Delhi District Court
State vs . 1. Dharmender @ Dhannu on 11 March, 2014
1
FIR No. 417/2007
PS - Uttam Nagar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
Sessions Case No. : 43/13
Unique ID No. : 02404R0017422008
State Vs. 1. Dharmender @ Dhannu
S/o Sh. Kumar Pal Singh
R/o H. No. F2, Sewak Park Extn.,
Uttam Nagar, Delhi.
2. Phoolwati
W/o Bal Kishan
R/o H. No. 11, SBlock,
Nangli Sakarawati, Najafgarh,
Delhi.
3. Lalit Rishi @ Rinku
S/o Sai Dass Rishi
R/o H. No. 1132, Som Bazar,
Main Market, Najafgarh Road, Delhi.
4. Dinesh Kataria
S/o Raj Singh Kataria
R/o H. No. RZ92B,
Gopal Nagar, Najafgarh,
Delhi.
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2
FIR No. 417/2007
PS - Uttam Nagar
FIR No. : 417/2007
Police Station : Uttam Nagar
Under Sections : 363/376(2)(g)/368/342/506/323/34 IPC
Date of committal to session Court : 24/08/2007
Date on which judgment reserved : 22/02/2014
Date on which judgment announced : 11/03/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C. is as under : That on 20/05/2007 on receipt of copy of DD No. 2B regarding missing girl/prosecutrix (name withheld being a case u/s 376 IPC), ASI Radhey Shyam gave the Wireless Message after filling up the MPS Form informed the missing persons squad and started efforts for tracing out the missing girl. During this, on 22/05/2007, prosecutrix with her father Jagdish came to the Police Station and got recorded her statement which is to the effect that, that she lives with her parents and studies in 9th class. On 19/05/2007, after attending her extra class at Spring Meadows School, Uttam 2 of 104 3 FIR No. 417/2007 PS - Uttam Nagar Nagar, Delhi, came at about 12:30 p.m. at the outer main gate of the School and at that time, one boy Dharmender @ Dhannu who lives in his neighbourhood came on the motorcycle there who earlier also used to molest her and commit gesturing to her (Jo Pehle Bhi Mere Sath Ched Chad Va Isharebazi Karta Tha) and he made her to sit on his motorcycle and took her to the cosmetic shop of his friend Dinesh in Najafgarh which is near to Delhi Gate, Najafgarh whose owner is Rinku (Jisne Mujhe Apni Motorcycle Par Bitha Liya Va Najafgarh Mei Apne Dost Dinesh Jo Cosmetics Ki Dukaan Jo Delhi Gate Najafgarh Ke Paas Hai Jiska Malik Rinku Hai Ke Paas Le Gaya). Dharmender, after taking her in the rear portion of the shop, after threatening and intimidating her established physical relation with her against her wish and without her consent (Dharmender Ne Dukaan Ke Peeche Wale Hisse Mei Mujhe Le Jakar Dara Dhamka Kar Meri Marzi Ke Khilaf Sharirik Sambandh Banaya). Dharmender about 1½ months ago had also established physical relation with her without her consent and he had also threatened her if she disclosed regarding the incident to anyone then he will kill her. On 19/05/2007 itself, Dharmender took her to the house of his Bua Phoolwati W/o Bal Kishan, R/o House No. 11, S. Block, Nangloi, Sakarawati, Najafgarh, Delhi where Dharmender and Phoolwati after 3 of 104 4 FIR No. 417/2007 PS - Uttam Nagar threatening her to kill closed/confined her in a room and she remained confined in the room for the whole night. On the next morning, at about 6:00 a.m., Dharmender and Phoolwati after opening the bolt (Kunda) of the room took her out and Dharmender was found present there who (Dharmender) gave Rs. 500/ to her and told her that she is to go to Alwar, there he will meet her and threatened her if she went to her house or telephoned at her house then he will kill her, thereafter Dharmender made her sit in a bus of Dhaula Kuan Alwar and she reached at Alwar (Alwar chali gai). She finding her alone and due to being nervous (Ghabra Kar) telephoned her father and her father reached at Alwar and today (on 22/05/2007) has brought her to the Police Station and she has got recorded her statement. The statement has been heard and is correct. Legal action be taken. From the said statement, ASI Radhey Shyam finding that offences u/s 363/376/368/342/506/323/34 IPC appeared to have been committed got registered the case and proceeded with the investigation. During the course of investigation, medical examination of the prosecutrix was got conducted. Accused Dharmender @ Dhannu and Phoolwati were arrested and their medical examinations were got conducted. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. On the basis of the statement of the 4 of 104 5 FIR No. 417/2007 PS - Uttam Nagar prosecutrix u/s 164 Cr.P.C. accused Dinesh Kataria, Lalit Rishi @ Rinku were arrested. Section 376 (2)(g) IPC was added to section 376 IPC in the case. Medical examinations of both the accused Dinesh Kataria and Lalit Rishi @ Rinku were got conducted. Date of birth certificate of the prosecutrix was obtained. The sealed exhibits of the prosecutrix as well as of the accused persons were sent to the FSL.
Upon completion of the necessary further investigation, challan for the offences u/s 363/376(2)(g)/368/342/323/506/34 IPC was prepared against accused Dharmender @ Dhannu, Phoolwati, Dinesh Kataria, Lalit Rishi @ Rinku and was sent to the Court for trial.
2. Since the offence u/s 376(2)(g) IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing of charge prima facie a case u/s 368/34 IPC and u/s 506/34 IPC against accused Dharmender @ Dhannu and Phoolwati and a case u/s 363/34 IPC, u/s 366/34 IPC and u/s 376(2)(f) IPC against accused Dharmender @ 5 of 104 6 FIR No. 417/2007 PS - Uttam Nagar Dhannu, Lalit Rishi @ Rinku and Dinesh Kataria was made out. Charges were framed accordingly which were read over and explained to accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 21 witnesses. PW1 Prosecutrix, PW2 HC Shri Ram, PW3 - Jagdish, PW4 Sh. Rajesh Kumar, Asst. Public Heath Inspector/Sub Registrar, MCD (West Zone), Rajouri Garden, Delhi, PW5 Mrs. S. Dewan, Principal, Spring Meadows Public School, Dewan Estate, Main Najafgarh Road, Delhi, PW6 Constable Prem Chand, PW7 Constable Rajan, PW8 HC Ramniwas, PW9 Ms. Sulekha, Ex. Home Guard Official, PW10 Dr. Ashish Arora, CMO, DDU Hospital, Delhi, PW11 Dr. Vinal Sharma, CMO, DDU Hospital, Delhi, PW12 Lady Constable Rekha, PW13 Dr. Namita Gupta, DDU Hospital, Delhi, PW14 HC Ashok Kumar, PW15 Sh. Deepak Garg, Joint Registrar, High Court of Delhi, PW16 Sh. A. K. Shrivastva, Asstt. Director (Biology), FSL Rohini, Delhi, PW17 HC Sher Singh, PW18 HC Anil Kumar, PW19 Shyam Singh, PW20 Sh. Naveen Kumar and PW21 - SI Radhey Shyam.
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5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the Police Ex. PW1/A, proved her statement recorded u/s 164 Cr.P.C Ex. PW1/B and proved and identified her clothes the tie Ex. P1, belt Ex. P2, shirt Ex. P3 and skirt Ex. P4.
PW2 HC Shri Ram is the is the Duty Officer, who deposed that on the night intervening 2122/05/2007, he was posted at PS - Uttam Nagar and was working as DO from 1:00 a.m. to 9:00 a.m. On that day at about 1:30 a.m., ASI Radhey Shyam handed over one rukka to him. On the basis of that rukka he (PW2) registered FIR No. 417/07 u/s 363/376/368/342/506/34 IPC. He recorded the FIR in computer. He has brought the original FIR register with him. Computer generated copy of the FIR is Ex. PW2/A. (Original seen and returned.) Further investigation of this case was entrusted to ASI Radhey Shyam who had already left for spot. He (PW2) sent rukka and copy of the FIR to ASI Radhey Shyam.
PW3 Jagdish is the father of the prosecutrix who deposed 7 of 104 8 FIR No. 417/2007 PS - Uttam Nagar regarding the facts of the missing of his daughter/prosecutrix and the efforts made to trace her out and of the lodging of missing report Mark 'A' (also Ex. PW8/A) and regarding the facts of incident as were disclosed to him by his daughter/prosecutrix and on the investigational aspects which he joined. He proved the arrest memo of accused Dharmender Ex. PW3/A, his personal search memo Ex. PW3/B, his disclosure statement Ex. PW3/C, arrest memo of accused Phoolwati Ex. PW3/D, her personal search memo Ex. PW3/E, her disclosure statement Ex. PW3/F, arrest memo of accused Dinesh Kataria Ex. PW3/G, his personal search memo Ex. PW3/H, his disclosure statement Ex. PW3/J, seizure memo of the parcel of clothes of prosecutrix Ex. PW3/K, arrest memo of accused Rinku Ex. PW3/L, his personal search memo Ex. PW3/M, also proved the clothes of his daughter/prosecutrix, tie Ex. P1, belt Ex. P2, shirt Ex. P3 and skirt Ex. P4.
PW4 Sh. Rajesh Kumar, Asst. Public Health Inspector/Sub Registrar, MCD (West Zone), Rajouri Garden, Delhi who deposed that he has brought the original record pertaining to the registration of birth at Serial No. 4586 dated 03/07/1992. The date of birth of the said child (prosecutrix/name withheld) is 21/06/1992. The date of registration of birth is 03/07/1992. The 8 of 104 9 FIR No. 417/2007 PS - Uttam Nagar sex of the child is female. The said child was born at Aggarwal Maternity Home, Janak Puri. The then address of the parents of said child was H. No. 56, Site - II, Vikas Puri, New Delhi. Father's name of said child is Jagdish Kumar. Qualification of Jagdish Kumar middle, Nationality - Indian, Religion Hindu and the name of mother of said child is Vidyawati, Qualification - Primary, Housewife, Indian and by Religion Hindu. At that time the age of the mother of said child was 30 years and she was having four children including this new born whose birth was registered at Serial No. 4586 dated 03/07/1992. The photocopy of the said record running into two pages is Ex. PW4/A and the entry of Serial No. 4586 is encircled at point 'A'. (Original record seen and returned.) PW5 Mrs. S. Dewan, Principal, Spring Meadows Public School, Dewan Estate, Main Najafgarh Road, Delhi who deposed that she has seen the certificate given by her on 11/06/2007 available on the judicial file where it was certified that prosecutrix (name withheld) D/o Sh. Jagdish Kumar, R/o B1/53/1, Sewak Park, Uttam Nagar was a bonafide student of her School on the relevant date and was studying in class IXth B and as per 9 of 104 10 FIR No. 417/2007 PS - Uttam Nagar School record her date of birth is 21/06/1992 (Twenty First June Nineteen Hundred Ninety Two). Said certificate is Ex. PW5/A signed by her at point 'A'. She has also seen another certificate issued by her dated 17/07/2007 where it was certified that prosecutrix (name withheld) D/o Jagdish Kumar student of Class IXth B had attended the extra class held on 19/05/2007 and left the School at 12:30 p.m. This certificate is Ex. PW5/B signed by her at point 'A'. She has brought the original admission & withdrawal register of the School and admission number of prosecutrix (name withheld) is 4994 dated 08/04/2006 and her date of birth is mentioned as 21/06/1992. The copy of the admission/withdrawal register is Ex. PW5/C (OSR). Prosecutrix (name withheld) was admitted in School in class VIIIth on the basis of the School Leaving Certificate of Sarvodya Kanya Vidyala, Vikas Puri, District Centre, New Delhi and in the said School Leaving Certificate her date of birth was mentioned as 21/06/1992. She has also brought the original list of extra classes held on 15 to 19 May, 2007 which shows that prosecutrix (name withheld) whose name is there at Serial No. 16 had attended the extra class on 19/05/2007. Copy of the same is Ex. PW5/D (OSR).
PW6 Constable Prem Chand who deposed that on 29/05/2007, 10 of 104 11 FIR No. 417/2007 PS - Uttam Nagar he was posted as Constable at PS - Uttam Nagar. On the same day, at around 4:15 p.m., he alongwith IO, prosecutrix (name withheld) and her father Jagdish went from PS to B92, Gopal Nagar, Najafgarh where, on the identification of prosecutrix (name withheld), accused Dinesh present int he Court was apprehended. IO prepared arrest memo Ex. PW3/G signed by him (PW6) at point 'X' and took his personal search vide memo Ex. PW3/H signed by him (PW6) at point 'X'. At the pointing of prosecutrix (name withheld), IO prepared pointing out memo of the place of occurrence which is Ex. PW6/A signed by him (PW6) at point 'X'. Accused Dinesh produced one skirt and one half sleeves shirt and one tie having with the words "SMPS", one belt and one hankey from Shop No. 1132, Som Bazar, Najafgarh. The same was identified by prosecutrix. It was converted into a sealed pullinda sealed with the seal of "RS" and seized vide memo Ex. PW3/K signed by him (PW6) at point 'X'. Thereafter, he took accused Dinesh to DDU Hospital for medical examination. After medical examination, Doctor handed over to him one sealed pullinda alongwith sample seal of DDU Hospital which in turn he handed over to IO vide memo Ex. PW6/B signed by him (PW6) at point 'X'. From the said shop, accused Lalit Rishi present in the Court was apprehended vide arrest memo Ex.
11 of 104 12 FIR No. 417/2007 PS - Uttam Nagar PW3/L signed by him (PW6) at point 'X' and personal search memo Ex. PW3/H signed by him (PW6) at point 'X'. Accused Lalit Rishi gave disclosure Ex. PW6/C signed by him (PW6) at point 'X'. Accused Lalit Rishi was got medically examined at DDU Hospital where Doctor handed over to him one sealed pullinda alongwith sample seal which he handed over to IO vide memo Ex. PW6/D signed by him (PW6) at point 'X'.
PW7 Constable Rajan who deposed that on 22/05/2007, he was posted as Constable at PS - Uttam Nagar when he took accused Dharmender, present in the Court, for medical examination to DDU Hospital. After medical examination, he came back to PS and handed over two sealed pullindas and one sample seal sealed with the seal of DDU Hospital to IO who had seized it vide memo Ex. PW7/A signed by him at point 'X1'. Accused was also handed over to the IO.
