Delhi District Court
State vs . 1. Subhash on 4 September, 2014
1
FIR No. 246/09
PS - Narela
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 12/13
Unique ID No. : 02404R0304512009
State Vs. 1. Subhash
S/o Late Shri Jai Singh
R/o House No. 952,
Gali No. 21A,
Swatanter Nagar, Narela,
Delhi.
2. Vikas
S/o Shri Darph Singh
R/o Village Kopi,
PS - Katra,
District - Muzzafarpur,
Bihar.
(JUVENILE)
3. Dheeraj
S/o Kundan Babu
R/o Village Mithapur,
Bangali Tola,
1 of 61
2
FIR No. 246/09
PS - Narela
PS - Janak Pur,
District - Patna, Bihar.
(JUVENILE)
FIR No. : 246/09
Police Station : Narela
Under Sections : 363/366/376/323/328/109/506/34 IPC
Date of committal to session Court : 07/04/2010
Date on which judgment reserved : 26/08/2014
Date on which judgment announced : 04/09/2014
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 22/08/2009, prosecutrix (name withheld being a case u/s 376 IPC) alongwith her parents came to the police station and made the statement to W/ASI Rajbala to the effect that, she lives at gali no. 26B, Swantantra Nagar, Narela, Delhi with her parents and does the household works. On 05/08/09, at about 4.00 pm, she was going to the 2 of 61 3 FIR No. 246/09 PS - Narela market from her house to buy some articles and when she was passing in front of House No. 952, Gali No. 21A, Swantantra Nagar of Subhash then Subhash called her near to him and took her in his house and made her to drink a glass of juice and kept on talking to her. After some time, one boy namely Dheeraj came there to whom she knew already, Subhash and Dheeraj made some talks to each other and Dheeraj after inducing her on the asking of the Subhash took her to New Delhi Railway station by bus and from there took to Patna by train. At the Patna Railway Station, one friend of Dheeraj met whose name was known to be as Vikas. Dheeraj told Vikas that he has married this girl and Vikas also told this fact to his family members that Dheeraj is his friend and he Dheeraj had married with this girl and they are in search of a house and till that time they do not get the house, they will stay in their house and there she and Dheeraj till 19/08/09 stayed in that house and Dheeraj kept on committing wrong deeds (galat kaam) without her consent and in between one day Vikas also committed wrong deed (galat kaam) with her. In the night of 21/08/2009, Dheeraj and Vikas brought her at the house of Subhash and there Subhash Dheeraj and Vikas threatened her, if she will disclosed about the incident to her family 3 of 61 4 FIR No. 246/09 PS - Narela members then they will kill her. They also pressurized her saying that if Police or her family members inquires from her then she is to say that she had gone with her consent and despite her denial (mana karne par) Subhash gave her beatings with a cable wire. After some time, her parents reached at the house of Subhash and they brought her to their house as from somewhere they (her parents) had got the information. On 22/08/09, her family members had brought her to the Police Station and she wanted to get conducted her medical examination. Legal action be taken against them. The statement has been heard and is correct. The missing report regarding the prosecutrix has been recorded vide DD No. 36A dated 06/08/2009. Medical examination of the prosecutrix on 22/08/2009 was got conducted vide MLC No. 928/09. From the statement of prosecutrix and on inspection of the MLC on finding that offences u/s 363/366/376/323/328/109/506/34 IPC, case was got registered. On the identification of the prosecutrix, accused Dheeraj and Subhash were arrested. Medical examination of accused Vikas and Dheeraj was got conducted and the sealed exhibits were handed over by Doctor, after their medical examination, were taken into police possession. The sealed exhibits were sent to FSL.
4 of 61 5 FIR No. 246/09 PS - Narela Upon completion of the necessary further investigation, challan for the offences u/s 363/366/376/323/328/109/506/34 IPC was prepared against accused Vikas, Dheeraj and Subhash and was sent to the Court for trial.
2. Since the offences under section 376/366 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 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 u/s 363 IPC against accused Subhash, u/s 366/506/34 IPC against accused Vikas, Dheeraj and Subhash, u/s 376 IPC against accused Vikas and u/s 376 IPC against accused Dheeraj was made out. The charge was framed accordingly, which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. It is to be mentioned that vide order dated 15/01/2014, 5 of 61 6 FIR No. 246/09 PS - Narela accused Dheeraj and vide order dated 29/03/2014, accused Vikas were declared juveniles and their cases were separated and were sent to the Learned Juvenile Justice Board.
5. In support of its case prosecution has produced and examined 16 witnesses. PW1 Dr. Poonam Nagpal, Principal Patrachar Vidyalaya, Shalimar Bagh, Delhi, PW2 Dr. Geeta, Sr. Resident (OBS & Gynae) SRHC Hospital, Delhi, PW3 Dr. Avdhesh Kumar Bhagat, CMO, SRHC Hospital, Delhi, PW4 Prosecutrix, PW5 Sh. Vishal Singh, Learned MM, PW6 Smt. Rani, PW7 Jogender, PW8 Ct. Bhupender, PW9 Lady HC Rajesh Sharma, PW10 Lady Ct. Manita, PW11 HC Chotu Ram, PW12 HC Praveen Kumar, PW13 HC Sudesh Kumar, PW14 Ct. Ramesh Kumar, PW15 W/ASI Raj Bala and PW16 Nazma Khan, Counselor, NGO.
6. In brief the witnessography of the prosecution witnesses is as under : PW1 Dr. Poonam Nagpal, Principal Patrachar Vidyalaya, Shalimar Bagh, Delhi, who deposed that she has brought with her the 6 of 61 7 FIR No. 246/09 PS - Narela admission record of the prosecutrix (name withheld) D/o Sh. Joginder, who was admitted in their School on 02/04/2008 vide Admission No. 9117. The child was admitted in 6th standard. Her name was struck off roll w.e.f. 27/11/2008. The photocopy of the entry of admission is Ex. PW1/A (original seen and returned). The School Leaving Certificate was issued in this regard. The same is Ex. PW1/B which bears her signatures at point 'A'.
PW2 Dr. Geeta, Sr. Resident (OBS & Gynae) SRHC Hospital, Delhi, who deposed that on 22/08/2009, at about 11:45 a.m. prosecutrix (name withheld) D/o Joginder, aged 16 years, female was brought to the Hospital by Lady Constable Manita, No. 1856/OD with alleged history of rape. She examined the patient. The patient was conscious oriented. There were multiple scratch marks and bruises marks over both right and left arm and upper fore arm, on the back and on both right and left thighs (lateral aspect) and right and left lower legs. She had also carried out the gynae examination of the patient. There was alleged history of patient being given sedatives on 05/08/2009 followed by rape. Last date of intercourse being 21/08/2009, LMP 7 of 61 8 FIR No. 246/09 PS - Narela 26/07/2009.
Local examination :
No vulval haematoma, hymen ruptured, vagina admitting two finger tight.
Per speculum :
No vaginal haematoma, nulliparous OS, vaginal smear taken.
Per vaginum :
Uterus anteverted, normal size, bilateral Fornices free. The patient was advised to obtain the opinion regarding bruises from the Surgical Deptt. She prepared MLC Ex. PW2/A. It is in her hand, which bears her signature at point 'A'. The vaginal slide, endocervical swab, hair clippings were taken, sealed and handed over to the Police. The undergarments and other clothes were also sealed and handed over to the Police. The patient was advised UPT, USG, whole abdomen and pelvis and Xray for bony age determination.
