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[Cites 18, Cited by 0]

Delhi District Court

State vs . on 28 January, 2016

                                                 1

        IN THE COURT OF SHRI PAWAN KUMAR MATTO, 
        ADDITIONAL SESSIONS JUDGE­01/WEST: DELHI


S.C. No. 89/2010
Unique Case I.D. No. 02401R0452232010
FIR No.   248/10
U/s            363/376/506 IPC
PS             Moti Nagar


State 
                                               Vs.
Mukesh Singhal
S/o Sh. Ishwar Parkash
R/o 93, Shakti Apartments, 
Ashok Vihar, Phase­III,
Delhi­110052.                                                                  ... Accused

Date of Institution  :  01.11.2010
Date of arguments :  20.01.2016
Date of judgment :  28.01.2016

JUDGMENT:

1. Brief facts of the case of the prosecution are that the FIR in the case in hand, has been registered on the statement of the prosecutrix 'N' (presumed name) (name of the SC No. 89/10 State Vs. Mukesh Singhal Page no. 1 of 65 2 prosecutrix is withheld to conceal her identity). As per complaint, the prosecutrix 'N' is about 17 years of age, she was student of History (Hons.) 1st year in the Bharti College, Janak Puri, Delhi.

2. The occurrence is alleged to have taken place on 04.08.2010 at about 4.15pm, when the prosecutrix was returning home from the college. The prosecutrix 'N' has stated in her first statement Ex.PW1/A that on dated 04.08.2010 at about 4.15pm, when she was coming from her college and going towards the bus stand, a Wagon­R car of gray colour bearing registration no.DL­2C­AC­4901 came near her and stopped and only accused was sitting therein and he asked to the prosecutrix 'N' about the way, which leads to DDU Hospital and when, the prosecutrix had told him that she did not know about the same. On this, the accused asked about the way, which leads to Subhash Nagar and when the prosecutrix 'N' refused, on this, the accused dragged to the prosecutrix in the car and threatened her that in case, she would shout, she will SC No. 89/10 State Vs. Mukesh Singhal Page no. 2 of 65 3 be killed and took her in a street at Bali Nagar through Hari Nagar and stopped the car in a street, when, the prosecutrix tried to run away, he threatened to the prosecutrix and asked her to remove her clothes and when the prosecutrix refused, then, he removed the clothes of the prosecutrix himself and opened the zip of his pant, threatened to kill the prosecutrix and raped to the prosecutrix against her will. Thereafter, he asked to the prosecutrix to wear the clothes and prosecutrix worn her clothes, her undergarments were stained with the blood and the accused started the car and she opened the door of the car, jumped out of the running car & shouted and shoutings of the prosecutrix attracted to the public and the accused was caught by the public, on the spot and beaten and on asking, the accused had told his name as Mukesh Singhal. It is further alleged by the prosecutrix that she was kidnapped from the Janak Puri, Delhi in a car and raped in a street at Bali Nagar against her will and prayed for taking strict legal action against the accused. Such statement of the prosecutrix was recorded SC No. 89/10 State Vs. Mukesh Singhal Page no. 3 of 65 4 and Rukka was sent and at about 6.30 pm, the FIR bearing no. 248 dated 04.08.10 was registered in the PS Moti Nagar. The accused was arrested on the spot and the prosecutrix was medically examined and the exhibits were collected and were sent to the FSL for examination. The statement of the prosecutrix under section 164 of Cr.PC was recorded by the Ld. Metropolitan Magistrate. The statements of the witnesses conversants with the facts were also recorded.

3. On the completion of the investigation, the charge­ sheet was filed and after supplying the copies of the charge­ sheet, the case was committed to the court of Sessions and in turn, it was assigned to this Court.

4. On findings of the , prime facie case u/s 363/376/506(II) of IPC, the charges thereunder were framed against the accused, to which, he pleaded not guilty and claimed trial.

5. In order to prove its case, the prosecution has examined 16 (sixteen) witnesses.

SC No. 89/10 State Vs. Mukesh Singhal Page no. 4 of 65 5

6. The prosecutrix 'N' (presumed name) has examined herself as PW­1. She has testified that on dated 04.08.2010 she was studying in Bharti College, Janak Puri as 1st year student of History (Hons.) on dated 04.08.2010 at about 4.15pm, she came out of the college after attending the classes and she was going to the bus stop, after crossing the road, the accused, who was in a Wagon­R car had opened the door of the car and asked her about the way which leads to DDU Hospital and she had told to the accused that she did not know and thereafter the accused asked her about the way which leads to Subhash Nagar and the prosecutrix again told to the accused that she did not know and on this the accused dragged her inside the car, on the co­driver's seat and locked the car and also threatened her that in case she would raise the alarm, she would be killed. And he started the car, took her at various places and stopped the car at Bali Nagar. The prosecutrix had tried to escape, but, in view of locking of the car, she could not go out of the same and she was also SC No. 89/10 State Vs. Mukesh Singhal Page no. 5 of 65 6 threatened that in case, she would try to escape, she would be killed by the accused. It is worth while to mention here that at the time of recording of examination in chief of the prosecutrix, the prosecutrix started weeping after partly deposing before the Ld. Predecessor of this Court and also stated that accused asked her to put off her all the clothes, but she refused and the accused forcibly put off the clothes of the prosecutrix and unziped his pant and rape to the prosecutrix. And thereafter, he asked to the prosecutrix to wear her clothes and she had worn the clothes inside the car and when the car went at little distance, two police personnels came in front of the car and other public persons also gathered, then, the police men dragged the accused out of the car and she also came out of the car and the accused was apprehended by the police and the accused had told his name as 'Mukesh Singhal'. The prosecutrix had also correctly identified to the accused in the court at the time of her deposition. The prosecutrix has also testified that the colour of the Wagon­R car, wherein she was SC No. 89/10 State Vs. Mukesh Singhal Page no. 6 of 65 7 raped,was light grey and it has black glasses and the registration number of the said car was DL­2C­AC­4901 and she has also testified that since she was raped, so, her underwear was got stained with blood and she proved her first statement recorded by the police as Ex.PW1/A and her signature thereon at point A. She has also testified that she was taken to DDU Hospital, where, she was medically examined vide MLC no. 14797 and identified her thumb impression at point A thereof. She had further deposed that medical sample and her undergarments were seized in the hospital by the doctor and the colour of her jean, which was stained with blood, was light blue which was also taken into possession by the police. She has further testified that her 'date of birth' is 29.03.1993 and proved her statement recorded u/s 164 of Cr.PC as Ex.PW1/B.

7. After such deposition, Ld. APP for the State sought permission to put certain leading questions and Ld. Predecessor of this Court was pleased to grant permission and SC No. 89/10 State Vs. Mukesh Singhal Page no. 7 of 65 8 in reply to the question, she has deposed that it is correct that she had given hairs of her head and the same were taken into possession vide seizure memo Ex.PW1/C and she has also identified her signatures at point A thereof. She has identified her clothes & also identified the photograph of vehicle i.e. Wagon­R car as Ex.PW1/D­1 to Ex.PW1/D8. At the time of exhibition of the photographs of the car, the objection was raised by the Ld. Counsel for accused and her examination was deferred for production of said vehicle.

