Delhi District Court
State vs . on 21 December, 2015
1
IN THE COURT OF SHRI PAWAN KUMAR MATTO,
ADDITIONAL SESSIONS JUDGE01/WEST: DELHI
S.C. No. 95/11
Unique Case I.D. No. 02401R0490992011
FIR No. 245/11
U/s 376 IPC
PS Tilak Nagar
State
Vs.
Sarwan
S/o Sh. Partap Singh
R/o WZ143/12, Indira Colony,
Tilak Nagar, New Delhi. ... Accused
Date of Institution : 02.11.2011
Date of arguments : 08.12.2015
Date of judgment : 21.12.2015
JUDGMENT:
1 Brief facts of the case of the prosecution are that the FIR was registered u/s 376 of IPC on date d 30.07.2011, on the statement of the prosecutrix 'S' (presumed name of the prosecutrix. The real name of the prosecutrix is withheld to protect her identity who is a minor girl) SC No. 95/11 State Vs. Sarwan Page no. 1 of 35 2 which is Ex.PW1/A. She has stated therein that she lives with her parents and his parents had gone to their village at Aligarh in U.P. about four months before the date of alleged occurrence. She has alleged that on dated 29.07.2011 at about 9.00 pm, when she was going to a shop to take some articles, the accused namely Sarwan S/o Partap, R/o WZ52, Inder Colony, Tilak Nagar, New Delhi, who is living in her neighbourhood, forcefully dragged her in the Indica Car bearing registration no. DL 3CF 9038, took her towards the Chowkhandi forcefully and she was raped by the accused against her will and thereafter, he left her at NAALA and she returned home and narrated about the occurrence of her MAUSI and in the night at about 1.00 pm, 100 number was dialed and told that the car of the accused was parked in the front of his jhuggi, wherein she was raped by the accused.
2. The prosecutrix was medically examined and the statement of the prosecutrix u/s 164 of Cr.PC was recorded by the Ld. MM, wherein, she has reiterated the allegation of kidnapping and rape against the accused.
3. The accused was arrested on dated 31.07.2011 near Subhash Nagar Metro Station at 2.30pm and taken for his medical examination and the statements of the witnesses, who were conversant with the facts of the case, were recorded, exhibits collected during the SC No. 95/11 State Vs. Sarwan Page no. 2 of 35 3 investigation, were sent to the FSL for examination.
4. On completion of the investigation, the chargesheet has been filed by the Investigating Officer. Copy of the same was supplied to the accused and the case was committed to the Court of Sessions. In turn, the same was assigned to this Court.
5. On finding the prima facie, this Court had framed the charges u/s 363/366/376 of IPC against the accused, to which he pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined twenty witnesses.
7. The prosecutrix 'S' (presumed name) has been examined as PW1 and at the time of her examination, she could not narrate the date of incident and submitted that she did not remember the date of incident and further deposed that 4/5 days prior to the incident, her parents had gone to Aligarh and she was living along with her two brothers, sister and three MAUSI in her house and she has deposed about the incident that at 9.00pm she had gone to buy some articles from the shop of Lakar, which is situated across the NALA and in the meanwhile a shining car passed through her and accused Sarwan was sitting on the rear seat of the car and he dragged her inside. Suddenly, the said car moved towards Chowkhandi and she shouted to save herself, but, nobody SC No. 95/11 State Vs. Sarwan Page no. 3 of 35 4 listened her screams, as the glasses of the doors were closed at that time and the accused Sarwan raped her in the car and thereafter, he left her near NALA and she returned to her house from there and told to her MAUSI i.e. PW4 and since, the matter was relating to her honour and respect. So, they discussed the matter together and at 1.00am in the night her MAUSI telephoned to the police at 100 number and she has further deposed that she knows to accused Sarwan and stated that he is residing outside of her colony. She has identified the accused in the court. She has also deposed that the police arrived in her house/jhuggi and her statement was recorded by the police which is Ex.PW1/A and she has identified her thumb impression at point A and thumb impression of her MAUSI i.e. PW4 at point B thereof and she told to the police about the occurrence and she was taken to the DDU hospital for her medical examination. The doctor had taken her clothes (SALWAR and under wear) and she had pointed out the car parked outside the house of the accused and the car was taken into custody by the police and it was seized vide Ex.PW1/B. She has identified her thumb impression thereon at point A and she was brought to Tis Hazari Court and her statement by the Magistrate was also recorded which is Ex.PW1/C and thereafter she had also undergone a bone age test and on the next day, the police was searching for the accused Sarwan along with her and when, they SC No. 95/11 State Vs. Sarwan Page no. 4 of 35 5 reached at Metro Station Subhash Nagar, she saw the accused and on her pointing out, the accused was arrested vide arrest memo Ex.PW1/D and she identified her thumb impression at point A and she has also identified her SALWAR and underwear Ex.P1 and Ex.P2 and also identified the said car and the photographs of the car involved in the incident are Ex.PX1 to PX7. She was cross examined by Ld. Counsel for accused. During her crossexamination she has denied that she did not narrate about the incident to the police. She has admitted that she cannot tell the number of the car, wherein, she was raped and explained that she is an illiterate girl. During her crossexamination, she has denied that the facts of incident were not narrated by her to the police. She has also stated that she cannot tell her age, but she has denied that she does not know about her age. He has stated that her mother had told her about her age. She has admitted that she cannot tell the year, in which, she was born and also deposed that her parents did not disclose about her year of birth. She has stated that she knows to the accused for the last several years and it may be 15 years. But, the court question was put by the Predecessor of this court that does she know about the period of 15 years or 20 years, then, she replied that she did not know about the period of 15 years or 20 years, as she is illiterate. She has also deposed that she did not know about the period of 14 years and she has SC No. 95/11 State Vs. Sarwan Page no. 5 of 35 6 also stated that she never went with the accused anywhere for any outing. She has admitted that her house is situated in a thickly populated area. She has also stated that she cannot tell whether the accused was driving the vehicle or not or some other one was driving the vehicle. She has also stated that she cannot tell, whether the vehicle was driven by male or female and she has admitted that she had touched inside the vehicle with her hand. She has also stated that she had stated before the Metropolitan Magistrate that she went to recharge to the phone and Lakar was selling all types of articles. He was also selling the recharge coupon. She has also admitted that she is not aware about the contents of the statement recorded by the police, as she is illiterate.
