 18 yeas on the date of the alleged incident on 11/03/2010 or that she had gone of her own with Ravinder (Juvenile) after making a call to him or that she had made the statement u/s 164 Cr.P.C. Ex. PW1/A at the instance of her parents and her uncle Munna or that she is deposing falsely and the suggestions to PW13 - Wazir Ahmed that his eldest son Safique Ahmed is aged about 30 years or that age of his second son Salim Ahmed is more than 20 years at 85 of 145 86 FIR No. 55/10 PS - Shahbad Dairy present or that in the School, he had got recorded the age of his second son Salim 01 year elder than the age of the prosecutrix or that he had given the date of birth of prosecutrix (name withheld) and Saleem on approximation. Vol. he was aware of their correct date of birth and an affidavit was filed by him to that effect in the School at the time of their admission or that no affidavit was given by him at the time of admission of his daughter/prosecutrix (name withheld) in the School or that his wife had mentioned the date of birth of prosecutrix in the School on approximation or that he is deposing falsely that he had recorded the dates of birth of his children in the diary or that prosecutrix had completed the age of 18 years at the time of incident or that his daughter had given statement under the influence and at the instance of him and his wife or that his daughter had run away from the house for fifteen days with one Sameer who is brotherinlaw of his brother or that he met accused Ravinder in jail on 29/03/2011 and threatened him in case he does not give money to him (PW13) his daughter/prosecutrix (name withheld) will depose against him and his brother before the Court or that his daughter had gone with accused Ravinder of her own will and she was not kidnapped by accused Ravinder or Narender or that on 86 of 145 87 FIR No. 55/10 PS - Shahbad Dairy 13/04/2010 his daughter had gone with accused Narender to his village or that his daughter remained at Rai Bareilly with accused Narender and his cousin brother Sonu @ Pramod Kumar (Bua Ka Ladka) or that his daughter/prosecutrix (name withheld) came back to Delhi after about 2½ months from Ruder Pur and Rai Bareilly alongwith Sonu @ Pramod Kumar and Sonu @ Pramod also resided in his house for about 15 days or that he (PW13) used to visit the house of accused during the stay of his daughter at Rai Bareilly and Ruder Pur or that his daughter had made deposition before the Court under the threat of Munna, he (PW13) and his wife or that due to the fear and threats given by him, his daughter again ran away on 24/05/2011 and went to the house of Usha (daughter of Bua of accused) or that after one or two days of Idul Fiter festival, he had got his daughter married and she is living with her husband at Rohini or that his daughter had willingly gone with the accused Ravinder and deposed before the Court against accused persons at his instance or that he 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 Narender Kumar Giri has 87 of 145 88 FIR No. 55/10 PS - Shahbad Dairy been falsely implicated because of animosity.
22. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "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."
88 of 145 89 FIR No. 55/10 PS - Shahbad Dairy In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of medical examination vide MLC Ex. PW12/A and the gynaecological examination Ex. PW16/A on MLC Ex. PW12/A of PW1
- prosecutrix, biological and serological evidence Ex. PW17/A and Ex. PW17/B together with the MLC of accused Ravinder Kumar Giri (Juvenile) Ex. PW9/A who is brother of accused Narender Kumar Giri, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial 89 of 145 90 FIR No. 55/10 PS - Shahbad Dairy penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Ravinder Kumar Giri (Juvenile) with PW1 - prosecutrix without her consent acting in furtherance of their common intention with accused Narender Kumar Giri.
23. Learned Counsel for the accused submitted that in fact PW1 (name withheld) deposed falsely against the accused persons at the instance of her father, mother and Uncle Munna and infact on 11/03/2010 after leaving her School she called Ravinder Kumar Giri on telephone and she had gone with Ravinder Kumar of her free will and she was never kidnapped either by Ravinder Kumar Giri or Narender Kumar Giri as on 11/03/2010 Narender Kumar was not present with Ravinder Kumar Giri and in this regard the prosecutrix wrote letter dated 24/05/2011 to the Learned Predecessor of this Court and also to the DCP and SHO of PS - Shahbad Dairy which are Ex. PW1/DB, Ex. PW1/DD and Ex. PW1/DE sent to the Learned Predecessor of this Court, SHO and DCP 90 of 145 91 FIR No. 55/10 PS - Shahbad Dairy respectively. In Ex. PW1/DB, Ex. PW1/DD and Ex. PW1/DE, the prosecutrix clearly stated that she has deposed against Narender Kumar and Ravinder Kumar Giri under the pressure of her father, mother and Tau Munna and accused Ravinder Kumar Giri did not kidnap her and on 11/03/2010 she herself had called Ravinder Kumar by telephone as she loved him and after getting solemnized marriage with him she was to live with Ravinder Kumar Giri. The prosecutrix further stated in the said letter that her father, mother and Tau Munna had threatened her that in case she (prosecutrix) would not depose against the accused persons in that event they would kill her. The prosecutrix further stated in the letter Ex. PW1/DB that both the accused are innocent and she is sending the abovesaid letter on her own and today she is leaving her house due to the fear of her father, mother and Tau Munna. Learned Counsel for accused further submitted that the prosecutrix has deposed against the accused persons at the instance of her parents and under the threat that if the prosecutrix would not depose against the accused she would be killed. Learned Counsel for accused further submitted that the prosecutrix also left her parent's house and went with Aunt of the accused on 24/05/2011 as she was under threat from her parents and Tau Munna and this fact 91 of 145 92 FIR No. 55/10 PS - Shahbad Dairy was told by her to the Learned Predecessor of this Court when she was produced before the Court in Police protection in the presence of her parents. The prosecutrix has admitted that the Learned Predecessor Judge had asked her to accompany and reside with her parents but she refused for the same as she was under threat from her parents. Learned Counsel submitted that the prosecutrix did not tell the Judge about the threats given by her (Gayatri) Aunt. Learned Counsel submitted that in her crossexamination PW1 stated that she resided with her (Gayatri) aunt for about 03 months in confinement and the aunt of Gayatri did not allow her to go out of the house and she has stated in her cross examination thats he telephoned to her Tau that she is in confinement of the aunt and he came to the house of his aunt and took her but no report has been lodged by the parents of the prosecutrix in this regard and this fact clearly shows that she resided with the aunt of Gayatri from 24/05/2010 for some time due to the fear of her parents and Tau Munna. Learned Counsel for accused further submitted that in her examination inchief the prosecutrix has stated that when Police came to Village Singhola to arrest the accused, accused Narender had left prior to the reaching of Police and in her crossexamination the prosecutrix has 92 of 145 93 FIR