8. Since the accused is the owner of the said vehicle and the vehicle was taken on superdair by him but he failed to produce the same despite of giving opportunities to the accused by Ld. Predecessor of this Court. The prosecutrix has also proved the seizure memo Ex.PW1/E vide which, certificate of her 'date of birth' was seized and her 'date of birth' certificate issued by the MCD is Ex.PW1/E­1. She has also identified her BANIYAN as Ex.PW1/A, her underwear as Ex.PW1/B, which was worn by her at the time of alleged occurrence and the SC No. 89/10 State Vs. Mukesh Singhal Page no. 8 of 65 9 same were produced by the MHC(M) and also identified her light blue colour jean pant Ex.P­2 and her bunch of hairs as Ex.P­3. She was also cross­examined by the Ld. Counsel for accused. During her cross­examination, the prosecutrix has deposed that the last period in her college was attended by 25 students and after attending the said last period, all the students came out of the college. She has further deposed that nobody was with the prosecutrix at the time of alleged incident. She has also deposed that there was no rush on the road at the time of occurrence. She has denied that there are shops of the motor vehicle accessories, spare parts, mobile shop etc. where the accused had parked his vehicle at the time of kidnapping. She has again reiterated that she was dragged by the accused in the vehicle and she had received red marks on her left arm. She has also admitted that she received no injury during such dragging and again reiterated that accused had locked the vehicle, while remained in the said vehicle. She has denied that there is one bus stop after crossing the road in front of her SC No. 89/10 State Vs. Mukesh Singhal Page no. 9 of 65 10 college. She has also denied that there are shops on both sides of road from clock tower to DDU hospital. She has admitted that there remained rush on the road. She has also deposed that she had not seen any police near the clock tower. She has admitted that there was big light at Raja Garden Chowk and rush remains there. She has also admitted that the accused was carrying the mobile phone on the day of occurrence and also admitted it to be correct that during the period, the prosecutrix remained in the car, the accused had received a call on mobile phone and talked about one minute thereon. It is worthwhile to mention here that counsel for accused put a query to the prosecutrix as to what did she do during the entire period, she remained in the car of the accused and replying to this query, the prosecutrix has deposed that first of all, she was blank for sometime, then, she tried to unlock the door of the car and also tried to jump from the car and she also tried to make call from her mobile phone, but, that was not possible, as it was in her pocket and she could not take it out. She has denied that SC No. 89/10 State Vs. Mukesh Singhal Page no. 10 of 65 11 she had not tried to unlock the car. She has also denied that she remained sitting in the car quietly. She has also deposed that the police officials did not permit her to attend any call on her mobile phone, though, she had received three missed calls from her mother, at that time. She has also deposed that she cannot understand the site plan Ex.PW1/DX and so, she cannot say about the correctness of the site plan. The counsel for accused had also asked to the prosecutrix, as to what force was used by the accused for removal of her clothes and replying to this query, the prosecutrix had deposed that the accused had caught her both hands and when she tried to raise alarm, the accused put his hand on her mouth and further deposed that probably the accused had slapped her and thrown all her clothes in the rear seat of the car. She has also deposed that she has resisted the hands of the accused, but, she did not give any slap to the accused or pulled his hairs. She has also deposed that accused had caught her both hands with his one hand, so, tightly that she received "NISHAN" on SC No. 89/10 State Vs. Mukesh Singhal Page no. 11 of 65 12 her hands and also deposed that it took about 15 minutes in removing of her clothes and in commission of her rape. She has also deposed that she was raped on the front seat of the car and also deposed that she took the admission in the college th in the July and her classes commenced w.e.f 29 July. She has denied that she had taken lift in the car of the accused or that she went with the accused with her own consent. She has also denied that she had demanded any money from the accused or that when the accused refused to accept her demand, the accused has been falsely implicated in the present case. She has denied that accused did not threat her at any point of time or that she has deposed falsely.

9. Whereas, Dr. Nitin Seth has been examined as PW2, who has testified that Dr. Avdesh who was working as Senior Resident Doctor in the Department of Casualty in DDU Hospital and left the services and whereabouts are not known and he had identified his signature and handwriting. He has deposed that he had seen the MLC of the prosecutrix 'N' who was SC No. 89/10 State Vs. Mukesh Singhal Page no. 12 of 65 13 examined by Dr. Avdesh at 8.45PM and as per MLC prepared by him she was examined with the alleged history of sexual assault. Her general condition was fair and her vital parts were found formal, no abnormality was detected and on local examination, no fresh injury was seen and the patient was referred to SR (obs) and Gyane and detailed report prepared by Dr. Avdesh which is Ex.PW2/A which is in the hand of Dr. Avdesh and he has also proved the MLC of the accused prepared by Dr. Avdesh Ex.PW2/B and as per the MLC of the accused, there was nothing to suggest that he was not able to perform sexual act. He has also deposed that as per the MLC, the vitals of the accused were found normal, no abnormality was detected. No local injury was seen and the under shirt under pant blood samples were sealed but patient did not cooperate in collecting semens sample. This witness was not cross­examined.

10. PW3 Ms. Renu Maan, Sub­Regisrar has proved the date of birth of the prosecutrix as 29.03.1993, the copy of the SC No. 89/10 State Vs. Mukesh Singhal Page no. 13 of 65 14 birth register is Ex.PW3/A. This witness was also not cross­ examined.

11. Ct. Dinesh Kumar has examined as PW4 who has deposed that on 04.08.2010, he was posted in the PS Moti Nagar as DD writer from 4.00pm to 12.00 midnight. On that day, at 5.30pm he had received a telephone call from unknown person regarding some wrong act committed with a girl in the area of Bali Nagar in the back of Sanatan Dharam Mandir in WagonR car no.DL2CAC­4901 and recorded information vide DD no.67B and marked this DD to PSI Kamal Kohli and Ct. Anand and information regarding this DD was also sent to WSI Vipnesh and he has proved the attested copy of DD no.67B which is Ex.PW4/A and photocopy thereof in the DD register is Ex.PW4/B.

12. Whereas, ASI Ajeet Singh has been examined as PW5, who has testified that on dated 04.08.2010, he was posted as Incharge Crime Team in West District and he had received a call from the control room to reach the Moti Nagar SC No. 89/10 State Vs. Mukesh Singhal Page no. 14 of 65 15 police station and he arrived in the said police station alongwith another police official and inspected the Wagon­R car bearing registration No.DL­2C­AC­4901 of silver colour from 7.00pm to 8.00pm and he found liquid like material on the seal adjoining to the driver seal and also two chance prints on the glass of the window of that side and found a cloth on that seat. He has further deposed that he had also found hairs of a female on the back sheet of left side and he had directed to the IO to seize the hairs, cloth piece and also directed to the IO to remove the seat cover of the seat adjoining to the driver's seat and the photographer had taken the photographs and he had prepared the report Ex.PW5/A. He had identified his signature thereon at point A and handed over the same to the IO. During his cross­ examination, he has deposed that he does not know whether the prosecutrix or her parents were present there at the time of his inspection of the said car. He has admitted that the IO had not sealed the seized articles in his presence and also stated that he found there IO Ms. V. Kumari along with SI Kamal Kohli. SC No. 89/10 State Vs. Mukesh Singhal Page no. 15 of 65 16

13. Whereas, SI Rameshwar was examined as PW6. He had testified that on 04.08.2010 he was posted as ASI in the PS Moti Nagar and he was working as duty officer from 4.00pm to 12 midnight. And on that day at about 6.40pm he had received a rukka produced by the WASI Vipnesh, on the basis of which he had recorded the FIR no.248/2010 in the PS Moti Nagar U/S 363/376/506 of IPC in the computer and further deposed that after the registration of the FIR, the original rukka and copy of FIR were handed over to Ct. Bablu to hand over the same to WSI Vipnesh who has proved the copy of the FIR Ex.PW6/A and endorsement on the rukka Ex.PW6/B. This witness was not cross­examined.

