Delhi District Court
State vs . 1. Manoj Kumar on 24 May, 2013
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FIR No. 109/09
PS - Swaroop Nagar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 128/13
Unique ID No. : 02404R0310142009
State Vs. 1. Manoj Kumar
S/o Govind Kumar
R/o B4/211,
J. J. Colony, Bhalaswa Dairy,
Delhi.
2. Kajal
W/o Sh. Hari Prasad
R/o B - 4/444,
J. J. Colony, Bhalaswa Dairy,
Delhi.
FIR No. : 109/09
Police Station : Swaroop Nagar
Under Sections : 376/506/34/366A/109/114/366 IPC
Date of committal to session Court : 07/11/2009
Date on which judgment reserved : 20/05/2013
Date of which judgment announced : 24/05/2013
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FIR No. 109/09
PS - Swaroop Nagar
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C is as under : That on 30/04/2009 ASI Rajwanti PS Jahangir Puri reached at PS Saroop Nagar where complainant/prosecutrix (name withheld being a case u/s 376 IPC) came with her mother prosecutrix (name withheld) and made the statement which is to the effect that, she lives at B4212 J.J. Colony Bhalswa Delhi with her parents and studies in VIIth class in a government school. On 05/03/2009 at about 2:30 p.m. she was washing clothes in the gali outside her house. At that time one boy named Manoj came to her and said that his maternal aunt (Mami) Kajal is calling her. On the asking of Manoj she went to the house of his Mami where she met with his Mami Kajal. She asked from Mami Kajal, "Mami What Is the Work (Mami Kya Kaam Hai)". Manoj also came there following her. Kajal Mami told her to call Neetu from the upper room (Uppar Wale Kamre Se). She went to the upper room where Neetu was not there. Manoj following him also came in the room and started 2 of 73 3 FIR No. 109/09 PS - Swaroop Nagar forcibly doing touching (Cher Char with her) and he also bolted the room. When she started screaming he pressed her month with his left hand and after forcibly laying her on the ground, after removing her salwar he committed Galat Kaam with her and after threatening her that if she disclosed this incident to anyone then he will kill all his family members (Sare Pariwar Ko Jaan Se Maar Doonga) went out of the room after opening the bolt and just at that time Mami Kajal also came in the upper room and told her "to arrange her clothes (Apen Kapde Thik Kar Le) what has happened, let she forget it (Jo Ho Gaya Usey Bhool Ja) and there is no need to tell anything to anyone" and after making her understand (Samja Boojha Kar) send her to her house. Today in the day time her condition became bad and she started having vomiting. Her mother asked after pressing her (Dabao Dekar Poocha) on which she told all about the incident to her mother who has brought her to the police station. Kajal Mami of Manoj after calling her (prosecutrix) to her house had got done Galat Kaam from Manoj. Legal action be taken in this regard. The statement has been heard, understood and is correct. On the statement of the prosecutrix ASI Rajwanti got conducted the medical examination of the prosecutrix in the presence of the police staff and her 3 of 73 4 FIR No. 109/09 PS - Swaroop Nagar mother Chander Kala from BJRM Hospital vide MLC No. 2395/09. From the statement and from the inspection of the MLC on finding that the offences u/s 376/506/34 IPC appeared to have been committed, the case was got registered. The sealed exhibits were taken into police possession. During the course of investigation along with prosecutrix and police staff the place of incident was visited but it was found locked. The sealed exhibits were deposited in the Malkhana. Statements of the witnesses were recorded u/s 161 CrPC. Further investigation of the case was handed over to SI Sushila Rana. During the course of investigation SI Sushila Rana on 08.05.2009 arrested the accused Manoj Kumar and his medical examination was got conducted from BJRM Hospital and the sealed exhibits were taken into police possession and his disclosure statement was recorded. The sealed exhibits were deposited in Malkhana. Statement of witnesses were recorded u/s 161 Cr.P.C. Sealed exhibits were sent to FSL Rohini for opinion. On 08/06/2009 the investigation of the case was handed over to SI Durga Kapri. On 08/06/2009 Malkhana Mohrer handed over the FSL acceptance letter and copy of RC regarding sending of the exhibits to FSL and she recorded the statements of the witnesses u/s 161 Cr.P.C. regarding deposition of 4 of 73 5 FIR No. 109/09 PS - Swaroop Nagar the sealed exhibits in the FSL Rohini. On 10/07/2009 on receiving information from Woman Commission (Mahilla Ayog) that prosecutrix has delivered a five months dead child at BSA Hospital. IO reached at BSA Hospital and obtained the abortus related documents/MLC of the prosecutrix. Request for preservation of the abortus for DNA Test for knowing the fatherhood of the child was made and the exhibit was taken into police possession and was kept in BJRM Mortuary through Constable Manoj. After obtaining permission for DNA Test from the court on 17/07/2009 DNA Test of accused Manoj Kumar was got conducted at FSL Rohini. On 26/07/2009 accused Kajal was arrested. Statements of the witnesses U/s 161 Cr.P.C. were recorded.
Upon completion of the necessary further investigation challan U/s 376/506/34/366A/109 IPC was prepared against accused Manoj Kumar and Kajal and was sent to the Court for trial.
2. Since the offences under section 376/366A IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the 5 of 73 6 FIR No. 109/09 PS - Swaroop Nagar Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 366A IPC and under section 114 IPC r/w section 376 IPC against the accused Kajal and prima facie a case under section 366/376/506 IPC against the accused Manoj Kumar was made out. The charges were framed accordingly, which were read over and explained to both the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 22 witnesses. PW1 Prosecutrix, PW2 Dr Anjali, S.R. BJRM Hospital, Delhi, PW3 Sh. Man Mohan, PW4 Mrs. Chanderkala, PW5 Vishwanath, PW6 ASI Amrik Singh, PW7 HC Manoj Kumar, PW8 Ct. Bal Krishan, PW9 Woman HC Maya Devi, PW10 Ct. Jail Pal Singh, PW11 Dr. Neeraj Chaudhary, Medical Officer, BJRM Hospital, PW12 Ct. Mujib Khan, PW13 Dr. Meenakshi Bansal, Senior Resident, BJRM Hospital, Delhi, PW14 Sh. Neeraj Gaur, MM, Tis Hazari Courts, Delhi, PW15 HC Charan Singh, PW16 HC Shri Pal, PW17 ASI Rajwanti, 6 of 73 7 FIR No. 109/09 PS - Swaroop Nagar PW18 SI Durga Kapri, PW19 Dr. Rashmi Khatri, Specialist Obs. & Gynae. BSA Hospital, PW20 SI Susheel Rana, PW21 Sh. A.K. Srivastva, Dy. Director, DNA Unit FSL Rohini, Delhi, PW22 Dr. Rajender Kumar, Dy. Director, FSL Biology, Rohini, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under: PW1 Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the police Ex. PW1/A, signed by her at point A and deposed that she was got medically examined at BJRM Hospital and she had given consent her gynecological examination and her thumb impression on the MLC Ex. PW1/B is at point A and also proved the arrest memo of accused Manoj Kumar Ex. PW1/C, arrest memo of accused Kajal Ex. PW1/D, both signed by her at point A and also proved her statement recorded U/s 164 Cr. PC Ex. PW1/E, signed by her at page no. 1 & 2 at point A and also proved one form regarding taking of her blood sample at FSL Rohini Ex. PW1/F, signed by her at point A and also identified and proved her cloth, one lady salwar Ex. P1. On the leading questions put to her by 7 of 73 8 FIR No. 109/09 PS - Swaroop Nagar the Learned Addl. PP, she deposed that she was medically examined on 30/04/2009. Her baby was aborted on 10/07/2009 and her blood sample was taken at FSL, Rohini on 17/07/2009. She was studying in Govt. Co Ed, Sec. School, Bhalswa Dairy at the time of incident. Her date of birth is 10/08/1997. On 10/07/2009 she had given her consent for her examination and examination of her foetus vide Ex. PW1/G, which bears her signature at point A. Personal search memo of accused Kajal is Ex. PW1/H, which bears her signature at point A. Her DNA Examination was conducted during the investigation to establish the foetus of accused due to rape. She was also interrogated and her statement was recorded by the Police.
PW2 Dr Anjali, S.R. BJRM Hospital, Delhi who deposed that on 30.4.2009 she was posted at BJRM Hospital as S.R. Gynae. On that day prosecutrix (name withheld) referred to Gynae Department for medical examination by CMO of BJRM Hospital with alleged history of sexual assault in the month of March, 2009. The last month of menstrual period was February, 2009 and previous cycle was regular. Menarchy (first menstrual cycle) was at the age of about 11 years. Hymen was 8 of 73 9 FIR No. 109/09 PS - Swaroop Nagar found torn and no fresh injury was found. She was advised for UPT and ultrasound for Utreous, Pelvis and adenexa and XRay long bone for age determination. Her Salwar posterior fornix vaginal smear and hair clipping sealed and handed over to ASI Raj Wanti. Her MLC Ex. PW1/B bears her notings encircles at point 'D' and bears her signature at point 'C'. Initial examination of prosecutrix (name withheld) was done by Dr. Vineet the then JR Casualty. Dr. Vineet had left the Hospital. His notings on the MLC Ex. PW1/B are at point 'D' and it bears his signature at point 'B'. She can identify signature and handwriting of Dr. Vineet as she had seen him writing and signing in the course of official duties. Present whereabouts of Dr. Vineet are not known.