PW3 Dr. Avdhesh Kumar Bhagat, CMO, SRHC Hospital, Delhi, who deposed that on 22/08/2009 at 8:55 p.m., Vikas S/o Darph
8 of 61 9 FIR No. 246/09 PS - Narela Singh, 22 years male was brought to the Hospital for examination with alleged history of rape and also of physical assault. The patient was examined by him. He was conscious and oriented, vital were stable. On examination, he noticed bruises over back 1 day back, abrasion above left lateral malleolus 1 day back, penis, scrotum, pubic hair well developed. He prepared the MLC Ex. PW3/A. It is in his hand and bears his signatures at point 'A'. On examination of the patient, he observed that there was nothing to suggest that the patient was not capable of doing sexual intercourse. The blood sample were taken and handed over to the Police. On the same day, he had also examined Dheeraj S/o Kundan, 19 years male, who was also brought for medical examination by Constable Ramesh with alleged history of rape and physical assault. The patient was conscious oriented and vitals were stable. Local examination revealed bruises over back, 1 day back, the abrasion over forehead, 1 day back, abrasions both legs 1 day back, penis, scrotum, pubic hair well developed, there was nothing to suggest that the patient was incapable of performing sexual intercourse. Blood sample and undergarments sealed and handed over to the Police. He (PW3) prepared the MLC Ex. PW3/B. It is in his hand and bears his 9 of 61 10 FIR No. 246/09 PS - Narela signature at point 'A'.
PW4 Prosecutrix, is the victim who proved her statement made to the police Ex. PW4/A signed by her at point 'A' and also identified her clothes collectively Ex. P1. She did not support the prosecution and was also crossexamined by the Learned Addl. PP for the State.
PW5 Sh. Vishal Singh, Learned MM, who deposed that on 01/09/2009, he was working as Link MM of Sh. Sudhanshu Kaushik, Learned MM, Rohini Courts, Delhi. An application was assigned to him for recording of statement of prosecutrix u/s 164 Cr.P.C. on 01/09/2009 and he adjourned the matter for recording the statement of prosecutrix at 3:00 p.m. on the same day. Thereafter, he recorded the statement of prosecutrix (name withheld) after verifying that she was giving her statement voluntarily. The statement of prosecutrix is Ex. PW5/A and thereafter she signed at point 'A' and she also appended her certificate regarding correctness of recording her statement and the same is signed by him at points 'A', 'B', 'C' and 'D' on statement Ex. PW5/A. An 10 of 61 11 FIR No. 246/09 PS - Narela application Ex. PW5/B was also moved by the IO for obtaining the copy of the statement. The same was allowed vide order dated 01/09/2009 which is signed by him at point 'A'.
PW6 Smt. Rani, is the mother of the prosecutrix, who deposed that prosecutrix (name withheld) is her daughter. Her daughter/prosecutrix (name withheld) was missing from their house from 04/08/2009. Later on, they came to know from the Bhabhi of accused persons Dhiraj and Vikas that her daughter was residing at Patna with Dhiraj and Vikas. One of their landlord Subhash in whose house they were residing prior to the incident phoned to them that her daughter was given beatings. Then they went to the house of accused Subhash at Gali No. 21, Swatantar Nagar. From there, they recovered their daughter and took her to the PS. The Police recorded the statement of their daughter and got recorded the FIR. Police got her medically examined from the Hospital. At that time, she was with her daughter. Her daughter is 18/19 years old. The date of birth certificate was given to the Police official. She does not know the exact date of birth of her daughter/prosecutrix (name withheld). Her daughter was brought from 11 of 61 12 FIR No. 246/09 PS - Narela Patna by accused Dhiraj and Vikas and after coming back from Patna, they had taken her daughter to the house of Subhash. The original School Leaving Certificate was taken into possession by the Police vide memo Ex. PW6/A which bears her thumb impression at point 'A'. the School certificate is Ex. PW1/B and the same was also taken by the Police.
PW7 Jogender, is the father of the prosecutrix, who deposed that he is the father of the prosecutrix. On 04/08/2009 at about 3:00/3:30 p.m., his daughter prosecutrix went to purchase vegetables from Narela Subzi Mandi as he was on bed due to illness. Thereafter, his daughter prosecutrix did not come back in the house. They made search for her but in vain. After making all efforts, he went to Police Station Narela and lodged missing report of his daughter prosecutrix. On 21/08/2009, he was informed by accused Subhash that his daughter prosecutrix came at his house. Accused Subhash is present in the Court and witness has correctly identify him. He alongwith the Police went to his house and there his daughter prosecutrix was recovered and they rook their daughter to their house. On 22/08/2009, his daughter 12 of 61 13 FIR No. 246/09 PS - Narela alongwith himself, his wife went to Hospital with Police for medical examination of her daughter prosecutrix at Raja Harish Chand Hospital. Doctor handed over some pullindas to the IO. He can identify his signature. DD No. 36 is already exhibited as Ex. PW15/D, bearing his signature at point 'A'.
PW8 - Constable Bhupender, who deposed that on 22/08/2009, she was posted at PS - Narela as Constable and on that day, he alongwith Constable Ramesh participated in the investigation of this case with IO W/ASI Raj Bala. On that day, he alongwith Constable Ramesh, IO and prosecutrix went to Bap Nare Narela, Railway Fatak, where on his pointing out and identification they had apprehended two persons Vikas and Dhiraj whose name were revealed later on and both the accused persons are present in the Court. IO interrogated both the accused persons and arrested them. Arrest memo of Vikas is Ex. PW8/A and his personal search memo Ex. PW8/B bears her signature at point 'A'. Arrest memo of accused Dhiraj is Ex. PW8/C and his personal search memo is Ex. PW8/D bears his signature at point 'A' respectively. Thereafter, both the accused persons were taken to RHC Hospital for 13 of 61 14 FIR No. 246/09 PS - Narela their medical examination and regarding accused Vikas Doctor gave one pullinda duly sealed with the seal of Hospital alongwith sample seal of Hospital which was seized by IO vide memo Ex. PW8/E which bears his signature at point 'A'. IO also seized two seal pullindas and sample seal of Hospital regarding accused Dhiraj. IO recorded his statement and statement of prosecutrix who was relieved thereafter. Thereafter, they came back to Police Station and accused persons were locked in the lockup. IO deposited case property in Malkhana.
PW9 Lady HC Rajesh Sharma, who deposed that on 22/08/2009, he was working as Duty Officer in PS - Narela from 8:00 a.m. to 4:00 p.m. On that day, ASI Rajbala gave her one rukka for registration of FIR. On the basis of which he recorded FIR No. 246/09 u/s 363/377/323/506/34 IPC. Computerized copy of FIR is Ex. PW9/A. She made endorsement on the rukka Ex. PW9/B bears her signature at point 'A'. She has also brought DD No. 18A regarding registration of FIR (qaymi DD). After registration of FIR she gave the copy of FIR and rukka to W/ASI Raj Bala for investigation. On the aforesaid date computer system were under her supervision and was proper working 14 of 61 15 FIR No. 246/09 PS - Narela condition. Ex. PW9/A is correct print out of complaint/rukka.