No. 55/10 PS - Shahbad Dairy stated that when Police arrived there both the accused were present the and accused Narender had gone to bathroom and Police did not apprehend him. In her examinationinchief the prosecutrix has alleged that she was forcibly got married with accused Ravinder Kumar Giri at the instance of accused Narender Kumar Giri in Hanuman Mandir, Village Singhola, Delhi and due to fear of accused persons she did not disclose anything to the Priest at Temple or any public person present there, but in her crossexamination she has stated that one more boy with me except accused Narender and Ravinder took me in a Van and no public person and Priest were present in the Temple at that time. Learned Counsel for accused further submitted that the prosecutrix in her examinationinchief has alleged that she was thirteen years old but at that time she was more than 18 years old. Learned Counsel further submitted that from Delhi she telephoned to accused Narender Kumar in his native Village in District Sultan Pur, U.P. on 13/04/2010 and requested him to take her to his Village in District Sultan Pur as she did not want to live with her parents and on 13/04/2010 the prosecutrix alongwith accused Narender Giri had left for Bareily in a Bus from Anand Vihar Bus Terminal, Delhi and from there she had gone to 93 of 145 94 FIR No. 55/10 PS - Shahbad Dairy Lucknow, U.P. by train and from Lucknow she alongwith Narender Kumar Giri had gone to Jagdish Pur and from Jagdish Pur she alongwith accused Narender Kumar Giri reached the house of Bua of accused Narender Kumar Giri at Rai Bareily, U.P. and she remained there for about 1½ months and during her stay she also had gone to Rudra Pur with Sonu @ Pramod Kumar, son of Bua of accused Narender Kumar Giri. On 28/05/2010 she came back to Delhi with accused Narender Kumar Giri at the Chamber of Advocate of accused Narender Kumar Giri at Tis Hazari Court, Delhi and asked his Advocate to make the efforts for getting the bail of accused Ravinder Kumar Giri at the earliest and on 28/05/2010 itself the prosecutrix had gone back to Rai Bariely along with accused Narender Kumar Giri. The prosecutrix has denied the above said facts that she had gone to Rai Bariely alongwith accused Narender Kumar Giri on 13/04/2010 but PW13 - Wazir Ahmad, father of the prosecutrix has stated in his crossexamination that on 13/04/2010 his daughter/prosecutrix (name withheld) was again kidnapped by accused Narender Kumar Giri, however, no report has been lodged by PW13 - Wazir Ahmed in this regard and this fact goes to show that the prosecutrix had left Delhi on 13/04/2010 with accused Narender Kumar 94 of 145 95 FIR No. 55/10 PS - Shahbad Dairy Giri on her own free will. Learned Counsel submitted that PW13 - Wazir Ahmed in his crossexamination has admitted that on 24/05/2011 his daughter/prosecutrix (name withheld) had gone from his house to the house of Usha, who is Bua of Gayatri and the accused persons but the prosecutrix in her crossexamination has alleged that she was kidnapped by Gayatri and the father of the accused persons and was confined in the house of Bua of accused persons. The prosecutrix in her cross examination has stated that on 24/05/2011 she was kidnapped by Gayatri and father of the accused from Sulabh Sauchalaya near the house of the prosecutrix and she was taken to Tis Hazari Court by Bus and which took about half an hour to reach Tis Hazari from Shahbad Dairy which is quite impossible as the Bus from Shahbad Dairy to Tis Hazari Court takes minimum of 1½ hour and this fact has been admitted by PW13 - Wazir Ahmad that 1 or 1½ hours will be taken by Bus to reach Tis Hazari from Shahbad Dairy.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, 95 of 145 96 FIR No. 55/10 PS - Shahbad Dairy discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused Narender Kumar Giri to falsely implicate him in the case. The version of PW1 prosecutrix on the core spectrum of crime has remained intact.
At the cost of repetition, PW1 - prosecutrix in her examinationinchief has specifically deposed which is reproduced and reads as under : "I am residing at my above mentioned address (F156, Shahbad Dairy, Delhi) with my father Wazir Ahmad, my mother Asha Begam and my brothers namely Shafiq Ahmad and Saleem Ahmad. My father Wazir Ahmad is also having second wife whose name is Gayatri and she was also residing with my father and family with her brother Ravinder Kumar Giri. Ravinder Kumar Giri was working at the Kabadi Shop of my father. On 11/03/2010, I had gone to my School which was th Govt. School, Shahbad Dairy where I was studying in 7 Class. When I was coming to my house from School at about 5:00 p.m. and when I was coming at road, one TSR stopped near me from which two persons get down. They were identified by me as Ravinder Kumar Giri, accused present in the Court today (correctly identified) who is brother of my 96 of 145 97 FIR No. 55/10 PS - Shahbad Dairy Step Mother Gayatri. The second person was Narender who is brother of accused Ravinder Kumar Giri. He was known to me as he used to visit our house prior to the incident to meet his sister Gayatri, my Step Mother. Accused Narender is not present in the Court today (now got declared PO). Accused Narender shut my mouth with his hand and accused Ravinder Kumar Giri dragged me from my hand and forced me to sit in the TSR. Thereafter, the driver of the TSR started the same at the instance of the accused persons and they took me towards Singhola Village, Delhi, where accused get down me from the TSR and took me inside a room by opening the lock of the said room by accused Ravinder Kumar Giri. Both the accused entered into the said room and slapped me. Thereafter, accused Narender came out from the said room and accused Ravinder Kumar Giri did "Galat Kaam" with me. "Galat Kaam" means he had committed sexual intercourse with me forcibly without my consent and will. Both the accused kept confine me in the said room. During this period, accused Ravinder Kumar Giri committed rape upon me four times. I requested the accused persons to set me free, so that I can go (to) my house. Then both the accused persons threatened me to kill me. Thereafter, Delhi Police reached at the spot and in their presence, I was taken out from the possession of accused Ravinder Kumar Giri who was with me at that time inside the said room and accused Narender had left the room at that time before reaching the Police. During the above mentioned period of two days, I was forcibly got married with accused Ravinder Kumar Giri at the instance of accused Narender in Hanuman Mandir, Village Singhola, Delhi. Due to fear of accused persons, I did not disclosed the fact to the Priest at the Temple or any public person present there. Police of PS - Shahbad Dairy recorded my statement in this case. I was taken to Maharishi Balmiki Hospital, Pooth Khurd by Lady Constable Sharmila where I Was 97 of 145 98 FIR No. 55/10 PS - Shahbad Dairy medically examined there. My statement was also recorded by Learned Metropolitan Magistrate u/s 164 Cr.P.C. and I signed that statement.
At this stage, a sealed envelope sealed with the seal of 'NG' is opened. It is found to contain the original statement of witness/prosecutrix (name withheld) u/s 164 Cr.P.C., same is taken out and witness states that he has signed the said statement. The statement is Ex. PW1/A which bears the signature of witness at points 'A' & 'B'.