PW8 HC Ramniwas who deposed that in the intervening night of 1920/05/2007, he was posted at PS - Uttam Nagar as Constable. On that day, he was working as DD Writer from 5:00 p.m. to 1:00 a.m. At about 12:05 a.m. one Jagdish S/o Banwari Lal arrived at DO room and on his 12 of 104 13 FIR No. 417/2007 PS - Uttam Nagar dictation he recorded the missing report of prosecutrix (name withheld) aged about 15 years vide DD No. 2B dated 20/05/2007, PS - Uttam Nagar. Copy of the DD is Ex. PW8/A. (Original DD No. 2B is seen and returned.) He had obtained the signature of Jagdish S/o Banwari Lal below his statement in original DD Register.
PW9 Ms. Sulekha, Ex. Home Guard Official who deposed that on 22/05/2007, she was posted at PS - Uttam Hagar and her duty was from 7:00 a.m. to 2:00 p.m. On that day, IO handed over her the documents for medical examination of accused Phoolwati W/o Balkishan. She took her to DDU Hospital and after getting her medically examined she produced her before the IO at the PS alongwith her treatment documents. IO recorded her statement.
PW10 Dr. Ashish Arora, CMO, DDU Hospital, Delhi who deposed that he is posted in DDU Hospital since, 2004 as CMO. He has been deputed by Medical Superintendent, DDU hospital in place of Dr. Ratan Lal as he has left the Hospital and his present whereabouts are not known. He has seen MLC No. 11914 and 11915 pertaining to prosecutrix 13 of 104 14 FIR No. 417/2007 PS - Uttam Nagar (name withheld) and Dharmender available on the judicial file. Both the said MLC's were prepared by Dr. Ratan Lal, Sr. Resident. He can identify his signature and writing as he has seen him writing and signing in the course of officials duties. MLC of prosecutrix (name withheld) is Ex. PW10/A and same bears signature of Dr. Ratan Lal at point 'A'. After general examination, patient/prosecutrix (name withheld) was referred to Doctor on duty, Gynaecology. MLC of accused Dharmender which is in the handwriting of Dr. Rattan Lal is Ex. PW10/B signed by Dr. Ratan Lal at point 'A'. As per MLC, the patient Dharmender @ Dhannu was brought for medical examination. After examination, Dr. Ratan Lal has opined that there was nothing to suggest that the patient was not capable of performing the sexual act.
PW11 Dr. Vinal Sharma, CMO, DDU Hospital, Delhi who deposed that on 29/05/2007, he was posted at DDU Hospital as CMO. On that day, he medically examined one Dinesh Kataria brought by Constable Prem Chand with alleged history of sexual assault on 22/05/07 being accused. After his medical examination, he (PW11) was of the view that there was nothing to suggest that Dinesh Kataria cannot perform sexual act.
14 of 104 15 FIR No. 417/2007 PS - Uttam Nagar His semen sample was taken, preserved, sealed and handed over to the accompanying Constable. His MLC is Ex. PW11/A and is in his (PW11) handwriting and bears his signature at point 'A'. On the same day, he had also medically examined one Lalit Rishi @ Rinku brought by Constable Prem Chand with alleged history of sexual assault being accused. After his medical examination, he (PW11) was of the view that there was nothing to suggest that Lalit Rishi @ Rinku cannot do sexual act. Lalit Rishi @ Rinku refused to give his semen sample. So his blood sample was taken, sealed and handed over the accompanying Constable. His MLC is Ex. PW11/B and is in his (PW11) handwriting and bears his signature at point 'A'.
PW12 Lady Constable Rekha who deposed that on 22/05/2007, she was posted in PS - Uttam Nagar. On that day, she had joined the investigation of this case and on the directions of the IO of this case, she had got the prosecutrix medically examined from DDU Hospital. After medical examination of the prosecutrix, Doctor handed over her the sealed parcel of prosecutrix alongwith sample seal of CMO, DDU Hospital which she handed over to IO and same was taken into possession by the IO vide memo Ex. PW12/A which bears her signature at point 'A'. Her statement was recorded 15 of 104 16 FIR No. 417/2007 PS - Uttam Nagar to that extent.
PW13 Dr. Namita Gupta, DDU Hospital, Delhi who deposed that she has been deputed to appear and depose on behalf of Dr. Geetanjali who has since left the Hospital and her present whereabouts are not known to her. She is conversant with the handwriting and signatures of said Doctor as she has seen her writing and signing during the course of her duties. She has seen the MLCs No. 11914, E. No. 64704 of prosecutrix (name withheld) D/o Jagdish Kumar who was examined by Dr. Geetanjali, Senior Resident, Gynae and she (PW13) identify signature of Dr. Geetanjali at point 'B' on MLC already exhibits as Ex. PW10/A. She also identify her endorsement from point 'X' to 'X' on Ex. PW10/A. PW14 HC Ashok Kumar who deposed that on the intervening night of 2122/05/2007 he was posted at PS - Uttam Nagar. On that day, Jagdish brought his daughter/prosecutrix (name withheld) at PS. ASI Radhey Shyam recorded the statement of prosecutrix (name withheld) under her statement he (PW14) made endorsement and case was (got) registered from the D.O. The seizure memo of the prosecutrix (name withheld) was 16 of 104 17 FIR No. 417/2007 PS - Uttam Nagar prepared vide memo Ex. PW14/A bearing her signature at point 'A'. On the same day, he alongwith ASI Radhey Shyam, father of the prosecutrix (name withheld) and prosecutrix went to the house of accused Dharmender i.e. F2, Sewak Park, Uttam Nagar, Delhi. IO at the instance at prosecutrix arrested the accused person Dharmender vide memo Ex. PW3/A bearing his signature at point 'B'. Personal search was also conducted vide Ex. PW3/B signed by him at point 'B'. IO called Constable Rajan and Lady/Constable Rekha from the PS. Accused and prosecutrix were got medically examined through Constable Rajan and Lady Constable Rekha from DDU Hospital and he alongwith IO and prosecutrix and her father and accused Dharmender went to the house of Phoolwati i.e. at House No. 11, SBlock, Nangli Sakravati. She was also arrested by the IO vide Ex. PW3/D signed by him at point 'B' and her personal search memo was prepared Ex. PW3/E signed by him at point 'B'. They all alongwith both accused went to the shop of Rinku @ Lalit Rishi i.e. Najafgarh i.e. Shop No. 1132, Som Bazar, Main Bazar. Pointing out memo was prepared by the IO same is Ex. PW6/A. Thereafter, they all returned to the PS. IO got medically examined accused Phoolwati and accused was sent to lockup. Statement of witness was recorded by the IO.
17 of 104 18 FIR No. 417/2007 PS - Uttam Nagar PW15 Sh. Deepak Garg, Learned Joint Registrar Hon'ble High Court of Delhi who deposed that on 25/05/2007, he was posted at Rohini District Courts as Metropolitan Magistrate. An application for recording of the statement of prosecutrix (name withheld) was assigned to him as he was 1st Link MM as the Link MM was on leave on 25/05/2007. He recorded the statement of prosecutrix (name withheld) after she was identified by the IO/ASI Radhey Shyam after ascertaining that prosecutrix was making the statement voluntarily. Statement is already Ex. PW1/B signed by him at point 'X1' and appended a certificate which is Ex. PW15/A signed by him at point 'X2'.
PW16 Sh. A. K. Shrivastva, Asstt. Director (Biology), FSL Rohini, Delhi who deposed that on 29/06/2007 he received five sealed pullindas and after examining the articles in the pullindas, he filed the reports of analysis and biological division. Reports are Ex. PW16/A and Ex. PW16/B signed by him at point 'A' respectively.
PW17 HC Sher Singh who deposed that on 29/06/2004, he 18 of 104 19 FIR No. 417/2007 PS - Uttam Nagar took five sealed pullindas from MHC(M), Uttam Nagar and deposited the same in FSL, Rohini vide RC No. 114/21/07 and took acknowledgment from FSL and gave it to MHC(M). Nobody touched the pullindas on the way.
PW18 HC Anil Kumar who deposed that on 22/05/2007, he was working at PS - Uttam Nagar. On that day, ASI - Radhey Shyam deposited three sealed pullindas and two sample seals of DDU Hospital and on 29/05/2007 deposited three pullindas, two sealed with the seal of DDU and one sealed with the seal of 'RS' and he made entry at Serial No. 4725 & 4740 respectively in Register No. 19. All the sealed pullindas were sent to FSL, Rohini on 29/06/2007 through Constable Sher Singh vide RC No. 114/21/07 and the same were returned alongwith FSL Report on 22/09/2008 and report was deposited in the Court through ASI Radhey Shyam. The extract of Register No. 19 of the above entries is collectively Ex. PW18/A (OSR) and copy of RC No. 114/21/07 is Ex. PW18/B (OSR) and receipt given by FSL Official is Ex. PW18/C (OSR).
PW19 Shyam Singh is the fatherinlaw of accused Dharmender who deposed that he has brought the motorcycle bearing No. 19 of 104 20 FIR No. 417/2007 PS - Uttam Nagar DL 9 SU 1594 make 'Discover' of black and blue colour which is registered in his name. The above motorcycle was given by him to his soninlaw accused Dharmender at the time of marriage of his daughter Rekha. The marriage of his daughter Rekha took place in May, 2006. Accused Dharmender was using the said motorcycle. Motorcycle is Ex. PX and is the same which he had given in the marriage of his daughter.
PW20 Sh. Naveen Kumar is the photographer who deposed that he is working in the shop of a Photographer. The shop owner was Sh. Lalit who was running the shop situated at B69, J. J. Colony Uttam Nagar in the name of Lalit Photo Studio. He does not remember the date and month but it was in the year 2007, he was called by Najafgarh Police Officials and he went to the place which was a shop situated in the main market Najafgarh, Delhi. He does not remember the shop number. He took six photographs as per the instructions of the Police Officials of the shop from his digital camera from different angels and after preparing the positives of the photographs, he had given the same to the IO. Same are Ex. P1 to Ex. P6. The digital camera was having memory card and the negatives were not available if the photographs were taken from this camera. He has not taken 20 of 104 21 FIR No. 417/2007 PS - Uttam Nagar photograph other than the shop situated at main market.
During the leading questions put by the Learned Addl. PP for the State, he deposed that it is correct that the shop number was 1132 at main market Najafgarh from where he took six photographs on 08/07/2007 and it is also correct that from the shop he went to House No. 11, Nangli Sakrawati alongwith the Police officials and he took two photographs of a room as per the instructions of the IO from his digital camera and the positives were handed over to the IO same are Ex. P7 and Ex. P8. The negatives are not available as the photographs were taken from digital camera.
PW21 SI Radhey Shyam is the investigating officer (IO) of the case who deposed that on 20/05/2007, he was posted at Police Station Uttam Nagar as ASI. On that day, he received DD No. 2B from Duty Officer i.e. Ex. PW8/A regarding missing of a girl/prosecutrix (name withheld) aged around 15 years lodged by Jagdish Kumar. He filled the missing persons form and also flashed the wireless message to all the Police Stations in India as well as in Delhi. He also tried to search the prosecutrix but could not trace out on that day. On the intervening night of 2122/05/2007 the prosecutrix (name withheld) came to the Police Station alongwith his father 21 of 104 22 FIR No. 417/2007 PS - Uttam Nagar Jagdish Kumar. He investigated her and recorded her statement already exhibited as Ex. PW1/B signed by her at point 'A' and her signatures were attested by him at point 'B'. He also prepared recovery memo of the prosecutrix (name withheld), same is Ex. PW14/A signed by him at point 'A'. HC Ashok Kumar also joined the investigation and he (PW21) made endorsement Ex. PW21/A on the statement of the prosecutrix signed by him at point 'C' and the rukka was given to Duty Officer by him for the registration of the case. In the meantime, he had called Lady Constable Rekha and she took prosecutrix for her medical examination to DDU Hospital. After medical examination, the concerned Doctor has given one sealed pullinda and a sample seal sealed with the seal of CMO, DDU Hospital to Lady Constable Rekha who had handed over to him after returning to the Police Station and same was seized vide memo already exhibited as Ex. PW12/A signed by him at point 'B'. In the meantime, FIR was also registered vide FIR No. 417/07 under section 363/376/368/342/506/34 IPC and the copy of the FIR already exhibited as Ex. PW2/A. On the same day, he alongwith prosecutrix, father of the prosecutrix Jagdish Kumar, HC Ashok and W/Constable Rekha went to the house of alleged accused Dharmender situated at Sewak Park, Uttam Nagar 22 of 104 23 FIR No. 417/2007 PS - Uttam Nagar and his house number was F2. Accused was found present at his house and at the instance of the prosecutrix he was arrested vide arrest memo Ex. PW3/A signed by him at point 'C'. His personal search memo Ex. PW3/B was prepared. He was interrogated and his disclosure statement Ex. PW3/C was recorded by him (PW21). Constable Rajan was also called from the Police Station and accused Dharmender was handed over to him (Constable Rajan) and he was directed to get accused Dharmender medically examined from DDU Hospital and took him to Police Station. From Sewak Park, Uttam Nagar, Delhi they all went to Nangali Sakarawati, Najafgarh in search of alleged accused Phoolwati where she was found present and at the instance of the prosecutrix she was apprehended and after formal interrogation, she was arrested vide memo Ex. PW3/D signed by him at point 'B' and her personal search was also conducted by Lady Constable and her personal search memo Ex. PW3/E was prepared by him. She was interrogated and her disclosure statement was also recorded vide memo Ex. PW3/F signed by him at point 'B' and Woman DHG Sulekha was called from the Police Station and under her protection her (accused Phoolwati) medical examination was conducted from DDU Hospital and she took the accused Phoolwati to Police Station from DDU Hospital and they all also returned to 23 of 104 24 FIR No. 417/2007 PS - Uttam Nagar the Police Station. Case property was deposited with MHC(M) and both the accused were sent to lock up and produced before the Court and sent to judicial custody. Prosecutrix was released by the Court to her father Jagdish Kumar. On 25/05/2007, he moved an application for recording the statement of the prosecutrix under section 164 Cr.P.C. vide his application Ex. PW21/B and the statement was recorded on the same day which is Ex. PW1/E (Be read as PW1/B). He also received the copy of statement recorded under section 164 Cr.P.C. from the concerned Court. On the basis of the statement Ex. PW1/E (Be read as PW1/B) the investigation was carried out and both the wanted accused Lalit Rishi and Dinesh Kataria were apprehended from their respective residences i.e. RZ92 B, Gopal Nagar, Najafgarh and House No. 1132 Som Bazar, Main Market, Najafgarh, Delhi and were interrogated both were arrested vide arrest memo Ex. PW3/L and Ex. PW3/G respectively. Their personal search was also conducted vide personal search memos Ex. PW3/M and Ex. PW3/H. Both were interrogated and disclosure statement of Lalit Rishi Ex. PW6/C and accused Dinesh Kataria Ex. PW3/J was recorded. Both the accused were medically examined through Constable Prem Chand and after their medical examinations, pullindas given by the concerned Doctor were taken into possession vide memo Ex. PW6/D and Ex.