14. Whereas, the mother of the prosecutrix has been examined as PW7, who testified that on dated 04.08.2010 the prosecutrix was studying in BA (Hons.), Ist Year in Bharti College, Janak Puri. On that day, she had gone to college but she did not return till evening and usually she returns home at 3.30/4.00pm and she told her that on that day at 2.30/2.45pm SC No. 89/10 State Vs. Mukesh Singhal Page no. 16 of 65 17 the prosecutrix had telephoned her and told that she would return home at 4.00pm. Thereafter, she telephoned on her mobile phone but she did not pick the phone, and thereafter in the evening time, when she was dialing on the mobile phone of the prosecutrix, the phone was picked up by some police official of PS Moti Nagar and they were called in the PS and her husband went to the PS and came to know that prosecutrix was raped and she was in the DDU hospital. Her husband asked her to accompany him to DDU hospital alongwith clothes of the prosecutrix and they went to the DDU hospital alongwith the clothes of the prosecutrix and prosecutrix was found in bad condition and she was weeping and her clothes were also stained with blood and the prosecutrix was admitted in the hospital and she stayed with her in the hospital and she narrated about the incident of rape and this witness was also cross­examined by Ld. Counsel for the accused and during her cross examination, she has stated that she made 8­10 calls on the mobile of the prosecutrix at about 4.00/4.35pm and she has SC No. 89/10 State Vs. Mukesh Singhal Page no. 17 of 65 18 also deposed that the prosecutrix had gone to her college only for about 5 days prior to this incident of rape with her. She has also deposed that timing of phone from PS was 4.45pm. She has also deposed that the prosecutrix remained in the hospital for 3­4 days and when, she made call to the prosecutrix on her mobile phone, her mobile phone was ringing, but the same was not picked. She has denied that the police has not seized any clothe in her presence or that the prosecutrix has not disclosed any fact to her about the alleged incident. She has also denied that the prosecutrix has not been raped or that she has deposed falsely, being mother of the prosecutrix.

15. Whereas, father of the prosecutrix was examined as PW8, who has deposed that on 04.08.2010 the prosecutrix was studying in Bharti College in BA (Hon.) Ist year and she started going college on 26.07.2010 and he used to drop the prosecutrix in her college in the morning and prosecutrix used to return at 3.30­4.00pm and on the date of occurrence, the prosecutrix had told to her mother at 2.30/2.45pm on telephone SC No. 89/10 State Vs. Mukesh Singhal Page no. 18 of 65 19 that she would return home at 4.00pm but when she did not return till 4.30pm, his wife telephoned her but she did not pick her mobile phone and his wife had informed him that the prosecutrix did not return home till 5.00pm. This witness had also tried to contact with the prosecutrix on her mobile but she did not pick the mobile phone and in the evening time when his wife was dialing the phone to the prosecutrix, which was picked by the police officials of PS Moti Nagar and they told about the incident took place with the prosecutrix. And this witness had gone to the PS Moti Nagar and came to understand that the prosecutrix has been raped and prosecutrix was there in a room adjoining to the room of SHO, with WSI Vipnesh. This witness has also correctly identified to the accused in the court who was arrested from the spot. He has also deposed that the prosecutrix was in great shock and trauma and she was weeping and the police official had asked him to bring the clothes of the prosecutrix from home and told that they were taking to the prosecutrix to the DDU hospital and he should SC No. 89/10 State Vs. Mukesh Singhal Page no. 19 of 65 20 reach in the DDU hospital and this witness went to his house and informed about the incident to his wife and he took his wife and clothes of the prosecutrix and went to DDU hospital and the prosecutrix was admitted in the DDU Hospital and this witness was called to join the investigation and the police had seized the car in his presence, vide memo Ex.PW8/A and proved the photograph of car is Ex.PW1/D­1 and the police had seized the payment receipt of Bharti College from him vide Ex.PW8/B. This witness was cross­examined. During his cross­ examination, this witness has stated that he knows only one gate of the college of the prosecutrix, which opens towards the main road, Janak Puri side and he does not know about the other gate. He has also admitted that there is a park just opposite the college and after crossing the park, there are shops and bus stand. He has further stated that the prosecutrix used to come on foot upto jail road from her college and she used to take bus upto Tilak Nagar and after Tilak Nagar, she used to come on foot from Tilak Nagar to her residence. During SC No. 89/10 State Vs. Mukesh Singhal Page no. 20 of 65 21 his cross examination, this witness has admitted that there are about 12­13 red lights between Bali Nagar and College of the prosecutrix via Hari Nagar Depot, Lajwanti Maya Puri Chowk and Raja Garden. But, he has denied that there was any police beat at Lajwanti Chowk and stated that he does not know whether there is any police beat at Hari Nagar Ghanta Ghar. He has also admitted that on the date of the incident, he had no talk with the prosecutrix and also stated that he called to the prosecutrix on her mobile phone 2­3 times, but, his calls were not attended by the prosecutrix. He has also stated that he does not know, whether the statement of his wife was recorded or not and also stated that the prosecutrix also remained admitted in the hospital for three days. And further deposed that he is having a maruti car 800, but the same is not having central locking therein and denied that he has deposed falsely in the court.

16. Dr. Sarabhjeet has been examined as PW9 who has testified that on 04.08.2010 she was posted in the DDU hospital SC No. 89/10 State Vs. Mukesh Singhal Page no. 21 of 65 22 as Senior Gyanecologist and she had examined the proecutrix 'N' aged about 17 years with the alleged history of kidnapping and sexual assault and the patient was in constant fear and on examination her vitals were found to be normal, no abnormality was detected in CVS and respiratory system of the patient and no external fresh injury was there on her body, her LMP was 7 days back and this witness found "a small perineal tear present on the posterior fauchette and bleeding. Her hymen was found torn". She has also testified that the patient was advised to be admitted in the labour room IInd for examination under anesthesia. Her vaginal smear slides were prepared in field. Her clothes and pubic hairs were taken and were sealed and after sealing the parcels were handed over to the Constable on duty. The detailed report was prepared by this witness on the MLC Ex.PW9/A, in her handwriting and this witness has identified her signature at point A. This witness was also cross­examined. During her cross­examination she has admitted that she did not find external injury on the body of SC No. 89/10 State Vs. Mukesh Singhal Page no. 22 of 65 23 prosecutrix except on perinum and hymen. She has also deposed that she does not remember the name of relative or any other person present with the prosecutrix at the time of medical examination.