My clothes were which I was wearing at the time of incident, were sealed by the Doctor in the Hospital at the time of my medical examination. I can identify the said clothes, if shown to me."
(Underlined by me) During her further examinationinchief recorded on 20/05/2011, PW1 - prosecutrix has deposed which is reproduced and reads as under : "Accused Narender Giri who was sitting outside the room where accused Ravinder Kumar Giri had committed rape upon me, is present in the Court today and correctly identified by the witness. I can identity my clothes which I was wearing at the time of incident, if same is shown to me."
(Underlined by me) On analysing the entire testimony of PW1 - prosecutrix, it transpires that she has described the scenario implicating accused 98 of 145 99 FIR No. 55/10 PS - Shahbad Dairy Ravinder Kumar Giri (Juvenile) and his brother accused Narender Kumar Giri to be the author of the crime committed upon her, of the committal of the sexual assault upon her by accused Ravinder Kumar Giri (Juvenile) acting in furtherance of their common intention with accused Narender Kumar Giri. The accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact.
As regards the plea raised by the Learned Counsel for the accused that, "PW1 - prosecutrix vide her letter dated PW1/DB has stated that both the accused are innocent and has deposed against them at the instance of her parents and her Tau Munna under the threat, if the prosecutrix would not depose against the accused, she will be killed", is concerned, with due respect, it appears that the Learned Counsel for the accused has either misread or not read the testimony of PW1 - prosecutrix as to what she deposed categorically in her crossexamination.
99 of 145 100 FIR No. 55/10 PS - Shahbad Dairy It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
It is pertinent to reproduce the relevant part of cross examination of PW1 - prosecutrix, recorded on 14/02/2012, which reads as under : "The letter dated 24/05/2011 addressed to the Predecessor Court is written by me in my own handwriting which is now Ex. PW1/DB and envelope of the same is Ex. PW1/DC. Volunteered, this letter was copied by me from the writing given to me to that effect by the Defence Counsel present in Court today. It is incorrect the suggest that the said letter Ex. PW1/DB was written of my own. The said Advocate met me when I was taken by Ms. Gayatri and her father to the said Advocate at Tis Hazari Courts. I was taken to the said Advocate under threat to kill my brother and father in case I did not accompany the said Gayatri and her father to the Advocate. I was taken by said Gayatri and her father from the Sulabh Shochalaya where I had come to ease myself situated at Shahbad Dairy. I was taken to the said Court in a bus. The bus was having many passengers. I did not raise alarm in the bus as I was threatened by them to kill my father and brother. I do not recollect the route number of the bus. I alighted the bus outside the gate of the said Court. It took half an hour for the said bus to reach the said Court. It is incorrect to suggest that it taken 1½ hour in reaching to Tis Hazari Courts form Shahbad Dairy and that too if a direct route is available. It 100 of 145 101 FIR No. 55/10 PS - Shahbad Dairy is incorrect to suggest that I went to the said Advocate voluntarily and not under threat, as alleged by me. I remained with the said Advocate at the said Courts for half an hour. It is incorrect to suggest that I myself contacted the Defence Counsel on phone one day prior to my going to Tis Hazari Courts. It is further incorrect to suggest that I myself met the said Defence Counsel in front of Family Court of Ms. Poonam Bamba, Learned ADJ, Delhi and begged before the Lawyer to save me from my father and brothers who were bent upon killing me in case I would not depose against the accused in the present case. It is further incorrect to suggest that thereafter, I accompanied the Lawyer to Tis Hazari Courts by Metro Train. It is incorrect to suggest that neither with the said Lawyer not with me, the said Gayatri and her father accompanied. It is incorrect to suggest that contents of the letter Ex. PW1/DB were written by me of my own and the said facts were also disclosed by me of my own to the said Lawyer before writing the same. Thereafter, I was taken by said Gayatri to the house of her aunt from Tis Hazari Courts in a bus in which I travelled for about 1½ or two hours. I do not recollect the name of the place where the house of the said aunt of Gayatri was situated. I remained at the house of said aunt of Gayatri for about three months. The said aunt used to scold me and direct me not to leave her house. I was confined to the room of the said house by the said aunt. It is correct that I appeared before the Predecessor Court in Police protection accompanied by two Police officials and the said aunt of Gayatri. I had informed the same Predecessor Court regarding the threat given by my father, my great uncle and mother to depose against the accused otherwise I would be killed but I disclosed the said facts to the Court as I was under threat from the said aunt of Gayatri to say in the said manner to the Court. It is correct that I had appeared before the SHO of PS - Shahbad Dairy and concerned DCP seeking Police protection against my 101 of 145 102 FIR No. 55/10 PS - Shahbad Dairy father, great uncle and mother who were pressurizing me to depose against the accused and threatening to kill me in case I did not do so. It is incorrect to suggest that I had given the copies of the letter Ex. PW1/DB to the SHO and the said DCP also. It is incorrect to suggest that said copies of the letter were posted to the SHO and the DCP vide Ex. PW1/DD and Ex. PW1/DE respectively. It is incorrect to suggest that the said letters were posted by me to the said Court and said Police authorities from GPO, Kashmiri Gate, Delhi or that the original postal receipts were delivered by me to the said Advocate. Volunteered, the Advocate himself has posted the same and kept the receipts of the same with him."
(Underlined by me) From the aforesaid narration of PW1 - prosecutrix, it is clearly indicated that the letter Ex. PW1/DB was not written by her of her own free will but had been copied by her from the writing given to her to that effect by the Defence Counsel present in the Court. It clearly indicates that it was the defence Counsel who made PW1 - prosecutrix to copy the letter Ex. PW1/DB from the writing given by him to that effect.
In the circumstances, the theory that, "PW1 - prosecutrix 102 of 145 103 FIR No. 55/10 PS - Shahbad Dairy vide her letter dated PW1/DB has stated that both the accused are innocent and has deposed against them at the instance of her parents and her Tau Munna under the threat, if the prosecutrix would not depose against the accused, she will be killed" propounded by the Learned Counsel for accused Narender Kumar Giri falls flat on the ground.
As regards the plea raised by the Learned Counsel for the accused Narender Kumar Giri that, "in her examinationinchief the prosecutrix has alleged that she was forcibly got married with accused Ravinder Kumar Giri at the instance of accused Narender Kumar Giri in Hanuman Mandir, Village Singhola, Delhi and due to fear of accused persons she did not disclose anything to the Priest at Temple or any public person present there, but in her cross examination she has stated that one more boy with me except accused Narender and Ravinder took me in a Van and no public person and Priest were present in the Temple at that time", is concerned, it is not made clear by Learned Counsel for the accused as to 103 of 145 104 FIR No. 55/10 PS - Shahbad Dairy what he intends to convey by raising the said plea. If in the estimation of the Learned Counsel for the accused that during her examinationinchief PW1 - prosecutrix has made some improvements as to what she stated in her statement to the Police, she must have been confronted with u/s 145 of the Indian Evidence Act, 1872. On careful perusal and analysis of the testimony of PW1 prosecutrix, it is found that so called improvements are merely the 'clarifications' and 'elaboration' of facts in response to the questions put to her during the course of crossexamination. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by the clear, cogent and convincing evidence. The version of PW1 - prosecutrix on the core spectrum of crime has remained intact.