PW3 Sh. Man Mohan who deposed that he has brought the original admission register of the year, 2008. As per the record, prosecutrix (name withheld) D/o Sh. Vishwanath has been admitted in the School on 09/04/2008 vide admission no. 715 in 6th Standard. On the basis of PLC from MC Primary CoEd. School Bhalaswa, J. J. No. 1, Delhi - 42. As per the transfer certificate her date of birth is shown as 10/08/1997. In this respect the certificate was issued by the then Vice 9 of 73 10 FIR No. 109/09 PS - Swaroop Nagar Principal Sh. N. D. Yadav and he knows his signature as he has seen his signature in usual course of his duties. He has also brought the SLC paste file in the copy of TC Certificate of prosecutrix (name withheld) is Ex. PW3/B (OSR). The copy of entries of admission no. 715 is Ex. PW3/C (OSR).
PW4 Mrs. Chanderkala is the mother of the prosecutrix who deposed that on 30.4.2009 her daughter/prosecutrix (name with held) was having pain in her abdoman and she was vomiting when her condition was deteriorating she was taken to the a clinic of a doctor running near the locality, concerned doctor confirmed pregnancy to her (PW4) after urinal investigation of her daughter and deposed regarding the incident as was disclosed to her by her daughter/prosecutrix and also deposed that accused Manoj was arrested from the House of his Nana at B4 near to their house at the instance of her daughter/prosecutrix and proved the arrest memo of accused Manoj Ex. PW1/C, bearing her thumb mark at point B. At the time of incident her daughter was about 13 years.
10 of 73 11 FIR No. 109/09 PS - Swaroop Nagar PW5 Vishwanath is the father of the prosecutrix who deposed regarding the incident as was disclosed to him by his wife Chanderkala (PW4) to whom the incident was disclosed by his daughter/prosecutrix.
PW6 ASI Amrik Singh is the Duty Officer who deposed that on 30.4.2009 he was posted as Duty Officer at PS Swaroop Nagar from 4.00 pm to 12.00 midnight. On that day at about 9.00 pm ASI Rajwanti handed over rukka to him for registration of FIR and proved the carbon copy of FIR Ex. PW6/A, signed by him at point A and also proved his endorsement on original rukka Ex. PW6/B, signed by him at point A. PW7 HC Manoj Kumar who deposed that on 10.7.2009 he was posted at PS Swaroop Nagar , on that day as per the directions of the SHO, he reached at BSA hospital, Rohini where IO SI Durga met him and joined the investigation of the case and proved the seizure memo of the sealed parcel containing the foetus as was handed over by the doctor Ex. PW7/A, signed by him at point A and deposed that, parcel was got 11 of 73 12 FIR No. 109/09 PS - Swaroop Nagar preserved in BJRM Hospital and further deposed that on 17/07/2009 he collected the sealed parcel from BJRM Hospital for depositing the same in FSL Rohini, Delhi vide RC No. 38/21/09 alongwith sample seal and deposited the same with FSL Rohini, Delhi.
PW8 Ct. Bal Krishan who deposed that on 08/05/2009 he joined investigation with IO SI Sushila Rana and deposed on the investigational aspects and proved the arrest memo of accused Manoj Ex. PW1/C, signed by him at point B, his personal search memo Ex. PW8/A, signed by him at point A, his disclosure statement Ex. PW8/B, signed by him at point A and further deposed that accused Manoj was got medically examined and proved the seizure memo of the sealed exhibits handed over by the doctor after his medical examination Ex. PW8/C, signed by him at point A. PW9 Woman HC Maya Devi who deposed that on 26/07/2009 she joined investigation with IO SI Durga Kapri and deposed on the investigational aspects and proved the arrest memo of accused Kajal Ex. PW1/D, singed by her at point B, her personal search memo 12 of 73 13 FIR No. 109/09 PS - Swaroop Nagar Ex. PW1/H, signed by her at point A, her disclosure statement Ex. PW9/A, signed by her at point A and further deposed that accused Kajal was got medically examined from BJRM Hospital.
PW10 Ct. Jai Pal Singh who deposed that on 30/04/2009 he joined investigation with ASI Rajwanti who had received DD No. 14A and with whom he went to BJRM Hospital and got conducted the medical examination of prosecutrix and after her medical examination, the statement of prosecutrix was recorded and Tehrir was prepared by the IO and he took the Tehrir and got registered the FIR and thereafter handed over the copy of FIR and original Tehrir to ASI Rajwanti . He further deposed that on 08/05/09 he joined the investigation with SI Sushila Rana and deposed on the investigational aspects and besides proving the arrest memo of accused Manoj Ex. PW1/C, signed by him at point C, his personal search memo Ex. PW8/A, signed by him at point B, further deposed that accused Manoj was got medically examined from BJRM Hospital and proved the seizure memo of the sealed exhibits handed over by the doctor after his medical examination Ex. PW8/C, signed by him at point B. 13 of 73 14 FIR No. 109/09 PS - Swaroop Nagar PW11 Dr. Neeraj Chaudhary, Medical Officer, BJRM Hospital who proved the medical examination of prosecutrix (name withheld) as was conducted by doctor Dr. Vineet on 30/04/2009 vide MLC No. 2389 from portion X to X1 on the MLC Ex. PW1/B and signed by Dr. Vineet at point E and further deposed that after her medical examination, the patient/prosecutrix was referred to SR Obs. and Gynae. He further proved the medical examination of patient/accused Manoj Kumar as was conducted by Dr. Mahesh on 08/05/2009 vide MLC No. 2733 from portion X to X1 on the MLC Ex. PW11/A and signed by Dr. Mahesh at point A and further deposed that after preliminary examination, patient was referred to SR surgery and further proved the medical examination of patient/accused Manoj as was conducted by S.R. Surgery Dr. Neerja from portion Y to Y1 on the MLC Ex. PW11/A and signed by Dr. Neerja at point B who has opined that there is nothing to suggest that patient cannot perform sexual act.
PW12 Ct. Mujib Khan, who deposed that on 26/07/2009, he joined investigation with IO SI Durga Khapri and deposed on the 14 of 73 15 FIR No. 109/09 PS - Swaroop Nagar investigational aspects and proved the arrest memo of accused Kajal Ex. PW1/D signed by him at point A, her disclosure statement Ex. PW 9/A signed by him at point B and further deposed that IO prepared the site plan at the instance of the prosecutrix/victim and accused Kajal was also medically examined at the BJRM hospital.
PW13 Dr. Meenakshi Bansal, Senior Resident, BJRM Hospital, Delhi, who proved the medical examination of patient/ accused Kajal as was conducted by doctor Dr. Anjali on 26/07/2009 vide MLC No. 3626 with her findings on MLC Ex. PW13/ A and signed by Dr. Anjali at point A. PW14 Sh. Neeraj Gaur, MM, Tis Hazari Courts, Delhi, who recorded the statement of prosecutrix u/s. 164 Cr.PC and proved the endorsement of the IO SI Sushila Rana regarding the identification of the prosecutrix Ex. PW14/A signed by him at point A, the statement u/s 164 Cr.P.C. of prosecutrix Ex.PW14/B bearing her signature at point 'A' and his signatures at point 'B', the certificate regarding the correctness of the statement u/s 164 Cr.P.C. Ex. PW14/C bearing his signatures at point 15 of 73 16 FIR No. 109/09 PS - Swaroop Nagar A, the application for supplying copy of the statement move by IO Ex. PW14/D bearing his signature at point 'A' and his endorsement for direction to the Ahlmad to send the statement of prosecutrix in a sealed cover to Court concerned is Ex.PW14/E bearing his signature at point A. PW15 HC Charan Singh who deposed that on 08/06/2009, he was posted at PS Swaroop Nagar and on that day, on the instruction of IO SI Durga Kapdi, he obtained two sealed pulandas and three sample seals from the MHC(M) vide RC No. 25/21/09 and deposited the same with FSL Rohini and handed over the original receipt of the FSL to the MHC(M) and further deposed that as long as the pulandas remained in his possession the same were not tampered with.