8. PW2 is the MAUSI of the prosecutrix who has testified that on dated 29.07.2011 she alongwith her sister (i.e.PW4) and the prosecutrix came to Tis Hazari Courts and the police had handed over the prosecutrix to her sister (i.e.PW4) in her presence. This witness was crossexamined and during her crossexamination, it was suggested that she never visited Tis Hazari Court. But, she has denied the same. She has also denied that she has deposed falsely.
9. Whereas, HC Ishwar has been examined as PW3 who has testified that on 30.07.2011 he was posted in the PS Tilak Nagar, as MHC(M) and ASI Rishali Yadav deposited one Indica car bearing SC No. 95/11 State Vs. Sarwan Page no. 6 of 35 7 registration no.DL3CAF9038 vide seizure memo and SI had also deposited six parcels duly sealed with the seal of CMO DDU Hospital and he made entry in register no.19 at serial no.5461 and further deposed that on 20.08.2011 the said vehicle was released to the superdar and the copy of register no.19 is Ex.PW3/A1 and PW3/A2 (OSR). He has further deposed that on 31.07.2011 Asstt. Sub Inspector/IO had also deposited with him ten exhibits duly sealed with the sample seal of CMO DDU Hospital and he made entry in the register no.19 at serial no.5464 on dated 23.08.2011 and two sample seals were handed over to Ct. Sandeep, which were to be deposited in the FSL Rohini vide road certificate no.97/21/11 and on dated 25.01.2012 the result of FSL with exhibits duly sealed were received by him through Ct. Suresh on dated 27.01.2012 and he had handed over the result of FSL to the IO Rishali Yadav and he made entry in register no.19. Copy of register no.19 is Ex.PW3/B and the copy of road certificate is Ex.PW3/C and acknowledgment thereof is Ex.PW3/D and also deposed that during the period the case properties remained in his possession and no one has tempered the same in any manner. This witness was not cross examined. So, the opportunity to crossexamine to this witness was done NIL.
10. Whereas, another MAUSI of the prosecutrix was examined SC No. 95/11 State Vs. Sarwan Page no. 7 of 35 8 as PW4 who has testified that her sister i.e. mother of the prosecutrix and father of the prosecutrix had gone to their native village for constructing their house about four months prior to the incident and they left their children including the prosecutrix with her at her house for looking after of them. On 29.07.2011 at about 9.00pm prosecutrix went out of her house for recharging her mobile phone. But did not return till 12.30 in the night and prosecutrix told her that she was taken away by the accused and raped by the accused in a car and the clothes of the prosecutrix were stained with blood and she has also deposed that in the night hours, they went to the police station and prosecutrix was produced before the police and she alongwith the police went to the hospital for medical examination of the prosecutrix and after her medical examination, she was taken to the police station and statement of the prosecutrix was recorded by the police which is Ex.PW1/A. She has identified her thumb impression at point 'B' thereof and further deposed that the prosecutrix had put her thumb impression at point A and they went to the house of the accused. Indica car was taken into possession by the police and prosecutrix was produced in the court of Ld. Metropolitan Magistrate and her statement was recorded and the prosecutrix was handed over to her and the accused was well identified by this witness in the court. She was crossexamined by the Ld. Counsel SC No. 95/11 State Vs. Sarwan Page no. 8 of 35 9 for accused. She has admitted that incident had not taken place in her presence. She has admitted to have made call at 100 number and stated that she had told the police at 100 number that the prosecutrix was lifted and raped. She has denied that she told to the police about molestation of the prosecutrix. She has denied the suggestion given by the Ld. Counsel for the accused that there was any dispute between family's members of the prosecutrix and the accused pertaining to a jhuggi. She has denied that she was intending to grab the jhuggi of the accused. She has also denied that she has deposed falsely or that no such incident had taken place. She has admitted that she had not made telephonic call immediately to the police, but, after 2/3 hours she had made call to the police. She has denied that accused has been falsely implicated.