17. Whereas, SI Kamal Kohli has been examined as PW10 who has testified that on 04.08.2010 he was posted in the PS Moti Nagar as Sub­Inspector and on that day on receiving of DD no.67B Ex.PW4/A regarding some wrong act on a girl, in a car bearing registration no.DL­2C­AC­4901 at the back of Sanatan Dharam Mandir, Bali Nagar, Delhi. He along with Anand and Beat Constable Bablu of the area was also present at the spot who caught accused Mukesh Singhal. This witness has also identified to the accused in the court and he has further testified that prosecutrix 'N' and other public persons were also present and gray colour Wagon­R car was also found parked there and prosecutrix was weeping and in the meantime, SHO of PS Moti Nagar, Hoshiar Singh arrived at the spot and on the direction of the SHO, he brought the said SC No. 89/10 State Vs. Mukesh Singhal Page no. 23 of 65 24 Wagon­R car to the PS Moti Nagar. Crime team was also called at the police station. He inspected the car from inside and SI Vipnesh recorded the statement of the prosecutrix and prosecutrix was got medically examined through Dr. Aarti and this witness has also deposed that in case the said Wagon­R car is shown to him he can identify the same. On seeing the photographs of said Wagon­R car are Ex.P­1/D­1 to Ex.P­1/D­8. He has identified the photographs of the said car. This witness was cross­examined by the Ld. Counsel for the accused. During his cross­examination, he has deposed that he did not make any efforts for search of any person who lodged DD no.67B and also admitted that he had not prepared any site plan regarding the place of parking of the vehicle in question and further deposed that the distance between the place where the vehicle was found and beat box was about 100 metes and he remained at the spot at about 25 minutes and he did not make any talk with the prosecutrix and he did not open the vehicle, but, again reiterated during his cross­examination that SC No. 89/10 State Vs. Mukesh Singhal Page no. 24 of 65 25 on the direction of the SHO, he had taken the vehicle to the PS. He has also deposed that he was present at the time of inspection of the vehicle by the crime team and he has denied that he has deposed falsely.

18. Whereas, Ct. Babloo has been examined as PW11 who has testified that on dated 04.08.2010 he was posted in PS Moti Nagar as Constable and his duty was as Beat Constable on the booth of Bali Nagar from 10.00am to 10.00pm and at about 5.30pm, he saw a huge crowd collected and he went out of the booth and saw that the public persons were beating to the accused person. This witness identified the accused and deposed that the Wagon­R bearing registration no.DL­2C­AC­4901 was also parked there and a girl was standing there and weeping and the public persons were saying that the accused had done wrong act with the girl and first of all he took the accused in custody and he telephoned at PS Moti Nagar and informed duty officer about the circumstances of the case and he informed to the duty officer SC No. 89/10 State Vs. Mukesh Singhal Page no. 25 of 65 26 about the facts and circumstances of the case. He was informed by the duty officer that a call has been received regarding the incident and WSI Vipnesh and PSI Kamal Kohli would be reaching soon and he tried to make enquiry from the public persons present at the spot but they expressed their difficulty in joining the investigation and left without telling their names and addresses and he has also testified that the public persons were trying to burn the said Wagon­R, but, in the meantime, WSI Vipnesh, PSI Kamal Kohli and SHO of PS Moti Nagar arrived at the spot and the prosecutrix told her name 'N' and the accused also told his name as Mukesh Singhal and WSI Vipnesh recorded the statement of prosecutrix and sent to PW11 along with rukka for getting the FIR registered. Accordingly, he went to PS Moti Nagar and after getting the formal FIR registered he came back at the spot alongwith copy of FIR and original rukka and handed over the same to WSI Vipnesh. The accused and the prosecutrix were sent to DDU hospital for getting them medically examined through him and SC No. 89/10 State Vs. Mukesh Singhal Page no. 26 of 65 27 lady Ct. Aarti, who was called at the spot and crime team has also arrived at the spot before the car was sent to the PS and crime team had also inspected the car and spot and in his presence the car seat cover along with green printed colour clothes were removed from the car and converted into parcel with the help of white clothe and were sealed with the seal of BS and was seized vide seizure memo Ex.PW11/A. Whereas, the car was seized vide Ex.PW8/A and after medical examination of the accused, doctor had handed over two sealed parcels along with the sample sealed having seal of DDU hospital which was seized vide seizure memo Ex.PW11/B and the blood stained cloth of the accused i.e. pant, shirt along with handkerchief of white colour were converted into parcel with the help of white clothe and sealed with the seal of BS and seized vide Ex.PW11/C and also deposed that since gyane Doctor was not available on that day, so the complete medical examination of the prosecutrix could not be done on that day. He has also proved the arrest's memo of the accused SC No. 89/10 State Vs. Mukesh Singhal Page no. 27 of 65 28 Ex.PW11/D and personal search memo Ex.PW11/E. He has also deposed that during inspection of the car, IO had also seized some long hairs which appears to be of a female and those hairs were converted into parcels with the help of white cloth and sealed with the seal of BS and parcel was given mark A and the same was seized vide Ex.PW11/F and this witness has also identified the hairs Ex.P­4 and seat cover of the car Ex.P­5 and dirty green printed piece of cloth Ex.P­6 and also identified the pant, shirt and handkerchief collectively Ex.P­7 and this witness also testified that he can identified Wagon­R car, if shown to him and "at that stage, it was revealed that the Wagon­R car was taken on superdari and the same was not produced in the court and the accused had told in the court that he had no objection, if the car is exhibited without being produced in the court. So, the car was Ex.P­8 and this witness had identified photographs of the said car Ex.PW1/D1 to Ex.PW1/D8. This witness was also cross­examined and during his cross­examination, this witness has deposed that he did not SC No. 89/10 State Vs. Mukesh Singhal Page no. 28 of 65 29 note down the names and addresses of the persons from whom he made enquiry about the alleged incident, as they had refused to tell their names and addresses. And also stated that the beat is situated at the distance of 100 meters from the place of occurrence and no writing work was done by the SHO or SI Vipnesh in his presence and this witness also remained with the crime team who was making inspection of the vehicle and he went to the DDU hospital for medical examination of the accused only. The prosecutrix and accused were medically examined separately. He has denied that no inspection was carried out by the crime team in his presence or that nothing was recovered from the Wagon­R. He has denied that he had signed all the documents at the PS at the instance of the IO. He has also denied that nothing was seized in his presence or that no pulandas were made in his presence. It is also denied that he has deposed falsely.

19. Whereas, Lady HC Aarti has been examined as PW12, who has testified that on 04.08.2010, she was posted, SC No. 89/10 State Vs. Mukesh Singhal Page no. 29 of 65 30 as constable in the PS Moti Nagar and she took the prosecutrix 'N' to the DDU hospital for her medical examination and after her medical examination the doctor had handed over three sealed parcels along with the seal of DDU hospital along with the sample seal and she had handed over the same to SI Vipnesh who seized the same vide seizure memo Ex.PW12/A. This witness was cross­examined by Ld. Counsel for accused and during her cross examination, she has deposed that she does not remember, if any seal was put on the parcel in her presence. She has denied that no parcel was prepared in her presence or handed over to her or that she has deposed falsely.

20. Whereas, Anil Kumar, Constable has been examined as PW13, who has deposed that he had taken the photographs from various angles and from inside and outside of the Wagon­ R car bearing registration no.DL­2C­AC­4901 which was parked in front of the PS and after developing the eight photographs, he had handed over the same to the IO, which SC No. 89/10 State Vs. Mukesh Singhal Page no. 30 of 65 31 are Ex.PW1/D­1 to Ex.PW1/D­8. This witness was also cross­ examined by counsel for accused. He had denied that he has deposed falsely.

21. Whereas, Investigating Officer /SI Vipnesh has been examined as PW14 who has deposed about investigation of the case and proved the seizure memo Ex.PW14/B and Ex.PW14/C vide which the blood stained clothes of the prosecutrix and of the accused were seized. She has also proved the site plan of the place of incident Ex.PW1/DX and the application moved before the Ld.MM for recording of statement of the prosecutrix U/S 164 of Cr.P.C. Ex.PW14/C and statement of the prosecutrix recorded by the Ld. MM u/S 164 of Cr.P.C. Ex.PW1/B and the application vide which, the copy of same statement was obtained is Ex.PW14/D and certificate of birth of the prosecutrix Ex.PW1/E­1. She has also proved the result of the FSL Ex.PW14/E and Ex.PW14/F. She has also proved car seat cover and green piece of cloth Ex.P­5 and Ex.P­6 and blue colour jean pant of the prosecutrix is proved as SC No. 89/10 State Vs. Mukesh Singhal Page no. 31 of 65 32 Ex.P­2. IO was also cross­examined by counsel for the accused.