PW16 HC Shri Pal is the MHC(M) who proved the relevant entries of register No.19 Ex.PW16/A and Ex.PW16/B; the copy of RC No. 25/21/09 Ex.PW16/C; copy of acknowledgment of FSL Ex. PW16/D; copy of the RC No. 38/21/09 Ex. PW16/E and the copy of acknowledgment of FSL as Ex.PW16/F. 16 of 73 17 FIR No. 109/09 PS - Swaroop Nagar PW17 ASI Rajwanti is the initial investigating officer (IO) of the case who deposed on the investigation aspects and deposed that on 30/04/2009, he was posted at PS Jahangir Puri and further deposed that she recorded the statement of prosecutrix Ex.PW1/A and attested her signature at point 'A' and bearing her signature at point 'X' and further deposed that the medical examination of the prosecutrix was got conducted at BJRM hospital and proved the seizure memo of the sealed exhibits handed over by the Doctor after her medical examination Ex. PW17/A signed by her at point A and proved the rukka Ex. PW17/B signed by her at point A and further deposed that later on investigation was handed over to other IO.
PW18 SI Durga Kapri is the last investigation officer (IO) of the case who deposed on the investigation aspects and deposed that on 10.7.2009, she received an information from Mahila Ayog that prosecutrix (name withheld) has delivered a dead female foetus in the BSA Hospital. Thereafter, she reached at BSA Hospital and Ct. Manoj also reached there . The foetus was got preserved from the doctor and was seized vide memo Ex. PW7/A, bearing her signature at point B and 17 of 73 18 FIR No. 109/09 PS - Swaroop Nagar the same was deposited in the BJRM Hospital Mortuary. She further deposed that on 17.7.2009, the pulanda containing the foetus was deposited in FSL through Ct. Manoj. She further deposed that accused Manoj and prosecutrix (name withheld) were taken to FSL where their blood samples were taken and the same were deposited in the FSL. She further deposed that on 26/07/2009, she alongwith lady HC Maya and Ct. Muzib Khan reached at the house of prosecutrix (name withheld) i.e. B4/212, Bhalaswa Dairy. prosecutrix (name withheld) was found there. She further deposed that thereafter, they reached at the house of Kajal i.e. B4/444, Bhalaswa Dairy, JJ Colony and there at the instance of prosecutrix (name withheld), apprehended the accused Kajal. She further proved the arrest memo of accused Kajal Ex. PW1/D, her personal search memo Ex. PW1/H bearing her signatures at point 'X' and her disclosure statement Ex. PW9/A signed by her at point 'A' and proved the site plan Ex. PW18/A, bearing her signature at point 'A' and further deposed that after completion of investigation challan was prepared and filed in the court, later on FSL result dated 03/09/2009 was collected and was filed in the Court which is Ex. PX and PX1.
18 of 73 19 FIR No. 109/09 PS - Swaroop Nagar PW19 Dr. Rashmi Khatri, Specialist Obs. & Gynae. BSA Hospital who deposed that she has been deputed in this case by the M.S. Of the hospital to depose before the Court. She has seen the MLC No. 3585/09 dated 10.7.2009 of female abortus of the prosecutrix (name withheld). The MLC was prepared by Dr. Jyotsana Saran in her handwriting who is not working in hospital and her present whereabouts are not known as per record. She further deposed that she is acquainted with the handwriting and signature of Dr. Jyotsana as she has seen her while writing and signing during the course of her duties. As per MLC, the patient/prosecutrix (name withheld) was admitted in the hospital vide C.R. No. 20024 on 10/07/09 with the history of five month amenorrhoea consequent to rape and she delivered a female abortus on 10/07/2009 at 8:16 a.m., weight 800 gm. and request was received for preservation of the feotus for DNA analysis to help in the investigation. The abortus was a female weighing about 800 gm was sealed and handed over to IO. She proved the MLC as Ex. PW 19/A, bearing the signature of Jyotsana at point A. PW20 SI Susheela Rana is also the investigating officer 19 of 73 20 FIR No. 109/09 PS - Swaroop Nagar (IO) of the case who deposed that on 06/05/2009, further investigation was handed over to her and deposed on investigation aspects and besides proving the arrest memo of accused Manoj Ex. PW1/C, his personal search memo Ex. PW8/A, his disclosure statement Ex. PW8/B, all bearing her signature at point 'X', the seizure memo of the sealed exhibits of accused Manoj which were handed over by the Doctor after medical examination Ex. PW8/C signed by her at point 'C' also deposed that on 25/05/2009, she moved an application for recording the statement u/s 164 Cr.P.C. of prosecutrix Ex. PW20/A signed by her at point A and application for obtaining copy of said statement is Ex. PW20/B, signed by her at point 'A'.
PW21 Sh. A. K. Srivastva, Dy. Director, DNA Unit FSL Rohini, Delhi who deposed that on 17/07/2009, one forensic sample i.e Ex. 1, female fetus of prosecutrix (name withheld) and two blood samples of Shri Manoj Mark as Ex. 2 and blood sample of prosecutrix (name withheld) marked as Ex. 3 were received in the office of Director, FSL Rohini and blood sample of Manoj and prosecutrix (name withheld) were collected in FSL, DNA Unit in his presence. He examined all the 20 of 73 21 FIR No. 109/09 PS - Swaroop Nagar exhibits and submitted his DNA report dated 03/03/2010 as Ex. PW21/A, bearing his signatures at point 'A'. He further deposed that after DNA analysis, it was found that DNA profiling (STR Analysis) performed on the exhibits is sufficient to conclude that the source of exhibit 2 (blood sample of Sh. Manoj was not matching with the source Ex. 1(Foetus of prosecutrix (name withheld)), however the source of Ex. 3 (blood sample of prosecutrix (name withheld) was the biological mother of the source of Ex. 1(foetus of prosecutrix (name withheld)). He also submitted the allelic data of source Ex. 1, 2 & 3 as annexure 1 and identification form of Shri Manoj and prosecutrix (name withheld) and annexures 2A and 2B and proved the allelic data which is Annexure 1 as Ex. PW21/B, bearing his signatures at point 'A' and the identification form of prosecutrix (name withheld) as Ex. PW1/F and the identification form of Manoj as Ex. PW21/C bearing his signatures at points 'A'.
PW22 Dr. Rajender Kumar, Dy. Director, FSL Biology, Rohini, Delhi who proved the biological and serological reports Ex. PX and Ex. PX1, bearing his signatures at points A respectively.
21 of 73 22 FIR No. 109/09 PS - Swaroop Nagar The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statements of both the accused Kajal and Manoj Kumar were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication and did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that Date of incident is 05/03/2009 at about 2:30 p.m. and the FIR was lodged on 30/04/2009 at about 9:00 p.m. (after one month 25 days of the incident) and Prosecutrix was medically examined on 30/04/2009, when she knew regarding her pregnancy, she falsely implicated the accused with his Mami Kajal.
Learned Counsel for accused further submitted that no age proof of the prosecutrix is on the record only School Leaving Certificate is there (Ex. PW3/B) and no Ossification Test of the prosecutrix was got conducted by the IO.
Learned Counsel for accused further submitted that the accused Manoj was arrested on 08/05/2009 and his Mami Kajal was 22 of 73 23 FIR No. 109/09 PS - Swaroop Nagar arrested on 26/07/2009.
Learned Counsel for accused further submitted that Prosecutrix aborted a Female Foetus on 10/07/2009 and it was sent to FSL for DNA Examination on 17/07/2009, after permission obtained from the prosecutrix (Ex. PW1/G). DNA Report is Ex. PW21/A, B, C, F. PW21 Sh. A. K. Shrivastava deposed before this Court that (Blood Sample of Manoj accused was not matching the foetus of prosecutrix (name withheld)) it clearly shows that the prosecutrix falsely implicated the accused persons, when she knew that she was pregnant from some other person (i.e. Milan) and due to fear she implicated the accused persons.
Learned Counsel for the accused submitted that prosecution has failed to prove its case and prayed for the acquittal of both the accused on the charges levelled against them.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of 23 of 73 24 FIR No. 109/09 PS - Swaroop Nagar the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Ms. Sadhna Bhatia, Learned Amicus Curiae for both the accused persons and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 366A IPC and u/s 114 IPC r/w section 376 IPC against the accused Kajal is that on 05/03/2009 at about 2:30 p.m.. at her house bearing no. B4, J. J. Colony, Bhalaswa, she induced the prosecutrix (name withheld) D/o Sh. Vishwanath (a minor girl aged about 13 years) to go to a room situated at upper floor on the pretext of calling Neetu with the intent that said prosecutrix (name withheld) will be forced to illicit intercourse with Manoj, and secondly on the abovesaid date, time and place she abetted Manoj to commit rape on the person of prosecutrix (name withheld) and she was present at the time of the commissions of said offence of rape in pursuance of her abetment.