Moreover, PW1 - prosecutrix during her crossexamination recorded on 12/02/2013 has specifically deposed that : "No public persons were present in the Temple at that time. Traffic was flowing on the road at that time. I did not raise alaram (alarm) as I was severely intimidated with the threat to kill and I was alone (Mai Akeli Thi) at that time.
We remained at the Temple for about five minutes. It is wrong to suggest that no threat was given to me by the accused persons. It is wrong to suggest that accused Narender was not present at that time. It was in the noon hours when I was taken to the Temple. Vol. Some clothes were given for marriage. I was taken to the 104 of 145 105 FIR No. 55/10 PS - Shahbad Dairy Temple in the clothes which were given to me for wearing for marriage. Nor any articles/goods for Pooja and the articles required for marriage were not taken to the Temple. I was not given food during the period I was confined. I do not recollect the time when the Police had reached, on the day I was recovered. It is wrong to suggest that Narender was not present at the time when the Police had reached or that I was present with Ravinder only."
(Underlined by me) So far as the plea raised by Learned Counsel for the accused that no report was lodged by the parents of the prosecutrix with regard to the confinement in the house of aunt of Gayatri, is concerned, it is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. It is also to be noticed that PW1
- prosecutrix during her crossexamination recorded on 14/02/2012 has specifically deposed that : "It is incorrect to suggest that said aunt never locked or confined me in the said house or that I used to go for purchasing household articles for the said aunt. It is incorrect to suggest that I accompanied the said aunt to the chamber of the said lawyer at Tis Hazari Courts twice or thrice."
"I did not tell the Judge about the threats given by the said aunt as I was under threat and similar is my reply for the reason of not disclosing regarding the said threat to the SHO and the DCP.
105 of 145 106 FIR No. 55/10 PS - Shahbad Dairy One day the said aunt and her husband, both had consumed liquor and slept and taking advantage of this situation, I gave a telephone call to my great uncle (Tau) whose phone number I was remembering and I asked my great uncle to come at Pradhan Chowk of the said place, regarding which I had inquired from someone and accordingly, my said great uncle reached the said Pradhan Chowk in a car and I accompanied my great uncle to my house at Shahbad Dairy. It was at 12:00 noon that I accompanied with my great uncle and I escaped from the clutches of the said aunt of Gayatri on the pretext of prociding food to the son of the aunt at his School and the School of the said son of the said aunt was situated at a walking distance of five minutes. I had given the telephone call to my great uncle for taking me at about 12:00 night. It is correct that I had come out of the house of the said aunt on the pretext of purchasing a Cold Drink (Campa) for me for which I had taken money from the said aunt and thereafter I escaped. It is incorrect to suggest that I did not escape from the house of the said aunt on the pretext of giving food to the son of the said aunt. It is incorrect to suggest that the said aunt was keeping me very well and I used to frequently visit outside the said house of the said aunt or that I was not kept in any confinement, whatsoever.
After becoming free from the clutches of the said aunt, I had disclosed about my said illegal confinement and threat extended by the said aunt to my parents and great uncle but no complaint against the said aunt for the said conduct was lodged either with the Police or with any Court of law by myself or by my parents. It is correct that said Gayatri is living with my father as his wife."
"It is incorrect to suggest that no complaint against the said conduct of the said aunt was made by me or my parents or my great uncle because I was kept in a calm and quite atmosphere at the said
106 of 145 107 FIR No. 55/10 PS - Shahbad Dairy house of the aunt and even my parents were having no grudge against the said aunt."
During his crossexamination recorded on 22/11/2012, PW13 - Wazir Ahmed, father of the prosecutrix has deposed that "No complaint was lodged against Usha".
It is evident from the record that during the cross examination of PW13 - Wazir Ahmed, father of the prosecutrix no information was elicited from him on behalf of the accused as to why he did not make complaint against the illegal confinement and threat extended by aunt of Gayatri (Gayatri living with him as his wife) to her daughter/prosecutrix. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so accused is to blame himself and none else.
Moreover, nonmaking of any complaint by her or her parents does not falsify the case of the prosecution nor does it vitiate or negate the prosecution case which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW1 - prosecutrix on the core spectrum of crime has remained intact.
107 of 145 108 FIR No. 55/10 PS - Shahbad Dairy As regards the plea raised by the Learned Counsel for the accused that the prosecutrix had denied that she had gone to Rai Bareilly alongwith accused Narender Kumar Giri on 13/04/2010 but PW13 - Wazir Ahmed, father of the prosecutrix has stated in his cross examination that on 13/04/2010, his daughter/prosecutrix (name withheld) was again kidnapped by accused Narender Kumar Giri, however no report has been lodged by PW13 - Wazir Ahmed in this regard and this fact goes to show that the prosecutrix had left Delhi on 13/04/2010 with accused Narender Kumar Giri on her own free will, is concerned, the Learned Counsel for the accused failed to show the basis for the conclusion so drawn by him especially in view of the fact that PW1 - prosecutrix has specifically negated the suggestions during her crossexamination that on the same day i.e. 13/04/2010, she and accused Narender Giri had left for Barelie, U.P. in a Bus from Anand Vihar Bus Terminal, Delhi or that on the same day i.e. 13/04/2010 from Barelie, she and accused Narender Giri had gone to Lucknow, U.P. by train or that thereafter on the same day i.e. 13/04/2010 from Lucknow, U.P., she and accused Narender Giri had gone to Jagdish Pur, U.P. or that from Jagdish Pur, she and accused 108 of 145 109 FIR No. 55/10 PS - Shahbad Dairy Narender Giri by Tempo had reached to the house of Bua of accused Narender Giri at Rai Barelie, U.P. or that she is deposing falsely on the aspect that she had never gone to Rai Baralie, U.P. Further PW13 - Wazir Ahmed, her father during his cross examination recorded on 22/11/2012 has specifically deposed that : "It is incorrect to suggest that on 13/04/2010 my daughter had gone with accused Narender to his village. Vol. on 13/04/2010 my daughter was again kidnapped by accused Narender. I do not remember whether any complaint was lodged by me in this regard."
Moreover, during his statement recorded u/s 313 Cr.P.C., accused Narender Kumar Giri has not uttered a single word that on 13/04/2010, prosecutrix had left Delhi with him on her own free will.
In the circumstances, the theory floated by the Learned Counsel for the accused that, "on 13/04/2010, prosecutrix had left Delhi with accused Narender Kumar Giri on her own free will" falls flat on the ground.