11. Whereas, the mother of the accused Munni Devi has been examined as PW5 who has testified that police has taken the car in front of her jhuggi in custody vide seizure memo Ex.PW5/A. She has identified her thumb impression thereon at point 'A' and deposed that the car and it's key were left at jhuggi by accused. She has also identified the keys of the car and the car is Ex.P3 and keys thereof are Ex.P4. The identity of the car and its keys have not been disputed by counsel for accused.
12. Whereas, Smt. Devender Kaur i.e. the owner of the car has been examined as PW6 who has testified that she is the owner of the car SC No. 95/11 State Vs. Sarwan Page no. 9 of 35 10 No.DL3CAF9038 and accused Sarwan present in the court at the time of her examination was correctly identified. She has also deposed that the accused is friend of her son Deepak and in view of such friendship with her son, the accused took the car on 27.07.2011 and accused Sarwan did not turn up to return her car and therefore, she made enquiry from his house and she came to understand that accused Sarwan Kumar has been arrested in a rape case and she has also admitted that she had taken the vehicle on superdari vide superdarinama Ex.PW6/A. The accused has not disputed the identity of the vehicle so, the car is Ex.P3 and photographs of car are PX1 to PX7. During her crossexamination this witness has admitted that police had never met her for making inquiry from her.
13. Whereas, HC Sushila has been examined as PW7 who has testified that on 30.07.2011. He was posted at PS Tilak Nagar as duty officer from 8.00am to 4.00pm and at 8.00am rukka was handed over to her by SI Rishali Yadav, on the basis of which the FIR no.245/11 was recorded U/S 376 of IPC and she has proved the computerized copy of the FIR Ex.PW7/A. She has identified her signature at point A and certificate U/S 65B of the Indian Evidence Act regarding the correctness thereof is Ex.PW7/B and endorsement on rukka is Ex.PW7/C. This witness was crossexamined and she has denied the suggestion given SC No. 95/11 State Vs. Sarwan Page no. 10 of 35 11 by the Ld. Counsel for accused that the FIR is ante time and ante dated.
14. Whereas, Dr. Komila has been examined as PW8 who has testified that on 30.07.2011 he was posted as Senior Resident (Gyne) at DDU hospital and she had examined to the prosecutrix and referred to the Department of Casualty Medical Officer Dr. Deepshikha and prosecutrix and her aunt had given the history of sexual assault on 29.07.2011 at 9.00pm following which, she had bleeding per vaginam and she has also deposed that on local examination SALWAR and under garment soiled with blood were sealed and handed over to ASI, "fresh hymen tear" was present but no active bleeding was noted at that time. No external injury were marked on per vaginal examination. One finger was easily admitted, vaginal smear taken, high vaginal swab were taken and handed over to ASI and further deposed that blood sample for HIV Hbs Ag, under garments, SALWAR vaginal smear, high vaginal swab, pubic hair, natural scraping were taken and sealed and handed over to ASI Rishali Yadav and the patient was advised urine pregnancy test which was negative, ultrasound pelvis tab cefixime and tabazithromycin and emergency contraception with tab, levonorgestrel were prescribed and she had also deposed that she had prepared the MLC Ex.PW8/A and identified her signature at point A. She was crossexamined and during her crossexamination also she has reiterated that "fresh hymen SC No. 95/11 State Vs. Sarwan Page no. 11 of 35 12 tear" of the prosecutrix was also there and she has also deposed that she did not ask about the date of birth of the prosecutrix and during her crossexamination, she has also deposed that fresh hymen tear is possible by way of injury. But, again voluntarily deposed that major cause of hymen tear is sexual act.
15. Whereas, Ct. Subhash has been examined as PW9 who has testified that on dated 30.07.2011 he was posted in the PS Tilak Nagar and duty officer had handed over to him the rukka and computerized copy of FIR and he took the same at the spot and handed over to the IO. He joined the investigation and thereafter, at the instance of the prosecutrix, one Indica car bearing registration no.DL3CAF9038 parked outside the jhuggi no.52, Indra Colony was seized vide memo Ex.PW1/B. He has identified his signature at point B thereof. This witness was not crossexamined.
16. Whereas, Dr. Kumar Narender Mohan has been examined as PW10, who has testified that on 30.07.2011 he was posted as Medical Officer. On that day the Dr. Deepshikha examined to the prosecutrix at 5.20am and with the history of sexual assault brought by WASI Rishali Yadav and the patient was examined under his supervision. He has also testified that Dr. Deepshikha, who was working as Senior Resident in the DDU Hospital and since at the time of his SC No. 95/11 State Vs. Sarwan Page no. 12 of 35 13 evidence, in this case, she was on long maternity leave. So, this witness has identified her signature and handwriting on the MLC and also deposed that on local examination Dr. Deepshikha found mild swelling with mild tenderness over right knee and the patient was advised medication and referred to the Department of Gyane and proved the report of Dr. Deepshikha Ex.PW10/A and further deposed that on 31.07.2011, the accused was examined by Dr. Alok who was working as Senior Resident in DDU Hospital and the Dr. Alok had left the services and his whereabouts are not known, and he has identified the signature and hand writing of Dr. Alok and proved the MLC of the accused Ex.PW10/B. This witness was also not crossexamined.