The charge for the offences punishable u/s 366/376/506 IPC 24 of 73 25 FIR No. 109/09 PS - Swaroop Nagar against the accused Manoj Kumar is that on 05/03/2009 at about 2:30 p.m. he kidnapped the prosecutrix (name withheld) D/o Sh. Vishwanath (a minor girl aged about 13 years) out of the keeping of lawful guardianship of her parents with intention that she may be forced or seduced to illicit intercourse or knowing it to be likely that she may be forced or seduced to illicit intercourse and secondly, on abovesaid date, time and place at house no. B4, J. J. Colony, Bhalaswa, he committed rape on prosecutrix (name withheld) in the pesence of his Mami (Kajal and thirdly, on the abovesaid date, time and place, he criminally intimidated the prosecutrix (name withheld) to kill her entire family with intent to cause alarm to her.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
25 of 73 26 FIR No. 109/09 PS - Swaroop Nagar AGE OF THE PROSECUTRIX
12. PW3 Sh. Man Mohan deposed that he has brought the original admission register of the year, 2008. As per the record, prosecutrix (name withheld) D/o Sh. Vishwanath has been admitted in the School on 09/04/2008 vide admission no. 715 in 6th Standard. On the basis of PLC from MC Primary CoEd. School Bhalaswa, J. J. No. 1, Delhi - 42. As per the transfer certificate her date of birth is shown as 10/08/1997. In this respect the certificate was issued by the then Vice Principal Sh. N. D. Yadav and he knows his signature as he has seen his signature in usual course of his duties. He has also brought the SLC paste file in the copy of TC Certificate of prosecutrix (name withheld) is Ex. PW3/B (OSR). The copy of entries of admission no. 715 is Ex. PW3/C (OSR).
During his crossexamination PW3 - Sh. Man Mohan has deposed that : "It is correct that at the time of admission of prosecutrix in our School birth certificate was not produced. I cannot tell on the basis of record that where birth of prosecutrix had taken place."
On careful perusal and analysis of testimony of PW3 - Sh. Man Mohan, it is clearly indicated that as per School record the date of 26 of 73 27 FIR No. 109/09 PS - Swaroop Nagar birth of prosecutrix is 10/08/1997. There is nothing in his cross examination so as to impeach his creditworthiness.
On a leading question put by the Learned Addl. PP to PW1
- prosecutrix, she has specifically deposed that "It is correct that my date of birth is 10/08/1997".
During her crossexamination by Learned Counsel for accused recorded on 25/01/2011, PW1 - prosecutrix has specifically deposed that "My younger sister and I am twine (Twin) and she is around 15 years old and she is also married".
The testimony of PW3 - Sh. Man Mohan is also corroborated by PW1 - prosecutrix when she has deposed that "I have studied in two Schools but I do not remember the names of the Schools".
PW4 Mrs. Chanderkala, mother of the prosecutrix in her examinationinchief has specifically deposed that "At the time of incident my daughter was about 13 years".
During her crossexamination, PW4 - Mrs. Chanderkala has deposed that "At that time my daughter (name withheld) attending the School daily in 7th class."
Undisputably, no evidence to the contrary has been 27 of 73 28 FIR No. 109/09 PS - Swaroop Nagar produced or led on the record by the accused.
In the circumstances it stands proved on the record that the date of birth of prosecutrix is 10/08/1997.
As the date of alleged incident is of 05/03/2009 and the date of birth of prosecutrix is 10/08/1997, on simple arithmetical calculation, the age of prosecutrix comes to 11 years, 06 months and 25 days on the date of alleged incident on 05/03/2009.
The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no 28 of 73 29 FIR No. 109/09 PS - Swaroop Nagar document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 11 years, 06 months and 25 days on the date of alleged incident on 05/03/2009.
13. Learned Counsel for accused submitted that no age proof of the prosecutrix is on the record only School Leaving Certificate is there (Ex. PW3/B) and no Ossification Test of the prosecutrix was got conducted by the IO.
I have carefully perused and analysed the evidence on the record.
In view of the categorical testimony of PW3 - Sh. Man Mohan and School record regarding date of birth of prosecutrix produced and proved on record and the testimonies of PW1 - prosecutrix as well as of her mother PW4 - Mrs. Chanderkala, as discussed herein above, it does not lie in the mouth of accused to utter that no age proof of 29 of 73 30 FIR No. 109/09 PS - Swaroop Nagar the prosecutrix is on the record.
As far as the plea that no ossification test of the prosecutrix was conducted by the IO is concerned, it is to be noticed that when age proof by way of School record where prosecutrix has studied is available, there is no requirement for resorting to age determination by way of ossification test. On this aspect, Rule 12 of The Juvenile Justice (Care and Protection of Children) Rules 2007 to The Juvenile Justice (Care and Protection of Children) Act 2000 as amended by the Juvenile Justice (Care and Protection of Children) Amendment Act 2006 may be noticed which reads as under : "12. Procedure to be followed in determination of age. (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of application for that purpose. (2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail.
30 of 73 31 FIR No. 109/09 PS - Swaroop Nagar (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the School (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee for the reasons to be recorded by them, may, if considered necessary, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given 31 of 73 32 FIR No. 109/09 PS - Swaroop Nagar to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in subrule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW2 Dr Anjali, S.R. BJRM Hospital, Delhi deposed that on 30.4.2009 she was posted at BJRM Hospital as S.R. Gynae. On that day prosecutrix (name withheld) referred to Gynae Department for medical examination by CMO of BJRM Hospital with alleged history of sexual assault in the month of March, 2009. The last month of menstrual period was February, 2009 and previous cycle was regular. Menarchy 32 of 73 33 FIR No. 109/09 PS - Swaroop Nagar (first menstrual cycle) was at the age of about 11 years. Hymen was found torn and no fresh injury was found. She was advised for UPT and ultrasound for Utreous, Pelvis and adenexa and XRay long bone for age determination. Her Salwar posterior fornix vaginal smear and hair clipping sealed and handed over to ASI Raj Wanti. Her MLC Ex. PW1/B bears her notings encircles at point 'D' and bears her signature at point 'C'. Initial examination of prosecutrix (name withheld) was done by Dr. Vineet the then JR Casualty. Dr. Vineet had left the Hospital. His notings on the MLC Ex. PW1/B are at point 'D' and it bears his signature at point 'B'. She can identify signature and handwriting of Dr. Vineet as she had seen him writing and signing in the course of official duties. Present whereabouts of Dr. Vineet are not known.
PW11 Dr. Neeraj Chaudhary, Medical Officer, BJRM Hospital has proved the medical examination of prosecutrix (name withheld) as was conducted by doctor Dr. Vineet on 30.4.2009 vide MLC No. 2389 from portion X to X1 on the MLC Ex. PW1/B and signed by Dr. Vinit at point E and further deposed that after her medical examination, the patient/prosecutrix was referred to SR Obs. and Gynae.
33 of 73 34 FIR No. 109/09 PS - Swaroop Nagar PW19 Dr. Rashmi Khatri, Specialist Obs. & Gynae. BSA Hospital has deposed that she has been deputed in this case by the M.S. Of the hospital to depose before the Court. She has seen the MLC No. 3585/09 dated 10.7.2009 of female abortus of the prosecutrix (name withheld). The MLC was prepared by Dr. Jyotsana Saran in her handwriting who is not working in hospital and her present whereabouts are not known as per record. She further deposed that she is acquainted with the handwriting and signature of Dr. Jyotsana as she has seen her while writing and signing during the course of her duties. As per MLC, the patient/prosecutrix (name withheld) was admitted in the hospital vide C.R. No. 20024 on 10/07/09 with the history of five month amenorrhoea consequent to rape and she delivered a female abortus on 10/07/2009 at 8:16 a.m., weight 800 gm. and request was received for preservation of the feotus for DNA analysis to help in the investigation. The abortus was a female weighing about 800 gm was sealed and handed over to IO. She proved the MLC as Ex. PW 19/A, bearing the signature of Jyotsana at point A. Despite grant of opportunities, PW2 - Dr. Anjali, PW11 - Dr. Neeraj Chaudhary and PW19 - Dr. Rashmi Khatri were not cross 34 of 73 35 FIR No. 109/09 PS - Swaroop Nagar examined on behalf of the accused.
In view of above and in the circumstances, the medical and gynaecological examination vide MLC Ex. PW1/B as well as female abortus examination vide MLC Ex. PW19/A of PW1 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW11 Dr. Neeraj Chaudhary, Medical Officer, BJRM Hospital has proved the medical examination of patient/accused Manoj as was conducted by Dr. Mahesh on 08/05/2009 vide MLC No. 2733 from portion X to X1 on the MLC Ex. PW11/A and signed by Dr. Mahesh at point A and further deposed that after preliminary examination, patient was referred to SR surgery and further proved the medical examination of patient/accused Manoj as was conducted by S.R. Surgery Dr. Neerja from portion Y to Y1 on the MLC Ex. PW11/A and signed by Dr. Neerja at point B who has opined that there is nothing to suggest that patient cannot perform sexual act.
Despite grant of opportunity PW11 - Dr. Neeraj Chaudhary was not crossexamined on behalf of the accused.