109 of 145 110 FIR No. 55/10 PS - Shahbad Dairy As regards the plea raised by the Learned Counsel for the accused that, "The prosecutrix in her crossexamination has stated that on 24/05/2011 she was kidnapped by Gayatri and father of the accused from Sulabh Sauchalaya near the house of the prosecutrix and she was taken to Tis Hazari Court by Bus and which took about half an hour to reach Tis Hazari from Shahbad Dairy which is quite impossible as the Bus from Shahbad Dairy to Tis Hazari Court takes minimum of 1½ hour and this fact has been admitted by PW13 - Wazir Ahmad that 1 or 1½ hours will be taken by Bus to reach Tis Hazari from Shahbad Dairy", is concerned, it is a settled principle that statements of the witnessed have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference. It appears that the Learned Counsel for the accused while raising the plea has picked up a few sentences from the crossexamination of PW1 - prosecutrix, ignoring their proper reference. At the cost of repetition, the relevant part of crossexamination of PW1 - prosecutrix recorded on 14/02/2012 is reproduced and reads as under : "The said Advocate met me when I was taken by Ms. Gayatri and her father to the said Advocate at Tis Hazari Courts. I was 110 of 145 111 FIR No. 55/10 PS - Shahbad Dairy taken to the said Advocate under threat to kill my brother and father in case I did not accompany the said Gayatri and her father to the Advocate. I was taken by said Gayatri and her father from the Sulabh Shochalaya where I had come to ease myself situated at Shahbad Dairy. I was taken to the said Court in a bus."
(Underlined by me) From the aforesaid narration of PW1 - prosecutrix, it is clearly indicated that she was taken from Sulabh Shochalaya where she had come to ease herself situated at Shahbad Dairy to the Advocate under threat to kill her brother and father in case she did not accompany the said Gayatri and her father to the Advocate. Under such threat to kill her brother and father one is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to disobey the dictate of Gayatri.
So far as the plea raised by the Learned Counsel for the accused on the discrepancy regarding the time taken by the bus to Tis Hazari from Shahbad Dairy in the testimonies of PW1 - prosecutrix and PW13 - Wazir Ahmed, is concerned, it is a matter of perception of an individual concerned. Moreover, the said discrepancy does not reflect 111 of 145 112 FIR No. 55/10 PS - Shahbad Dairy upon the substantive evidence and the probative value of the statement of PW1 - prosecutrix made on material and relevant aspects. Nor does it falsify the case of the prosecution which is otherwise prover on record by clear, cogent and convincing evidence. The version of PW1 - prosecutrix on the core spectrum of crime has remained intact.
Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. 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. The power of observation, retention and reproduction differs with individuals.
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 112 of 145 113 FIR No. 55/10 PS - Shahbad Dairy 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. '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
113 of 145 114 FIR No. 55/10 PS - Shahbad Dairy 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 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]).
114 of 145 115 FIR No. 55/10 PS - Shahbad Dairy 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 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 115 of 145 116 FIR No. 55/10 PS - Shahbad Dairy 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.
24. Learned Counsel for the accused submitted that accused Narender Kumar Giri is a driver by profession and he was not in Delhi on 11/03/2010, the day of incident as on 11/03/2010 at about 5:00 a.m. he had left Delhi and had gone to Yamuna Nagar for delivery of some goods and had returned to Delhi on 13/03/2010 at 5:00 p.m. I have carefully perused and analysed the evidence on record.
As regards the theory propounded by the Learned Counsel for the accused that, "accused Narender Kumar Giri is a driver by profession and he was not in Delhi on 11/03/2010, the day of incident as on 11/03/2010 at about 5:00 a.m. he had left Delhi and had gone to Yamuna Nagar for delivery of some goods and had returned to Delhi 116 of 145 117 FIR No. 55/10 PS - Shahbad Dairy on 13/03/2010 at 5:00 p.m.", is concerned, the same has not at all been made probable much established by any cogent evidence. No evidence regarding the Registration No., ownership of the vehicle used for the delivery of goods, nor any evidence regarding the nature of the goods delivered, nor any evidence regarding the place from where the goods were loaded, to whom the same belonged, nor any evidence regarding the particulars/address of place of delivery, to whom it was delivered, nor any evidence regarding the goods entrustment memo nor regarding the goods delivered memo have been produced or proved on the record, by accused Narender Kumar Giri. Moreover the said theory, so propounded by the Learned Counsel for the accused was not put or suggested to PW1
- prosecutrix during her entire incisive and lengthy crossexamination. In the circumstances, the said theory so propounded by the Learned Counsel for accused is merely an afterthought and falls flat on the ground. The said theory appears to have been propounded by accused Narender Kumar Giri in order to save his skin from the clutches of law.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
117 of 145 118 FIR No. 55/10 PS - Shahbad Dairy
25. Learned Counsel for accused submitted that from the evidence of the prosecution witnesses it has not been proved that accused Narender Kumar with accused Ravinder Kumar Giri kidnapped the prosecutrix (name withheld) as the prosecutrix herself has stated to the Doctor that she was taken by a single person who kept her alongwith him for two days as mentioned in the MLC Ex. PW12/A and Ex. PW1/DA. In her statement she has alleged that she is 13 years old and in MLC Ex. PW12/A she stated to the Doctor that she is fifteen years old. The prosecutrix in her examinationinchief has alleged that she was kidnapped by two persons i.e. accused Ravinder Kumar Giri and Narender Kumar Giri but as per MLC Ex. PW12/A, the prosecutrix stated to the attending Doctor that she was taken by a single person who kept her alongwith him for two days and she is fifteen years old and on this point she was confronted with MLC Ex. PW12/A and Ex. PW1/DA as in her examinationinchief she has alleged that she was thirteen years old at the time of incident and she was kidnapped by the above said two persons. After going through the writing at point 'A' in Ex. PW1/DA, PW1 admits this handwriting to be in her own hand although the same is 118 of 145 119 FIR No. 55/10 PS - Shahbad Dairy not signed by her.
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.
As regards, the age of the prosecutrix is concerned, the same has been discussed, detailed and analysed hereinbefore.
The medical and the gynecological examination of PW1
- prosecutrix as proved by PW12 - Dr. Virender Kumar, Medical Officer vide MLC Ex. PW12/A and PW16 - Dr. Saroj Aggarwal, Specialist Incharge, MV Hospital vide Ex. PW16/A on the MLC Ex. PW12/A has been discussed and analysed hereinbefore.