17. Whereas, PW11 HC Vijender has deposed that on the intervening night of 29/30.07.2011 he was posted in the PS Tilak Nagar on emergency duty from 8.00pm to 8.00am and at about 12.56am on receiving the PCR call recorded DD no.6A and he went to the spot alongwith Ct. Sunil and the prosecutrix and her MAUSI who has been examined, as PW4 had informed that accused had raped the prosecutrix in an Indica Car. He has further testified that he had informed to his senior officers and on their directions, he handed over the call to the WASI Rishali Yadav for further investigation. He has also testified that he along with the prosecutrix and her MAUSI went to the PS for further SC No. 95/11 State Vs. Sarwan Page no. 13 of 35 14 investigation. He was cross examined by Ld. Counsel for accused and even during his cross examination, he had reiterated that the prosecutrix had told him that she was raped. He had denied the suggestion given by Ld. Counsel for accused that he had not enquired from the prosecutrix or that he has deposed falsely.
18. Whereas, Dr. Aakanksha has been examined as PW12 who has testified that on 09.08.2011 she had examined to the prosecutrix. She has also deposed that she had examined her Xray plates and found that as per Xray plates, She was of age between 15 to 17 years and proved her report Ex.PW12/A and identified her signature thereon at point A. She has also deposed that final opinion regarding the age of the prosecutrix was also given by Dr. Sunil Kakkar who was chairman of the Board and report is Ex.PW12/B. She has also identified her signature and signature of Dr. Sunil Kakkar thereon. She has also deposed that she worked with him and testified the age of the prosecutrix was above 15 years and below 17 years.
19. Whereas, PW13 Ms Vandana Jain, Ld. MM has proved the application Ex.PW13/A filed by the IO for recording of the statement U/S 164 of Cr.P.C and statement of the prosecutrix recorded U/S 164 of Cr.P.C is proved as PW1/C and certificate given by Ld. MM is Ex.PW13/B. This witness is not crossexamined.
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20. Whereas, HC Devender Kumar who has been examined as PW14 has proved the photographs of the Tata Indica Car bearing registration no.DL3CAF9038 Ex.PX1 to PX7 which were clicked by him and negative thereof are Ex.PW14A1 to Ex.PW14A7. This witness was also not crossexamined.
21. Whereas, Ct. Sandeep has been examined as PW15. He has proved the arrest memo of accused Ex.PW1/D and personal search memo Ex.PW15/A. He has also deposed that disclosure statement of the accused was recorded and accused was taken to DDU hospital for his medical examination. He was medically examined in the DDU Hospital and the doctor had handed over four sealed exhibits along with sample seal vide memo Ex.PW15/B to him. He has proved his signature thereon. This witness is also not crossexamined.
22. Whereas ASI Dharamvir, finger print expert has been examined as PW16. He has deposed that on dated 06.08.2011 he went to the PS Tilak Nagar where he examined one car Tata Indica bearing registration no.DL3CAF9038 and deposed that HC Devender (PW14) had taken the photographs and he has developed one chance print from central view mirror of the car and was sent for comparison to the finger print bureau, Kamla Market and his report is Ex.PW16/A. This witness is also not cross examined.
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23. Whereas, ASI Azad Singh has been examined as PW17 who has deposed that on dated 06.08.2011 he went to the PS. He examined one Tata Indica Car bearing registration no.DL3CAF9038 and ASI Dharamvir has developed one chance print from the central view mirror of the car and he has also examined the car and prepared the report Ex.PW16/A and proved his signature at point A. This witness was also not cross examined.
24. Whereas, HC Janak Raj has been examined as PW18 who has deposed that on 31.07.2011 he was posted in the PS Tilak Nagar. He along with Ct. Sandeep, ASI Rishali Yadav, prosecutrix and her MAUSI (PW4) had gone to Subhash Nagar Metro Station, on receiving of information that accused would be available there and accused was arrested vide arrest memo Ex.PW1/D and personally searched vide memo Ex.PW15/A and who had made disclosure statement, which is Ex.PW18/A and this witness is also not cross examined.
25. Whereas, Dr. Deepshikha has been examined as PW19, who has proved the report Ex.PW12/B regarding the age of the prosecutrix between 15 to 17 years. This witness was cross examined and during her cross examination, she has submitted that the prosecutrix may be of above 17 years of age.
26. Whereas, IO has been examined as PW20 who has SC No. 95/11 State Vs. Sarwan Page no. 16 of 35 17 deposed about the investigation who has proved the attested copy of DD no.6A Ex.PW20/A and seizure memo Ex.PW20/B vide which the sealed pulanda and sample seal and site plan is Ex.PW20/C and sample seals were seized and rukka Ex.PW7/C and Ex.PW20/D, vide which the custody of the prosecutrix was handed over to the MAUSI of the prosecutrix. She has also deposed that on dated 23.08.2011 exhibits were sent to the FSL Rohini through Ct. Sandeep and she had collected the FSL report Ex.PW20/E and Ex.PW20/F respectively. This witness was cross examined. During her crossexamination she has admitted that no public witness has met her and also admitted that distance between the place, where the prosecutrix was kidnapped and the place where the prosecutrix was dropped is about half kilometer. She has denied the suggestion that accused had surrendered himself in the police station. She has admitted that DD No.6A regarding the teasing of girl was registered. He has denied that she has not conducted fair investigation.