35 of 73 36 FIR No. 109/09 PS - Swaroop Nagar In the circumstances, it stands proved on the record that accused Manoj was capable of performing sexual act. MEDICAL EXAMINATION OF ACCUSED KAJAL
16. PW13 Dr. Meenakshi Bansal, Senior Resident, BJRM Hospital, Delhi, has proved the medical examination of patient/ accused Kajal as was conducted by Dr. Anjali on 26/07/2009 vide MLC No. 3626 with her findings on MLC Ex. PW13/A and signed by Dr. Anjali at point 'A'.
Despite grant of opportunity, PW13 - Dr. Meenakshi Bansal was not crossexamined on behalf of the accused.
In the circumstances the medical examination of accused Kajal vide MLC Ex. PW13/A stands proved on the record. BIOLOGICAL AND SEROLOGICAL EVIDENCE
17. PW22 Dr. Rajender Kumar, Dy. Director, FSL Biology, Rohini, Delhi has proved the biological and serological reports Ex. PX and Ex. PX1, bearing his signatures at points A respectively.
As per biological report Ex. PX the description of articles 36 of 73 37 FIR No. 109/09 PS - Swaroop Nagar contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "MS BJRMH J.PURI DELHI" containing exhibit '1'.
Exhibit '1' : One dirty salwar. Parcel '2' : One sealed cloth parcel sealed with the seal of
"MS BJRMH J.PURI DELHI" containing exhibit '2a' and '2b'. Exhibit '2a' & '2b' : Two microslides having faint whitish smear. Parcel '4' : One sealed cloth parcel sealed with the seal of "MS BJRMH J.PURI DELHI" containing exhibit '4'. Exhibit '4' : Dark brown foul smelling liquid described as 'Blood sample'.
RESULT OF ANALYSIS
1. Blood was detected on exhibit '4'.
2. Semen could not be detected on exhibits '1', '2a' and '2b'.
3. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'RK FSL DELHI'.
37 of 73 38 FIR No. 109/09 PS - Swaroop Nagar The serological report Ex. PX1 reads as under: Exhibits Species of origin ABO Grouping/Remarks '4' Blood Sample Sample blood putrefied hence no opinion At the outset, it is to be mentioned that there is no mentioning of any parcel no. 3 in the biological report Ex. PX otherwise the analysis pertains to three parcels as were the total parcels received in the FSL.
As per biological report Ex. PX, parcel nos. 1 & 2 belong to PW1 - prosecutrix which were seized vide seizure memo dated 30/04/2009 Ex. PW17/A and parcel no. 4 belongs to accused Manoj which was seized memo dated 08/05/2009 Ex. PW8/C. On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit 4 (blood sample of accused Manoj) seized vide seizure memo Ex. PW8/C and semen could not be detected on exhibit 1 (one dirty salwar of the prosecutrix) seized vide seizure memo Ex. PW17/A, exhibits 2a and 2b (two microslides having faint 38 of 73 39 FIR No. 109/09 PS - Swaroop Nagar whitish smear of the prosecutrix) seized vide seizure memo Ex. PW17/A. PW2 - Dr. Anjali, SR, BJRM Hospital who on 30/04/2009 gynaecologically examined the patient/prosecutrix vide her notings encircled at point 'D' vide MLC Ex. PW1/B with "Alleged H/o sexual assault by her neighbour in the month of March, 2009, after that she had changed her clothes and taken bath."
It is also to be noticed that alleged incident is of dated 05/03/2009 and the exhibits 1, 2a and 2b were seized on 30/04/2009, during this period it cannot be ruled out that prosecutrix must have washed her clothes, salwar and must have answered the call of nature a number of times and must have taken bath a number of times and this not being a case of recent sexual intercourse activity and for the said reasons semen could not have been detected on exhibit 1 (salwar of the prosecutrix) and exhibits 2a and 2b (two microslides having faint whitish smear of the prosecutrix). DNA FINGER PRINTING EVIDENCE 39 of 73 40 FIR No. 109/09 PS - Swaroop Nagar
18. PW21 Sh. A. K. Srivastva, Dy. Director, DNA Unit FSL Rohini, Delhi has deposed that on 17.7.2009, one forensic sample i.e Ex.1, female fetus of prosecutrix (name withheld) and two blood samples of Shri Manoj Mark as Ex. 2 and blood sample of prosecutrix (name withheld) marked as Ex. 3 were received in the office of Director, FSL Rohini and blood sample of Manoj and prosecutrix (name withheld) were collected in FSL, DNA Unit in his presence. He examined all the exhibits and submitted his DNA report dated 3.3.2010 as Ex.PW21/A, bearing his signatures at point A. He further deposed that after DNA analysis, it was found that DNA profiling (STR Analysis) performed on the exhibits is sufficient to conclude that the source of exhibit 2 (blood sample of Sh. Manoj was not matching with the source Ex.1 (Foetus of prosecutrix (name withheld)), however the source of Ex.3 (blood sample of prosecutrix (name withheld) was the biological mother of the source of Ex.1 (foetus of prosecutrix (name withheld)). He also submitted the allelic data of source Ex.1, 2 & 3 as annexure 1 and identification form of Shri Manoj and prosecutrix (name withheld) and annexures 2A and 2B and proved the allelic data which is Annexure 1 as Ex.PW21/B, bearing his signatures at point A and the identification form of 40 of 73 41 FIR No. 109/09 PS - Swaroop Nagar prosecutrix (name withheld) as Ex.PW1/F and the identification form of Manoj as Ex. PW21/C bearing his signatures at points A. As per DNA Report Ex. PW21/A, the description of the sources, DNA examination, result of examination and conclusion reads as under : DESCRIPTION OF THE SOURCE Forensic Sample received on 17/07/2009 Parcel 1 : One cloth parcel sealed with the seal of 'SD' containing exhibit '1'.
Exhibit 1 : A complete body of female foetus described as "Foetus of Prosecutrix (name withheld)".
Blood Samples collected on 17/07/2009 Name of source Collected on Sample No. Exhibit Blood sample of Sh. Manoj 17/07/2009 1 2 Identification form No. 1 Blood sample of prosecutrix 17/07/2009 2 3 (name withheld) Identification form No. 1 DNA from the exhibits '1', '2' & '3' were isolated and DNA fingerprinting profiles were prepared. STR analysis was used for each 41 of 73 42 FIR No. 109/09 PS - Swaroop Nagar of the samples. Date was analysed by using Genescan and Genotype Software.
RESULTS OF EXAMINATION The alleles as from the source of exhibit '2' (Blood sample of Sh. Manoj) is not matching with alleles as from the source of exhibit '1' (Foetus of prosecutrix (name withheld)). However, one set of alleles as from the source of exhibit '3' (Blood sample of prosecutrix (name withheld) is accounted in alleles as from the source of exhibit '1' (Foetus of prosecutrix (name withheld)).
CONCLUSION The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the source of exhibit '2' (Blood sample of Sh. Manoj) can be excluded for being responsible as biological father of source of exhibit '1' (Foetus of prosecutrix (name withheld)). However the source of exhibit '3' (Blood sample of prosecutrix (name withheld)) cannot be excluded for being responsible as biological mother of source of exhibit '1' (Foetus of prosecutrix (name withheld)). ENCLOSURE
1. Annexure - I - Genotype data of exhibits '1', '2' and '3'.
42 of 73 43 FIR No. 109/09 PS - Swaroop Nagar
2. Annexure - IIA & IIB - Identification Forms of exhibit '2' and '3'. Note :
1. The Remnants of the exhibit '1' has been sealed with seal of AKS FSL DELHI.
2. The exhibits '2' & '3' were utilized during the examination.
As per Genotype analysis Ex. PW21/B for establishing identity of accused using MICROSATELLITES reads as under :
i) D8S1179 ii) D21S11 iii) D7S820 iv) CSF1P0 v) D3S1358 vi) TH01
vii) D13S317 viii) D16S539 ix) D2S1338 x) D19S433 xi) vWA xii) TP0X xiii) D18S51 xiv) D5S818 xv) FGA & AMELOGENIN Loci Blood sample Foetus of Prosecutrix of Sh. Manoj Prosecutrix (name withheld) Exhibit '2' (name withheld) Exhibit '3' Allele Data Exhibit '1' Allele Data Allele Data D8S1179 10 15 12 15 12 14 D21S11 29 33.2 30 33.2 30 31 D7S820 11 12 11 11 11 11 CSF1P0 11 12 12 12 7 12 D3S1358 15 16 16 16 16 16 43 of 73 44 FIR No. 109/09 PS - Swaroop Nagar TH01 8 8 7 8 7 8 D13S317 9 11 12 12 12 13 D16S539 13 13 9 9 9 11 D2S1338 18 19 18 24 18 24 D19S433 14 14.2 14 14 14 14.2 vWA 17 18 19 19 17 19 TP0X 9 10 9 10 9 10 D18S51 13 13 14 15 14 21 D5S818 12 12 11 12 11 12 FGA 21 24 24 25 24 25 AMELOGENIN X Y X X X X The allelic data of source of exhibit 2 is NOT ACCOUNTED in allele data of source of exhibit 1.