PW10 Lady Constable Manita, who deposed that on 22/08/2009, she was posted at PS - Narela as Constable. ON that day, she participated in the investigation of the present case alongwith ASI Raj Bala and the prosecutrix (name withheld) was taken to SRHC Hospital, Narela, Delhi for her medical examination. After getting the prosecutrix medically examined from the said Hospital, Doctor gave her four sealed pullindas alongwith one sample seal of Hospital which stated to have contain the samples pertaining to prosecutrix and she handed over the same to Investigation officer. Investigating Officer seized the same vide memo Ex. PW10/A which bears her (PW10) signature at point 'A'. thereafter, completing the proceedings they came back to the Police Station and IO recorded her statement.
PW11 HC Chotu Ram, who deposed that on 06/08/2009, he was posted at PS - Narela as Duty Officer from 4:00 p.m. to 12:00 night. ON that day, at about 8:15 p.m., one Joginder S/p Usali Ram R/o Gali No. 26B, Swatantra Nagar, Narela, Delhi came to PS and lodged 15 of 61 16 FIR No. 246/09 PS - Narela missing report regarding his daughter/prosecutrix (name withheld) aged about 16 years who left the house on 05/08/2009 at about 3:30 p.m. while informing that she was going to the neighbour's house but thereafter did not turn up. The information was lodged at DD No. 36A and photostate copy of DD is Ex. PW11/A which bears signatures of Jogender at point 'A'. the copy of DD No. 36A was given to HC Parveen for necessary action. One copy of missing report was also given to complainant and information was also flashed to the Control Room regarding the above DD.
PW12 HC Praveen Kumar, who deposed that on 06/08/2009, he was posted at PS - Narela as HC. On that day, he
received DD No. 36A from the Duty Officer regarding missing of a girl/prosecutrix (name withheld) D/o Jogender R/o Gali NO. 26B, Swatantra Nagar, Narela, Delhi. HE got the WT message flashed on All India Basis and in NCR. He also informed missing persons squad with the photographs of the missing girl. During the inquiry retailed with him the missing girl could not be traced. On 22/08/2009, she handed over the documents to W/ASI Rajbala as the case was marked to her. IO 16 of 61 17 FIR No. 246/09 PS - Narela recorded his statement.
PW13 HC Sudesh Kumar, is the MHC(M), who deposed that on 22/08/2009, he was posted at PS - Narela as MHC(M). On that day, W/ASI Rajbala under present case FIR had deposited seven sealed pullindas bearing seal of SRHC Hospital, Narela, Delhi alongwith three sample seals of the SRHC Hospital and personal search of accused i.e. Rs. 500/. He made entry in detail in Register No. 19 in this regard at Serial No. 242 and photostate copy of the entry is Ex. PW13/A which is running into three pages. On 30/09/2009, on the instruction of IO, he had sent seven sealed pullindas to FSL through Constable Ramesh No. 1258/OD alongwith FSL Form vide RC No. 140/21/09. After depositing the exhibits Constable Ramesh came back to the Police Station and handed over to him copy of acknowledgment issued by the FSL. The details of the exhibits were mentioned by him in RC 140/21/09. The photocopy of Rx is Ex. PW13/B and photocopy of acknowledgment is Ex. PW13/C. Ex. PW13/A and Ex. PW13/B also bears his signature at point 'A'. So long as the exhibits remained in his custody they remain intact and not tampered with.
17 of 61 18 FIR No. 246/09 PS - Narela PW14 Constable Ramesh Kumar, who deposed that on 22/08/2009, he was posted at PS - Narela as Constable. On that day, he participated the investigation of the present case with IO W/ASI Rajbala. Constable Bhupender, prosecutrix and her parents and during investigation, they reached at near Bankner Railway Phatak, near Narela Railway Station, Delhi. There, prosecutrix (name withheld) pointed out towards two boys, who committed rape with her. Thereafter, on the pointing out and identification of prosecutrix, they apprehended both the boys and upon inquiry, their names revealed to be as Dheeraj and Vikas, both are present in the Court, correctly identified by the witness. IO interrogated and arrested the accused persons vide arrest memos, which are already Ex. PW8/A and Ex. PW8/C, which bear his signatures at points 'B' respectively. On the instructions of IO, Constable Bhupender took personal search of the accused Vikas and he took personal search of accused Dheeraj vide personal search memos, which are already Ex. PW8/A and Ex. PW8/B, which bear his signatures at points 'B' respectively. Thereafter, both the accused persons were taken to SRHC Hospital, Narela, for their medical examination. The Doctor gave him 18 of 61 19 FIR No. 246/09 PS - Narela two sealed pullindas sealed with the seal of Hospital, regarding accused Dheeraj alongwith sample seal of the Hospital and he handed over the seal to IO. IO seized the same vide seizure memo Ex. PW14/A, which bears his signature at point 'A'. IO recorded his statement. The other accused namely Vikas was taken for medical examination by Constable Bhupender. After getting both the accused persons medically examined, they alongwith IO and accused persons came to PS. Accused persons were locked in the lockup and IO deposited case property in the Malkhana. The prosecutrix and her parents were already relieved by the IO at the place of arrest of accused persons after recording their statements. On 30/09/2009, on the instructions of IO, he received seven sealed pullindas from the MHC(M) for depositing the same at FSL, Rohini, vide RC No. 140/21/09. After depositing the exhibits at FSL, he came back to PS and handed over to copy of RC to MHC(M). IO recorded his statement. So long as the exhibits remained in his custody, they remained intact and not tampered with. The RC No. 140/21/09, which is already Ex. PW13/B and acknowledgment issued by FSL, which is already Ex. PW13/C, bears his signatures at point 'X' respectively.