24 of 104 25 FIR No. 417/2007 PS - Uttam Nagar PW6/B signed by him (PW21). Case property was deposited in the Malkhana and accused were sent to lock up. He also recorded the statement of relevant witnesses under section 161 Cr.P.C. On 08/07/2007, he called the prosecutrix and her father and at the instance of the prosecutrix, the site plan of the place from where the prosecutrix was kidnapped i.e on the Najafgarh Road, Delhi and to this effect site plan Ex. PW21/C was prepared which is signed by him at point 'A' and he has also prepared site plan of the house at Nangali Vihar, where she was kept by the accused and wrongfully confined her. The site plan is Ex. PW21/D signed by him at point 'A'. He has also prepared the site plan of the shop No. 1132 belonging to accused Lalit Rishi there the clothes of the prosecutrix were changed by the accused persons at the instance of the prosecutrix. The site plan in this respect is Ex. PW21/E signed by him at point 'A'. Later on accused Dinesh Kataria (got) recovered the changed clothes of the prosecutrix from the above said shop. The exhibits of this case were sent to FSL Rohini on 08/07/2007 and the result was procured, same was filed in the Court which is Ex. PW16/A and Ex. PW9/B (Be read as Ex. PW16/B). He has also collected the photographs taken by Photographer. He also collected the date of birth certificate of the prosecutrix from the school where the prosecutrix was studying in 9th B i.e. 25 of 104 26 FIR No. 417/2007 PS - Uttam Nagar Spring Meadow Public School which is Ex. PW5/A and another certificate is also taken from the School which is Ex. PW5/B. He has also collected the date of birth certificate of the prosecutrix from the MCD showing her date of birth as 21/06/1992 and the copy of the certificate is Mark 'X'. All the accused are present in the Court. He has also recorded the statements of the witnesses and after completion of the investigation, filed the challan in the Court. He also identified the changed clothes (got) recovered by accused Dinesh Kataria i.e. one belt, one tie, one shirt, one skirt and one handkerchief and the same are Ex. P1 to Ex. P5. (Previously given Ex. P1 to Ex. P4).
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statements of accused Dharmender @ Dhannu, Phoolwati, Lalit Rishi @ Rinku and Dinesh Kataria were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Except for accused Dharmender @ Dhannu no other accused opted to lead any defence evidence.
In his defence accused Dharmender @ Dhannu has examined two witnesses namely DW1 Sh. Sonu Suneja S/o Sh. Sunder Lal Suneja, 26 of 104 27 FIR No. 417/2007 PS - Uttam Nagar Age - 29 years, R/o B1/54/2, C. R. Park, Uttam Nagar, Delhi and DW2 Sh. Tej Singh S/o Het Ram, Age - 62 years, R/o D55, Sewak Park, Uttam Nagar, Delhi.
DW1 Sh. Sonu Suneja who deposed that he made a compliant against Smt. Vidya and Jagdish Sharma R/o B1/53/1, Ex. Sewak Park, Uttam Nagar, Delhi to DCP Crime Branch on dated 21/06/2007, the copy of which is Mark DX1, bearing his signature at point 'A'. He also made another complaint to Police Commissioner, ITO, New Delhi on 21/06/2007, the copy of which is Mark DX2, which bears his signature at point 'A'. He also made another complaint to DCP, Rajouri Garden on the same day i.e. 21/06/2007 the copy of which is Mark DX3, bearing his signature at point 'A'. All the said complaints Mark DX1 to Mark DX3 were also signed by the residents of Mohalla at point 'B' respectively. The reputation of Vidya Sharma and Jagdish Sharma is very bad in the Mohalla and are habitual false complaint makers. Report regarding them was also published in the newspaper. The copy of the news report is Mark DX4.
DW2 Sh. Tej Singh who deposed that he knows Vidya Sharma 27 of 104 28 FIR No. 417/2007 PS - Uttam Nagar and Jagdish Sharma who are R/o B1/53/1, Ex. Sewak Park, Uttam Nagar, Delhi. The character of Vidya Sharma is not good and she is a habitual false complaint maker. Some Nigerians were apprehended from her house and the news was flashed in the newspaper also. The residents of Mohalla made complaints against them.
7. Learned Counsel for accused Dharmender @ Dhannu submitted that PW1 - prosecutrix in her testimony admitted that she had gone to Alwar in a Bus and thereafter, she made a call to her father from Alwar and as such, her father went there and she was brought back by her father. Learned Counsel for accused further submitted that it is an admitted fact by the prosecution itself that no phone call was made by the father of the prosecutrix or by the prosecutrix, hence, the allegations are baseless and bogus. When no call was made, nor any complaint was made, nor she raised any alarm which shows that the story made by the prosecutrix is baseless and bogus and accused has been falsely implicated in this case. Learned Counsel for accused further submitted that the exact date of birth of the prosecutrix is not produced by the prosecution. Learned Counsel for accused further submitted that the prosecutrix was medically examined and as per the report 28 of 104 29 FIR No. 417/2007 PS - Uttam Nagar of the Doctor, she was found habitual of intercourse and no fresh injury was found on her private parts. Learned Counsel for accused further submitted that the prosecutrix and her parents are habitual of making the false complaints and as such, the defence witnesses are examined and the photocopies of the complaints are placed on the record which shows that the prosecutrix and her family members are habitual of making the false complaints to take undue advantage from the accused persons. Learned Counsel for accused further submitted that the criminals and unsocial persons used to visit the house of the prosecutrix and some Nigerians were also arrested from the house of prosecutrix. Learned Counsel for accused further submitted that the prosecutrix was never threatened by accused Dharmender @ Dhannu and the allegations against him are baseless and bogus. Learned Counsel for accused further submitted that the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused Dharmender @ Dhannu on all the charges levelled against him.
Learned Counsel for accused referred to a case and is reported as Sunil Kumar Sharma Vs. State NCT of Delhi 20011(6) AD(Delhi)11.
29 of 104 30 FIR No. 417/2007 PS - Uttam Nagar
8. Learned Counsel for accused Phoolwati submitted that in the entire evidence of PW1 - prosecutrix, no incriminatory role has been assigned against accused Phoolwati. Learned Counsel for accused further submitted that the entire examinationinchief and crossexamination of PW1
- prosecutrix shows that she had moved freely and voluntarily out of her free will and consent in the company of accused Dharmender on his motorcycle and there was no threat, force, coercion on the part of anybody upon her. Learned Counsel for accused further submitted that the entire evidence of PW1 - prosecutrix is a tutored one and she is a female of full maturity and understanding and has full developed rationality to think good or bad and to know the consequences of her act. Learned Counsel for accused further submitted that prosecution has failed to prove and establish its case against accused Phoolwati beyond reasonable doubt either by direct, indirect or circumstantial evidence. Learned Counsel for accused further submitted that the entire story of the prosecution is doubtful and suspicious as the prosecution has not examined the neighbours of accused Phoolwati to prove and establish the presence of prosecutrix on the date of alleged incident at the house of Phoolwati. Learned Counsel for accused further submitted that 30 of 104 31 FIR No. 417/2007 PS - Uttam Nagar PW1 - prosecutrix has not raised any alarm, hue and cry and had not given a single protest and objection in staying there and the natural human being will raise the protest when her/his liberty is restricted. Learned Counsel for accused further submitted that the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused Phoolwati on all the charges levelled against her.
9. Learned Counsel for accused Lalit Rishi submitted that the accused Lalit Rishi is not named in FIR/Rukka/statement before Police on which the FIR has been registered on 22/05/2007. Whereas the prosecutrix inserted the name of the accused Lalit Rishi as Rinku in her statement u/s 164 Cr.P.C. recorded on 25/05/2007.
Learned Counsel for the accused further submitted that PW1 - prosecutrix in her crossexamination has stated that "It is correct that I did not know accused Lalit prior to date of incident and Police did not arrest him in my presence and I never visited Central Jail to identify accused Lalit."
PW1 - prosecutrix during her further crossexamination has deposed that : 31 of 104 32 FIR No. 417/2007 PS - Uttam Nagar "It is correct that accused Lalit had no concern with Rinku." PW1 - prosecutrix during her further crossexamination has deposed that : "I did not know the name of other two persons."
Learned Counsel for accused further submitted that PW3 - Jagdish in his examinationinchief has deposed that : "Statement u/s 164 Cr.P.C. recorded of my daughter on 25/05/2007 wherein she mentioned two names of other two persons Kataria and Rinku."
Learned Counsel for accused further submitted that PW21 - SI Radhey Shyam in his examinationinchief has stated that prosecutrix was released by the Court to her father prior recording her statement u/s 164 Cr.P.C.
Learned Counsel for accused further submitted that PW21 - SI Radhey Shyam in his crossexamination has stated that : "I did not make any inquiry regarding the fact of going of PW1 to Alwar and making of call by her to PW3 from Alwar."
32 of 104 33 FIR No. 417/2007 PS - Uttam Nagar Learned Counsel for accused further submitted that it has been admitted by PW1 - prosecutrix that she does not know the name of Lalit Rishi prior to his arresting but PW3 - Jagdish admitted that her daughter PW1 had told the name of Lalit Rishi to the IO at that time of making her statement to him.
Learned Counsel for accused further submitted that the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused Lalit Rishi @ Rinku on all the charges levelled against him.
10. Learned Counsel for accused Dinesh Kataria submitted that he has been falsely implicated in the matter, which is also apparent from the fact that he was not named in her first statement (statement of prosecutrix), on the basis of which the FIR has been registered. In this regard the cross examination of PW1 the prosecutrix dated 07/02/2009 is relevant, wherein she has stated as under : "I have also stated to the Police that after 510 minutes Rinku also came there. Confronted with his statement Ex. PW1/A & Ex. PW1/B 33 of 104 34 FIR No. 417/2007 PS - Uttam Nagar where it is not so recorded."
"I had stated to the Police that thereafter in the presence of remaining accused Dharmender, Dinesh, accused Rinku committed sexual intercourse with me forcibly without my consent. Confronted with my statement Ex. PW1/A where it is not so recorded. I have also stated in my statement to the police that in the presence of remaining two accused Dinesh committed sexual intercourse with me forcibly. Confronted with Ex. PW1/A where it is not so recorded."
Learned Counsel for the accused further submitted that, with regard to the age of the prosecutrix IO has admitted that no ossification test was got conducted. He has also admitted in the same crossexamination conducted on 11/01/2013 that no document regarding the date of birth was given to him either prior to or after the registration of the FIR. The only evidence qua her age is the school certificate.
Learned Counsel for accused further submitted that the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused Dinesh Kataria on all the charges levelled against him.
11. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and 34 of 104 35 FIR No. 417/2007 PS - Uttam Nagar consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
12. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State, Sh. S. P. Sharma, Learned Counsel for the accused Dharmender @ Dhannu, Sh. B. L. Madhukar, Learned Counsel for Phoolwati, Sh. Vakil Ahmed, Learned Counsel for accused Lalit Rishi @ Rinku and Dr. Ashutosh, Learned Counsel for accused Dinesh Kataria and have also carefully perused the entire record.
13. The charge for the offences punishable u/s 368/34 IPC and U/s 506/34 IPC against accused Dharmender @ Dhannu, Phoolwati is that on 19.5.07 at about 6.30 p.m. or 7.00 p.m. at the house of accused Phoolwati in Nangli Dairy, Delhi they both in the furtherance of their common intention wrongfully confined prosecutrix (name withheld) knowing that prosecutrix had been kidnapped and that on the aforesaid date, time and place both the said accused in furtherance of their common intention committed the offence of criminal intimidation by threatening the prosecutrix to cause her death in the event she raises any alarm.
35 of 104 36 FIR No. 417/2007 PS - Uttam Nagar That the charge for the offences punishable u/s 363/34 IPC, U/s 366/34 IPC and U/s 376 (2)(f) IPC against accused Dharmender @ Dhannu, Lalit Rishi and Dinesh Kataria is that on 19.5.07 at 12.30 p.m. from a place in front of Spring Meadows Public School, Main Najafgarh Road within the jurisdiction of PS Uttam Nagar accused Dharmender @ Dhannu kidnapped Prosecutrix (name withheld) D/o Sh. Jagdish Kumar, aged about 15 years, a minor out of the keeping of her lawful guardian in pursuance to the common intention of them and that on the aforesaid date, time and place after kidnapping of prosecutrix, as aforesaid, she was taken to Cosmetics shop, Uttam Nagar (be read as Najafgarh), Delhi in order that she may be forced to illicit intercourse by them in furtherance of common intention of them and that on the aforesaid date, time and place after kidnapping prosecutrix aged 15 years, as aforesaid, they all committed rape with her in a group of persons acting in furtherance of their common intention.
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 36 of 104 37 FIR No. 417/2007 PS - Uttam Nagar justice.