22. Whereas, HC Rajesh Kumar has been examined as PW15 who has testified that on dated 04.08.2010, he was posted in the PS Moti Nagar as MHC(M) and IO had deposited one Wagon­R car bearing registration no.DL­2C­AC­4901 alongwith 09 sealed parcels and two sample seals and entry of the same was made by him at serial no.2613 in the register no. 19 and proved the copy thereof Ex.PW15/A. He has further deposed that on 11.08.2010, IO has deposited sealed pulanda in the malkhana and entry of the same at serial no.2627 in the registration no.19 and photocopy thereof is proved as Ex.PW15/B. He has further deposed that IO has also collected 10 sealed parcels, two sample seal from malkhana for depositing the same to the office of FSL, Rohini vide RC no. 72/21/10 and he made entry in the register no.19 at point X and copy thereof is proved as Ex.PW15/A. He had also brought the original road certificate register no.21 containing RC no. SC No. 89/10 State Vs. Mukesh Singhal Page no. 32 of 65 33 72/21/10 alongwith the seal of FSL. Copy of the same is Ex.PW15/C and Ex.PW15D respectively. He has further deposed that on 15.04.2011 Ct. Amit brought the case property along with the result of FSL Rohini and deposited the same in malkhana and the result was handed over to the IO. He has further deposed that so long as the case property remained with him, nobody had tempered with the same.

23. Whereas, Sh. Sidharth Mathur, Ld. Senior Civil Judge has been examined as PW16 who has testified that on 09.08.2010, he was posted as MM, West District, Tis Hazari Court and on that day an application Ex.PW14/C for recording the statement of the prosecutrix U/S 164 of Cr.P.C was moved before the concerned Court of Ms. Vandana Jain, Ld. MM who had marked the same to him and he had recorded the statement of the prosecutrix which is Ex.PW1/B and he had issued the certificate Ex.PW16/A and application to claim the copy of the same statement has been proved as Ex.PW14/D.

24. On the completion of the evidence of the prosecution, SC No. 89/10 State Vs. Mukesh Singhal Page no. 33 of 65 34 the statement of the accused u/s 313 of Cr.PC was recorded, wherein, the accused had denied the correctness of allegations leveled against him and took the plea that the prosecutrix had taken the lift outside her Bharti College, and thereafter, she started black­mailing and demanded money and when the accused did not accept her unreasonable demand, he has been falsely implicated in the present case.

25. The accused has also examined DW­1 Inspector Subhash Malik who has produced the photocopy of the duty roaster no.1 of Tilak Nagar Circle, (A) Bharti College, Janak Puri light an photocopy of duty roaster of Maya Puri Circle (A) Junk Market red light, Metal forging light, (c) Govt. Press light,

(d) Maya Puri Chowk light and photocopy of duty roaster of Rajouri Garden Circle, (a) Hari Nagar Depot light (b) M.S. Marg, Ring Road light, (c) Raja Garden light and photocopy of duty roaster of Patel Nagar circle (a) Bali Nagar light, duty roaster and the same are collectively Ex.DW1/A to Ex.DW1/A­12. This witness was cross examined by Ld. APP for SC No. 89/10 State Vs. Mukesh Singhal Page no. 34 of 65 35 the State and during his cross examination he has stated that he does not have the personal knowledge of the same record produced by him.

26. Whereas, Sh. Avtar Singh Sidhu has been examined as DW­2 who has deposed that he is working as Senior Manager in the Maruti Suzuki India Ltd. Since 1984. He has brought the computerized vehicle service history of vehicle no.DL2CAC­4901 which is Ex.DW2/A and also deposed that in case there is centralized locking system in any vehicle, then, its door can be opened manually from inside the vehicle and there is no centralizing locking system in the vehicle bearing registration no.DL­2C­AC­4901, as the vehicle of this model of 18.02.2005 has no such system from the company and voluntarily stated that it can be installed privately from the open market. This witness was cross­examined by Ld. APP for the State and during his cross examination, he has deposed that he cannot say that at the time of incident, the vehicle bearing registration no.DL2CAC­4901 has any centralized locking SC No. 89/10 State Vs. Mukesh Singhal Page no. 35 of 65 36 system.

27. Whereas, Sh. Mohan Tiwari, Dealing Assistant, Sindhia House has been examined as DW3 who has deposed that he had brought the summoned record of complete DTC bus stoppage surrounding the Bharti College and all the bus route number and the same is Ex.DW3/A. This witness was cross­examined by Ld. APP for the State and during his cross examination he has admitted that he did not bring survey report and he cannot tell the distance between Bharti College to bus stop mentioned in Ex.DW3/A and he does not have any personal knowledge whether any bus was available at the time of incident nearby the bus stop.

28. I have heard Ld. APP for the State, Ld. counsel for the complainant and Ld. Counsel for the accused and perused the record.

29. The Ld. APP for the State and counsel for the complainant have submitted that in the case in hand, the prosecutrix was a student of B.A. (Hons.) 1st year, on the date SC No. 89/10 State Vs. Mukesh Singhal Page no. 36 of 65 37 of occurrence, the prosecutrix has been forcibly dragged by the accused in his car and kidnapped her from Janak Puri & threatened her to kill & took her in a street at Bali Nagar and after putting the prosecutrix in the fear of death, he disrobed her. The prosecutrix tried to escape, but failed, as the accused is a healthier man and the accused had raped to the prosecutrix who was a minor girl of aged about 17 years.

30. They have further submitted that the prosecutrix has been examined as PW­1 and her testimony has gone unimpeached and it is reliable and the testimony of the prosecutrix is well corroborated with the medical evidence and submitted that it is proved fact that the vehicle i.e. the car, wherein, the prosecutrix was kidnapped & raped is owned by the accused, as the copy of the RC of the said vehicle is already there on the record, which clearly manifests that the accused is the owner of the said car and photographs of the said car are Ex.PW1/D­1 to Ex.PW1/D­8 and from the photographs of the car, it is clear that the same was found SC No. 89/10 State Vs. Mukesh Singhal Page no. 37 of 65 38 containing filmed glasses and he has further submitted that after the commission of the rape, the prosecutrix jumped out of the said car & shouted and the people gathered, caught to the accused and beaten him and the accused was arrested on the spot and the accused is also identified in the court by the prosecutrix. They have further submitted that the accused has committed a heinous crime of rape, that too against a minor girl, whose life has been spoiled, as, she has to face the stigma for entire life. Therefore, the accused is liable to be convicted for kidnapping of a minor girl, threatening to kill her and for raping to a minor girl. They have also submitted that little bit discrepancies in the testimony of the prosecutrix do not effect the merit of the case so, they are liable to be ignored.