19 of 61 20 FIR No. 246/09 PS - Narela PW15 W/ASI Raj Bala, is the Investigating Officer (IO) of the case, who deposed that on 22/08/2009, she was posted at PS - Narela as ASI. On that day, prosecutrix (name withheld), D/o Joginder, came to PS alongwith her parents and she gave her statement to her (PW15) with the allegations of rape committed upon her by three persons namely, Vikas, Dheeraj and Subhash. Thereafter, she (PW15), Lady Constable Manita alongwith prosecutrix and her parents went to SRHC Hospital, Narela for getting the prosecutrix medically examined. She collected MLC of prosecutrix, which is already Ex. PW2/A. The Doctor gave her three sealed pullindas, sealed with the seal of Hospital alongwith sample seal. She seized the same vide preparing seizure memo, which is already Ex.PW10/A which bears her signature at point 'B'. At this stage, the witness clarifies that there were four sealed pullindas and one sample seal handed over to her by the Doctor and inadvertently she had referred only three pullindas (objected to by Learned Defence Counsel). From the Hospital, they came back to PS and she recorded statement of prosecutrix, which is already Ex. PW4/A, which bears her signature at point 'B'. She prepared rukka, which is Ex. PW15/A, which bears her 20 of 61 21 FIR No. 246/09 PS - Narela signature at point 'A' and handed over the same to Duty Officer for registration of FIR. Duty Officer after registering the FIR, handed over the original rukka and copy of FIR to her. NGO Ms. Nagina was called at PS and she also made inquiries from prosecutrix. Thereafter, she (PW15) alongwith Constable Bhupender, Constable Ramesh, prosecutrix and her parents left the PS for the search of accused persons. During investigation, they reached Bankner Railway Phatak, near Narela Railway Station, via Narela Bus Terminal, there, at Bankner Railway Phatak, the prosecutrix pointed out towards two boys as Dheeraj and Vikas. On the pointing out of prosecutrix, they apprehended Dheeraj and Vikas, both present in the Court, correctly identified by the witness. She interrogated and arrested the accused persons vide arrest memo, which are already Ex. PW8/A and Ex. PW8/C, which bear her signatures at point 'C' respectively. Thereafter, both the accused persons were taken to SRHC Hospital for their medical examination. She collected the MLC of accused persons, which are already Ex. PW3/A and Ex. PW3/B and she also seized the sealed pullindas and sample seal of the Hospital regarding each of the accused and seized wile preparing separate memos and details of the pullindas are mentioned therein. The seizure memos 21 of 61 22 FIR No. 246/09 PS - Narela and details of the pullindas are mentioned therein. The seizure memos are already Ex. PW8/E and Ex. PW14/A, which bear his signatures at points 'B' respectively. The parents of the prosecutrix and prosecutrix were discharged form the place of arrest after recording their statements. From the Hospital, they returned to the PS with the accused persons and accused persons were lodged in the lockup. She deposited the case property in the Malkhana. She recorded statements of her accompanying staff. On the next day, both the accused Dheeraj and Vikas were produced before the Court and were remanded to JC. On 01/09/2009, she moved application for recording the statement of prosecutrix u/s 164 Cr.P.C. before the Learned MM. Her application is Ex. PW15/B, which bears her signature at point 'A'. Learned Link MM recorded statement of prosecutrix u/s 164 Cr.P.C. and she identified the prosecutrix on the statement, which is already Ex. PW5/A, and bears her signature at point 'X'. She collected copy of statement of prosecutrix u/s 164 Cr.P.C. vide application already Ex. PW5/B, which bear her signatures at points 'X' and 'Y'. During investigation, she made search of the third accused namely Subhash, but in vain. On 30/09/2009, Constable Ramesh on her instructions took sealed pullindas from 22 of 61 23 FIR No. 246/09 PS - Narela MHC(M) and deposited the same at FSL, Rohini. She recorded his statement on his return from FSL after depositing the pullindas. She also recorded his statement. She has brought the original Rojnamcha Register, regarding DD No. 36A i.e. missing report lodged by Joginder and photocopy of the same is Ex. PW15/D running into two pages, original seen and returned. She has seized the SLC regarding date of birth of prosecutrix vide memo Ex. PW6/A, which bears her signature at point 'B' and the SLC is already Ex. PW1/B. During course of investigation, she recorded the statement of witnesses. She had moved application on 18/05/2010 for placing the FSL Report on Judicial file, which is Ex. PW15/E, bears her signature at point 'A' and she tender the FSL Report No. 2009/B4078 dated 10/05/2010 Ex. PW15/F and Bio Report No. 1062/09 dated 10/05/2010 Ex. PW15/G. On completion of the investigation, challan was put up before SHO.
PW16 Najma Khan, Counselor, NGO, who deposed that 20th month she does not remember but it was of 2009. Again said it was 20/08/2009, I went to Police Station Narela as she was called by the Investigating Officer of the present case. In the Police Station, IO ASI 23 of 61 24 FIR No. 246/09 PS - Narela Raj Bala, Inspector Sanjeeta met me and they produced girl/prosecutrix (name withheld) who was the prosecutrix in the present case. Prosecutrix was under fear and trauma. She gave counselling to her and she told her that on 05/08/2009 while she was going to market, on the way there was house of Subhash who stopped her and started talking with her and he procured juice glass from a near by shop and Neeraj also came there who had talks with Subhash and thereafter Neeraj took prosecutrix to Railway Station, Delhi and prosecutrix further told that thereafter she regained her consciousness she found herself in Patna, Bihar where a boy namely Vikas joined to Neeraj and thereafter Vikas and Neeraj both committed rape upon her. The prosecutrix further told her that on 19/08/2009 she was brought to Delhi by both the persons and at Delhi Vikas again committed upon her and when Neeraj went outside the house, the parents of prosecutrix (name withheld) saw Neeraj and upon their asking Neeraj told to the parents of prosecutrix (name withheld) that he had already left prosecutrix (name withheld) to house and when they gave beatings to Neeraj, only then Neeraj told them that prosecutrix (name withheld) is present at his house and thereafter Neeraj took them to Subhash and from there they took her parent to the place 24 of 61 25 FIR No. 246/09 PS - Narela where the prosecutrix was confined and prosecutrix also tole her that Subhash asked her to tell that she of her own will accompanied them and when she refused, she was given beatings by them and she also saw injuries marks over the person of prosecutrix. She prepared the report and gave it to Investigating Officer. (Report is not available on record). Copy of report was also sent to Mahila Ayog. She can produce the office copy of that report. During her examinationinchief recorded on 16/04/2012, she deposed that she can not bring the original report as the same was already given to the Investigating Officer after giving counselling to the prosecutrix. She is having photocopy of that report at her office. She could not brought the photostate copy of the report as she has been informed about the date of Saturday. She has been shown her original report by the Investigating Officer. At this stage, original report of the witness which is attached with the Police file is taken out and retained on the Judicial file which is Ex. PW16/A which bears her signature at point 'A'. (copy of report supplied to Learned Defence Counsel) (objected to by Learned Defence Counsel regarding mode of exhibition as the witness has not produced any record from the Office). She deposed that she can produce the photocopy from her office record 25 of 61 26 FIR No. 246/09 PS - Narela on the next date. During her examinationinchief recorded on 30/08/2012, she deposed that earlier in her examinationinchief, she had inadvertently mentioned the date as 20/08/2009 when she reached at PS
- Narela, while in fact, she had reached at PS - Narela on 22/08/2009 and when she gave counselling to prosecutrix (name withheld) and earlier in her examinationinchief, the name of the accused was inadvertently mentioned as Neeraj, while instead of that, the name of accused is Dhiraj. Now, she cannot produce the official copy of her report Ex. PW16/A as the same is sent to Delhi Mahila Ayog i.e. Delhi Commission for women, I. P. Estate, Delhi.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. Statements of accused Vikas, Dheeraj and Subhash were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication. The accused did not opt to lead any defence evidence.
8. At the cost of repetition, it is to be mentioned that vide 26 of 61 27 FIR No. 246/09 PS - Narela order dated 15/01/2014, accused Dheeraj and vide order dated 29/03/2014, accused Vikas were declared juveniles and their cases were separated and were sent to the Learned Juvenile Justice Board.
9. Learned Counsel for accused Subhash submitted that PW4 - prosecutrix has not stated a single word against accused Subhash. Rather, accused Subhash helped her. It was he who informed the Police on No. 100 as well to her parents. Learned Counsel further submitted that in fact accused Subhash was a witness in this case but Police falsely implicated him in the case and made him an accused. Learned Counsel further submitted that all the allegations are against accused Vikas and Dheeraj who are the perpetrators of crime upon the prosecutrix who have since been declared juveniles and accused Subhash has no role to play in the allegations made against him. Learned Counsel for accused further submitted that the prosecution has failed the prove its case beyond reasonable doubts against accused Subhash and prayed for the acquittal of accused Subhash the charges levelled against him.
10. While the Learned Addl. PP for the State, on the other hand, 27 of 61 28 FIR No. 246/09 PS - Narela 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 the witnesses and the prosecution has proved its case beyond reasonable doubt.
11. I have heard Sh. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Om Dutt Sharma, Learned Counsel for the accused Subhash and have also carefully perused the entire record.