AGE OF THE PROSECUTRIX
15. PW1 - prosecutrix during her examinationinchief has deposed that her date of birth is 21/06/1992.
PW4 Sh. Rajesh Kumar, Asst. Public Health Inspector/Sub Registrar, MCD (West Zone), Rajouri Garden, Delhi who deposed that he has brought the original record pertaining to the registration of birth at Serial No. 4586 dated 03/07/1992. The date of birth of the said child (prosecutrix/name withheld) is 21/06/1992. The date of registration of birth is 03/07/1992. The sex of the child is female. The said child was born at Aggarwal Maternity Home, Janak Puri. The then address of the parents of said child was H. No. 56, Site - II, Vikas Puri, New Delhi. Father's name of said child is Jagdish Kumar. Qualification of Jagdish Kumar middle, Nationality - Indian, Religion Hindu and the name of mother of said child is Vidyawati, Qualification - Primary, Housewife, Indian and by Religion Hindu. At that time the age of the mother of said child was 30 years and she was having four children including this new born whose birth was registered at Serial No. 4586 dated 03/07/1992. The photocopy of the said record running into two 37 of 104 38 FIR No. 417/2007 PS - Uttam Nagar pages is Ex. PW4/A and the entry of Serial No. 4586 is encircled at point 'A'. (Original record seen and returned.) PW5 Mrs. S. Dewan, Principal, Spring Meadows Public School, Dewan Estate, Main Najafgarh Road, Delhi who deposed that she has seen the certificate given by her on 11/06/2007 available on the judicial file where it was certified that prosecutrix (name withheld) D/o Sh. Jagdish Kumar, R/o B1/53/1, Sewak Park, Uttam Nagar was a bonafide student of her School on the relevant date and was studying in class IXth B and as per School record her date of birth is 21/06/1992 (Twenty First June Nineteen Hundred Ninety Two). Said certificate is Ex. PW5/A signed by her at point 'A'. She has also seen another certificate issued by her dated 17/07/2007 where it was certified that prosecutrix (name withheld) D/o Jagdish Kumar student of Class IXth B had attended the extra class held on 19/05/2007 and left the School at 12:30 p.m. This certificate is Ex. PW5/B signed by her at point 'A'. She has brought the original admission & withdrawal register of the School and admission number of prosecutrix (name withheld) is 4994 dated 08/04/2006 and her date of birth is mentioned as 21/06/1992. The copy of the admission/withdrawal register is Ex. PW5/C (OSR). Prosecutrix 38 of 104 39 FIR No. 417/2007 PS - Uttam Nagar (name withheld) was admitted in School in class VIIIth on the basis of the School Leaving Certificate of Sarvodya Kanya Vidyala, Vikas Puri, District Centre, New Delhi and in the said School Leaving Certificate her date of birth was mentioned as 21/06/1992. She has also brought the original list of extra classes held on 15 to 19 May, 2007 which shows that prosecutrix (name withheld) whose name is there at Serial No. 16 had attended the extra class on 19/05/2007. Copy of the same is Ex. PW5/D (OSR).
There is nothing in the crossexamination of PW1 - prosecutrix, PW4 - Sh. Rajesh Kumar and PW5 Mrs. S. Diwan Principal so as to impeach their creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on the record that the date of the birth of PW1 - prosecutrix is 21/06/1992.
As the date of alleged incident is 19/05/2007 and the date of birth of prosecutrix is 21/06/1992, on simple arithmetical calculation, the age of prosecutrix comes to 16 years, 10 months and 28 days as on the date of incident on 19/05/2007.
39 of 104 40 FIR No. 417/2007 PS - Uttam Nagar In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 16 years, 10 months and 28 days as on the date of incident on 19/05/2007. MEDICAL EVIDENCE OF THE PROSECUTRIX
16. PW10 Dr. Ashish Arora, CMO, DDU Hospital, Delhi who deposed that he is posted in DDU Hospital since, 2004 as CMO. He has been deputed by Medical Superintendent, DDU hospital in place of Dr. Ratan Lal as he has left the Hospital and his present whereabouts are not known. He has seen MLC No. 11914 pertaining to prosecutrix (name withheld) available on the judicial file. The said MLC was prepared by Dr. Ratan Lal, Sr. Resident. He can identify his signature and writing as he has seen him writing and signing in the course of officials duties. MLC of prosecutrix (name withheld) is Ex. PW10/A and same bears signature of Dr. Ratan Lal at point 'A'. After general examination, patient/prosecutrix (name withheld) was referred to Doctor on duty, Gynaecology.
PW13 Dr. Namita Gupta, DDU Hospital, Delhi who deposed that she has been deputed to appear and depose on behalf of Dr. Geetanjali who has since left the Hospital and her present whereabouts are not known to 40 of 104 41 FIR No. 417/2007 PS - Uttam Nagar her. She is conversant with the handwriting and signatures of said Doctor as she has seen her writing and signing during the course of her duties. She has seen the MLCs No. 11914, E. No. 64704 of prosecutrix (name withheld) D/o Jagdish Kumar who was examined by Dr. Geetanjali, Senior Resident, Gynae and she (PW13) identify signature of Dr. Geetanjali at point 'B' on MLC already exhibits as Ex. PW10/A. She also identify her endorsement from point 'X' to 'X' on Ex. PW10/A. There is nothing in the crossexamination of PW10 - Dr. Ashish Arora and PW13 - Dr. Namita Gupta so as to impeach their creditworthiness.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW10/A and the gynaecological examination from point 'X' to 'X' on MLC Ex. PW10/A of PW1 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED DHARMENDER @ DHANNU, DINESH KATARIA AND LALIT RISHI @ RINKU
17. PW10 Dr. Ashish Arora, CMO, DDU Hospital, Delhi who 41 of 104 42 FIR No. 417/2007 PS - Uttam Nagar deposed that he has seen MLC No. 11915 of accused Dharmender which is in the handwriting of Dr. Rattan Lal and is Ex. PW10/B signed by Dr. Ratan Lal at point 'A'. As per the MLC, the patient Dharmender @ Dhannu was brought for medical examination. After examination, Dr. Ratan Lal has opined that there was nothing to suggest that the patient was not capable of performing the sexual act.
PW11 Dr. Vinal Sharma, CMO, DDU Hospital, Delhi who deposed that on 29/05/2007, he was posted at DDU Hospital as CMO. On that day, he medically examined one Dinesh Kataria brought by Constable Prem Chand with alleged history of sexual assault on 22/05/07 being accused. After his medical examination, he (PW11) was of the view that there was nothing to suggest that Dinesh Kataria cannot perform sexual act. His semen sample was taken, preserved, sealed and handed over to the accompanying Constable. His MLC is Ex. PW11/A and is in his (PW11) handwriting and bears his signature at point 'A'. On the same day, he had also medically examined one Lalit Rishi @ Rinku brought by Constable Prem Chand with alleged history of sexual assault being accused. After his medical examination, he (PW11) was of the view that there was nothing to 42 of 104 43 FIR No. 417/2007 PS - Uttam Nagar suggest that Lalit Rishi @ Rinku cannot do sexual act. Lalit Rishi @ Rinku refused to give his semen sample. So his blood sample was taken, sealed and handed over the accompanying Constable. His MLC is Ex. PW11/B and is in his (PW11) handwriting and bears his signature at point 'A'.
There is nothing in the crossexamination of PW10 - Dr. Ashish Arora and PW11 - Dr. Vinal Sharma so as to impeach their creditworthiness.
In view of above and in the circumstances, it stands proved on the record that accused Dharmender @ Dhannu, Dinesh Kataria and Lalit Rishi @ Rinku were capable of performing the sexual act. BIOLOGICAL AND SEROLOGICAL EVIDENCE
18. PW16 Sh. A. K. Shrivastva, Asstt. Director (Biology), FSL Rohini, Delhi who deposed that on 29/06/2007 he received five sealed pullindas and after examining the articles in the pullindas, he filed the reports of analysis and biological division. Reports are Ex. PW16/A and Ex. PW16/B signed by him at point 'A' respectively.
43 of 104 44 FIR No. 417/2007 PS - Uttam Nagar As per biological report Ex. PW16/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One cloth parcel sealed with the seal of "CMO DDU HOSPITAL" containing exhibit '1'.
Exhibit '1' : One underwear described as undergarment of accused Dharmender @ Dhannu.
Parcel '2' : One cloth parcel sealed with the seal of "CMO DDU HOSPITAL" containing exhibit '2'.
Exhibit '2' : A piece of gauze having yellowish stains described as semen of accused Dharmender @ Dhannu.
Parcel '4' : One cloth parcel sealed with the seal of "CMO DDU HOSPITAL" containing exhibit '4'.
Exhibit '4' : A piece of gauze having yellowish stains described as semen of Dinesh.
Parcel '6' : One cloth parcel sealed with the seal of "CMO DDU HOSPITAL" containing exhibit '6'.
Exhibit '6' : A piece of gauze cloth having dark brown stains 44 of 104 45 FIR No. 417/2007 PS - Uttam Nagar described as Blood sample of accused Lalit Rishi @ Rinku.
Parcel '7' : One cloth parcel sealed with the seal of "CMO DDU HOSPITAL" containing exhibits '7a' and '7b'.
Exhibit '7a' : One microslide having thin smear.
Exhibit '7b' : One microslide having thin smear.
RESULT OF ANALYSIS
1. Human semen was detected on exhibits '1', '2' & '4'.
2. Semen could not be detected on exhibits '7a' & '7b'.
3. Blood was detected on exhibit '6'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'AKS FSL DELHI'.
The serological report Ex. PW16/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood Stains '6' Gauze Piece Human Inconclusive Semen Stains '1' Underwear Inconclusive '2' Gauze piece (Semen sample of Dharmender) Inconclusive 45 of 104 46 FIR No. 417/2007 PS - Uttam Nagar '4' Gauze piece (Semen sample of Dinesh) Inconclusive On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that human semen was detected on exhibit '1' (underwear of accused Dharmender @ Dhannu), exhibit '2' (gauze piece semen sample of accused Dharmender @ Dhannu) and exhibit '4' (gauze piece semen sample of accused Dinesh Kataria). Blood was detected on exhibit '6' (gauze piece of accused Lalit Rishi @ Rinku), semen could not be detected on exhibit '7a' (microslide having thin smear of the prosecutrix) and exhibit '7b' (microslide having thin smear of the prosecutrix). As per the serological report Ex. PW16/B, the blood stain on exhibit '6' (gauze piece of accused Lalit Rishi @ Rinku), the species of origin is human.
As per the biological report Ex. PW16/A, with regard to the description of the articles/exhibits contained in the parcels, it is noticed that Parcel No. 1 & 2 belong to accused Dharmender @ Dhannu, which were seized vide seizure memo Ex. PW7/A dated 22/05/2007, Parcel No. 4 belongs to accused Dinesh Kataria, which was seized vide seizure memo Ex.
46 of 104 47 FIR No. 417/2007 PS - Uttam Nagar PW6/B dated 29/05/2007, Parcel No. 6 belongs to accused Lalit Rishi @ Rinku, which was seized vide seizure memo Ex. PW6/D dated 29/05/2007 and Parcel No. 7 belongs to PW1 prosecutrix which was seized vide seizure memo Ex. PW12/A dated 22/05/2007.
As per the biological report Ex. PW16/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1' (underwear of accused Dharmender @ Dhannu which was seized vide seizure memo Ex. PW7/A). Accused Dharmender @ Dhannu was under an obligation to explain as to how and under what circumstances, the Human semen came to be present in the said exhibit '1' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Dharmender @ Dhannu and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
It is also to be noticed that the incident is of dated 19/05/2007 and the recovery of PW1 - prosecutrix was made on 22/05/2007 vide recovery memo Ex. PW14/A and her gynaecological examination was conducted on 22/05/2007 from point 'X' to 'X' on the MLC Ex. PW10/A and 47 of 104 48 FIR No. 417/2007 PS - Uttam Nagar the exhibit '7' of the prosecutrix was seized vide seizure memo Ex. PW12/A after her medical examination on 22/05/2007. During this period from the date of incident on 19/05/2007 till 22/05/2007, it cannot be ruled out that prosecutrix must have answered the call of nature a number of times and must have urinated a number of times. In the circumstances, it appears that it could be the reason for nondetection of semen on exhibit '7a' (microslide having thin smear of the prosecutrix) and exhibit '7b' (microslide having thin smear of the prosecutrix)
19. Now let the testimonies of PW1 Prosecutrix and PW3 Jagdish, her father be perused and analysed.
PW1 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "Presently, I am a student of 10th standard in Spring Meadows School, Dwarka Mod. Date of my birth is 21st June, 1992. On 19/05/2007, I had gone to attend the extra class in my school at about 7:30 a.m. My class was over at 12:30 noon. After the class was over, I proceeded towards my house. Since the construction towards the main gate was undergoing, so, the children were coming out of the school premises from the rear gate. At the relevant time, I was not in a position to move properly as I had been operated upon my right leg. So, I was waiting for a rickshaw at the gate of the school. Other children had left. In the meantime, accused Dharmender present in the 48 of 104 49 FIR No. 417/2007 PS - Uttam Nagar court ( correctly identified), came there. He was on motorcycle. He gave a slap to me and forced me to sit on his motorcycle. He took me to Najafgarh at the shop of Rinku, present in the court (correctly identified) on his motorcycle. At the shop of Rinku, at that time, Dinesh was present. Accused Dinesh is present in the Court today. He has been correctly identified by the witness. Accused Dharmender took me to the rear portion of the shop. After 510 minutes, Dinesh and Rinku also came there. Thereafter, accused Dharmender committed sexual intercourse forcibly with me without my consent. I raised alarm but no one could hear the same. Thereafter, in the presence of the remaining accused Dharmender and Dinesh, the accused Rinku committed sexual intercourse with me forcibly without my consent and finally, in the presence of remaining two accused, the accused Dinesh committed sexual intercourse with me forcibly. Thereafter, the three accused persons left leaving me there. I kept on weeping. As a matter of fact, the accused persons had come out in the outer portion of the shop. At about 6 or 6.30 p.m., accused Dharmender took me to Nangli Dairy on his motorcycle at the house of Phoolwati, accused present in the court today (correctly identified). I was confined in a room in that house. Phoolwati and Dharmender were talking while sitting outside that room. I had heard them talking. Accused Dharmender was asking accused Phoolwati not to allow me to come out of the room. Thereafter, accused Dharmender left that house. After some time, accused Phoolwati came inside the room where I was present. She threatened me saying that in case I attempted to go out of the room, she would kill me. After extending threat, accused Phoolwati left the room. She closed the door of the room and it was locked from outside. I was taken out from the said room in the morning of 20/05/2007, i.e. Next morning. When I came out of the room, accused Dharmender was present there. Accused Dharmender gave me an amount of Rs. 500/. He took me to Dhaula Kuan on his motorcycle. I was 49 of 104 50 FIR No. 417/2007 PS - Uttam Nagar made to board a bus for Alwar and at that time, he threatened me that in case I came out of the bus, he would kill me. He further threatened me that he would be following the bus on the motorcycle. He threatened me not to dare get down from the bus. The bus reached Alwar at about 1:30/2:00 p.m. I got down at the bus stand from the bus. I waited at the bus stand there from some time. I had been warned by accused Dharmender that in case I make a call to the police or to my family, I would be killed. So, for that reason, I had not made call. There was a temple near the bus stand Alwar. I went to the temple and sat there. I remained there throughout the day. However, out of the fear on the threat extended by accused Dharmender, I had not made any telephone call to my parents or the Police. When I observed that accused Dharmender was not around, I made a call on the mobile phone to my father on the morning of 21/05/07 and narrated the incident. I had told my father that I was in Alwar. My father thereafter reached Alwar at about 1:30 or 2:00 p.m. My father brought me to Delhi and took me to the police station Uttam Nagar. At the police station, I made a statement to the police. My statement is Ex. PW1/A which bears my signature at point A. I alongwith my father had reached Delhi around midnight. My statement was recorded in the night of intervening 2122/05/07. From the police station, I was taken to DDU Hospital for medical examination. One lady constable was accompanying me. I was medically examined. After medical examination, I alongwith my father returned to the house. On 25/05/07, I was produced in Court at Delhi where my statement was recorded. (At this stage, a sealed envelope sealed with the seal of DG is directed to be open and on opening it is found to contain the statement of the prosecutrix recorded u/s 164 Cr.P.C.). Statement is Ex. PW1/B which bears my signature at point 'A'. About one or one and a half month prior to the present incident, accused Dharmender had committed sexual intercourse with me forcibly and without my consent. I had not disclosed this fact to my parents as I was threatened by 50 of 104 51 FIR No. 417/2007 PS - Uttam Nagar accused Dharmender that in case I tell this fact to anyone, he would kill me and because of threat, I had not told anybody about this incident. While leaving the school, I was wearing school dress which was having blue coloured check shirt and a skirt. I can identify my school uniform including tie and school belt. I was made to change my dress by the accused Dharmender after I was subjected sexual intercourse by all the three accused. I was made to wear a pink colour suit (Salwar and Kameez). On 29/05/07, I joined investigation with IOASI Radhey Shyam. My father was also accompanying. We had gone to Gopal Nagar. Accused Dinesh was apprehended from his house in Gopal Nagar from where we had gone to Najafgarh at the shop of accused Rinku. Accused Rinku was also apprehended. I can identify my uniform if shown to me. At this stage, a sealed parcel sealed with the seal of RS is produced from malkhana and is directed to be opened and on opening it is found to contain one tie, one belt, one shirt, one skirt and one handkerchief. The witness identifies that Tie Ex. P1, belt Ex. P2, shirt Ex. P3 and skirt Ex. P4 belongs to her which she was wearing while leaving the school on the day of incident. Witness further states that handkerchief which is taken out of the parcel does not belong to her".