At the cost of repetition, PW12 - Dr. Virender Kumar, has deposed that on 13/03/2010, he was posted at Maharishi Balmiki Hospital and on the said day, the prosecutrix whose name is mentioned 119 of 145 120 FIR No. 55/10 PS - Shahbad Dairy in the MLC (name not disclosed for the reasons of secrecy) was brought to the Hospital for medical examination and at about 10:55 p.m., he medically examined her and referred the patient for Gynae for further evaluation. The MLC is Ex. PW12/A which bears his signature at point 'A'. He has also seen another MLC of the same Hospital on the Judicial record which was prepared on the same date at about 3:00 p.m. where the said prosecutrix refused to undergo medical examination.
Despite grant of opportunity, PW12 - Dr. Virender Kumar was not crossexamined on behalf of the accused.
At the cost of repetition, PW16 Dr. Saroj Aggarwal has deposed that she has been deputed in this case to depose before the Court. She has seen MLC No. 735/10 of prosecutrix (name withheld) D/o Wazir Ahmed, Age around 15 years, female who was brought to Hospital on 13/03/2010 for medical examination. The patient was initially examined by CMO on duty and thereafter she was referred to S.R. Gynae where she was examined by Dr. Rupali. As per MLC, the patient was brought to Hospital with the alleged history of sexual assault. As per patient she was taken by a person (brotherinlaw) of father's 120 of 145 121 FIR No. 55/10 PS - Shahbad Dairy second wife and kept her for two days and raped her. On local examination no external sign of injury was found. On P/S examination hymen ruptured, no tear, no bleeding, P/V no discharge all relevant samples were collected. At present Dr. Rupali is not working in their Hospital and her present whereabouts are not known as per record. She is acquainted with her handwriting and signatures as she has seen her while writing and signing during the course of her duties. The findings of Dr. Rupali on the MLC is Ex. PW16/A, bearing signature of Dr. Rupali at point 'A'.
PW16 - Dr. Saroj Aggarwal in her crossexamination has deposed that : "Dr. Rupali has left the Hospital about one year. It is wrong to suggest that I had never worked with Dr. Rupali."
There is nothing in the crossexamination of PW16 Dr. Saroj Aggarwal so as to impeach her creditworthiness.
I have carefully perused and analysed the MLC Ex. PW12/A as well as the gynaecological examination Ex. PW16/A on the MLC Ex.
121 of 145 122 FIR No. 55/10 PS - Shahbad Dairy PW12/A. Whatever, alleged history was told by the patient/prosecutrix has been noted down in the said MLC and the gynaecological examination by the concerned Doctors.
At the cost of repetition, it is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
A conjoint reading of the testimony of PW1 - prosecutrix and the alleged history contained in MLC Ex. PW12/A and gynaecological examination Ex. PW16/A on the MLC Ex. PW12/A does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is 122 of 145 123 FIR No. 55/10 PS - Shahbad Dairy nothing in her statement to suggest that she had any animus against the accused Narender Kumar Giri to falsely implicate him in the case. The version of PW1 prosecutrix on the core spectrum of crime has remained intact.
It is also to be noticed that in case "Noor Salam Vs. State (Govt. of NCT of Delhi)", 2013 II AD (Cri.) (DHC) 322 it has been held that it is not mandatory for Doctor to record in MLC or to make enquiry from injured about name of assailant. Generally Doctors on duty do not ask for assailant's name. Omission of injured to disclose assailant's name to Doctor does not discredit her testimony.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused submitted that the fact that accused Narender Kumar was with accused Ravinder Kumar on 11/03/2010 at the time of incident is also falsified from the evidence of PW5 - HC Malwa Ram who deposed that on 11/03/2010 at about 9:30 123 of 145 124 FIR No. 55/10 PS - Shahbad Dairy p.m. he received a message from Wireless Operator on telephone in the DO Room that "Prosecutrix (name withheld) Ko Ravinder Bhaga Ke Le Gaya" and this message has been entered in daily diary vide DD No. 43A and the true copy of the same is Ex. PW5/A. PW3 W/Constable Poonam also deposed that at about 10:10 a.m. she received an information from Wireless Operator that in the Village Singhum Shiv Mandir, Dabbu Ki Factory, "Ek Ladka Ek Ladki Ko Mere Plot Par Bhaga Kar Laya Hai" and this message was recorded in daily diary vide DD No. 34B in Daily Diary register and copy of the said entry is Ex. PW3/A. These facts clearly show that accused Narender Kumar Giri was not with accused Ravinder Kumar Giri and he has been falsely implicated in the above noted case by the prosecutrix at the instance of her parents and Uncle Munna.
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, it is a settled principle that the 124 of 145 125 FIR No. 55/10 PS - Shahbad Dairy statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused Narender Kumar Giri to falsely implicate him in the case. The version of PW1 prosecutrix on the core spectrum of crime has remained intact.
The testimonies of PW3 - W/Constable Poonam and PW5
- HC Malwa Ram have been dealt with hereinbefore.
At the cost of repetition, PW3 - W/Constable Poonam has deposed that on 13/03/2010, she was working as DD Writer at PS Alipur from 8:00 a.m. to 4:00 p.m. At about 10:10 a.m., she received an information from Wireless Operator that "in village Singhu, Shiv Mandir, Dabbu ki factory, ek ladka ek ladki ko mere plot par bhaga kar laya hai". She recorded this message in the daily diary vide DD no.
125 of 145 126 FIR No. 55/10 PS - Shahbad Dairy 34B. She has brought the original DD Register pertaining to DD No. 34B. The said entry is in her hand and true copy of the same is Ex. PW3/A which is in her hand and bears her signature at point 'A'. She informed to HC Ramesh of PS Alipur on telephone regarding the facts of the DD for necessary action (Original seen and returned).
At the cost of repetition, PW5 HC Malwa Ram has deposed that on 11/03/2010 he was posted at PS Shahbad Dairy and working as Duty Officer from 4:00 p.m. to 12:00 midnight. On that day, at about 9:30 p.m. he received message from Wireless Operator on telephone in the DO room that "FBlock, H. No. 156, Shahbad Dairy, prosecutrix (name withheld) Ko Ravinder Bhaga Kar Le gaya". He recorded this message in the daily diary vide DD No. 43A. He has brought the DD Register and the same is in his hand and true copy of the same is Ex. PW5/A which bears his signature at point 'A' (Original seen and returned). He has brought the FIR Register. The FIR was got recorded on the computer through the Computer Operator by SI Rajender Singh (since returned). He identified his signature on the FIR, photocopy of the same is Ex. PW5/B which bears the signature of SI 126 of 145 127 FIR No. 55/10 PS - Shahbad Dairy Rajender at point 'A', as he received charge from him as DO in the same night and he (PW5) had seen him (SI Rajender) writing and signing during the course of their official duty.