27. On closing of the evidence of the prosecution, statement of the accused u/s 313 of Cr.PC was recorded. He was confronted with the incriminating evidences of the prosecution. Accused has denied the correctness thereof and pleaded as an innocent person and he has also examined Sh. Amit as DW1, who has deposed that on 29.07.2011 at SC No. 95/11 State Vs. Sarwan Page no. 17 of 35 18 about 5.00pm accused Sarwan was present and went alongwith him to his house for attending Khir Puri ceremony of KAWAD and he remained with him till 4.00am and thereafter, he returned. During his cross examination, he has admitted that he is a friend of accused, but, he has denied that he has deposed falsely or that no Khir Puri ceremony was held.
28. I have heard Ld. APP for the State and Ld. Counsel for the accused and perused the record.
29. Ld. Counsel for the accused has submitted that the report of chance print which is Ex.PW16/A does not support the version of the prosecutrix and submitted that the prosecutrix has stated that she has touched the car from inside and the report of chance prints could show the finger prints of the prosecutrix therein. He has also submitted that prosecutrix is the tenant of the accused and in order to grab his jhuggi/property she has falsely implicated to the accused and the prosecutrix and accused are neighbours. He has also submitted that there are material contradictions in the statements of the prosecutrix. So, the accused is liable to be acquitted. He has also submitted during her cross examination, the prosecutrix has admitted that she resides in a thickly populated area and submitted that it was not probable to kidnapped to the prosecutrix in a thickly populated area and submitted SC No. 95/11 State Vs. Sarwan Page no. 18 of 35 19 that the prosecutrix failed to tell the number of the car in the court. So, the accused is liable to be acquitted.
30. On the other hand, Ld. APP has submitted that the prosecutrix has made certain clarifications while deposed in the court, as PW1. He has also submitted that the clarification cannot be called at material contradictions. He has also submitted that prosecutrix is an illiterate and poor girl, who resides in a jhuggi. So, she could not tell the registration number of the car, during her cross examination in the court and also submitted that the identity of the car is not disputed. Car is seized on the identification of prosecutrix vide Ex.PW5/B and it's photographs are Ex.PX1 to Ex.PX7. It is further submitted that even otherwise the occurrence has taken place on dated 29.07.2011 at 9.00pm. Whereas the prosecutrix was examined/crossexamned on dated 21.03.2012 and 19.04.2012 and with the passage of time, some discrepancies are bound to occur. But, these discrepancies cannot affect the merit of the case. So, the same are liable to be ignored. It is further submitted that the prosecutrix has been examined as PW1 and despite of her lengthy crossexamination, her testimony has gone unimpeached. It is further submitted that the occurrence has taken place on dated 29.07.2011 at 9.00pm. On that day, the parents of the prosecutrix were not available and MAUSI of the prosecutrix had dialed 100 number at SC No. 95/11 State Vs. Sarwan Page no. 19 of 35 20 about 1.00AM and the prosecutrix has well explained the reason that since, it was a matter of honour and respect of her so, the matter was discussed and also clarified that after discussion, MAUSI of the prosecutrix had telephoned at 100 number. He has also submitted that since, the occurrence had taken place on 29.07.2011 at 9.00PM and telephone was made to the police at 1.00AM on 30.07.2011 and the FIR has been registered on dated 30.07.2011 at 08.05am and a bit delay in registration of the FIR cannot be a ground for ignoring the version of the prosecutrix and also submitted that such delay has been explained by the prosecutrix. So, the delay cannot be a ground for discrediting the version of the prosecutrix. It is further submitted that since, the prosecutrix and the accused were known to each other. They are residing in the same vicinity. So, the identity of the accused is not in dispute and even if, the public witnesses have not been examined, the testimony of the prosecutrix, which has gone unimpeached and corroborated by PW8, who has well narrated that on medical examination of the prosecutrix, her hymen was found to be freshly torn in her MLC Ex.PW8/A. It is further submitted that the testimony of the prosecutrix has gone unimpeached, which is corroborated with the medical evidence and since, she is a minor girl, she was dragged in a car by the accused and she has been raped in the car and he had left to the SC No. 95/11 State Vs. Sarwan Page no. 20 of 35 21 prosecutrix after raping her and also submitted that the accused has committed heinous crime of rape that too against a minor girl and the prosecutrix has to face stigma attached to such incident for entire life, as her virginity is violated by the accused. so, he does not deserve any leniency and bit lacunae in the investigation and delay are liable to be ignored but accused does not deserve to be benefited thereof and prayed for conviction under Section 363/366/376 of IPC, as the prosecution has discharged its onus.