31. Whereas, Ld. Counsel for accused has submitted that the occurrence is alleged to have taken place on 04.08.2010 between 4.15pm to 5.00pm. Whereas, on the memo of arrest of the accused Ex.PW11/D, the time of arrest of the accused is mentioned as 2.00pm, on dated 04.08.2010. SC No. 89/10 State Vs. Mukesh Singhal Page no. 38 of 65 39 Therefore, the statement of the prosecutrix is not reliable, because, there are contradictions in the time of occurrence and time of arrest of the accused but, I do not find any force in such submissions of learned counsel for accused, because, the version of the prosecution is that the prosecutrix had attended her classes in the college and when, after attending her last class at about 4.15pm, she was returning to her home, the accused has forcibly dragged her in his car, kidnapped and raped her. It is worthwhile to mention here that the accused has taken the plea that the prosecutrix had taken the lift from the accused in his car and the prosecutrix started demanding money from the accused and when, the accused did not accept her demand of money, he was falsely implicated in the present case. It is also pertinent to mention here that the perusal of the cross­examination of the prosecutrix shows the fact of presence of the prosecutrix in the car of the accused on the date and at the time of occurrence or ownership of the car of the accused bearing registration no.DL2C­AC­4901are not SC No. 89/10 State Vs. Mukesh Singhal Page no. 39 of 65 40 disputed. Since, the offences are committed on dated 04.08.2010 between 4.15pm to 5.00pm so, the accused could not be arrested at 2.00pm, on dated 04.08.2010. Thus, it is clear that the mentioning of the wrong time of arrest in the memo of arrest of the accused, is the result of negligence on the part of the Investigating Officer and the accused cannot be benefited for such clerical mistake committed by the IO either deliberately or inadvertently. The ld. Counsel for the accused has also submitted that the prosecutrix has admitted that after attending last period in her college, she came out of her college along with 25 students and it was not probable to kidnape to the prosecutrix in the presence of 25 students. It is worthwhile to mention here that during her cross examination, the prosecutrix has deposed that the last period was attended by about 25 students and after attending the last period, all came out of the college and college has two gates and at the time of incident, nobody was with her. Since, the prosecutrix has nowhere stated that at the time of her kidnapping by the SC No. 89/10 State Vs. Mukesh Singhal Page no. 40 of 65 41 accused about 25 students were there with her. So, such submission of the Ld. Counsel for accused is found to be contrary to the judicial record. So, the same has no substance. The ld. Counsel for accused has submitted that it was not probable for the accused to disrobe to the prosecutrix, as he was not having any weapon with him. It is worthwhile to mention here that the accused in the case in hand, is a healthy, well built and active person, whereas, the prosecutrix is a minor girl and the prosecutrix has alleged that she was dragged by the accused in his car and the car was locked and the accused asked to the prosecutrix to remove her clothes and the prosecutrix refused and since, the prosecutrix was threatened to be killed. So, the prosecutrix was put in fear of death and the accused has removed the clothes of the prosecutrix forcibly and opened the zip of his pant and raped to the prosecutrix. Ld. Counsel for accused has submitted that neither the pant of the prosecutrix could be removed by the accused nor the prosecutrix could be raped without removing SC No. 89/10 State Vs. Mukesh Singhal Page no. 41 of 65 42 of his pant by the accused. But, I do not find force in such submissions of the ld. Counsel for accused, as the prosecutrix is a minor girl and she was put in fear of her death by the accused. Ld. Counsel for accused has also submitted that accused is alleged to have committed the rape of the prosecutrix at the distance of 7­8 steps from the booth of police and it was not probable that the accused would rape to the prosecutrix near the booth of the police nor the site plan is prepared by the IO. But, as the prosecutrix has been examined as PW1 and during her examination in chief, she has clarified that the accused had raped her and thereafter, he asked her to wear clothes and after wearing of clothes, when, they went at a little distance, two policemen came from front side and there were some other persons and the policeman dragged out to the accused from the car. From such testimony of the prosecutrix, it is clear that after the commission of the rape of the prosecutrix by the accused, when, the accused took the car at a little distance, then, the accused was arrested near the booth of the SC No. 89/10 State Vs. Mukesh Singhal Page no. 42 of 65 43 police. The date and place of arrest of the accused is not disputed by the accused, during the trial and the Investigating Officer has prepared the site plan of the place of occurrence which is Ex.PW1/DX, wherein the place of rape of the prosecutrix is shown at point 'A'. Investigating Officer has failed to show therein, the booth of the police and categorical distance between the place of rape and place of arrest. The accused cannot be benefited of such negligent conduct and lackadaisical approach of the IO. Ld. Counsel for accused has also submitted that the memo of arrest of the accused bears the signature of the wife of the accused, whereas, she was not present at the place of occurrence. But, this court finds that the memo of arrest of the accused is Ex.PW11/D and the witnesses thereof are Ct. Babli and Sh. Gurdev Singh and it is mentioned therein that the intimation of arrest of the accused was given to the wife of the accused Mrs. Vibha Singhal. Thus, such submission of ld. Counsel for the accused that wife of accused is witness of memo of arrest is contrary to the judicial SC No. 89/10 State Vs. Mukesh Singhal Page no. 43 of 65 44 record, so, it has no force.

32. Ld. Counsel for accused has also submitted that the car has not been produced and the photographs of the car, wherein, the accused is alleged to have raped to the prosecutrix are exhibited without production of the car, so, the same cannot be looked into, but, in the considered opinion of this court, such objections is not sustainable in the eyes of law, as the vehicle i.e. car bearing registration No.DL2CAC4901 wherein, the prosecutrix has been raped was taken on superdari by the accused, being registered owner thereof. The Ld. Predecessor of this court was pleased to direct to the accused to produce the said car, but he failed to produce the said car, firstly the accused did not oblige the order of Ld. Predecessor of this court, as, he failed to produce the car at the time of evidence and at the time of examination of PW11 in this court, the accused had also stated that he had no objection, if the car is exhibited without being produced in the court. So, the car was exhibited P8 and PW11 also proved the SC No. 89/10 State Vs. Mukesh Singhal Page no. 44 of 65 45 photographs Ex.PW1/D­1 to Ex.PW1/D­8. Therefore, the accused cannot take the advantage of his own wrong. So the objections raised by the accused for exhibition of the photographs of the said car, without production of the said car is overruled.

33. Ld. Counsel for accused has also submitted that the prosecutrix is having a car in her house and she could open the door of the car to escape, but, she did not do so. Therefore, her testimony is not reliable. But in the considered opinion of this court, as the prosecutrix has deposed that she was threatened to be killed by the accused, if she would try to run or escape and she has also deposed that she tried to raise alarm, but the accused put his hand on her mouth and she had tried to go out of the car, but, the car was locked by the accused and since, in the era of advanced technology, the amenity of central locking of car is available and once, the car is centrally locked, it can be opened by the driver only and not by any person sitting on the seat other than that of the driver. So, I have no ground to SC No. 89/10 State Vs. Mukesh Singhal Page no. 45 of 65 46 disbelieve the version of the prosecutrix that she had tried to escape, but, she could not escape, in view of locking of the doors of the car by the accused and the accused has also examined DW2 namely Sh. Avtar Singh, who has testified that in case, there is any centralized locking system in any vehicle, then, its door can be opened manually from inside of the vehicle and stated that as per the history of the vehicle bearing registration no.DL2CAC4901 Ex.DW2/A, this model of 18.02.2005 did not have centralized locking system, but, the occurrence has taken place on dated 04.08.2010 and the accused has failed to produce the car in the court and allowed the car to be exhibited without production in the court, as Ex.P­8 at the time of evidence of the prosecution. So, the testimony of DW2 does not inspire any confidence, and adverse inference is drawn against the accused for non­ production of the car.

34. The testimony of DW1 & DW3 are of no relevance as the presence of the prosecutrix in the car of the accused is not SC No. 89/10 State Vs. Mukesh Singhal Page no. 46 of 65 47 denied or disputed. Ld. Counsel for the accused has relied upon the judgment passed by their lordship of Supreme Court in case Rajoo and Other Vs. State (Crl. Appeal No. 1094­1098/2000. But the perusal of the judgments relied upon by the counsel for accused shows that their lordship has also discussed the judgments passed in cases State of Punjab Vs. Gurmeet Singh (1996) 2 SCC 384 and Ranjit Hazarika Vs. State of Assam 1998(8) SCC 635.