12. The charge against accused Subhash u/s 363 IPC, against accused Vikas, Dheeraj and Subhash u/s 366/506/34 IPC, against accused Vikas u/s 376 IPC and against accused Dheeraj u/s 376 IPC is that on 05/08/2009, within the jurisdiction of PS - Narela, accused Subhash Kidnapped prosecutrix (name withheld being case u/s 376 IPC), D/o Sh. Joginder aged about 16 years out of keeping of lawful guardianship of her parents and that on the aforesaid date accused Dheeraj and Subhash after kidnapping the prosecutrix (name withheld) and took her to Patna to the house of Vikas knowing that she would be 28 of 61 29 FIR No. 246/09 PS - Narela forced or seduced to illicit intercourse and that after kidnapping the prosecutrix, as aforesaid accused Dheeraj committed rape upon the prosecutrix upto 19/08/2009 and that accused Vikas also committed rape upon the prosecutrix during this period and that on 21/08/2009, accused Subhash, Dheeraj and Vikas, in furtherance of their common intention committed the offence of criminal intimidation by extending the threats to kill the prosecutrix in case she disclose about the commission of rape to anyone.
13. 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.
AGE OF THE PROSECUTRIX
14. PW1 Dr. Poonam Nagpal, Principal Patrachar Vidyalaya, Shalimar Bagh, Delhi, who deposed that she has brought with her the 29 of 61 30 FIR No. 246/09 PS - Narela admission record of the prosecutrix (name withheld) D/o Sh. Joginder, who was admitted in their School on 02/04/2008 vide Admission No. 9117. The child was admitted in 6th standard. Her name was struck off roll w.e.f. 27/11/2008. The photocopy of the entry of admission is Ex. PW1/A (original seen and returned). The School Leaving Certificate was issued in this regard. The same is Ex. PW1/B which bears her signatures at point 'A'.
During her crossexamination, PW1 Dr. Poonam Nagpal on behalf of accused Subhash has deposed that : "I was not there in the School at the time when the child was admitted in the School. Normally when the students are admitted in the School, the SLC of the previous School is attached. I have brought the record of the admission. As per Admission record, at the time of admission the school leaving certificate issued from MCD School, Narela, 1st Shift, Delhi, was annexed with the admission form. The photocopy of the SLC issued by MCD School is Ex. PW1/DA."
Despite grant of opportunity, PW1 Dr. Poonam Nagpal was not crossexamined on behalf of the accused Vikas and Dheeraj (Juveniles).
There is nothing in the crossexamination of PW1 Dr. 30 of 61 31 FIR No. 246/09 PS - Narela Poonam Nagpal so as to impeach her creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of accused Subhash.
In the circumstances, it stands proved on the record that the date of birth of PW4 prosecutrix (name withheld) was 04/07/1997.
As the date of alleged incident is 05/08/2009 and the date of birth of PW4 prosecutrix is 04/07/1997, on simple arithmetical calculation, the age of prosecutrix comes to 12 years, 01 month and 01 day as on the date of incident on 05/08/2009.
In view of above and in the circumstances, it stands established on record that PW4 prosecutrix was aged 12 years, 01 month and 01 day as on the date of alleged incident on 05/08/2009. MEDICAL EVIDENCE OF THE PROSECUTRIX
15. PW2 Dr. Geeta, Sr. Resident (OBS & Gynae) SRHC Hospital, Delhi, who deposed that on 22/08/2009, at about 11:45 a.m. 31 of 61 32 FIR No. 246/09 PS - Narela prosecutrix (name withheld) D/o Joginder, aged 16 years, female was brought to the Hospital by Lady Constable Manita, No. 1856/OD with alleged history of rape. She examined the patient. The patient was conscious oriented. There were multiple scratch marks and bruises marks over both right and left arm and upper fore arm, on the back and on both right and left thighs (lateral aspect) and right and left lower legs. She had also carried out the gynae examination of the patient. There was alleged history of patient being given sedatives on 05/08/2009 followed by rape. Last date of intercourse being 21/08/2009, LMP 26/07/2009.
Local examination :
No vulval haematoma, hymen ruptured, vagina admitting two finger tight.
Per speculum :
No vaginal haematoma, nulliparous OS, vaginal smear taken.
Per vaginum :
Uterus anteverted, normal size, bilateral Fornices free. The patient was advised to obtain the opinion regarding bruises from the Surgical Deptt. She prepared MLC Ex. PW2/A. It is in
32 of 61 33 FIR No. 246/09 PS - Narela her hand, which bears her signature at point 'A'. The vaginal slide, endocervical swab, hair clippings were taken, sealed and handed over to the Police. The undergarments and other clothes were also sealed and handed over to the Police. The patient was advised UPT, USG, whole abdomen and pelvis and Xray for bony age determination.
Despite grant of opportunity, PW2 Dr. Geeta, Sr. Resident (OBS & Gynae) SRHC Hospital, Delhi was not crossexamined on behalf of the accused Subhash as well as accused Dheeraj and Vikas (Juveniles).
In view of above and in the circumstances, the medical/gynaecological examination vide MLC Ex. PW2/A of PW4 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED VIKAS AND DHEERAJ (JUVENILES)
16. PW3 Dr. Avdhesh Kumar Bhagat, CMO, SRHC Hospital, Delhi, who deposed that on 22/08/2009 at 8:55 p.m., Vikas S/o Darph 33 of 61 34 FIR No. 246/09 PS - Narela Singh, 22 years male was brought to the Hospital for examination with alleged history of rape and also of physical assault. The patient was examined by him. He was conscious and oriented, vital were stable. On examination, he noticed bruises over back 1 day back, abrasion above left lateral malleolus 1 day back, penis, scrotum, pubic hair well developed. He prepared the MLC Ex. PW3/A. It is in his hand and bears his signatures at point 'A'. On examination of the patient, he observed that there was nothing to suggest that the patient was not capable of doing sexual intercourse. The blood sample were taken and handed over to the Police. On the same day, he had also examined Dheeraj S/o Kundan, 19 years male, who was also brought for medical examination by Constable Ramesh with alleged history of rape and physical assault. The patient was conscious oriented and vitals were stable. Local examination revealed bruises over back, 1 day back, the abrasion over forehead, 1 day back, abrasions both legs 1 day back, penis, scrotum, pubic hair well developed, there was nothing to suggest that the patient was incapable of performing sexual intercourse. Blood sample and undergarments sealed and handed over to the Police. He (PW3) prepared the MLC Ex. PW3/B. It is in his hand and bears his 34 of 61 35 FIR No. 246/09 PS - Narela signature at point 'A'.
In view of above and in the circumstances, it stands proved on the record that accused Vikas and Dheeraj (Juveniles) were capable of performing sexual intercourse.
Since accused Dheeraj and Vikas have been declared juveniles, therefore no further discussion is made on this aspect. BIOLOGICAL AND SEROLOGICAL EVIDENCE
17. PW15 - W/SI Raj Bala, IO during her examinationinchief tendered the Biological Report Ex. PW15/F and Serological Report Ex. PW15/G, in evidence.
The biological report Ex. PW15/F reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '1a', '1b', '1c' 35 of 61 36 FIR No. 246/09 PS - Narela and '1d'.
Exhibit '1a' : One skirt having small brown stains.