31. The perusal of the record show that in the case in hand, the accused is alleged to have kidnapped and raped in a car to a minor girl on dated 29.07.2011 at 9.00pm. When, she was going on the shop of Lakkar to purchase some articles and the FIR is registered on 30.07.2011 at 08.05AM and there is a delay of 11 hours. The prosecutrix has examined herself as PW1. She has deposed that at 9.00pm she was going on the shop of Lakkar to purchase some articles. The accused came in a car. He was sitting on the rear seat and he forcibly dragged her in the car and took the car towards Chokhandi. She shouted in a loud voice. But as the glasses of the doors were closed. So, nobody listened her voice and accused raped her and thereafter, the accused left her near Nala and she returned home and told to her MAUSI, who has been examined as PW4 and since the matter of honour and respect of the SC No. 95/11 State Vs. Sarwan Page no. 21 of 35 22 prosecutrix was concerned. So, after discussing the matter, 100 number was dialed at 1.00am. The Ld. Counsel for the accused has submitted that the occurrence is alleged to have taken place on dated 29.07.2011 at 9.00pm whereas the FIR has been registered on dated 30.07.2011 at 08.05AM. So, the version of the prosecutrix becomes suspicion. But, in the considered opinion of this court, as from the testimony of prosecutrix and PW4, it is clear that on the date of occurrence the parents of the prosecutrix were not available at Delhi and the prosecutrix is a minor girl who has been examined as PW1 has deposed that after discussing the matter with her MAUSI i.e. PW4, the police was informed at about 1.00am. On 30.07.2011. No doubt that the DD No.6A reveals that it is relating to the incident of molestation. But the MAUSI of the prosecutrix who has been examined as PW4 has categorically denied that she made call at 100 number by saying one girl is molested and she has stated that she had stated to the police that the prosecutrix has been kidnapped and raped. PW11 HC Vijender Singh has also deposed that on receiving of the PCR call recorded as DD no.6A he along with Ct. Sunil went to the spot and during his crossexamination he has deposed that prosecutrix had told him that she was raped and thus, from the testimonies of the prosecutrix and PW4, PW11 it is clear that the matter was reported to the police at 12.56AM on 30.07.2011. But the police has registered the FIR SC No. 95/11 State Vs. Sarwan Page no. 22 of 35 23 No.245 on 30.07.2011 at 8.05AM and as the matter of dignity and image of the prosecutrix was concerned. So, in such case on the basis of the delay in the registration of the FIR, the statement of the prosecutrix cannot be ignored and discarded because, bit negligence is also attributable to the police for such delay.
32. As their Lordship of Supreme Court in case "Sahebrao and Anr. Vs. State of Maharashtra" (2006) 9 CC 794, the Hon'ble Supreme Court of India has held that:
"The settled principle of law of this court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The Delay in lodging the FIR would put the court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory."
"At this juncture, we would like to quote the following passage from State of H.P. Vs. Gian Chand wherein this Court observed: "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guarsd to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."
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33. Ld. Counsel for accused has submitted that the prosecutrix and the accused are neighbours and the prosecutrix is the tenant of the accused and in order to grab the jhuggi of the accused, the prosecutrix has falsely implicated to the accused in the present case, without any fault of him. But this court has perused the cross examination of the prosecutrix, wherein it is nowhere suggested to the prosecutrix that either she is tenant in the jhuggi of the accused or that she had desired to grab the jhuggi of the accused. But it s suggested to PW1 that her MAUSI wanted to grab the jhuggi of the accused.
34. The perusal of the statement of accused recorded U/S 313 of Cr.P.C shows that the accused has taken the plea therein that the prosecutrix and her mother are the tenants in the jhuggi of his mother and they are not paying rent for the jhuggi and when her mother demanded arrear of rent, the prosecutrix and her mother falsely implicated him. But the accused has failed to bring on record any cogent evidence to prove that the jhuggi, wherein, the prosecutrix is residing with her mother is owned by the mother of the accused or that the prosecutrix and her mother are tenants of the mother of the accused. The accused has stated in his statement U/S 313 Cr.P.C that when his mother has demanded the rent, the prosecutrix and her mother threatened to implicate the accused in a false case. But, as the accused SC No. 95/11 State Vs. Sarwan Page no. 24 of 35 25 has failed to prove this fact on record that either the prosecutrix or her mother are the tenants of him or his mother. So, in the absence of any cogent evidence on record, such statement of the accused does not inspire any confidence that the prosecutrix and her mother are tenants of the mother of the accused. Ld. Counsel for accused has submitted that the prosecutrix has deposed in her statement Ex.PW1/A that on the date of occurrence, she was going to purchase some articles from the shop of Lakkar. Whereas, at the time of recording of her statement U/S 164 of Cr.P.C, she has stated that on the date of occurrence she was going to the shop of Lakkar for getting her phone recharged and also submitted that the prosecutrix in her first statement Ex.PW1/A has nowhere stated so and that at the time of recording of her examination in chief, in this court she has again deposed that she was going to buy some articles. So, there are contradictions and improvements in the statements of the prosecutrix. So, such testimony of the prosecutrix cannot be relied upon. But this court does not find any force in such submissions of Ld. Counsel for accused, because, the contradictions which materially affects the merit of the case and go to the root of the matter are relevant. No doubt that the prosecutrix in her statement Ex.PW1/A has stated that on the date of occurrence, she was going to purchase some articles from a shop, but, at the time of recording of her SC No. 95/11 State Vs. Sarwan Page no. 25 of 35 26 statement U/S of 164 Cr.P.C, she has stated that she was going to get her mobile phone recharged from a shop. But in the considered opinion of this court such type of inconsistency cannot affect the merit of the case of the present nature nor they go into the root of the matter.