35. 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 SC No. 89/10 State Vs. Mukesh Singhal Page no. 47 of 65 48 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 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."

36. 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 SC No. 89/10 State Vs. Mukesh Singhal Page no. 48 of 65 49 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."

37. The Ld. Counsel for the accused has submitted that the prosecutrix was medically examined and the Doctor has also mentioned in the MLC of the prosecutrix Ex.PW2/A that the prosecutrix was constantly lying. So, the testimony of the prosecutrix can not be relied upon. Whereas, the perusal of record shows that the prosecutrix has been examined as PW1. She has testified that she was dragged by the accused in the car and he threatened to kill her and she was raped by the accused and her testimony is corroborated with the medical evidence, as PW9 Dr. Sarabjeet, (gyane) of DDU hospital has proved the MLC of the prosecutrix Ex.PW9/A wherein, it is mentioned that "small perinial tear present on the posteriar fauchette and bleedings and her hymen was torn" and her SC No. 89/10 State Vs. Mukesh Singhal Page no. 49 of 65 50 vaginal smear slides were prepared in sealed and the clothes and pubic hairs clippings were taken and sealed and were handed over to the constable on duty and report of FSL Ex.PW14/E and biology report Ex.PW14/F clearly manifest that semen was delected on the undergarments of the prosecutrix and of accused and also on the pant of the accused and blood stains were delected on the under garments, pant, shirt and handkerchief of accused and also on underwear, pant and on pubic hairs of the prosecutrix. Thus, the testimony of the prosecutrix is also corroborated with the medical evidence and forensic report and from the unimpeached testimony of the prosecutrix, it is proved that the accused has dragged to the prosecutrix in the car kidnapped away and threatened to kill her and after putting the prosecutrix in fear of death, she was raped and it is also pertinent to mention here that even at the time of medical examination of the prosecutrix, the doctor has stated in the MLC Ex.PW2/A that the prosecutrix was in 'fear' since the prosecutrix is a minor girl and she was raped. So, even at the SC No. 89/10 State Vs. Mukesh Singhal Page no. 50 of 65 51 time of her medical examination, she was found in a shocked condition and this court is able to understand that after such an occurrence of rape with the prosecutrix, who is a minor girl, she would have suffered a thunder jolt. So, she would be in a shocked condition. But the doctor has also mentioned in the MLC of the prosecutrix that she was constantly lying. But, no reason has been mentioned by the doctor for giving such observation. So, in the absence of any cogent reasoning for such observation in the MLC, the testimony of the prosecutrix cannot be disbelieved. As the prosecutrix could not stop from weeping even in this court at the time of deposing her woeful story of rape.

38. Ld. Counsel for accused has submitted that it is the case of the prosecution that the prosecutrix was forcibly dragged in the car and forcibly raped. Had she been dragged in the car or forcibly raped, she would have suffered injuries on her person, during such dragging and rape, but no external injury is found on the person of the prosecutrix. So the SC No. 89/10 State Vs. Mukesh Singhal Page no. 51 of 65 52 testimony of the prosecutrix is not reliable. But I do not find any force in such submissions of Ld. Counsel for accused. Because, the prosecutrix has alleged that she was dragged in the car and threatened by the accused to kill her and since, the prosecutrix is minor, innocent and unmarried girl, who had passed the school and took admission in the college few days before the incident of rape with her and in view of threat given by the accused to her life, she was scared so, even in the absence of any external injury on the person of the prosecutrix the testimony of the prosecutrix cannot be disbelieved which is otherwise found to be trustworthy.

39. As their lordship of the High Court of Delhi in ILR (2009) SUPP. 5 Delhi 639 held :­

36. In another case, B.C. Deva V. State of Karnataka reported at (2007) 12 SCC 122, inspite of the fact that no injuries were found on the person of the prosecutrix, yet finding her version to be reliable and trustworthy, the Apex Court upheld the conviction of the accused. SC No. 89/10 State Vs. Mukesh Singhal Page no. 52 of 65 53 " The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted".

"Taking into consideration the facts of this case in terms of the observations contained in Essentials of Forensic Medicine (supra); Ranjit Hazarika (supra); B.C. Deva (supra), to lay down a general proposition that where there are no injuries or that the hymen is intact, connotes that no penetration has taken place and a finding of acquittal is bound to be given, would be an incomplete interpretation of the law surrounding the offence of rape.

SC No. 89/10 State Vs. Mukesh Singhal Page no. 53 of 65 54 As also observed in the aforegoing paras, even a slight penetration in vulva with or without violence is sufficient to constitute the offence of rape."

40. Ld. Counsel for accused has also submitted that as per the case of the prosecution, prosecutrix is medically examined on the date of occurrence, whereas PW11 namely Bablu has deposed that the medical examination of the prosecutrix could not be done, on that day, as the Gyanecologist was not available there. So, there are inconsistencies in the statements of the witnesses for the prosecution and the accused may be acquitted. But, I do not find any force in such submissions of Ld. Counsel for accused, as PW11 has stated that he had taken to the accused only for his medical examination to the hospital, even otherwise, the MLC of the prosecutrix which has been proved on the record is Ex.PW2/A, which reveals that the prosecutrix was medically examined on 04.08.2010 i.e. on the date of occurrence at 8.45pm and in the MLC of the prosecutrix, it is mentioned that SC No. 89/10 State Vs. Mukesh Singhal Page no. 54 of 65 55 "a small perineal tear in the post fauchette bleedings and hymen torn". The counsel for accused has also submitted that no DNA test was conducted to prove the rape of the prosecutrix by the accused.

41. No doubt that no DNA test has been conducted, as the accused was arrested on the spot that too soon after the commission of rape of the prosecutrix and the clothes of the prosecutrix and the accused were also taken into custody. And as per the report of FSL Ex.PW14/E & Biology report PW14/F the semen and blood are detected from the clothes of the accused and also on the clothes of the prosecutrix, the DNA could be got conducted by the Investigating Officer. But the Investigating Officer has left lacuna in the investigation and bit defects in the investigation have been observed, but, it would not be proper to give the benefit of such defect in the investigation to the accused.

42. As their Lordship of Supreme Court in case DHANAJ SINGH @ Shera and others Vs. State of Punjab (2004) SC No. 89/10 State Vs. Mukesh Singhal Page no. 55 of 65 56 Supreme Court Cases 654 is pleased to hold:

"Even if the investigation is defective, in view of the legal principles set out above, that pales into significance when ocular testimony is found credible and cogent. Further effect of non­examination of weapons of assault or the pellets, etc. in the background of defective investigation has been considered in Amar Singh case (2003) 2 SCC 518. In the case at hand, no crack in the evidence of the vital witnesses can be noticed."

43. And their lordship also relied upon it's own judgment passed in case Kernel Singh Vs. State of MP, 1995(5) SCC 518 wherein it was held:­ "In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."

44. In case Paras Yadav Vs. State of Bihar (1999) 2SCC 126, it was held that:­ "if the lapse or omission is committed by the investigating agency or because of negligence, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct SC No. 89/10 State Vs. Mukesh Singhal Page no. 56 of 65 57 of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party".