From the aforesaid narration of PW1 Prosecutrix it is clear that her date of birth is 21st June, 1992. On 19/05/2007, she had gone to attend the extra class in her school at about 7:30 a.m. Her class was over at 12:30 noon. After the class was over, she proceeded towards her house. Since the construction towards the main gate was undergoing, so, the children were coming out of the school premises from the rear gate. At the relevant time, 51 of 104 52 FIR No. 417/2007 PS - Uttam Nagar she was not in a position to move properly as she had been operated upon her right leg. So, she was waiting for a rickshaw at the gate of the school. Other children had left. In the meantime, accused Dharmender came there. He was on motorcycle. He gave a slap to her and forced her to sit on his motorcycle. He took her to Najafgarh at the shop of Rinku on his motorcycle. At the shop of Rinku, at that time, Dinesh was present. Accused Dharmender took her to the rear portion of the shop. After 510 minutes, Dinesh and Rinku also came there. Thereafter, accused Dharmender committed sexual intercourse forcibly with her without her consent. She raised alarm but no one could hear the same. Thereafter, in the presence of the remaining accused Dharmender and Dinesh, the accused Rinku committed sexual intercourse with her forcibly without her consent and finally, in the presence of remaining two accused, the accused Dinesh committed sexual intercourse with her forcibly. Thereafter, the three accused persons left leaving her there. She kept on weeping. As a matter of fact, the accused persons had come out in the outer portion of the shop. At about 6:00 or 6:30 p.m., accused Dharmender took her to Nangli Dairy on his motorcycle at the house of Phoolwati. She was confined in a room in that house. Phoolwati and Dharmender were talking while sitting outside 52 of 104 53 FIR No. 417/2007 PS - Uttam Nagar that room. She had heard them talking. Accused Dharmender was asking accused Phoolwati not to allow her to come out of the room. Thereafter, accused Dharmender left that house. After some time, accused Phoolwati came inside the room where she was present. She threatened her saying that in case she (Prosecutrix) attempted to go out of the room, she (Phoolwati) would kill her. After extending threat, accused Phoolwati left the room. She closed the door of the room and it was locked from outside. She was taken out from the said room in the morning of 20/05/2007, i.e. Next morning. When she came out of the room, accused Dharmender was present there. Accused Dharmender gave her an amount of Rs. 500/. He took her to Dhaula Kuan on his motorcycle. She was made to board a bus for Alwar and at that time, he threatened her that in case she came out of the bus, he would kill her. He further threatened her that he would be following the bus on the motorcycle. He threatened her not to dare get down from the bus. The bus reached Alwar at about 1:30/2:00 p.m. She got down at the bus stand from the bus. She waited at the bus stand there from some time. She had been warned by accused Dharmender that in case she make a call to the police or to her family, she would be killed. So, for that reason, she had not made call. There was a temple near the bus stand Alwar. She went to the 53 of 104 54 FIR No. 417/2007 PS - Uttam Nagar temple and sat there. She remained there throughout the day. However, out of the fear on the threat extended by accused Dharmender, she had not made any telephone call to her parents or the police. When she observed that accused Dharmender was not around, she made a call on the mobile phone to her father on the morning of 21/05/07 and narrated the incident. She had told her father that she was in Alwar. Her father thereafter reached Alwar at about 1:30 or 2:00 p.m. Her father brought her to Delhi and took her to the police station Uttam Nagar. At the police station, she made a statement to the police. Her statement is Ex. PW1/A which bears her signature at point A. She alongwith her father had reached Delhi around midnight. Her statement was recorded in the night of intervening 2122/05/07. From the police station, she was taken to DDU Hospital for medical examination. One lady constable was accompanying her. She was medically examined. After medical examination, she alongwith her father returned to the house. On 25/05/07, she was produced in Court at Delhi where her statement was recorded. Statement is Ex. PW1/B which bears her signature at point 'A'. About one or one and a half month prior to the present incident, accused Dharmender had committed sexual intercourse with her forcibly and without her consent. She had not disclosed this fact to her parents as she was 54 of 104 55 FIR No. 417/2007 PS - Uttam Nagar threatened by accused Dharmender that in case she tell this fact to anyone, he would kill her and because of threat, she had not told anybody about this incident. While leaving the school, she was wearing school dress which was having blue coloured check shirt and a skirt. She was made to change her dress by the accused Dharmender after she was subjected sexual intercourse by all the three accused. She was made to wear a pink colour suit (Salwar and Kameez). On 29/05/07, she joined investigation with IOASI Radhey Shyam. Her father was also accompanying. They had gone to Gopal Nagar. Accused Dinesh was apprehended from his house in Gopal Nagar from where they had gone to Najafgarh at the shop of accused Rinku. Accused Rinku was also apprehended. She correctly identified her school dress i.e. Tie Ex. P1, belt Ex. P2, shirt Ex. P3 and skirt Ex. P4 belongs to her which she was wearing while leaving the school on the day of incident. Witness further states that handkerchief which is taken out of the parcel does not belong to her.
PW1 Prosecutrix during her crossexamination has negated the suggestions that every day from 5.00 p.m to 8.00 p.m many people visited the Church and the music system also starts and lot of noise is there or that 55 of 104 56 FIR No. 417/2007 PS - Uttam Nagar Dhanno (Be read as Dhannu) did not give her money to go to Alwar or that she had gone to Alwar to meet Saleem with whom she had relationship or that the Negroes who used to reside in the Mohalla used to come to their house for whole day or that if they ever create any nuisance at their house or that whenever any person from the Mohalla complained about the Negroes or their behaviour to them, they would lodge a false FIR against them or that she did not give the said Birth Certificate to the Police officials as on the date of incident she was more than 18 years of age or that on 19/05/2007 she did not attend any extra class and so she is not able to tell the details or that she was on friendly terms with accused Dharmender and had been meeting him frequently or that she had been roaming with accused Dharmender on motorcycle for the last about one year before the incident occurred or that she never had any such (of thumb of right foot) operation or that no operation of thumb of right foot was conducted nor she showed it to the doctor during her medical examination in the present case or that at that time it was a busy way from her School till the place of occurrence. Vol. Certain people were passing by or that she sat on the motorcycle of accused Dharmender on her own and he did not slap her on 17/05/2007 (be read as 19/05/2007) or that she did not see accused Lalit on 19/05/2007 or that accused Lalit did not have 56 of 104 57 FIR No. 417/2007 PS - Uttam Nagar any cosmetic shop in Najafgarh or that Lalit had no concern with the cosmetic shop or that she was never taken at the house of Phoolwati nor was kept there or that she had falsely implicated accused Phoolwati in this case or that she was weak in her studies so she did not want to continue with her studies or that on 19/05/2007 she was not taken to the cosmetic shop nor any rape was committed upon her or that she did not raise the alarm as she was willingly accompany (accompanying) accused Dharmender on that day or that she was going to Alwar voluntarily or that she is deposing falsely being interested witness or that he is deposing falsely or that the Negroes used to visit their house throughout the day and some illegal activities were going on in their house or that she had voluntarily accompanied accused Dharmender on the date of incident and the sexual relationship was maintained between them with her consent.
20. PW1 - Prosecutrix has made the statement to the Police Ex. PW1/A dated 22/05/2007 on the basis of which FIR Ex. PW2/A was registered.
As per PW15 - Sh. Deepak Garg, Learned Joint Registrar, the statement of the prosecutrix u/s 164 Cr.P.C. Ex. PW1/B was recorded by him 57 of 104 58 FIR No. 417/2007 PS - Uttam Nagar on 22/05/2007.
At the cost of repetition, PW1 - prosecutrix in her examination inchief has deposed which is reproduced and reads as under : ".....My father brought me to Delhi and took me to the Police station Uttam Nagar. At the Police Station, I made a statement to the Police. My statement is Ex. PW1/A which bears my signature at point 'A'. I alongwith my father had reached Delhi around midnight. My statement was recorded in the night of intervening 2122/05/07. From the police station, I was taken to DDU Hospital for medical examination. One lady constable was accompanying me. I was medically examined. After medical examination, I alongwith my father returned to the house. On 25/05/07, I was produced in Court at Delhi where my statement was recorded. (At this stage, a sealed envelope sealed with the seal of DG is directed to be open and on opening it is found to contain the statement of the prosecutrix recorded U/s 164 Cr.P.C.). Statement is Ex. PW1/B which bears my signature at point A...."
PW21 - SI Radhey Shyam, IO in his examinationinchief has deposed that on 22/05/2007, prosecutrix was released by the Court to her father Jagdish Kumar. On 25/05/2007, he (IO) moved an application Ex. PW21/B for recording the statement of the prosecutrix u/s 164 Cr.P.C. and the statement was recorded on the same day which is Ex. PW1/E (be read as Ex. PW1/B). He also received the copy of the statement recorded u/s 164 58 of 104 59 FIR No. 417/2007 PS - Uttam Nagar Cr.P.C. from the concerned Court.
From above, it is clearly indicated that on 22/05/2007, prosecutrix was released by the Court to her father Jagdish Kumar (PW3) and on 25/05/2007 when her statement u/s 164 Cr.P.C. Ex. PW1/B was recorded, she had come from her house and was not produced by the Police in custody.
PW3 - Jagdish, father of the prosecutrix in his examinationin chief has deposed that : "Statement u/s 164 Cr.P.C. of my daughter on 25/05/2007 was recorded wherein, my daughter mentioned two names of other persons namely Karatia and Rinku. I do not know their complete names."
The crossexamination of PW1 - prosecutrix recorded on 07/02/2009, as was conducted by the Learned Counsel for accused Dinesh Kataria is reproduced and reads as under : "I had stated to the police that thereafter in the presence of remaining accused Dharmender, Dinesh, accused Rinku committed sexual intercourse with me forcibly without my consent. Confronted with my statement Ex. PW1/A where it is not so recorded. I have also stated in my statement to the police that in the presence of remaining two accused Dinesh committed sexual intercourse with me forcibly. Confronted with Ex. PW1/A where it is not so recorded. I have also stated to the police that thereafter the three accused persons left leaving 59 of 104 60 FIR No. 417/2007 PS - Uttam Nagar me there. Confronted With Ex. PW1/A & Ex. PW1/B where it is not so recorded."
On a conjoint reading and analysis of the statement of PW1 - prosecutrix made to the Police Ex. PW1/A dated 22/05/2007 (on the basis of which FIR Ex. PW2/A was registered), her statement recorded u/s 164 Cr.P.C. Ex. PW1/B as well as her testimony made in the Court, it is found that the role attributed to accused Dinesh Kataria and accused Lalit Rishi @ Rinku for the committal of sexual assault upon her by them in the statement u/s 164 Cr.P.C. Ex. PW1/B as well as in her testimony in the Court is found to be totally missing in the statement made to the Police Ex. PW1/A dated 22/05/2007, with which she was confronted with as reproduced hereinabove. It clearly indicates that PW1 - prosecutrix has made substantial improvement with regard to the role attributed to accused Dinesh Kataria and accused Lalit Rishi @ Rinku in her statement recorded u/s 164 Cr.P.C. and her testimony made in the Court, which go to the root of the matter. In the circumstances, the said part of the testimony of PW1 - prosecutrix implicating accused Dinesh Kataria and accused Lalit Rishi @ Rinku does not inspire confidence.
60 of 104 61 FIR No. 417/2007 PS - Uttam Nagar PW1 - prosecutrix during her crossexamination recorded on 07/02/2009 conducted by accused Lalit Rishi @ Rinku has specifically deposed that : "Accused Lalit was never my friend. We were not on visiting terms and I never went to his house. The accused Lalit also never came to my house. It is correct that I did not know the accused Lalit prior to date off (of) incident. It is correct that the Police officials did not arrest accused Lalit in my presence. It is correct that I never visited Central Jail to identify the accused Lalit. It is incorrect to suggest that I saw accused Lalit for the first time on 25/05/2008. Vol. I had seen him on 19/05/2007. It is wrong to suggest that I did not see accused Lalit on 19/05/2007. It is also wrong to suggest that accused Lalit did not have any cosmetic shop in Najafgarh. It is further wrong to suggest that Lalit had no concern with the cosmetic shop. It is correct that accused Lalit had no concern with Rinku."
From the aforesaid narration of PW1 - prosecutrix, it is clear that she was not knowing accused Lalit Rishi @ Rinku prior to the date of incident nor he was ever her friend nor he was arrested by the Police in her presence nor she ever visited Central Jail to identify accused Lalit. Accused Lalit has not concern with Rinku.