Exhibit '1b' : One Tshirt. Exhibit '1c' : One underwear having brown stains. Exhibit '1d' : One slip. Parcel '2' : One sealed cloth parcel sealed with the seal of
"SRHC HOSPITAL NARELA DELHI" containing exhibits '2'. Exhibit '2' : Dirty cotton wool swab on a wooden stick described as 'Encdocervical swab'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '3'. Exhibit '3' : A bunch of hair described as 'hair clipping'. Parcel '4' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '4a' & '4b'. Exhibit '4a' : Two microslides having faint whitish smear. & '4b' Parcel '5' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '5', kept in a tube.
36 of 61 37 FIR No. 246/09 PS - Narela Exhibit '5' : Dark brown foul smelling liquid described as 'blood sample'.
Parcel '6' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '6'. Exhibit '6' : One dirty underwear having brown stains. Parcel '7' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '7', kept in a tube.
Exhibit '7' : Dark brown foul smelling liquid described as 'blood sample'.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1a', '5', '6' & '7'.
2. Blood could not be detected on exhibits '1b', '1c', '1d', '2' & '3'.
3. Human semen was detected on exhibits '1a', '1c', '2', '4a','4b' & '6'.
4. Semen could not be detected on exhibits '1b', '1d' & '3'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'P. Sh. FSL DELHI'.
37 of 61 38 FIR No. 246/09 PS - Narela The serological report Ex. PW15/G reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood Stains : Human No reaction '1a' Skirt '5' Blood Sample Sample blood putrefied hence no opinion '6' Underwear Human 'B' Group '7' Blood sample Sample blood putrefied hence no opinion Semen Stains : '1a' Skirt Area I No reaction Area II No reaction '1c' Underwear Area I No reaction Area II No reaction '2' Cotton wool swab No reaction '6' Underwear No reaction As per the biological report Ex. PW15/F, with regard to the description of the articles contained in the parcels, it is noticed that Parcel Nos. 1 to 4 belongs to the prosecutrix which was seized vide seizure memo Ex. PW10/A, dated 22/08/2009, parcel no. 5 belong to 38 of 61 39 FIR No. 246/09 PS - Narela the accused Vikas which were seized vide seizure memo Ex. 8/E, dated 22/08/2009 and parcel nos. 6 & 7 belong to the accused Dheeraj which were seized vide seizure memo Ex. 14/A, dated 22/08/2009.
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1a' (skirt of the prosecutrix), exhibit '5' (Blood sample of accused Vikas), exhibit '6' (Underwear of Dheeraj) & exhibit '7' (Blood sample of Dheeraj); blood could not be detected on exhibit '1b' (Tshirt of the prosecutrix), exhibit '1c' (Underwear of the prosecutrix), exhibit '1d' (Slip of the prosecutrix), exhibit '2' (Encdocervical swab of the prosecutrix) & exhibit '3' (Hair clipping of the prosecutrix); Human semen was detected on exhibit '1a' (Skirt of the prosecutrix), exhibit '1c' (Underwear of the prosecutrix), exhibit '2' (Encdocervical swab of the prosecutrix), exhibit '4a' (Microslide having faint whitish smear of the prosecutrix), exhibit '4b' (Microslide having faint whitish smear of the prosecutrix) & exhibit '6' (Underwear of the 39 of 61 40 FIR No. 246/09 PS - Narela accused Dheeraj) and semen could not be detected on exhibit '1b' (T shirt of the prosecutrix), exhibit '1d' (Slip of the prosecutrix) & exhibit '3' (Hair clipping of the prosecutrix). As per the serological report Ex. PW15/G 'Sample was putrefied hence no opinion' could be given on the exhibit '5' (Blood Sample of accused Vikas) and exhibit '7' (Blood Sample of accused Dheeraj).
On a conjoint reading of the medical/gynaecological examination of the PW4 prosecutrix, vide MLC Ex. PW2/A, as was conducted by PW2 - Geeta, SR (Obs. & Gynae), SRH Hospital, Delhi, together with the MLC of accused Dheeraj (juvenile) Ex. PW3/B in the light of the biological and serological evidence, detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW15/F, prosecution has 40 of 61 41 FIR No. 246/09 PS - Narela discharged its initial burden of proving the presence of Human semen on exhibit '1a' (Skirt of the prosecutrix seized vide seizure memo Ex. PW10/A), exhibit '1c' (Underwear of the prosecutrix seized vide seizure memo Ex. PW10/A), exhibit '2' (Encdocervical swab of the prosecutrix seized vide seizure memo Ex. 10/A), exhibit '4a' (Microslide having faint whitish smear of the prosecutrix seized vide seizure memo Ex. 10/A), exhibit '4b' (Microslide having faint whitish smear of the prosecutrix seized vide seizure memo Ex. 10/A) & exhibit '6' (Underwear of accused Dheeraj seized vide seizure memo Ex. PW14/A).
Since accused Dheeraj and Vikas have been declared juveniles, therefore no further discussion is made on this aspect.
18. It is to be noticed that, in case of "Rameshbhai Mohanbhai & Ors. Vs. State of Gujrat" 2010 XI AD (S.C.) 53, the Hon'ble Supreme Court held that : "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The 41 of 61 42 FIR No. 246/09 PS - Narela evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh Vs. State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey Vs. State of Orissa 1976 SCC (Cri) 566, Syad Akbar Vs. State of Karnataka 1980 SCC (Cri) 59 and Khujji Vs. State of M.P. 1991 SCC (Cri) 916] In State of U.P. Vs. Ramesh Prasad Misra 1996 SCC (Cri) 1278, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to the subjected to close the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra 2002 VII AD (S.C.) 249 = 2003 SCC (Cri) 112, Gagan Kanojia Vs. State of Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh Vs. State of U.P. 2006 I AD (S.C.) 417 = (2006) 1 SCC (Cri) 661, Sarvesh Narain Shukla Vs. Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh Vs. State (2009) 2 SCC (Cri) 1106."
In a criminal prosecution when a witness is crossexamined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given 42 of 61 43 FIR No. 246/09 PS - Narela case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto ; (Ref. Pandappa Hanumappa Nanamar V. State of Karnataka, (1997) 3 Supreme Today 63).
Evidence of a prosecution witness cannot be rejected in India merely because the prosecution chose to treat him as hostile and crossexamine him. Evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable or careful scrutiny thereof ; (Ref. Prithi Vs. State of Haryana, (2010) 8 SCC 536).
The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused ; (Ref. Lalla Srinivasa Rao Vs. State of Andhra Pradesh, AIR 2004 SC 1720).
In case 'Himanshu @ Chintu Vs. State (NCT of Delhi)', 43 of 61 44 FIR No. 246/09 PS - Narela (2011) 2 SCC 36, the Hon'ble Supreme Court held that the dependable part of the evidence of a hostile witness can be relied on. Thus it is the duty of the Court to separate the grain from the chaff and the maxim falsus in uno falsus in omnibus, has no application in India vide 'Nisar Alli Vs. The State of Uttar Pradesh', AIR 1957 SC 366.