35. The Lordship of Supreme Court in case Lila Ram Vs. State of Haryana (1999) JT (SC) 27 was pleased to hold that : "There is bound to be some discrepancies between the narration of different witnesses when they speak of details and unless the contradictions are of a material dimension, the same, should not be used to detlison the evidence in its entirety. Instantly, the corroboration of the evidence with the mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence eye witness unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.....".
The court shall have to bear in mind that different witnesses react differently under the different situation: Whereas some become speechless, some start wailing while some other run away from the scene and yet there are some who become forward with courage, conviction and believe that the wrong should be remedied. As a matter of fact it depends upon the individuals and individuals. There can not be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within the set pattern is unproductive and tentative exercise."
36. Similarly the Lordship of Supreme Court in case State of Punjab Vs. Jagir Singh and others 1974 (3) Supreme Court case 277 was pleased to hold that:
"a criminal trial is not like a fairy tale wherein one is free to SC No. 95/11 State Vs. Sarwan Page no. 26 of 35 27 give fight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of trial with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by a yardstick of probabilities, its intrinsic worth and animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the court should not at the same time reject the evidence which is exfacie trustworthy on the ground which are fanciful or are nature of conjectures."
37. The Lordship of Supreme Court in case State of Punjab vs. Gurmit Singh & Ors. (1996) 2 SCC 384]. observed : "Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of fatal future, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place SC No. 95/11 State Vs. Sarwan Page no. 27 of 35 28 implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
38. The observations in Gurmit Singh's case were reiterated in Ranjit Hazarika vs. State of Assam (1998) 8 SCC 635 in the following terms:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no selfrespecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed consideration which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury."
39. The perusal of the crossexamination of the prosecutrix shows that the Ld. Counsel for accused has suggested to the witness that the prosecutrix and her MAUSI have falsely implicated to the SC No. 95/11 State Vs. Sarwan Page no. 28 of 35 29 accused after receiving money from Vicky and Sunny. But, the prosecutrix has denied such suggestion put forth by the Ld. Counsel for accused. But Ld. Counsel for accused has failed to explain, even at the time of final arguments, as to who were these Vicky and Sunny and why the money could be paid by them to the prosecutrix and her MAUSI for falsely implicating to the accused. Thus, in the absence of any cogent explanation about such suggestion given by Ld. Counsel for accused to the prosecutrix, this court finds that such suggestion is full of vagueness and is of no relevance.
40. Ld. Counsel for accused has submitted that the prosecutrix has admitted during her crossexamination that she is residing in a thickly populated area and in such area, the kidnapping is not possible and submitted that in view of improbable story of the prosecution the accused is liable to be acquitted.
41. But perusal of the crossexamination of the prosecutrix shows that the prosecutrix has admittedly the suggestion put forth by the counsel for accused that her residence is situated in a thickly populated area, but at the same time, from the perusal of testimony of PW1 i.e. the prosecutrix and site plan Ex.PW20/C, it is clear that the prosecutrix is not kidnapped near her house, but, she is kidnapped near the shop of Lakkar and the accused is a man of well built body whereas, the prosecutrix is a SC No. 95/11 State Vs. Sarwan Page no. 29 of 35 30 minor girl. Ld. Counsel for accused has submitted that the prosecutrix has not suffered in external injury. Had the accused dragged to the prosecutrix in the car and raped her, she could suffer external injuries, but, in the absence of any external injury, the testimony of the prosecutrix cannot be relied upon to convict the accused. But, I do not find any force in such submissions of Ld. Counsel for accused. Since, the accused is a healthy man and since the prosecutrix has clarified that on the date of occurrence, the accused was sitting on the rear seat of the car and after dragging the prosecutrix in the car, he is alleged to have taken the said car towards the Chowkhandi and since the glasses of the windows of the said car were shut. She shouted but in view of the shutting of the panes of the windows, her voice could not be listened by any person. Since, the prosecutrix has alleged that she has been kidnapped and raped in the car on 29.07.2011, PW8 Dr. Komila and PW10 Kumar Narender Mohan have proved the MLC Ex.PW10/A (Ex.PW8/A) of the prosecutrix which clearly reveals that "fresh hymen tear" and mild swelling and mild tenderness on the right knee of the prosecutrix and the such injury on the knee during the dragging to the prosecutrix in the car or during her rape cannot be ruled out, testimony of the prosecutrix is also corroborated with the MLC of the prosecutrix. The Ld. Counsel for accused has submitted that the report of chance print does not corroborated the SC No. 95/11 State Vs. Sarwan Page no. 30 of 35 31 version of the prosecutrix. So, the story of the prosecution is suspicious and cannot be relied upon. But, I do not find any force in such submissions of the counsel for the accused, because, the occurrence has taken place on 29.07.2011 at 9.00pm whereas, the vehicle i.e. car wherein prosecutrix is alleged to have been kidnapped and raped is recovered on dated 06.08.2011 vide seizure memo Ex.PW5/B. Since, there is a gap of time between the commission of the crime and in the recovery of the vehicle i.e. the car. So, it is probable that the accused would have cleaned the finger prints therefrom. So, the finger prints could not be detected in the car.