On careful perusal and analysis of the DNA Report Ex. PW21/A and the allelic data Ex. PW21/B, it clearly shows that as per DNA Report Ex. PW21/A, the DNA profile of source of exhibit '2' (Blood sample of accused Manoj) can be excluded for being responsible as biological father of source of exhibit '1' (Foetus of 44 of 73 45 FIR No. 109/09 PS - Swaroop Nagar prosecutrix (name withheld)). However, the source of exhibit '3' (Blood sample of prosecutrix (name withheld)) cannot be excluded for being responsible as biological mother of source of exhibit '1' (Foetus of prosecutrix (name withheld)). As per the allelic data Ex. PW21/B, the allelic data of source of exhibit 2 (Blood sample of accused Manoj) is NOT ACCOUNTED in the allelic data of source of exhibit 1 (Foetus of prosecutrix (name withheld).
19. Now let the testimonies of PW1 - Prosecutrix, PW4 - Smt. Chander Kala, her mother and PW5 - Sh. Vishwanath, her father be perused and analyzed.
PW1 prosecutrix, in her examinationinchief recorded on 01/06/2010 has deposed which is reproduced and reads as under : "I reside at the above given address along with my parents and at the relevant time I was the student of class 7th in a Government School. On 05/03/09, at about 2:30 p.m., I was washing clothes in the street outside my house. There, accused Manoj Kumar present in the Court today (correctly identified) came and told me,"tujhe meri Mami Kajal bula rahi hai". On the asking of Manoj, I reached at the house of his Mami, there, Mami namely accused Kajal present in the Court today (correctly identified) met me. I asked her,"Bhabhi kya kaam hai". She asked me to remove the green gram from the gram plants (choliya ke 45 of 73 46 FIR No. 109/09 PS - Swaroop Nagar dane nikalne ke liye kaha). I helped her in this task and when I sought her permission to go to my house, she further asked me to see a newly constructed room at first floor. I replied that I will see the said room on some other day as I am already late. Then she again asked me to call Neetu from that room situated on first floor as such, I reached on the first floor & saw that Neetu was not there inside the said room. Meanwhile, accused Manoj also reached in the said room and pushed me aside and closed the door of the room and bolted the same and opened my salwar. I raised an alarm but he gagged my mouth by his hand and made me lay down on the ground on a dari and raped me. The accused also took out his clothes. By rape I mean to say that the accused spitted in my vagina and thereafter inserted his Lulu i.e. penis in my vagina. Accused after raping me threatened me in case I disclose this incident to anybody, he will kill me. Thereafter accused went outside the room and accused Kajal entered the room. I told her about the misdeeds of accused Manoj then she told me that "kapde thik kar lo, jo ho gaya use bhul jaa, kisi ko kuch batane ki zarurat nahi hai". Thereafter she send me my house after consoling me that in case I will disclose this fact to anybody, it will defame me.
I do not remember the exact date but on that day, I was not feeling well and was feeling giddy and when my mother asked me then I narrated the incident of raping me by Manoj dated 05/03/09 to her. Thereafter, my mother took me to the Police Station and my statement/complaint was recorded by the Police. Same is Ex. PW1/A signed by me at point 'A'."
During her further examinationinchief recorded on 22/07/2010, PW1 - prosecutrix has deposed that : 46 of 73 47 FIR No. 109/09 PS - Swaroop Nagar "I was got medically examined at BJRM Hospital and I had given consent for my gynaecological examination and my thumb impression on the MLC Ex. PW1/B is at point A. Accused present in the Court today Manoj Kumar(correctly identified) was arrested from his house at my instance but I do not remember his house no. and his arrest memo Ex. PW 1/C bears my signature at Point A. Accused present in the court today Kajal (correctly identified) was also arrested at my instance vide arrest memo Ex. PW 1/D signed by me at point A. She was arrested from her house i.e B4/444 JJ Colony Bhalsva Dairy. I had shown the room situated in the said house to the police officials where rape was conducted with me.
My statement was also recorded by Judge Sahab (statement recorded u/s 164 Cr.P.C.). Same is Ex. PW 1/E signed by me on page no 2 and 3 at Point A. I had not disclosed the said incident to my mother till the date of registration of FIR because accused Manoj had threatened me to kill in case I disclosed the incident and accused Kajal did not threaten me.
I became pregnant due to the rape committed on me by accused Manoj and in the fifth month of my pregnancy the foetus was aborted naturally and I was admitted at BSA Hospital and my aborted foetus was preserved by the Doctor of BSA Hospital.
I do not remember the date but I along with my mother on the call of IO reached at FSL Rohini and there my blood sample was taken and I had signed one form in this regard same is Ex. PW 1/F signed by me at point A. I can identify the case property. At this stage MHCM Swaroop Nagar produced three envelops sealed with the seal of FSL out of which two envelops opened, one is found containing one lady salwar, shown to the witness she identifies the same as Ex. P1 belonging to her which was taken at the time of her medical examination.
47 of 73 48 FIR No. 109/09 PS - Swaroop Nagar On leading questions put by the Learned Addl. PP for the State, PW1 - prosecutrix deposed that : "It is correct that matter was reported to the police and I was medically examined on 30/04/09. My baby was aborted on 10/07/09 and my blood sample was taken at FSL Rohini on 17/07/09. At this stage at request of Learned APP further examination of this witness is deferred as he need certain clarification from the IO. In view of above further examination of prosecutrix is deferred."
On 03/12/2010 during further leading questions put by the Learned Addl. PP for the State, PW1 - prosecutrix has deposed that : "It is correct that I was studying in Govt. CoEd. Sec. School, Bhalaswa, Delhi at the time of incident. It is also correct that my date of birth is 10/08/1997. It is correct that on 10/07/2009, I had given my consent for my examination and examination of my foetus vide Ex. PW1/G bears my signature at point 'A'."
On 25/01/2011, during her further examinationinchief PW1 - prosecutrix has deposed that : "It is correct that the personal search memo of accused Kajal which is Ex. PW1/H bears my signature at point 'A'. It is also correct that my DNA examination was conducted during investigation to establish the foetus of accused due to rape. I was also interrogated and my statement was recorded by the Police."
48 of 73 49 FIR No. 109/09 PS - Swaroop Nagar From the aforesaid narration of PW1 - prosecutrix, it is clear that she resides at the above given address along with her parents and at the relevant time she was the student of class 7th in a Government School. On 05/03/09, at about 2:30 p.m., she was washing clothes in the street outside her house. There, accused Manoj Kumar present in the Court came and told her,"tujhe meri Mami Kajal bula rahi hai". On the asking of Manoj, she reached at the house of his Mami, there, Mami namely accused Kajal present in the Court (correctly identified) met her. She (prosecutrix) asked her,"Bhabhi kya kaam hai". She asked her to remove the green gram from the gram plants (choliya ke dane nikalne ke liye kaha). She (prosecutrix) helped her in this task and when she sought her permission to go to her house, she further asked her to see a newly constructed room at first floor. She (prosecutrix) replied that she will see the said room on some other day as she is already late. Then she (Kajal) again asked her to call Neetu from that room situated on first floor as such, she reached on the first floor & saw that Neetu was not there inside the said room. Meanwhile, accused Manoj also reached in the said room and pushed her aside and closed the door of the room and 49 of 73 50 FIR No. 109/09 PS - Swaroop Nagar bolted the same and opened her salwar. She raised an alarm but he gagged her mouth by his hand and made her lie down on the ground on a dari and raped her. The accused also took out his clothes. By rape she means to say that the accused spitted in her vagina and thereafter inserted his Lulu i.e. penis in her vagina. Accused after raping her threatened her in case she (prosecutrix) disclose this incident to anybody, he will kill her. Thereafter, accused went outside the room and accused Kajal entered the room. She (prosecutrix) told her about the misdeeds of accused Manoj then she (Kajal) told me that "kapde thik kar lo, jo ho gaya use bhul jaa, kisi ko kuch batane ki zarurat nahi hai". Thereafter she (Kajal) send her (prosecutrix) to her house after consoling her (prosecutrix) that in case she will disclose this fact to anybody, it will defame her. She does not remember the exact date but on that day, she was not feeling well and was feeling giddy and when her mother asked her then she narrated the incident of raping her by Manoj dated 05/03/09 to her. Thereafter, her mother took her to the Police Station and her (prosecutrix) statement/complaint was recorded by the Police. Same is Ex. PW1/A signed by her at point 'A'. She was got medically examined at BJRM Hospital and she had given consent for her gynaecological 50 of 73 51 FIR No. 109/09 PS - Swaroop Nagar examination and her thumb impression on the MLC Ex. PW1/B is at point A. Accused Manoj Kumar was arrested from his house at her instance but she does not remember his house number and his arrest memo Ex. PW 1/C bears her signature at Point A. Accused Kajal was also arrested at her (prosecutrix) instance vide arrest memo Ex. PW 1/D signed by her at point A. She (Kajal) was arrested from her house i.e B4/444 JJ Colony Bhalsva Dairy. Proseutrix had shown the room situated in the said house to the Police officials where rape was conducted with her. Her statement was also recorded by Judge Sahab (statement recorded u/s 164 Cr.P.C.). Same is Ex. PW 1/E signed by her on page nos. 2 and 3 at Points A. She had not disclosed the said incident to her mother till the date of registration of FIR because accused Manoj had threatened her to kill in case she disclosed the incident and accused Kajal did not threaten her. She became pregnant due to the rape committed on her by accused Manoj and in the fifth month of her pregnancy the foetus was aborted naturally and she was admitted at BSA Hospital and her aborted foetus was preserved by the Doctor of BSA Hospital. She does not remember the date but she along with her mother on the call of IO reached at FSL Rohini and there her blood sample was 51 of 73 52 FIR No. 109/09 PS - Swaroop Nagar taken and she had signed one form in this regard same is Ex. PW1/F signed by her at point A. She identified the case property i.e. one lady salwar as Ex. P1 belonging to her which was taken at the time of her medical examination and that the personal search memo of accused Kajal which is Ex. PW1/H bears her signature at point 'A'. It is also correct that her DNA examination was conducted during investigation to establish the foetus of accused due to rape. She was also interrogated and her statement was recorded by the Police.