PW1 - prosecutrix during her crossexamination recorded on 07/02/2009 conducted by Learned Counsel for accused Dinesh Kataria has specifically deposed that : 61 of 104 62 FIR No. 417/2007 PS - Uttam Nagar "I recollect my statement given to the Police officials recorded on intervening night of 21/05/2007 and 22/05/2007 which is already exhibited as Ex. PW1/A bearing my signatures at point 'A' and the said statement is correct."
In view of above and in the circumstances, prosecution has failed to prove its case beyond reasonable doubt against accused Dinesh Kataria and accused Lalit Rishi @ Rinku that in pursuance to the common intention of accused Dinesh Kataria and Lalit Rishi @ Rinku, on 19/05/07 at 12:30 p.m. from a place in front of Spring Meadows Public School, Main Najafgarh Road accused Dharmender @ Dhannu kidnapped PW1 Prosecutrix, aged about 16 years (to be exact 16 years, 10 months and 28 days), a minor out of the keeping of her lawful guardian or that in pursuance to the common intention of accused Dinesh Kataria and Lalit Rishi @ Rinku, accused Dharmender @ Dhannu took the prosecutrix to cosmetics shop, Najafgarh, Delhi in order that she may be forced to illicit intercourse by them or that in pursuance to the common intention of accused Dinesh Kataria and Lalit Rishi @ Rinku, accused Dinesh Kataria and Lalit Rishi @ Rinku alongwith accused Dharmender @ Dhannu, in a group of persons committed rape upon the prosecutrix.
I accordingly, acquit accused Dinesh Kataria and accused Lalit 62 of 104 63 FIR No. 417/2007 PS - Uttam Nagar Rishi @ Rinku for the offences punishable u/s 363/34 IPC and u/s 366/34 IPC and u/s 376 (2)(f) IPC.
21. Now, let the remaining part of the testimony of PW1 - prosecutrix be perused and analysed.
On analysing the entire remaining part of the testimony of PW1
- prosecutrix, it transpires that she has described the scenario implicating accused Dharmender @ Dhannu and accused Phoolwati as the author of the crime and it is found to be fully corroborated by the statement of PW1 - prosecutrix Ex. PW1/A dated 22/05/2007, on the basis of which the FIR Ex. PW2/B was recorded as well as her statement recorded u/s 164 Cr.P.C. Ex. PW1/B. Inspite of incisive crossexamination of PW1 - prosecutrix on behalf of accused Dharmender @ Dhannu and accused Phoolwati nothing material has been brought out on the record so as to impeach her creditworthiness. Accused Dharmender @ Dhannu and accused Phoolwati failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. In the witness box she has withstood the test of crossexamination and her testimony regarding the role attributed to accused Dharmender @ Dhannu and Phoolwati is consistent 63 of 104 64 FIR No. 417/2007 PS - Uttam Nagar throughout. The version of this witness on the core spectrum of crime has remained intact. The entire remaining testimony of PW1 Prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused Dharmender @ Dhannu and Phoolwati to falsely implicate them in the case.
The testimony of PW1 - prosecutrix is also found to be corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - prosecutrix is also found to be in consonance on the role attributed to accused Dharmender @ Dhannu and Phoolwati, with her statement Ex. PW1/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW1/B. The entire remaining testimony of PW1 prosecutrix is also found to be corroborated by PW3 Jagdish, her father, to whom 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.
64 of 104 65 FIR No. 417/2007 PS - Uttam Nagar PW3 Jagdish S/o Banwari Lal R/o B1/53/1, Sewak Park Extension, Dwarka Mor, Delhi in his examinationinchief has deposed which is reproduced and reads as under : "I am running a private security by the name of Surya Security Services at the above mentioned address. Prosecutrix (name withheld) is my daughter. At the time of incident i.e. On 19/05/07 she was aged about fourteen and half years. I do not remember her exact date of birth today. At that time she was studying in class VIII th class, Spring Neadows (Meadow) School Dwarka Mor, Delhi. On 19/05/07 I had dropped my daughter/prosecutrix (name withheld) at her school mentioned above at about 7:30 a.m. since she was having difficulty in walking on that day as she had been operated upon about a week back on her right thumb of leg. Prosecutrix (name withheld) used to return home at about 12:30 p.m. everyday but on that day she did not return home at the usual time I waited for her for sometime but when she did not return home even then, I went to her school at about 2:00 p.m. I came to know that all the children had left from the school. I searched for prosecutrix (name withheld) in the neighbourhood and at the house of relatives but could not know her whereabouts. I even contacted some teachers of the school but they told me that prosecutrix (name withheld) had come to the school and that she have even deposited her school fees on that day but they also expressed their inability to tell about her whereabouts. I even got every room of the school checked through guard and Principal of the school but could not come to know about her whereabouts. I even went to PP Matiala to lodge about her missing report but I was directed to go to Police Station Uttam Nagar to lodge the missing report. I went to Police Station Uttam Nagar around midnight and lodged missing report. By that time it was 20/05/07. Copy of 65 of 104 66 FIR No. 417/2007 PS - Uttam Nagar the said report is Mark 'A' (also Ex. PW8/A). I searched for prosecutrix (name withheld) at various places even on 20/05/07 but could not find. On 21/05/07 I received a telephonic call at my mobile phone at about 11:00 a.m. /12:00 noon. My daughter was weeping at that time and she told me that she was in Alwar. I asked her as to where she was in Alwar. She replied that she was at Vijay Mandir Road in Alwar and was alone there. I reached Vijay Mandir Road in Alwar and found my daughter/prosecutrix (name withheld) there. I brought her to Delhi and I produced her at Police Station Uttam Nagar. It was mid night at that time and date was 22/05/07. My daughter was got medically examined and was brought to the Court. My daughter told in the presence of police officials that she was kidnapped by Dharmender and thereafter Dharmender took her to Najafgarh and she was raped there and that thereafter she was taken to Nangli in the house of Phoolwati. I and my daughter alongwith Police officials went to houses of Dharmender Sewak Park and at the pointing out of my daughter, accused Dharmender present in the Court (correctly identified) was arrested vide memo Ex. PW3/A, bearing my signature at point 'A' and his personal search memo was conducted vide memo Ex. PW3/B at point 'A'. He made a disclosure statement Ex. PW3/C bearing my signature at point 'A'. Thereafter, I my daughter and police officials went to the house of Phoolwati and there on the pointing out of my daughter accused Phoolwati present in the court (correctly identified) was arrested vide Ex. PW3/D bearing my signature at point A and her personal search was also conducted vide memo Ex. PW3/E, she also made disclosure statement Ex. PW3/F, bearing my signature at point 'A'. The condition of my daughter on that day was bad. She was not even able to speak properly. Statement u/s 164 Cr.P.C. of my daughter on 25/05/07 was recorded wherein my daughter mentioned two names of other persons namely Kataria and Rinku. I do not know their 66 of 104 67 FIR No. 417/2007 PS - Uttam Nagar complete names. I my daughter and police officials went to Gopal Nagar at Najafgarh where on the pointing out of my daughter accused Kataria present in the court today (correctly identified) was arrested vide memo Ex. PW3/G and his personal search was conducted vide memo Ex. PW3/H bearing my signatures at point 'A'. He also made a disclosure statement Ex. PW3/J bearing my signature at point 'A'. Thereafter, we went to shop no. 1132 Som Bazar near Najafgarh Delhi. There my daughter pointed out at the place at the back of that said shop where she was raped. There accused Dinesh Kataria took out school uniform including tie of my daughter underneath of rack lying there. The recovered school uniform including tie etc. were taken to police station. There at the PS same were converted into the parcel with the help of white cloth and sealed. I cannot tell the initials of seal. Memo of the seizure memo the said parcel was prepared which is Ex. PW3/K bearing my signature at point A accused Rinku who is the owner of the said shop was also arrested vide memo Ex. PW3/L and his personal search was conducted vide memo Ex. PW3/M bearing my signatures at point 'A'. Both the accused persons were got medically examined. I was asked by police officials to take my daughter back to my house. I can identify the school uniform which was recovered. At this stage, a sealed parcel having court seal is opened out of which school uniform is taken out alongwith pink colour handkerchief. Witness identified tie Ex. P1, belt P2, shirt Ex. P3, Skirt Ex. P4 as the same belonging to his daughter/prosecutrix (name withheld). Witness states that handkerchief may be belonging to his daughter".
From the aforesaid narration of PW3 Jagdish it is clear that he is running a private security by the name of Surya Security Services at 67 of 104 68 FIR No. 417/2007 PS - Uttam Nagar B1/53/1 Sewak Park Extension, Dwarka Mor, Delhi. Prosecutrix (name withheld) is his daughter. At the time of incident i.e. on 19/05/07 she was aged about fourteen and half years and he does not remember her exact date of birth at the time of deposition. At that time she was studying in class VIII th class, Spring Neadows (Meadow) School Dwarka Mor, Delhi. On 19/05/07 he had dropped his daughter/prosecutrix (name withheld) at her school mentioned above at about 7:30 am since she was having difficulty in walking on that day as she had been operated upon about a week back on her right thumb of leg. Prosecutrix (name withheld) used to return home at about 12:30 p.m. everyday but on that day she did not return home at the usual time he waited for her for sometime but when she did not return home even then, he went to her school at about 2:00 p.m. and came to know that all the children had left from the school. He searched for prosecutrix (name withheld) in the neighbourhood and at the house of relatives but could not know her whereabouts. He even contacted some teachers of the school but they told him that prosecutrix (name withheld) had come to the school and that she have even deposited her school fees on that day but they also expressed their inability to tell about her whereabouts. He even got every room of the school checked through guard and Principal of the school but 68 of 104 69 FIR No. 417/2007 PS - Uttam Nagar could not come to know about her whereabouts. He even went to PP Matiala to lodge about her missing report but he was directed to go to Police Station Uttam Nagar to lodge the missing report. He went to Police Station Uttam Nagar around midnight and lodged missing report. By that time it was 20/05/07. Copy of the said report is Mark 'A' (also Ex. PW8/A). He searched for prosecutrix (name withheld) at various places even on 20/05/07 but could not find. On 21/05/07 he received a telephonic call at my mobile phone at about 11:00 a.m./12:00 noon. My daughter was weeping at that time and she told him that she was in Alwar. He asked her as to where she was in Alwar. She replied that she was at Vijay Mandir Road in Alwar and was alone there. He reached Vijay Mandir Road in Alwar and found his daughter/prosecutrix (name withheld) there. He brought her to Delhi and produced her at Police Station Uttam Nagar. It was mid night at that time and date was 22/05/07. His daughter was got medically examined and was brought to the court. His daughter told in the presence of Police officials that she was kidnapped by Dharmender and thereafter Dharmender took her to Najafgarh and she was raped there and that thereafter she was taken to Nangli in the house of Phoolwati. He and his daughter alongwith police officials went to houses of Dharmender Sewak Park and at the pointing out 69 of 104 70 FIR No. 417/2007 PS - Uttam Nagar of his daughter, accused Dharmender was arrested vide memo Ex. PW3/A, bearing his signature at point 'A' and his personal search memo was conducted vide memo Ex. PW3/B at point 'A'. He made a disclosure statement Ex. PW3/C bearing his signature at point 'A'. Thereafter, he, his daughter and police officials went to the house of Phoolwati and there on the pointing out of his daughter accused Phoolwati was arrested vide Ex. PW3/D bearing his signature at point 'A' and her personal search was also conducted vide memo Ex. PW3/E, she also made disclosure statement Ex. PW3/F, bearing his signature at point 'A'. The condition of his daughter on that day was bad. She was not even able to speak properly. Statement u/s 164 Cr.P.C. of his daughter on 25/05/07 was recorded wherein his daughter mentioned two names of other persons namely Kataria and Rinku, however he does not know their complete names. He, his daughter and police officials went to Gopal Nagar at Najafgarh where on the pointing out of his daughter accused Kataria was arrested vide memo Ex. PW3/G and his personal search was conducted vide memo Ex. PW3/H bearing his signatures at point 'A'. He also made a disclosure statement Ex. PW3/J bearing his signature at point 'A'. Thereafter, they went to shop no. 1132 Som Bazar near Najafgarh Delhi. There his daughter pointed out at the place at the back 70 of 104 71 FIR No. 417/2007 PS - Uttam Nagar of that said shop where she was raped. There accused Dinesh Kataria took out school uniform including tie of his daughter underneath of rack lying there. The recovered school uniform including tie etc. were taken to police station. There at the PS same were converted into the parcel with the help of white cloth and sealed, however he could not tell the initials of seal. Memo of the seizure memo the said parcel was prepared which is Ex. PW3/K bearing his signature at point 'A'. Accused Rinku who is the owner of the said shop was also arrested vide memo Ex. PW3/L and his personal search was conducted vide memo Ex. PW3/M bearing his signatures at point 'A'. Both the accused persons were got medically examined. He was asked by police officials to take his daughter back to his house. He identified tie Ex. P1, belt P2, shirt Ex. P3, Skirt Ex. P4 as the same belonging to his daughter/prosecutrix (name withheld).
PW3 Jagdish during his crossexamination has negated the suggestions that his daughter never got admitted in Government School or that he never handed over MCD Birth Certificate to the police or that he has deliberately withheld Birth MCD Record since his daughter was more that 19 years on the date of incident or that he knew that his daughter has left the 71 of 104 72 FIR No. 417/2007 PS - Uttam Nagar house of her own free consent and desire or that his daughter never took the police to the said cosmetic shop or that the entire paper work in this case was done while sitting in police station Uttam Nagar or that he is deposing falsely that Phoolwati was arrested at the instance of his daughter or that his daughter never went to the house of Phoolwati or that his Advocate has tutored him to depose in the Court in a particular manner or that entire persons of the Mohalla are angry with him due to existence of said Church as nuisance is caused or that whenever any person complaints him about the Church or its activities, he get him falsely implicated in one case or the other through his daughter or that illegal activities are carried on in his house and on the first floor of the house in connivance with the Police officials or that accused has been falsely implicated in the case and or that he is deposing falsely.
There is nothing in the crossexamination of PW3 Jagdish so as to impeach his creditworthiness. He has withstood the rigors of cross examination 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 PW3 - Jagdish is found to be natural, clear, reliable, inspiring confidence and 72 of 104 73 FIR No. 417/2007 PS - Uttam Nagar having a ring of truth. There is nothing in his statement to suggest that he had any animus against accused Dharmender @ Dhannu and Phoolwati to falsely implicate them in the case.