19. Now let the testimony of PW4 - prosecutrix be perused and analysed.
PW4 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 05/08/2009 at about 4:00 p.m. I was going to market for purchasing articles. I was passing through Gali No. 21A of Swatantra Nagar. When I was passing, Dhiraj called me and offered a glass of juice to me and Dhiraj took me to Railway Station after involving me in a conversation. From there he took me to Patna by train. In Patna accused Vikas met us. Dhiraj introduced me as his wife to Vikas. We went to the house of Vikas. We started residing in the house of Vikas. Accused Dhiraj did wrong act with me in the house of Vikas. By wrong act, I mean rape. He used to commit rape upon me against my wishes daily. We remained in the house of Vikas for about 1015 days thereafter we returned to Delhi. Vikas also committed rape upon me against my wishes during the stay in his house. Accused Vikas and Dhiraj are 44 of 61 45 FIR No. 246/09 PS - Narela present in the Court today (witness has correctly identify both the accused). They brought me to the house of Subhash in Swatantra Nagar in Gali No. 21A. I was kept there by accused Dhiraj and Vikas. My uncle Subhash came there. Subhash was our landlord, we were residing in his house as a tenant. They asked from Dhiraj and Vikas about me. Subhash informed to Police on 100. He also informed to my parents. My parents came there and took me to the Police Station. From the Police Station I was taken to Hospital for medical examination. After my medical examination, my statement was recorded which is Ex. PW4/A having my signature at point 'A'. Accused Dhiraj and Vikas were arrested by the Police. I identified them at the time of their arrest. Uncle Subhash is present in the Court today. Witness has correctly identify Subhash."
PW4 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State which is reproduced and reads as under : "It is wrong to suggest that I stated to the Police in my statement that when I was passing from front of house no. 952, Gali No. 21A, Swantra (Swatantra) Nagar, accused Subhash called me and took me inside his house and offered a glass of juice to me and involved me in a conversation. Confronted with portion 'A' to 'A' of statement Ex. PW4/A where in it is so recorded. It is wrong to suggest that I stated to the Police in my statement that accused Dhiraj came afterward and on asking of Subhash he took me to New Delhi Railway Station by bus. Confronted with portion 'B' to 'B' of statement Ex. PW4/A wherein it is so recorded. It is wrong to suggest that I stated to the Police in my 45 of 61 46 FIR No. 246/09 PS - Narela statement that in the house of Subhash on 21/08/2009 accused Dhiraj, Vikas and Subhash threatened me that if I disclosed anything to my family members they would kill me or that they asked me to tell before the Police and my family members that I left my house of my own. Confronted with portion 'C' to 'C' wherein it is so recorded. It is wrong to suggest that I stated in my statement to Police that on my refusal I was given beatings by Subhash with cable wire. My clothes were kept in the Hospital at the time of medical examination."
From the aforesaid narration of PW4 - prosecutrix, it is clear that on 05/08/2009 at about 4:00 p.m. she was going to market for purchasing articles. She was passing through Gali No. 21A of Swatantra Nagar. When she was passing, Dhiraj called her and offered a glass of juice to her and Dhiraj took her to Railway Station after involving her in a conversation. From there he took her to Patna by train. In Patna accused Vikas met them. Dhiraj introduced her as his wife to Vikas. They went to the house of Vikas. They started residing in the house of Vikas. Accused Dhiraj did wrong act with her in the house of Vikas. By wrong act, she meant rape. He used to commit rape upon her against her wishes daily. They remained in the house of Vikas for about 1015 days thereafter they returned to Delhi. Vikas also committed rape upon her against her wishes during the stay in his house. She correctly identified 46 of 61 47 FIR No. 246/09 PS - Narela accused Vikas and Dhiraj in the Court. They brought her to the house of Subhash in Swatantra Nagar in Gali No. 21A. She was kept there by accused Dhiraj and Vikas. Her uncle Subhash came there. Subhash was their landlord, they were residing in his house as a tenant. He asked from Dhiraj and Vikas about her. Subhash informed to Police on 100. He also informed to her parents. Her parents came there and took her to the Police Station. From the Police Station she was taken to Hospital for medical examination. After her medical examination, her statement was recorded which is Ex. PW4/A having her signature at point 'A'. Accused Dhiraj and Vikas were arrested by the Police. She identified them at the time of their arrest. She also identified Uncle Subhash present in the Court.
PW4 - Prosecutrix during her crossexamination has negated the suggestions that at present her age is 1920 years or that accused Dhiraj was known to her prior to the incident or that she had a liking for accused Dhiraj or that she first went to her house and from there went to the Hospital or that she had given the statement to the Police at the instance of her parents or that she never went to Patna alongwith Dhiraj or that she never stayed in the house of Vikas at Patna 47 of 61 48 FIR No. 246/09 PS - Narela or that Vikas does not own a house at Patna or that she has deposed in the Court at the instance of IO and parents just to extort money from the family of Vikas or that she is deposing falsely.
As discussed hereinbefore, PW4 - prosecutrix was found to be aged around 12 years (to be exact 12 years, 01 month and 01 day) as on the date of alleged incident on 05/08/2009, from the testimony of PW4 - prosecutrix, nothing is being indicated that on 05/08/2009, accused Subhash kidnapped her out of the keeping of lawful guardianship of her parents or that on 05/08/2009, after kidnapping of prosecutrix at the instance of accused Subhash, accused Dheeraj (juvenile) took her to Patna to the house of accused Vikas (juvenile) knowing that she would be forced or seduced to illicit intercourse or that on 21/08/2009, accused Subhash, in furtherance of the common intention, with accused Dheeraj (juvenile) and Vikas (juvenile), criminally intimidated the prosecutrix by extending the threats to kill her in case she disclosed to anyone about the commission of rape upon her by accused Dheeraj (juvenile) and Vikas (juvenile).
48 of 61 49 FIR No. 246/09 PS - Narela On careful perusal and analysis the testimony of PW4 - prosecutrix is also not found to be in consonance with her statement made to the Police Ex. PW4/A as well as her statement recorded u/s 164 Cr.P.C. Ex. PW5/A, with regard to the role attributed to accused Subhash.
Inspite of incisive crossexamination of PW4 - prosecutrix by the Learned Addl. PP for the State, nothing material has come out so as to fortify the case of the prosecution. Moreover, during the course of crossexamination by the Learned Addl. PP, PW4 - prosecutrix has specifically and categorically deposed which, at the cost of repetition, is reproduced and reads as under : "It is wrong to suggest that I stated to the Police in my statement that when I was passing from front of house no. 952, Gali No. 21A, Swantra (Swatantra) Nagar, accused Subhash called me and took me inside his house and offered a glass of juice to me and involved me in a conversation. Confronted with portion 'A' to 'A' of statement Ex. PW4/A where in it is so recorded. It is wrong to suggest that I stated to the Police in my statement that accused Dhiraj came afterward and on asking of Subhash he took me to New Delhi Railway Station by bus. Confronted with portion 'B' to 'B' of statement Ex. PW4/A wherein it is so recorded. It is wrong to suggest that I stated to the Police in my statement that in the house of Subhash on 21/08/2009 accused Dhiraj, 49 of 61 50 FIR No. 246/09 PS - Narela Vikas and Subhash threatened me that if I disclosed anything to my family members they would kill me or that they asked me to tell before the Police and my family members that I left my house of my own. Confronted with portion 'C' to 'C' wherein it is so recorded. It is wrong to suggest that I stated in my statement to Police that on my refusal I was given beatings by Subhash with cable wire. My clothes were kept in the Hospital at the time of medical examination."
Now, let the testimonies of PW6 - Smt. Rani, mother of the prosecutrix and PW7 - Joginder, father of the prosecutrix be perused and analysed.