PW1 - Prosecutrix during her crossexamination has negated the suggestions that she had falsely implicated the accused persons or that she was having an affair with one boy namely Milan whom she wanted to marry and maintained sexual relationship with him and when she got pregnant, she got scared and in order to save herself and to save Milan, she falsely named the accused Manoj to have raped her and accused Kajal to have also assisting him.
Inspite of incisive crossexamination of PW1 - Prosecutrix, nothing material has been brought out so as to impeach her 52 of 73 53 FIR No. 109/09 PS - Swaroop Nagar creditworthiness. In the witness box she has withstood the test of cross examination and in her testimony is consistent throughout. The version of this witness on the core spectrum of crime has remained intact. The testimony of PW1 - prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused Manoj Kumar and Kajal to falsely implicate them in the case.
The testimony of PW1 - Prosecutrix has also been corroborated by the medical evidence, DNA Report, Allelic Data and the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement Ex. PW1/A made to the Police.
The testimony of PW - Prosecutrix is also found to be corroborated by PW4 - Smt. Chanderkala, her mother and PW5 - Sh. Vishwanath, her father, to whom prosecutrix had disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
53 of 73 54 FIR No. 109/09 PS - Swaroop Nagar PW4 - Chanderkala, in her examinationinchief has deposed that : "On 30/04/2009 my daughter/prosecutrix (name withheld) was having pain in her abdomen and she was also vomitting when her condition was deteriorating she was taken to the clinic of a Doctor running near to the locality. Concerned Doctor confirmed pregnancy to her after urinal investigation of my daughter. My daughter informed me that Mami of accused Kajal has called her and accused Manoj who was the son of Nand Kajal has raped her in the house of Kajal. I alongwith my daughter went to the PS and reported the matter to the Police and on the statement of my daughter/prosecutrix (name withheld) case was registered against Kajal and Manoj. Police have also recorded my statement in this case. Accused Manoj was arrested from the house of his Nana at B4 near to our house at the instance of my daughter/prosecutrix (name withheld) vide arrest memo Ex. PW1/C thumb marked by me at point 'B'. Both the accused Kajal and Manoj are present in the Court today (correctly identified by the witness). At the time of incident my daughter was about 13 years."
From the aforesaid narration of PW3 - Sunita it is clear that on 30/04/2009 her daughter/prosecutrix (name withheld) was having pain in her abdomen and she was also vomitting when her condition was deteriorating she was taken to the clinic of a Doctor running near to the locality. Concerned Doctor confirmed pregnancy to her after urinal 54 of 73 55 FIR No. 109/09 PS - Swaroop Nagar investigation of her daughter. Her daughter informed her (PW4) that Mami of accused Kajal has called her (prosecutrix) and accused Manoj who was the son of Nand Kajal has raped her (prosecutrix) in the house of Kajal. She alongwith her daughter went to the PS and reported the matter to the Police and on the statement of her daughter/prosecutrix (name withheld) case was registered against Kajal and Manoj. Police have also recorded her statement in this case. Accused Manoj was arrested from the house of his Nana at B4 near to their house at the instance of her daughter/prosecutrix (name withheld) vide arrest memo Ex. PW1/C thumb marked by her at point 'B'. Both the accused Kajal and Manoj were correctly identified by her in the Court. At the time of incident her daughter was about 13 years.
During her crossexamination PW4 - Chanderkala has negated the suggestions that her daughter became unconscious in the School or that her daughter sustained pregnancy because of the intercourse by one boy namely Milan and not by Manoj or that she is deposing falsely.
PW5 - Vishwanath in his examinationinchief has deposed 55 of 73 56 FIR No. 109/09 PS - Swaroop Nagar that : "My wife has told me that on 05/03/2009 my daughter/prosecutrix (name withheld) was called by accused Kajal Mami of accused Manoj at her house and she was raped by accused Manoj. Manoj has already gone to his native place from that day onward. On 30/04/2009 my wife alongwith my daughter had gone to the PS and made a complaint about the incident to the Police as I had gone to Pitampura site for labour work. In the investigation of this case Police came to our house and arrested accused Manoj from the (house of) Nana of accused Manoj. My daughter was around 13 years of age and studied at 6th standard in a School at Laal Building. I am working as a labourer and illiterate. I do not know the date of birth of my daughter."
From the aforesaid narration of PW5 Vishwanath it is clear that his wife has told him that on 05/03/2009 his daughter/prosecutrix (name withheld) was called by accused Kajal Mami of accused Manoj at her house and she was raped by accused Manoj. Manoj has already gone to his native place from that day onward. On 30/04/2009 his wife alongwith his daughter had gone to the PS and made a complaint about the incident to the Police as he (PW5) had gone to Pitampura site for labour work. In the investigation of this case Police came to their house and arrested accused Manoj from the (house of ) Nana of accused Manoj. His daughter was around 13 years of age and studied at 6th standard in a 56 of 73 57 FIR No. 109/09 PS - Swaroop Nagar School at Laal Building. He (PW5) is working as a labourer and illiterate and does not know the date of birth of his daughter.
During his crossexamination PW5 - Vishwanath has negated the suggestion that the pregnancy of his daughter developed with Milan or that he is deposing falsely or that he had ever demanded any money from the family of accused Manoj.
There is nothing in the crossexamination of PW4 - Smt. Chanderkala and PW5 - Sh. Vishwanath so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, 2012 XII (S.C.)1], their testimonies are found to be natural, cogent, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
20. While analysing the testimony of PW1 Prosecutrix, PW4 - Smt. Chanderkala and PW5 - Sh. Vishwanath as discussed hereinabove 57 of 73 58 FIR No. 109/09 PS - Swaroop Nagar inspite of incisive crossexamination of PW1 Prosecutrix, PW4 - Smt. Chanderkala and PW5 - Sh. Vishwanath nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW1
- Prosecutrix that she had falsely implicated the accused persons or that she was having an affair with one boy namely Milan whom she wanted to marry and maintained sexual relationship with him and when she got pregnant, she got scared and in order to save herself and to save Milan, she falsely named the accused Manoj to have raped her and accused Kajal to have also assisting him and the suggestions to PW4 - Smt. Chanderkala that her daughter became unconscious in the School or that her daughter sustained pregnancy because of the intercourse by one boy namely Milan and not by Manoj or that she is deposing falsely and the suggestions put to PW5 - Sh. Vishwanath that that the pregnancy of his daughter developed with Milan or that he is deposing falsely or that he had ever demanded any money from the family of accused Manoj were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the 58 of 73 59 FIR No. 109/09 PS - Swaroop Nagar accused has been falsely implicated because of animosity.
21. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
59 of 73 60 FIR No. 109/09 PS - Swaroop Nagar In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of Medical Evidence, Gynaecological Examination vide notings at point 'D' on the MLC Ex. PW1/B of the prosecutrix, Biological & Serological Evidence, MLC of accused Manoj Ex. PW11/A, DNA Report Ex. PW21/A, Allelic Data Ex. PW21/B as discussed herein above, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
60 of 73 61 FIR No. 109/09 PS - Swaroop Nagar In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Manoj Kumar with PW1 - Prosecutrix without her consent.
22. Learned Counsel for the accused submitted that Date of incident is 05/03/2009 at about 2:30 p.m. and the FIR was lodged on 30/04/2009 at about 9:00 p.m. (after one month 25 days of the incident) and Prosecutrix was medically examined on 30/04/2009, when she knew regarding her pregnancy, she falsely implicated the accused with his Mami Kajal.