There is nothing in the crossexamination of PW3 - W/Constable Poonam and PW5 - HC Malwa Ram so as to impeach their creditworthiness. On careful perusal and analysis, the testimonies of PW3 - W/Constable Poonam and PW5 - HC Malwa Ram are found to be clear, cogent, convincing and inspiring confidence. There is nothing in their statements to suggest that they had any animus against the accused Narender Kumar Giri to falsely implicate him in the case. They have deposed regarding the facts as to what they acted, perceived and observed.
On a conjoint reading of the testimony of PW1 -
prosecutrix with the testimonies of PW3 - W/Constable Poonam and PW5 - HC Malwa Ram, the theory floated by the Learned Counsel for the accused that, "the facts disclosed by the said PWs show that accused Narender Kumar Giri was not with accused Ravinder 127 of 145 128 FIR No. 55/10 PS - Shahbad Dairy Kumar Giri and he has been falsely implicated by the prosecutrix at the instance of her parents and Uncle Munna", is found to have no substance and falls flat on the ground.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for accused submitted that no sexual intercourse was committed by accused Narender Kumar Giri as the prosecutrix had gone with Ravinder Kumar Giri on her own voluntarily and further no injury marks on the private parts of the prosecutrix have been found which can prove that she was sexually assaulted by accused Ravinder Kumar Giri.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, it is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement 128 of 145 129 FIR No. 55/10 PS - Shahbad Dairy and ignoring its proper reference.
The testimony of PW1 - prosecutrix as well as the Biological and Serological evidence Ex. PW17/A and Ex. PW17/B have been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused Narender Kumar Giri to falsely implicate him in the case. The version of PW1 prosecutrix on the core spectrum of crime has remained intact.
PW13 - Wazir Ahmed, father of the prosecutrix during his crossexamination recorded on 22/11/2012 has specifically deposed that : "It is incorrect to suggest that my daughter had gone with accused Ravinder of her own will and she was not kidnapped by accused Ravinder or Narender."
At the cost of repetition, PW1 - prosecutrix in her 129 of 145 130 FIR No. 55/10 PS - Shahbad Dairy examinationinchief has specifically deposed which is reproduced and reads as under : "On 11/03/2010, I had gone to my School which was Govt.
th School, Shahbad Dairy where I was studying in 7 Class. When I was coming to my house from School at about 5:00 p.m. and when I was coming at road, one TSR stopped near me from which two persons get down. They were identified by me as Ravinder Kumar Giri, accused present in the Court today (correctly identified) who is brother of my Step Mother Gayatri. The second person was Narender who is brother of accused Ravinder Kumar Giri. He was known to me as he used to visit our house prior to the incident to meet his sister Gayatri, my Step Mother. Accused Narender is not present in the Court today (now got declared PO). Accused Narender shut my mouth with his hand and accused Ravinder Kumar Giri dragged me from my hand and forced me to sit in the TSR. Thereafter, the driver of the TSR started the same at the instance of the accused persons and they took me towards Singhola Village, Delhi, where accused get down me from the TSR and took me inside a room by opening the lock of the said room by accused Ravinder Kumar Giri. Both the accused entered into the said room and slapped me. Thereafter, accused Narender came out from the said room and accused Ravinder Kumar Giri did "Galat Kaam" with me. "Galat Kaam" means he had committed sexual intercourse with me forcibly without my consent and will. Both the accused kept confine me in the said room. During this period, accused Ravinder Kumar Giri committed rape upon me four times. I requested the accused persons to set me free, so that I can go (to) my house. Then both the accused persons threatened me to kill me."
(Underlined by me) 130 of 145 131 FIR No. 55/10 PS - Shahbad Dairy During her further examinationinchief recorded on 20/05/2011, PW1 - prosecutrix has specifically deposed which is reproduced and reads as under : "Accused Narender Giri who was sitting outside the room where accused Ravinder Kumar Giri had committed rape upon me, is present in the Court today and correctly identified by the witness. I can identity my clothes which I was wearing at the time of incident, if same is shown to me."
(Underlined by me) At the cost of repetition, on analysing the entire testimony of PW1 - prosecutrix, it transpires that she has described the scenario implicating accused Ravinder Kumar Giri (Juvenile) and his brother accused Narender Kumar Giri to be the author of the crime committed upon her, of the committal of the sexual assault upon her by accused Ravinder Kumar Giri (Juvenile) acting in furtherance of their common intention with accused Narender Kumar Giri. The accused has failed to elicit any material or relevant discrepancies or inconsistencies despite her searching cross 131 of 145 132 FIR No. 55/10 PS - Shahbad Dairy examination. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact.
As per the Biological and Serological evidence Ex. PW17/A and Ex. PW17/B, as discussed and analysed hereinbefore, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Ravinder Kumar Giri (Juvenile) with PW1 - prosecutrix without her consent acting in furtherance of their common intention with accused Narender Kumar Giri.
So far as the plea raised regarding absence of injury marks on the private parts of the body of the prosecutrix is concerned, the absence of any injury marks does not falsify the case of the prosecution which is otherwise proved on the record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the 132 of 145 133 FIR No. 55/10 PS - Shahbad Dairy 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. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of 133 of 145 134 FIR No. 55/10 PS - Shahbad Dairy injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for accused submitted that from the acts of the prosecutrix it has been established that the prosecutrix was habitual of sexual intercourse as she left her parents house many times with many persons.
I have carefully perused and analysed the evidence on record.
As regards the plea raised by the Learned Counsel for the accused that PW1 prosecutrix was habitual of sexual intercourse as she left her parents with many persons, is concerned, it is not made clear by the Learned Counsel for accused as to what benefit he intends to reap from the said plea so raised. Does he intend to convey that PW1 -
134 of 145 135 FIR No. 55/10 PS - Shahbad Dairy prosecutrix is a girl/woman of "easy virtues" or a girl/woman of "loose moral character". If it is so, it is not permissible as every woman has a right to protect her dignity and cannot be subjected to rape only for that reason.
In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"
can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the 135 of 145 136 FIR No. 55/10 PS - Shahbad Dairy Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for accused submitted that the prosecutrix in her statement u/s 164 Cr.P.C. before the Learned Metropolitan Magistrate deposed against the accused persons at the instance of her parents and Uncle Munna.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, 136 of 145 137 FIR No. 55/10 PS - Shahbad Dairy cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused Narender Kumar Giri to falsely implicate him in the case. The version of PW1 prosecutrix on the core spectrum of crime has remained intact.
PW1 - prosecutrix during her examinationinchief has deposed that her statement was also recorded u/s 164 Cr.P.C. and she signed that statement and proved the statement u/s 164 Cr.P.C. as Ex. PW1/A bearing her signature at points 'A' and 'B'.
On careful perusal and analysis, the testimony of PW1 - prosecutrix has also been found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW1/A. At the cost of repetition, there is nothing in the cross examination of PW1 - prosecutrix, so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. In the entire incisive and lengthy cross 137 of 145 138 FIR No. 55/10 PS - Shahbad Dairy examination of PW1 prosecutrix, nothing has been brought out on the record to indicate that the statement u/s 164 Cr.P.C. Ex. PW1/A was made by her at the instance of her parents and Uncle Munna.