22. While analysing the testimonies of PW1 prosecutrix and PW3 Jagdish, her father as discussed herein above, inspite of incisive cross examination of PW1 Prosecutrix and PW3 Jagdish on behalf of accused Dharmender @ Dhannu and Phoolwati 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 every day from 5.00 p.m to 8.00 p.m many people visited the Church and the music system also starts and lot of noise is there or that Dhanno (Be read as Dhannu) did not give her money to go to Alwar or that she had gone to Alwar to meet Saleem with whom she had relationship or that the Negroes who used to reside in the Mohalla used to come to their house for whole day or that if they ever create any nuisance at their house or that whenever any person from the Mohalla complained about the Negroes or their behaviour to them, they would lodge a false FIR against them or that she did not give the said Birth Certificate to the Police officials as on the 73 of 104 74 FIR No. 417/2007 PS - Uttam Nagar date of incident she was more than 18 years of age or that on 19/05/2007 she did not attend any extra class and so she is not able to tell the details or that she was on friendly terms with accused Dharmender and had been meeting him frequently or that she had been roaming with accused Dharmender on motorcycle for the last about one year before the incident occurred or that she never had any such (of thumb of right foot) operation or that no operation of thumb of right foot was conducted nor she showed it to the doctor during her medical examination in the present case or that at that time it was a busy way from her School till the place of occurrence. Vol. Certain people were passing by or that she sat on the motorcycle of accused Dharmender on her own and he did not slap her on 17/05/2007 (be read as 19/05/2007) or that she did not see accused Lalit on 19/05/2007 or that accused Lalit did not have any cosmetic shop in Najafgarh or that Lalit had no concern with the cosmetic shop or that she was never taken at the house of Phoolwati nor was kept there or that she had falsely implicated accused Phoolwati in this case or that she was weak in her studies so she did not want to continue with her studies or that on 19/05/2007 she was not taken to the cosmetic shop nor any rape was committed upon her or that she did not raise the alarm as she was willingly accompany (accompanying) accused 74 of 104 75 FIR No. 417/2007 PS - Uttam Nagar Dharmender on that day or that she was going to Alwar voluntarily or that she is deposing falsely being interested witness or that he is deposing falsely or that the Negroes used to visit their house throughout the day and some illegal activities were going on in their house or that she had voluntarily accompanied accused Dharmender on the date of incident and the sexual relationship was maintained between them with her consent and the suggestions to PW3 Jagdish that his daughter never got admitted in Government School or that he never handed over MCD Birth Certificate to the police or that he has deliberately withheld Birth MCD Record since his daughter was more that 19 years on the date of incident or that he knew that his daughter has left the house of her own free consent and desire or that his daughter never took the police to the said cosmetic shop or that the entire paper work in this case was done while sitting in police station Uttam Nagar or that he is deposing falsely that Phoolwati was arrested at the instance of his daughter or that his daughter never went to the house of Phoolwati or that his Advocate has tutored him to depose in the Court in a particular manner or that entire persons of the Mohalla are angry with him due to existence of said Church as nuisance is caused or that whenever any person complaints him about the Church or its activities, he get him falsely implicated in one 75 of 104 76 FIR No. 417/2007 PS - Uttam Nagar case or the other through his daughter or that illegal activities are carried on in his house and on the first floor of the house in connivance with the Police officials or that accused has been falsely implicated in the case and 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 has been falsely implicated because of animosity.
It is also to be noticed from the suggestions put to PW1 - prosecutrix during her crossexamination, recorded on 12/02/2009 on behalf of accused Dharmender @ Dhannu that the said accused Dharmender @ Dhannu has not disputed the factum of his presence in the company of prosecutrix on the date of alleged incident on 19/05/2007 and of the maintaining of the sexual relationship between them on the date of incident.
The relevant part of crossexamination of PW1 - prosecutrix is reproduced and reads as under : "It is incorrect to suggest that I had voluntarily accompanied accused Dharmender on the date of incident and the sexual relationship was maintained between us with my consent."
23. It is well settled that rape, is crime and not a medical condition.
76 of 104 77 FIR No. 417/2007 PS - Uttam Nagar 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."
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 77 of 104 78 FIR No. 417/2007 PS - Uttam Nagar 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 evidence vide MLC Ex. PW10/A, gynaecological examination from point 'X' to 'X' on the MLC Ex. PW10/A of the prosecutrix, biological and serological evidence Ex. PW16/A and Ex. PW16/B together with the MLC of accused Dharmender @ Dhannu Ex. PW10/B, as discussed hereinbefore, the act of performing of sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within the 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 78 of 104 79 FIR No. 417/2007 PS - Uttam Nagar Dharmender @ Dhannu with PW1 - Prosecutrix without her consent.
24. Learned Counsel for the accused submitted that the prosecutrix did not raise any alarm or made any complaint to any law enforcing agency or to any private person though, she travelled with the accused Dharmender @ Dhannu on his motorcycle and not in a concealed manner, from her School to different destinations, through crowded places. Learned Counsel for the accused further submitted that the entire examinationinchief and crossexamination of PW1 - prosecutrix shows that she had moved freely and voluntarily out of her free will and consent in the company of accused Dharmender on his motorcycle and there was no threat, force, coercion on the part of anybody upon her. Learned Counsel for the accused further submitted that evidence of PW1 - prosecutrix is a tutored one and she is a female of full maturity and understanding and has full developed rationally to think good or bad and to know the consequences of her act.
I have carefully perused and analysed the evidence on record. During her examinationinchief PW1 - prosecutrix has specifically deposed that when she was waiting for a rickshaw at the gate of 79 of 104 80 FIR No. 417/2007 PS - Uttam Nagar the School, accused Dharmender came there on his motorcycle and he gave a slap to her and forced her to sit on his motorcycle and took her to Najafgarh at the shop of Rinku and committed sexual intercourse forcibly with her without her consent. She raised alarm but no one could hear the same. At the house of accused Phoolwati, where she was taken by accused Dharmender, she was not allowed to come out of the room and was threatened by Phoolwati that in case she attempted to go out of the room, she (accused Phoolwati) would kill her and after extending threat accused Phoolwati left the room and she (accused Phoolwati) closed the room and it was locked from outside. When she was taken to Dhaula Kuan by accused on his motorcycle, she was made to board a bus for Alwar and at that time, he threatened her that in case she came out of the bus, he would kill her and further threatened her that he would be following the bus on the motorcycle. He threatened her not to dare get down from the bus. After reaching at Alwar, as she had been warned by accused Dharmender that in case she make a call to the Police or to her family, she would be killed and for that reason she had not made call. She remained there throughout the day and out of fear on the threat extended by accused Dharmender she had not made any telephone call to her parents or the Police and when she observed that 80 of 104 81 FIR No. 417/2007 PS - Uttam Nagar accused Dharmender was not around, she made a call on the mobile phone to her father on the morning of 21/05/2007 and narrated the incident. She had told her father that she was in Alwar.
When a minor girl is threatened to kill by accused Dharmender @ Dhannu and Phoolwati, one is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to raise hue and cry.
At the cost of repetition, it is pertinent to reproduce the relevant part of the examinationinchief PW1 prosecutrix which reads as under : "Presently, I am a student of 10th standard in Spring Meadows School, Dwarka Mod. Date of my birth is 21st June, 1992. On 19.05.2007, I had gone to attend the extra class in my school at about 7.30 a.m. My class was over at 12.30 noon. After the class was over, I proceeded towards my house. Since the construction towards the main gate was undergoing, so, the children were coming out of the school premises from the rear gate. At the relevant time, I was not in a position to move properly as I had been operated upon my right leg. So, I was waiting for a rickshaw at the gate of the school. Other children had left. In the meantime, accused Dharmender present in the court ( correctly identified), came there. He was on motorcycle. He gave a slap to me and forced me to sit on his motorcycle. He took me to Najafgarh at the shop of Rinku, present in the court (correctly identified) on his motorcycle. At the shop of Rinku, at that time, Dinesh was present. Accused Dinesh is present in the Court today. He has been correctly identified by the witness. Accused Dharmender took me to the rear portion 81 of 104 82 FIR No. 417/2007 PS - Uttam Nagar of the shop. After 510 minutes, Dinesh and Rinku also came there. Thereafter, accused Dharmender committed sexual intercourse forcibly with me without my consent. I raised alarm but no one could hear the same. Thereafter, in the presence of the remaining accused Dharmender and Dinesh, the accused Rinku committed sexual intercourse with me forcibly without my consent and finally, in the presence of remaining two accused, the accused Dinesh committed sexual intercourse with me forcibly. Thereafter, the three accused persons left leaving me there. I kept on weeping. As a matter of fact, the accused persons had come out in the outer portion of the shop. At about 6 or 6.30 p.m., accused Dharmender took me to Nangli Dairy on his motorcycle at the house of Phoolwati, accused present in the court today (correctly identified). I was confined in a room in that house. Phoolwati and Dharmender were talking while sitting outside that room. I had heard them talking. Accused Dharmender was asking accused Phoolwati not to allow me to come out of the room. Thereafter, accused Dharmender left that house. After some time, accused Phoolwati came inside the room where I was present. She threatened me saying that in case I attempted to go out of the room, she would kill me. After extending threat, accused Phoolwati left the room. She closed the door of the room and it was locked from outside. I was taken out from the said room in the morning of 20.5.2007, i.e. Next morning. When I came out of the room, accused Dharmender was present there. Accused Dharmender gave me an amount of Rs. 500/. He took me to Dhaula Kuan on his motorcycle. I was made to board a bus for Alwar and at that time, he threatened me that in case I came out of the bus, he would kill me. He further threatened me that he would be following the bus on the motorcycle. He threatened me not to dare get down from the bus. The bus reached Alwar at about 1.30/2.00 p.m. I got down at the bus stand 82 of 104 83 FIR No. 417/2007 PS - Uttam Nagar from the bus. I waited at the bus stand there from some time. I had been warned by accused Dharmender that in case I make a call to the police or to my family, I would be killed. So, for that reason, I had not made call. There was a temple near the bus stand Alwar. I went to the temple and sat there. I remained there throughout the day. However, out of the fear on the threat extended by accused Dharmender, I had not made any telephone call to my parents or the police. When I observed that accused Dharmender was not around, I made a call on the mobile phone to my father on the morning of 21.5.07 and narrated the incident. I had told my father that I was in Alwar."
Further failure on her part to raise hue and cry at the time en route from School to shop at Najafgarh, at the time when she was kept locked at the house of accused Phoolwati and at the time she was made to board the bus to Alwar, the reasons for the same have been explained by PW1 - prosecutrix that she was threatened and intimidated by the accused at the time when she was forcibly taken from the School to the Place of incident and then at the house of accused Phoolwati and then when she was made to board the bus to Alwar.
The sight cannot be lost of the fact, a minor girl aged about 16 years (to be exact 16 years, 10 months and 28 days) when was forcibly enticed/taken away by accused Dharmender to the place of incident, was forcibly kept at the house of accused Phoolwati and was forcibly made to 83 of 104 84 FIR No. 417/2007 PS - Uttam Nagar board the bus to Alwar and was threatened and intimidated, such threat and intimidation caused alarm to her and made her timid and fearful due to which she could not gather the courage to raise any hue and cry at the time when was forcibly enticed/taken away by accused Dharmender to the place of incident, was forcibly kept at the house of accused Phoolwati and was forcibly made to board the bus to Alwar as she continued to be under the dominance of accused Dharmender @ Dhannu. She despite sufferance of onslaught physically and mentally since 19/05/2007 by committal of rape upon her by accused Dharmender @ Dhannu and was kept locked at the house of accused Phoolwati and was forcibly made to board the bus to Alwar, kept silent due to the terrorisation of the accused Dharmender @ Dhannu and Phoolwati. She took it as her fate to suffer in silence, had she not made a call to her father in the morning of 21/05/2007.
As regards the plea that prosecutrix had moved freely and voluntarily out of her free will and consent in the company of accused Dharmender on his motorcycle without any threat, force, coercion on the part of anybody upon her as well as the plea that the prosecutrix is a tutored one, are concerned, the same are found to have no substance in view of the specific and categorical deposition of PW1 - prosecutrix as reproduced here 84 of 104 85 FIR No. 417/2007 PS - Uttam Nagar inabove and also discussed and analysed hereinbefore.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused submitted that the prosecutrix was medically examined and as per the report of the Doctor, she was found habitual of sexual intercourse and no injury was found on her private parts.
I have carefully perused and analysed the evidence on record. The medical and gynaecological examination of PW1 - prosecutrix has been discussed and analysed hereinbefore.
At the cost of repetition, PW10 Dr. Ashish Arora, CMO, DDU Hospital, Delhi has deposed that he is posted in DDU Hospital since, 2004 as CMO. He has been deputed by Medical Superintendent, DDU hospital in place of Dr. Ratan Lal as he has left the Hospital and his present whereabouts are not known. He has seen MLC No. 11914 pertaining to prosecutrix (name withheld) available on the judicial file. The said MLC was prepared by Dr. Ratan Lal, Sr. Resident. He can identify his signature and writing as he has 85 of 104 86 FIR No. 417/2007 PS - Uttam Nagar seen him writing and signing in the course of officials duties. MLC of prosecutrix (name withheld) is Ex. PW10/A and same bears signature of Dr. Ratan Lal at point 'A'. After general examination, patient/prosecutrix (name withheld) was referred to Doctor on duty, Gynaecology.
At the cost of repetition, PW13 Dr. Namita Gupta, DDU Hospital, Delhi has deposed that she has been deputed to appear and depose on behalf of Dr. Geetanjali who has since left the Hospital and her present whereabouts are not known to her. She is conversant with the handwriting and signatures of said Doctor as she has seen her writing and signing during the course of her duties. She has seen the MLCs No. 11914, E. No. 64704 of prosecutrix (name withheld) D/o Jagdish Kumar who was examined by Dr. Geetanjali, Senior Resident, Gynae and she (PW13) identify signature of Dr. Geetanjali at point 'B' on MLC already exhibits as Ex. PW10/A. She also identify her endorsement from point 'X' to 'X' on Ex. PW10/A. There is nothing in the crossexamination of PW10 - Dr. Ashish Arora and PW13 - Dr. Namita Gupta so as to impeach their creditworthiness.
As regards nonfinding of any signs of injury on the body parts of the prosecutrix is concerned, the absence of any injury does not falsify the 86 of 104 87 FIR No. 417/2007 PS - Uttam Nagar case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that 87 of 104 88 FIR No. 417/2007 PS - Uttam Nagar nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
It is not made clear by Learned Counsel for accused as to what benefit they intend to reap from the said plea so raised that prosecutrix was found habitual of intercourse. Do they intend to convey that PW1 - 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 88 of 104 89 FIR No. 417/2007 PS - Uttam Nagar 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 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 has 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.