I have carefully perused and analysed the evidence on the record.
Undisputably the FIR was lodged on 30/04/2009 by PW1 - prosecutrix after one month and 25 days of the incident on 05/03/2009. PW1 - prosecutrix in her testimony has explained the reasons for not lodging the FIR shortly after the incident on 05/03/2009 and has deposed that she was threatened by accused Manoj to kill her and was also threatened by accused Kajal to defame her if she disclose the incident to anybody.
61 of 73 62 FIR No. 109/09 PS - Swaroop Nagar At the cost of repetition, it is pertinent to reproduce relevant part of examinationinchief of PW1 - prosecutrix, which reads as under : "Accused after raping me threatened me in case I disclose this incident to anybody, he will kill me. Thereafter accused went outside the room and accused Kajal entered the room. I told her about the misdeeds of accused Manoj then she told me that "kapde thik kar lo, jo ho gaya use bhul jaa, kisi ko kuch batane ki zarurat nahi hai". Thereafter she send me my house after consoling me that in case I will disclose this fact to anybody, it will defame me. I do not remember the exact date but on that day, I was not feeling well and was feeling giddy and when my mother asked me then I narrated the incident of raping me by Manoj dated 05/03/09 to her. Thereafter, my mother took me to the Police Station and my statement/complaint was recorded by the Police. Same is Ex. PW1/A signed by me at point 'A'."
Inspite of incisive crossexamination of PW1 - prosecutrix nothing material has been brought out to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. Her version on the core spectrum of the crime has remained intact.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim 62 of 73 63 FIR No. 109/09 PS - Swaroop Nagar girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
63 of 73 64 FIR No. 109/09 PS - Swaroop Nagar The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige 64 of 73 65 FIR No. 109/09 PS - Swaroop Nagar of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, 65 of 73 66 FIR No. 109/09 PS - Swaroop Nagar of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for accused submitted that Prosecutrix aborted a Female Foetus on 10/07/2009 and it was sent to FSL for DNA Examination on 17/07/2009, after permission obtained from the prosecutrix (Ex. PW1/G). DNA Report is Ex. PW21/A, B, C, F. PW21 Sh. A. K. Shrivastava deposed before this Court that (Blood Sample of Manoj accused was not matching the foetus of prosecutrix (name withheld)) it clearly shows that the prosecutrix falsely implicated the accused persons, when she knew that she was pregnant from some other person (i.e. Milan) and due to fear she implicated the accused persons.
I have carefully perused and analysed the evidence on the record.
The DNA Report Ex. PW21/A and the Allelic Data Ex. PW21/B have been detailed and discussed hereinabove. Mere non matching of alleles from the source of exhibit 2 (blood sample of accused Manoj) with alleles from the source of exhibit 1 (Foetus of 66 of 73 67 FIR No. 109/09 PS - Swaroop Nagar prosecutrix (name withheld)) does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence as the instant case undisputably is a criminal trial (on the charge for the offences u/s 366/376/506 IPC against accused Manoj Kumar and on the charges u/s 366A & 114 r/w section 376 IPC against accused Kajal) and not a Paternity Suit where the question of the fatherhood of the foetus of the prosecutrix (name withheld) is to be determined.
At the cost of repetition, the suggestions by the accused to PW1 - prosecutrix that she had falsely implicated the accused persons or that she was having an affair with one boy namely Milan whom she wanted to marry and maintained sexual relationship with him and when she got pregnant, she got scared and in order to save herself and to save Milan, she falsely named the accused Manoj to have raped her and accused Kajal to have also assisting him and the suggestions to PW4 - Smt. Chanderkala that her daughter became unconscious in the School or that her daughter sustained pregnancy because of the intercourse by one boy namely Milan and not by Manoj or that she is deposing falsely and the suggestions put to PW5 - Sh. Vishwanath that that the 67 of 73 68 FIR No. 109/09 PS - Swaroop Nagar pregnancy of his daughter developed with Milan or that he is deposing falsely or that he had ever demanded any money from the family of accused Manoj were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence.
Undisputably, no evidence in his defence has been led by the accused nor any boy namely Milan has been produced and examined by the accused.
In the circumstances, the Theory of "Prosecutrix having an affair with one boy namely Milan whom she wanted to marry and maintained sexual relationship with him and when she got pregnant, she got scared and in order to same herself and to save Milan she falsely named accused Manoj to have raped her and accused Kajal to have also assisting him" as propounded by the accused, falls flat to the ground.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Accused Kajal has also been charged for the offence u/s 114 68 of 73 69 FIR No. 109/09 PS - Swaroop Nagar IPC r/w section 376 IPC to the effect that on 05/03/2009 at 2:30 p.m. she abetted accused Manoj Kumar to commit rape upon the prosecutrix aged about 11 years and at that time she was also present there when the offence of rape was being committed in pursuance of her abetment.
Section 114 IPC provides for abettor present when offence is committed. It reads as under :
114. Abettor present when offence is committed. Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
Reading of section 114 IPC clearly indicates that when abettor is present, when offence is committed, he shall be deemed to have committed such offence.
In the present case, since accused Kajal had abetted accused Manoj Kumar to commit the offence of rape upon the prosecutrix and it was committed in consequence of the abetment as discussedherein above and she (accused Kajal) was present, when the said offence was committed in consequence of abetment, accused Kajal shall be deemed 69 of 73 70 FIR No. 109/09 PS - Swaroop Nagar to have committed the offence. Though, it can be argued that accused Kajal being a woman cannot commit rape, but if a woman facilitates the committal of the act of rape and such act is committed by a person capable by law of committing an offence (accused Manoj) with the same intention or knowledge of the abettor, in the presence of the abettor, yet the act of accused Kajal, as an abettor, though herself she may not be capable to commit such act of rape, shall be covered within the mischief/deeming fiction of section, 114 r/w section 376 IPC, owing to Explanation 2 appended to section 108 IPC which provides, to constitute the offence of abetment, it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused.
It is to be mentioned that in case 'Priya Patel Vs. State of M.P.', AIR 2006 SUPREME COURT 2639 a question whether a woman can be charged for abetment came before the Hon'ble Supreme Court which was left to be dealt with by the concerned Court to act in accordance with law, if in law it is permissible and the facts warrant such a course to be adopted.
70 of 73 71 FIR No. 109/09 PS - Swaroop Nagar In para 9 of Priya Patel's case (Supra), the Hon'ble Supreme Court observed which is reproduced and reads as under : "The residual question is whether she can be charged for abetment. This is an aspect which has not been dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be adopted, it is for the concerned Court to act in accordance with law. We express no opinion in that regard."
25. In view of above and in the circumstances, prosecution has thus proved its case beyond shadows of all reasonable doubts that on 05/03/2009, at about 2:30 p.m. accused Manoj kidnapped PW1 - prosecutrix aged about 11 years (to be exact 11 years 06 months and 25 days) out of the keeping of lawful guardianship of her parents on the pretext that his Mami Kajal (coaccused) is calling her with the intention that she may be forced or seduced to illicit intercourse or knowing it to be likely she would be forced or seduced to illicit intercourse and on reaching at the house of coaccused Kajal at B4, J. J. Colony, Bhalaswa coaccused Kajal induced PW1 - prosecutrix aged about 11 years (to be exact 11 years 06 months and 25 days) to go to a room situated on the first floor on the pretext of calling Neetu with intent that porosecutrix will be forced to illicit intercourse with accused Manoj and abetted 71 of 73 72 FIR No. 109/09 PS - Swaroop Nagar accused Manoj to commit rape on PW1 - prosecutrix and was present at the time of commission of the offence of rape in pursuance of her abetment and accused Manoj committed rape on PW1 - prosecutrix in the presence of his Mami (coaccused Kajal) and also criminally intimidated PW1 - prosecutrix to kill her if she disclosed the incident to anybody with intent to cause alarm to her.
I accordingly hold accused Kajal guilty for the offences punishable u/s 366A IPC and u/s 114 r/w section 376 IPC and that accused Manoj Kumar is hold guilty for the offences punishable u/s 366/376/506 IPC and convict them thereunder.
26. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Kajal in the commission of the offences punishable u/s 366A IPC and u/s 114 r/w section 376 IPC is concerned and that of accused Manoj Kumar in the commission of the offences punishable u/s 366/376/506 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to both the accused Kajal and Manoj Kumar beyond shadows of all 72 of 73 73 FIR No. 109/09 PS - Swaroop Nagar reasonable doubts and there is no room for hypothesis, consistent with that of innocence of the accused. I, therefore, hold accused Kajal guilty for the offences punishable u/s 366A IPC and u/s 114 r/w section 376 IPC and that accused Manoj Kumar is hold guilty for the offences punishable u/s 366/376/506 IPC and convict them thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 24th Day of May, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 73 of 73