PW1 - prosecutrix during her crossexamination recorded on 12/02/2013 has specifically deposed which is reproduced and reads as under : "It is wrong to suggest that the statement made on 13/03/2010 and on 15/03/2010 (u/s 164 Cr.P.C. Ex. PW1/A) were given on the tutoring of my parents. Vol. The said statements were made regarding the incident which happened with me and through which I passed."
PW13 - Wazir Ahmed, father of the prosecutrix during his crossexamination has specifically deposed that : "It is incorrect to suggest that my daughter had given statement under the influence and at the instance of me and my wife."
It is also to be noticed that PW11 - Sh. Naveen Gupta, Learned MM in his examinationinchief has specifically deposed that on 15/03/2010, he was posted as MM at Rohini Courts. On that day, an 138 of 145 139 FIR No. 55/10 PS - Shahbad Dairy application moved by the IO before Learned Duty MM on 14/03/2010 was assigned to him to record the statement of prosecutrix (name withheld) D/o Sh. Wazir Ahmed, R/o Jhuggi No. F - 156, Shahbad Dairy, aged about 15 years, u/s 164 Cr.P.C. On 15/03/2010, the prosecutrix was produced before him by the IO ASI Anil Kumar was was correctly identified by him. The signature of the IO were obtained in this regard. He asked some rational questions to the prosecutrix about her age and about the name of her parents etc. as to ascertain the voluntariness of the witness. Thereafter, he was satisfied that the prosecutrix was making her statement voluntarily and without any pressure and she is competent to depose. Therefore, he recorded statement of prosecutrix (name withheld) u/s 164 Cr.P.C. the statement u/s 164 Cr.P.C. of witness/prosecutrix (name withheld) is Ex. PW1/A which bears his signature at point 'C' & 'D' and prosecutrix signed the same at point 'A' on both the pages. He certified regarding correctness of the statement. The certificate thereof is Ex. PW11/A which bears his signature at point 'A'. IO moved an application for obtaining the copy of the proceedings and the same was allowed which bears his signatures at point 'C'. He directed the Ahlmad of the Court to keep the statement of 139 of 145 140 FIR No. 55/10 PS - Shahbad Dairy the prosecutrix and the application mentioned above in a sealed cover after supplying the copy of the statement to the IO.
Despite grant of opportunity, PW11 - Sh. Naveen Gupta, Learned MM was not crossexamined on behalf of the accused.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel for accused submitted that on 29/03/2011 PW13 - Wazir Ahmad had gone to Jail to meet accused Ravinder and threatened him that if he would not pay money to him in that event his daughter/prosecutrix (name withheld) will depose against him and his brother before the Court and this fact shows that the accused Narender Kumar Giri and Ravinder Kumar Giri have been falsely implicated in this case.
I have carefully perused and analysed the evidence on record.
PW13 - Wazir Ahmed during his crossexamination 140 of 145 141 FIR No. 55/10 PS - Shahbad Dairy recorded on 22/11/2012 has specifically deposed that : "It is incorrect to suggest that I met Ravinder in Jail on 29/03/2011 and threatened him in case he does not give money to me my daughter (name withheld) will depose against him and his brothers before the Hon'ble Court."
As regards the theory propounded by the Learned Counsel for the accused that, "on 29/03/2011 PW13 - Wazir Ahmad had gone to Jail to meet accused Ravinder and threatened him that if he would not pay money to him in that event his daughter/prosecutrix (name withheld) will depose against him and his brother before the Court and this fact shows that the accused Narender Kumar Giri and Ravinder Kumar Giri have been falsely implicated in this case", is concerned, the same has not at all been made probable much established by any cogent evidence. Moreover the said theory, so propounded by the Learned Counsel for the accused was not put or suggested to PW1 - prosecutrix during her entire incisive and lengthy cross examination. Even during his statement recorded u/s 313 Cr.P.C., accused Narender Kumar Giri has not uttered a single word 141 of 145 142 FIR No. 55/10 PS - Shahbad Dairy regarding the said theory so propounded. In the circumstances, it is merely an afterthought and falls flat on the ground. The said theory appears to have been propounded by accused Narender Kumar Giri in order to save his skin from the clutches of law.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for the accused referred to a case and is reported as 'Jitender Vs. State' IV (2009) DLT (Crl.) 141.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same is 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 142 of 145 143 FIR No. 55/10 PS - Shahbad Dairy voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
32. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 11/03/2010, at about 5:00 p.m., near M. C. Primary School, Shahbad Dairy, BBlock - I, Rohini, Delhi, when PW1 - prosecutrix was coming to her house from the School, accused Narender Kumar Giri alongwith accused Ravinder Kumar Giri (Juvenile), in furtherance of their common intention, kidnapped PW1 - prosecutrix aged about 13 years (to be exact 13 years, 02 months and 09 days), by forcing her to sit in the TSR, accused Ravinder Kumar Giri (Juvenile) dragged her from her hand while accused Narender Kumar Giri shut her mouth with his hand, from the lawful guardianship without the consent of her parents, with intent that she may be compelled to marry with accused Ravinder Kumar Giri (Juvenile) or she may be forced/seduced to illicit intercourse and both the accused Narender Kumar Giri and Ravinder Kumar Giri (Juvenile), in furtherance of their common intention took her to village Singhola, Delhi and confined her there in a room and also slapped her, accused 143 of 145 144 FIR No. 55/10 PS - Shahbad Dairy Narender Kumar Giri, acting in furtherance of their common intention came out of the room while accused Ravinder Kumar Giri (Juvenile) acting in furtherance of their common intention forcibly committed sexual intercourse with the prosecutrix without her consent and against her will and that both the accused Narender Kumar Giri and Ravinder Kumar Giri (Juvenile) in furtherance of their common intention also criminally intimidated and threatened the prosecutrix to kill.
I accordingly hold accused Narender Kumar Giri guilty for the offences punishable u/s 363/34 IPC, u/s 366/34 IPC, u/s 376 (2)(g) IPC and u/s 506/342/34 IPC and convict him thereunder.
33. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Narender Kumar Giri in the commission of the offences u/s 363/34 IPC, u/s 366/34 IPC, u/s 376 (2)
(g) IPC and u/s 506/342/34 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 Narender Kumar Giri beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of 144 of 145 145 FIR No. 55/10 PS - Shahbad Dairy accused. I, therefore, hold accused Narender Kumar Giri guilty for the offences punishable u/s 363/34 IPC, u/s 366/34 IPC, u/s 376 (2)(g) IPC and u/s 506/342/34 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 20th Day of August, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 145 of 145