42. It is worthwhile to mention here that the accused has not given any suggestion to the prosecutrix that on the date and time of occurrence, he was not present at the spot of the occurrence or that he was there with his friend namely Sh. Amit, who has been examined as DW1 in view of "Kheer Puri ceremony" or that he went to the house of his friend i.e. DW1 on dated 29.07.2011 at 5.00pm or returned on dated 30.07.2011 at 4.00am nor the accused has taken this plea of alibi in his statement recorded U/S 313 of Cr.P.C. But, thereafter, the accused has examined one defence witness i.e. DW1, who has deposed that on dated 29.07.2011 at about 5.00pm, the accused had gone with him to his house for attending "Kheer Puri ceremony of KAWAD" and he remained SC No. 95/11 State Vs. Sarwan Page no. 31 of 35 32 with him till 4.00am. Since, this DW1 has admitted that he is friend of the accused and accused has not given such suggestion to fortify his such plea of alibi to the prosecutrix or any other prosecution witness, even otherwise from the perusal of the record, it is clear that this plea of alibi is taken even after recording of statement of the accused U/S 313 of the Cr.P.C. So, the testimony of DW1 who is the friend of the accused does not inspire any confidence and I am inclined to hold that the accused has failed to prove his plea of alibi by way of leading any cogent evidence. So, his plea of alibi is disbelieved.
43. Since in the case in hand, it is proved on the record that the prosecutrix is a minor girl.
44. The Lordship of High Court of Delhi in 2012 VI AD (Delhi) 170 State Vs. Jai Hind was pleased to hold: " The law with regard to the testimony of child witnesses can be summed up thus. The conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same. (Ratansinh Dalsukhbai Nayak Vs. State of Gujrat 2004 (1) SCC 64) It should be accepted albeit with circumspection. This decision had accepted the observations Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341) where it was held that:
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such SC No. 95/11 State Vs. Sarwan Page no. 32 of 35 33 witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."
45. In the case in hand, the prosecutrix is an unmarried girl between 15 to 17 years of age, as per reports Ex.PW12/A and PW12/B and the Ld. Counsel for accused has submitted that the prosecutrix has failed to tell the registration number of the car, wherein she was raped. But, as the prosecutrix is an illiterate girl so, she could not tell the registration number of the said car. But, in this case, the car has been seized vide seizure memo Ex.PW5/B on the identification of the car by the prosecutrix and photographs of the car Ex.PX1 to PX7 have been proved on the record, so, the testimony of the prosecutrix cannot be disbelieved in view of nontelling of registration number of the car.
46. Ld. Counsel for accused has submitted that the accused has been arrested from his house. Had he committed the offence, he could not be arrested from his house, but, this court finds that such submissions of Ld. Counsel for accused are absolutely contrary to the facts proved on the record. As the occurrence has taken place on dated 29.07.2011 at 9.00pm and since then, the accused was fleeing and on SC No. 95/11 State Vs. Sarwan Page no. 33 of 35 34 dated 31.07.2011 the accused was arrested from Subhash Nagar Metro Station, Delhi vide arrest memo Ex.PW1/D and PW15 is also the witness to this arrest memo Ex.PW1/D. This witness is not crossexamined. Thus, this fact is proved on the record by the prosecutrix and from the unrebutted testimony of PW15 that the accused was arrested from the Subhash Nagar Metro Station on 31.07.2011. Thus, subsequent conduct of the accused, who was fleeing, after the commission of the crime is also material. As the accused could not be arrested from his house immediately and he was arrested on dated 31.07.2011 that too from the Subhash Nagar Metro Station.
47. Since, it is the settled principle of law that in case of rape, if the testimony of the prosecutrix is found to be reliable and trustworthy, the conviction can be based on sole testimony of the prosecutrix and coming to the case in hand, the prosecutrix has been examined as PW1. She has proved her statement Ex.PW1/A and her statement recorded U/S 164 of Cr.P.C which is Ex.PW1/C and I do not find any inconsistency on the material point regarding the commission of the kidnapping and rape of the prosecutrix, which may go into the root of the matter. The prosecutrix has alleged that on dated 29.07.2011 at 9.00pm she was forcibly kidnapped in a car by the accused and she was raped in the car. The testimony of the prosecutrix is found to be reliable and trustworthy SC No. 95/11 State Vs. Sarwan Page no. 34 of 35 35 and as on dated 30.07.2011 at 5.20am she was medically examined and her MLC Ex.PW10/A (also Ex.PW8/A) reveals that fresh hymen tear and mild swelling and mild tenderness on the right knee. Thus, the testimony of the prosecutrix is also corroborated with the MLC Ex.PW10/A and also from the testimony of PW4 who has testified that the prosecutrix returned home with blood stained clothes, after the occurrence. Therefore, I have no ground to disbelieve the testimony of the prosecutrix.
48. Cumulative effect of the above discussion is that I am inclined to hold that the prosecution has successfully proved its case beyond reasonable doubt that the accused Sarwan has forcibly kidnapped to the prosecutrix, who is a minor girl with the intention to seduce her to do illicit intercourse and he has raped to the prosecutrix and in view of the same, poor, minor unmarried prosecutrix has to suffer a lot in life. Therefore, I hold that the accused Sarwan guilty for the same and convict him for the offence punishable U/S 363/366/376 of IPC.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 21.12.2015 Additional Sessions Judge01(West)
Tis Hazari Courts, Delhi
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