45. Similarly, in case Ram Bihari Yadav Vs. State of Bihar 1998(4) SCC 517 it was held that :­ "if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law­ enforcing agency, but, also in the administration of justice. The view was again reiterated in Amar Singh Vs. Blwinder Singh. As ted in Amar Singh case it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version."

46. Coming to the case in hand, since, from the MLC of the prosecutrix Ex.PW2/A, the testimony of the prosecutrix is well corroborated. No doubt that bit discrepancies are there in the statements of the prosecutrix, as the prosecutrix in her statement Ex.PW1/A has stated that after the commission of SC No. 89/10 State Vs. Mukesh Singhal Page no. 57 of 65 58 crime, when, she jumped out of the car she shouted and the accused was caught by public. Whereas, in her statement recorded U/S 164 of Cr.P.C Ex.PW1/B, she has stated that the police personnels had come who arrested to the accused and the Ld. Counsel for the accused has submitted that the statement of the prosecutrix is not reliable due to discrepancies. But, in the considered opinion of this court, these discrepancies do not go into the root of the matter, because, it is well settled principle of law that the discrepancies, which affect the merit of the case and which go in the root of the matter are beneficial for the accused, but coming to the case in hand, these discrepancies in the statements of the prosecutrix do not effect the merit of the case nor they go in the root of the matter. Even otherwise, the fact of prompt arrest of the accused is not disputed during the trial. So, the same discrepancies can not be looked into for acquitting to the accused.

47. The Ld. Counsel for the accused has also submitted SC No. 89/10 State Vs. Mukesh Singhal Page no. 58 of 65 59 that as per the version of the prosecution, the accused was beaten by the public at the time of his arrest. But, in the MLC of the accused no injury is found on the person of the accused. So, the version of the prosecution becomes doubtful. No doubt that the prosecutrix has alleged that at the time of arrest of the accused, the public had beaten to the accused. But, no injury is mentioned in the MLC of the accused. But in view of non­ incorporation of the injury on the person of the accused, the whole version of the prosecution regarding the commission of crimes of kidnapping, threatened to kill to the prosecutrix and of rape of the prosecutrix cannot be disbelieved because as per the version of the prosecutrix, the accused was promptly arrested by the police and in the custody of the police, the accused could not be caused such injuries, which could be reflected in the MLC of the accused. The Ld. Counsel for the accused has submitted that at the time of arrest of the accused, many public persons were present and the alleged place of kidnapping is also a thorough fare. But, no public SC No. 89/10 State Vs. Mukesh Singhal Page no. 59 of 65 60 witness is examined by the police and in the absence of any witness of the public, the story of the prosecution cannot be relied upon and the accused is liable to be acquitted.

48. No doubt, that the accused has kidnapped to the prosecutrix in the day's light from a thorough fare and as per the version of the prosecutrix, when the accused is arrested, many people were there, who are alleged to have beaten to the accused and also tried to burn the Wagon­R car of the accused. The Beat Constable Sh. Bablu has corroborated this version, who has been examined as PW11 and IO who has been examined as PW14 who has deposed in the court that the public persons present on the spot did not tell their names and addresses and also expressed their inability to join the investigation.

49. Their lordship of Supreme Court in case Appa Bhai Vs. State of Gujrat AIR 1988 SC 696 was pleased to hold that:­ "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident SC No. 89/10 State Vs. Mukesh Singhal Page no. 60 of 65 61 that took place at the bus­stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible, when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused persons."

50. Therefore, I have no ground to disbelieve the statement of the Investigating Officer that despite of several efforts, the public witness could not be joined, as the public witnesses have shown their inabilities to join the investigation and in the light of the law laid down by their lordship of Supreme Court in the above said case, I have no doubt on the testimony of the prosecutrix, which is well corroborated by PW9 and her MLC Ex.PW2/A which is proved by PW9. Even SC No. 89/10 State Vs. Mukesh Singhal Page no. 61 of 65 62 otherwise, the time and place of arrest of the accused is not disputed during the trial. As the Ld. Counsel for the accused has not given any suggestion to the prosecutrix that the accused was not arrested from the spot.

51. The Ld. Counsel for the accused has also submitted that the photographs of the car of the accused were not taken at the spot. But the same are taken in the police station. But in view of taking of the photographs of the car in the police station, the accused cannot be acquitted, as it is the laps on the part of the Investigating Team.

52. Ld. Counsel for the accused has relied upon the judgments in Narender Kumar Vs. State (NCT of Delhi) Crl.Appeal No.2066­67 of 2009, Abbas Ahmad Chaudhary Vs. State of Assam Crl.Appeal No.951 of 2004, Rajesh @ Bobby Vs. State (NCT of Delhi) Crl. A. No.97/2003, Rajoo & Ors, Vs. State of M.P. Crl. A. Nos. 1094­1098 of 2000, State Vs. Lalita Crl. L.P. 501/2013. In Firoz Khan Vs. The State (NCT of Delhi) 2014 [4] JCC 3038, Vikramjit Singh @ Vicky Vs. State of SC No. 89/10 State Vs. Mukesh Singhal Page no. 62 of 65 63 Punjab (2006) 12 Supreme Court Cases 306, 2007 Crl. L.J. 4704, RADHU Vs. State of M.P. 2007 Crl. JR 4704.

53. I have gone through the said judgments relied upon by the counsel for the accused and the perusal of the many of then judgments relied upon by the Ld. Counsel for the accused show that even in the said judgments their lordship of Supreme Court was pleased to hold that if, the testimony of prosecutrix inspires confidence, then, the conviction can be based on the solitary evidence of the prosecutrix and in case the testimony of the prosecutrix is found to be worthy of credence. Their corroboration can not be insisted upon and in view of dissimilarities of facts, the judgments relied upon by the Ld. Counsel for the accused are of no help for the accused. Since, it is settled principle of law that evidence of victim of sexual assault stands almost on the par with the evidence of an injured witness and to an extent more reliable just as a witness, who has sustained injury in the occurrence. And in the case in hand, the testimony of the prosecutrix, who is a minor, unmarried and SC No. 89/10 State Vs. Mukesh Singhal Page no. 63 of 65 64 innocent girl, who has lost her virginity, in view of grave sexual violence committed by the accused, on her and testimony of the prosecutrix is found to be cogent, reliable, convincing and consistent on the material points. Therefore, it is found to be reliable, believable and trustworthy. So, it inspires confidence. In view of the above discussion, I am inclined to hold that the story concocted by the accused that the prosecutrix had taken the lift or demanded money from accused or that he is falsely implicated, is held to be baseless. So, relying upon the statements of the material witnesses i.e. prosecutrix and statement of Doctor i.e. PW9, who has proved the MLC of the prosecutrix and in view of prompt arrest of the accused, prompt registration of the FIR, prompt medical examination of the prosecutrix, and of the accused, and prompt seizure of the case properties. I am inclined to hold that the prosecution has successfully proved its case beyond reasonable doubt that the accused Mukesh Singhal had forcibly kidnapped to the prosecutrix, threatened her to kill and after puting her in the fear SC No. 89/10 State Vs. Mukesh Singhal Page no. 64 of 65 65 of her death. He has raped to a minor girl and as a result of which, the hymen of the prosecutrix is torn. Therefore, I hold the accused guilty for the same. Accordingly, I convict to the accused for the offences punishable U/S 363/506(II) & 376 of IPC.

Announced in the open court (PAWAN KUMAR MATTO) today i.e. on 28.01.2016 Additional Sessions Judge­01(West) Tis Hazari Courts, Delhi SC No. 89/10 State Vs. Mukesh Singhal Page no. 65 of 65