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26. Learned Counsel for accused Phoolwati submitted that the entire story of prosecution is doubtful and suspicious as to prosecution has not examined any neighbours of Phoolwati to prove and establish the presence of prosecutrix on the date of alleged incident at the house of Phoolwati.
I have carefully perused and analysed the evidence on record. The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. On careful perusal and analysis, the testimony of PW1 - prosecutrix on the role attributed to accused Dharmender @ Dhannu and Phoolwati is found to be natural, clear, cogent, convincing and trustworthy.
It is settled in law that the prosecution can be expected to examine only those as prosecution witnesses who have witnessed the events and not those who have not seen it, though, the neighbourhood may be replete with other residents also.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident 90 of 104 91 FIR No. 417/2007 PS - Uttam Nagar happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for the accused submitted that PW21 - SI Radhey Shyam has deposed that he did not make any inquiry regarding the fact of going of PW1 - prosecutrix to Alwar and making of call to PW3 - Jagdish, her father from Alwar and that no evidence has been collected by him regarding the fact of PW1 - prosecutrix gone to Alwar and in respect of motorcycle used by accused Dharmender.
91 of 104 92 FIR No. 417/2007 PS - Uttam Nagar I have carefully perused and analysed the evidence on record. On careful perusal and testimony of PW21 - SI Radhey Shyam, IO it is found that he has given graphic details of the steps taken during the course of investigation.
PW21 - SI Radhey Shyam during his crossexamination recorded on 11/01/2013 conducted on behalf of accused Dharmender @ Dhannu has specifically deposed that : "I have not collected any evidence regarding the fact prosecutrix had gone to Alwar."
"Q. In the complaint of the prosecutrix Ex. PW2/A, the fact regarding of taking her on a motorcycle is mentioned. Did you make any investigation regarding the motorcycle?
Ans. No investigation regarding the motorcycle was conducted by me."
During the entire incisive crossexamination of PW21 - Radhey Shyam, no explanation has been sought from him on behalf of the said accused regarding noncollection of evidence of going of PW1 - prosecutrix to Alwar and about the motorcycle. 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, the said lapses regarding which the plea raised do not 92 of 104 93 FIR No. 417/2007 PS - Uttam Nagar reflect upon the substantive evidence and the probative value of the statement of PW1 - prosecutrix made on the relevant and material aspects on the role attributed to accused Dharmender @ Dhannu and Phoolwati. Nor do they vitiate or negate the case of the prosecution 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.
Further, PW21 - Radhey Shyam was not crossexamined on the aspect of PW1 - prosecutrix having made a call from Alwar to PW3 - Jagdish, her father, regarding which plea has also been raised.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
As regards the use of motorcycle by accused Dharmender, this fact must be specially within the knowledge of accused Dharmender. As per section 106 Indian Evidence Act, 1872, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
93 of 104 94 FIR No. 417/2007 PS - Uttam Nagar Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
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 the prosecutrix and her parents are habitual of making the false complaints and as such, the defence witnesses are examined and the photocopies of the complaints are placed on the record which shows that the prosecutrix and her family members are habitual of making the false complaints to take undue advantage from the accused persons. Learned Counsel for accused further submitted that the criminals and unsocial persons used to visit the house of the prosecutrix and some Nigerians were also arrested from the house of prosecutrix.
94 of 104 95 FIR No. 417/2007 PS - Uttam Nagar I have carefully perused and analysed the evidence on record. At the outset, 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.
Now, let the testimonies of the defence witnesses DW1 Sh. Sonu Suneja S/o Sh. Sunder Lal Suneja, Age - 29 years, R/o B1/54/2, C. R. Park, Uttam Nagar, Delhi and DW2 Sh. Tej Singh S/o Het Ram, Age - 62 years, R/o D55, Sewak Park, Uttam Nagar, Delhi be perused and analysed.
DW1 - Sh. Sonu Suneja S/o Sh. Sunder Lal Suneja, Age - 29 years, R/o B1/54/2, C. R. Park, Uttam Nagar, Delhi has deposed that he made a compliant against Smt. Vidya and Jagdish Sharma R/o B1/53/1, Ex. Sewak Park, Uttam Nagar, Delhi to DCP Crime Branch on dated 21/06/2007, the copy of which is Mark DX1, bearing his signature at point 'A'. He also made another complaint to Police Commissioner, ITO, New Delhi on 21/06/2007, the copy of which is Mark DX2, which bears his signature at point 'A'. He also made another complaint to DCP, Rajouri Garden on the same day i.e. 21/06/2007 the copy of which is Mark DX3, bearing his signature at point 'A'. All the said complaints Mark DX1 to Mark DX3 were also signed by the residents of Mohalla at point 'B' respectively. The reputation of Vidya Sharma and Jagdish Sharma is very bad in the Mohalla 95 of 104 96 FIR No. 417/2007 PS - Uttam Nagar and are habitual false complaint makers. Report regarding them was also published in the newspaper. The copy of the news report is Mark DX4.
During his crossexamination, DW1 - Sh. Sonu Suneja has deposed that : "I remained for about 07 years at B1/54/2, C. R. Park, Uttam Nagar. I do not remember the period of seven years. At present, I am residing at Najafgarh for the last about 2/3 years. Jagdish and Vidya used to threat me to forcibly take possession of my house and for this reason I sold my house. There used to be quarrel between my family and the family of Jagdish and Vidya on the pretext of house. It is wrong to suggest that Mark DX1, DX2 DX3 are fabricated and manipulated by me. It is further wrong to suggest that document mark DX4 is also a manipulated and fabricated document. It is further wrong to suggest that none of the resident of the Mohalla/locality have signed the documents Mark DX1, DX2 & DX3 and their signature were fabricated. It is wrong to suggest that I am deposing falsely as I have previous enmity with Vidya and Jagdish Sharma."
On careful perusal and analysis of the testimony of DW1 - Sh. Sonu Suneja, it is clearly indicated that the complaint Mark DX1 is dated 21/06/2007, complaint Mark DX2 is dated 21/06/2007 and complaint Mark DX3 is dated 21/06/2007. Undisputably all the said complaints Mark DX1 to Mark DX3 are dated 21/06/2007 and were made subsequent to 19/05/2007 the date of alleged incident in the instant case. Did the 96 of 104 97 FIR No. 417/2007 PS - Uttam Nagar reputation of Vidya Sharma and Jagdish Sharma became bad in the Mohalla on 21/06/2007 which led to the filing of complaints Mark DX1 to DX3 or was it prior to 21/06/2007, if yes, why there is no complaint made prior to that (21/06/2007). the testimony of DW1 - Sh. Sonu Suneja is totally silent on this aspect. It clearly indicates that such complaints are afterthought. Further, DW1 - Sh. Sonu Suneja has deposed that Vidya Sharma and Jagdish Sharma are habitual false complaint makers. The testimony of DW1 - Sh. Sonu Suneja is totally silent as to the particulars of the false complaints made by Vidya Sharma and Jagdish Sharma. Nor even a single word has been uttered by DW1 - Sh. Sonu Suneja as to what undue advantage has been obtained by Vidya Sharma and Jagdish Sharma from the accused persons.
DW2 Sh. Tej Singh S/o Het Ram, Age - 62 years, R/o D55, Sewak Park, Uttam Nagar, Delhi has deposed that he knows Vidya Sharma and Jagdish Sharma who are R/o B1/53/1, Ex. Sewak Park, Uttam Nagar, Delhi. The character of Vidya Sharma is not good and she is a habitual false complaint maker. Some Nigerians were apprehended from her house and the news was flashed in the newspaper also. The residents of Mohalla made complaints against them.
During his crossexamination by the Learned Addl. PP for the 97 of 104 98 FIR No. 417/2007 PS - Uttam Nagar State DW2 - Sh. Tej Singh has deposed that : "I am living at the above said address (D55, Sewak Park, Uttam Nagar, Delhi) since 1984. I am doing the work of tailoring at the same address. I know the Vidya Sharma since she started residing at the address given. Jagdish Sharma is running the agency of security guards. Vidya Sharma is a house wife. Vidya Sharma and Jagdish Sharma had not made any complaint against me. Vidya Sharma and Jagdish Sharma had not made any complaint against any of the resident in my presence. I am not aware whether Jagdish Sharma or Vidya Sharma has been arrested in any case. Today I have came (come) in the Court at the instance of Dharmender and today I have come in the Court with Dharmender. It is wrong to suggest that I have come in the Court to depose falsely at the instance of accused and want to save them from the punishment."
On careful perusal and analysis of the testimony of DW2 - Sh. Tej Singh, it is found to be vague. DW2 - Sh. Tej Singh has deposed that Vidya Sharma is a habitual false complaint maker. The testimony of DW2 - Sh. Tej Singh is totally silent as to the particulars and description of the false complaints made by Vidya Sharma.
Further, as to what has been deposed by DW2 - Sh. Tej Singh during his crossexamination that "Today I have came (come) in the Court at the instance of Dharmender and today I have come in the Court with Dharmender" clearly indicates that he is a procured witness and has knocked out the bottom of the defence of the accused Dharmender @ Dhannu. Nor 98 of 104 99 FIR No. 417/2007 PS - Uttam Nagar even a single word has been uttered by DW2 - Sh. Tej Singh as to what undue advantage has been obtained by Vidya Sharma from the accused persons.
As far as the plea that report regarding Vidya Sharma and Jagdish Sharma was published in the newspaper vide News Report Mark DX4 and that some Nigerians were apprehended from her (Vidya Sharma) house are concerned, the same have not at all being established by any cogent evidence and further the same by itself does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
In view of above and in the circumstances, the testimonies of the defence witnesses do not inspire confidence and they are the procured witnesses. A futile attempt appears to have been made by accused Dharmender @ Dhannu to save his skin from the clutches of law by way of examination of the defence witnesses.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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29. Learned Counsel for accused Dharmender @ Dhanu referred to a case and is reported as Sunil Kumar Sharma Vs. State NCT of Delhi 20011(6) AD(Delhi)11.
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 voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
30. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 19/05/07 at 12:30 p.m. from a place in front of Spring Meadows Public School, Main Najafgarh Road accused Dharmender @ Dhannu kidnapped PW1 Prosecutrix, aged about 16 years (to be exact 16 years, 10 months and 28 days), a minor out of the keeping of her lawful guardian and after 100 of 104 101 FIR No. 417/2007 PS - Uttam Nagar kidnapping of prosecutrix, she was taken to Cosmetics shop, Najafgarh, Delhi in order that she may be forced to illicit intercourse by him and then he committed rape upon her and thereafter at about 6:00 or 6:30 p.m., accused Dharmender @ Dhannu on his motorcycle took the prosecutrix to the house of accused Phoolwati in Nangli Dairy, Delhi where at the house of accused Phoolwati in Nangli Dairy, Delhi accused Dharmender @ Dhannu and accused Phoolwati in furtherance of their common intention wrongfully confined PW1 prosecutrix knowing that prosecutrix had been kidnapped and in furtherance of their common intention committed the offence of criminal intimidation by threatening the prosecutrix to cause her death in the event she raised any alarm.
However, prosecution has failed to prove beyond shadows of all reasonable doubts its case against accused Dinesh Kataria and Lalit Rishi @ Rinku that in pursuance to the common intention of accused Dinesh Kataria and Lalit Rishi @ Rinku, on 19/05/07 at 12:30 p.m. from a place in front of Spring Meadows Public School, Main Najafgarh Road accused Dharmender @ Dhannu kidnapped PW1 Prosecutrix, aged about 16 years (to be exact 16 years, 10 months and 28 days), a minor out of the keeping of her lawful guardian or that in pursuance to the common intention of accused Dinesh 101 of 104 102 FIR No. 417/2007 PS - Uttam Nagar Kataria and Lalit Rishi @ Rinku, accused Dharmender @ Dhannu took the prosecutrix to cosmetics shop, Najafgarh, Delhi in order that she may be forced to illicit intercourse by them or that in pursuance to the common intention of accused Dinesh Kataria and Lalit Rishi @ Rinku, accused Dinesh Kataria and Lalit Rishi @ Rinku alongwith accused Dharmender @ Dhannu, in a group of persons committed rape upon the prosecutrix.
I accordingly, hold accused Dharmender @ Dhannu and Phoolwati guilty for the offences punishable u/s 368/34 IPC and u/s 506/34 IPC. Accused Dharmender @ Dhannu is also hold guilty for the offences punishable u/s 363/366/376 IPC and convict them thereunder.
I accordingly, acquit accused Dinesh Kataria and Lalit Rishi @ Rinku for the offences punishable u/s 363/34 IPC, u/s 366/34 IPC and u/s 376(2)(f) IPC.
31. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Dharmender @ Dhannu and Phoolwati in commission of the offences punishable u/s 368/34 IPC and u/s 506/34 IPC and also that of accused Dharmender @ Dhannu in the commission of the offences punishable u/s 363/366/376 IPC is concerned, 102 of 104 103 FIR No. 417/2007 PS - Uttam Nagar 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 Dharmender @ Dhannu and Phoolwati beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Dharmender @ Dhannu and Phoolwati. I therefore, hold accused Dharmender @ Dhannu and Phoolwati guilty for the offences punishable u/s 368/34 IPC and u/s 506/34 IPC. Accused Dharmender @ Dhannu is also hold guilty for the offences punishable u/s 363/366/376 IPC and convict them thereunder. As regards accused Dinesh Kataria and Lalit Rishi @ Rinku, I am of the considered opinion that prosecution has failed to prove its case beyond reasonable doubt against accused Dinesh Kataria and Lalit Rishi @ Rinku. They are given the benefit of doubt and are acquitted for the offences punishable u/s 363/34 IPC, u/s 366/34 IPC and u/s 376(2)(f) IPC. Accused Dinesh Kataria and Lalit Rishi @ Rinku are in JC. They be released forthwith, if not wanted in any other case. However, on their release accused Dinesh Kataria and Lalit Rishi @ Rinku shall appear in the Court and shall execute a bail bond in the sum of Rs. 25,000/ each u/s 437A Cr.P.C.
Announced in the open Court (MAHESH CHANDER GUPTA) on 11th Day of March, 2014 Additional Sessions Judge 103 of 104 104 FIR No. 417/2007 PS - Uttam Nagar Special Fast Track Court (N/W District), Rohini, Delhi 104 of 104