PW6 - Smt. Rani in her examinationinchief has deposed that : "Prosecutrix (name withheld) is my daughter. My daughter (name withheld) was missing from our house from 04/08/2009. Later on, we came to know from Bhabhi of accused persons Dhiraj and Vikas that my daughter was residing in Patna with Dhiraj and Vikas. One of our landlord Subhash in whose house we were residing prior to the incident phoned to us that my daughter was given beatings. Then we went to the house of accused Subhash at Gali No. 21, Swatantar Nagar. From there, we recovered our daughter and took her to the PS. The Police recorded the statement of my daughter and got recorded the FIR. Police got her medically examined from the Hospital. At that time, I was with my daughter.
50 of 61 51 FIR No. 246/09 PS - Narela My daughter is 18/19 years old. The date of birth certificate was given to the Police official. I do not know the exact date of birth of my daughter (name withheld). My daughter was brought from Patna by accused Dhiraj and Vikas and after coming back from Patna, they had taken my daughter to the house of Subhash. The original School Leaving Certificate is (was) taken into possession by the Police vide memo Ex. 6/A which bears my thumb impression at point 'A'. The School Certificate is Ex. PW1/B and the same was also taken by the Police."
From the aforesaid narration of PW6 - Smt. Rani, it is clear that the prosecutrix is her daughter. Her daughter was missing from their house from 04/08/2009. Later on, they came to know from Bhabhi of accused persons Dhiraj and Vikas that her daughter was residing in Patna with Dhiraj and Vikas. One of their landlord Subhash in whose house they were residing prior to the incident phoned to them that her daughter was given beatings. Then they went to the house of accused Subhash at Gali No. 21, Swatantar Nagar. From there, they recovered their daughter and took her to the PS. The Police recorded the statement of her daughter and got recorded the FIR. Police got her medically examined from the Hospital. At that time, she (PW6) was with her daughter. Her daughter is 18/19 years old. The date of birth certificate 51 of 61 52 FIR No. 246/09 PS - Narela was given to the Police official. She does not know the exact date of birth of her daughter. Her daughter was brought from Patna by accused Dhiraj and Vikas and after coming back from Patna, they had taken her daughter to the house of Subhash. The original School Leaving Certificate was taken into possession by the Police vide memo Ex. 6/A which bears her (PW6) thumb impression at point 'A'. The School Certificate is Ex. PW1/B and the same was also taken by the Police.
During her crossexamination PW6 - Smt. Rani has negated the suggestions that the Police had not arrested the accused Dhiraj and Vikas in her presence at the PS or that she is deposing falsely.
PW7 - Joginder, in his examinationinchief has deposed that : "I am the father of prosecutrix. On 04/08/2009 at about 3/3:30 p.m., my daughter prosecutrix went to purchase vegetables from Narela Subzi Mandi and I was on bed due to illness. Thereafter my daughter prosecutrix did not come back on (in) the house. We made search for her but in vain. After making all efforts, I went to Police Station Narela and lodged missing report of my daughter prosecutrix.
On 21/08/2009, I was informed by accused Subhash that my daughter prosecutrix came at his house. Accused Subhash is present in 52 of 61 53 FIR No. 246/09 PS - Narela the Court and witness has correctly identify him. I along with the Police went to his house and there my daughter prosecutrix was recovered and we took out daughter to our house.
On 22/08/2009, my daughter alongwith myself, my wife went to Hospital with Police for medical examination of my daughter prosecutrix at Raja Harish Chand Hospital. Doctor handed over some pullindas to the IO. I can identify my signatures."
During his further examinationinchief recorded on 19/02/2013, PW7 deposed that : "DD No. 36 is already exhibited as Ex. PW15/D, bearing my signature at point 'A'."
From the aforesaid narration of PW7 - Joginder, it is clear that the he is the father of prosecutrix. On 04/08/2009 at about 3:00/3:30 p.m., his daughter prosecutrix went to purchase vegetables from Narela Subzi Mandi and he was on bed due to illness. Thereafter, his daughter prosecutrix did not come back in the house. They made search for her but in vain. After making all efforts, he went to Police Station Narela and lodged missing report of his daughter prosecutrix. On 21/08/2009, he was informed by accused Subhash that his daughter prosecutrix came at his house. He correctly identify accused Subhash in the Court. He 53 of 61 54 FIR No. 246/09 PS - Narela along with the Police went to his house and there his daughter prosecutrix was recovered and they took out daughter to our house. On 22/08/2009, his daughter alongwith himself, his wife went to Hospital with Police for medical examination of his daughter prosecutrix at Raja Harish Chand Hospital. Doctor handed over some pullindas to the IO. DD No. 36 is already exhibited as Ex. PW15/D, bearing his signature at point 'A'.
During his crossexamination PW7 - Joginder has negated the suggestions that prosecutrix did not went to purchase vegetables from the Narela Subzi Mandi or that he was not ill and not on bed or that he did not went to the Hospital alongwith his wife and daughter or that no pullindas were handed over by the Doctor to the IO or that he had falsely implicated the accused persons in connivance with the Police or that he is deposing falsely.
On careful perusal and analysis of testimonies of PW6 - Smt. Rani, mother of the prosecutrix and PW7 - Joginder, father of the prosecutrix, it is found that they have corroborated the version of PW4 -
54 of 61 55 FIR No. 246/09 PS - Narela prosecutrix regarding the role played by accused Subhash.
At the cost of repetition, PW4 - prosecutrix during her examinationinchief has deposed that : ".....Accused Vikas and Dhiraj are present in the Court today (witness has correctly identify both the accused). They brought me to the house of Subhash in Swatantra Nagar in Gali No. 21A. I was kept there by accused Dhiraj and Vikas. My uncle Subhash came there. Subhash was our landlord, we were residing in his house as a tenant. They asked from Dhiraj and Vikas about me. Subhash informed to Police on 100. He also informed to my parents....."
(Underlined by me) At the cost of repetition, PW6 - Smt. Rani, in her examinationinchief has specifically deposed that : "Prosecutrix (name withheld) is my daughter. My daughter (name withheld) was missing from our house from 04/08/2009. Later on, we came to know from Bhabhi of accused persons Dhiraj and Vikas that my daughter was residing in Patna with Dhiraj and Vikas. One of our landlord Subhash in whose house we were residing prior to the incident phoned to us that my daughter was given beatings. Then we went to the house of accused Subhash at Gali No. 21, Swatantar Nagar. From there, we recovered our daughter and took her to the PS. The Police recorded the statement of my daughter and got recorded the FIR. Police got her medically examined from the Hospital. At that time, I was 55 of 61 56 FIR No. 246/09 PS - Narela with my daughter."
(Underlined by me) At the cost of repetition, PW7 - Joginder, in her examinationinchief has specifically deposed that : ".....On 21/08/2009, I was informed by accused Subhash that my daughter prosecutrix came at his house. Accused Subhash is present in the Court and witness has correctly identify him. I along with the Police went to his house and there my daughter prosecutrix was recovered and we took out daughter to our house....."
(Underlined by me) Further, neither the testimony of PW16 - Nazma Khatoon, Councellor, NGO nor her report Ex. PW16/A have been corroborated by PW4 - prosecutrix.
On a conjoint reading of the testimonies of PW4 - prosecutrix, PW6 - Smt. Rani and PW7 - Sh. Joginder, nothing is being indicated that on 05/08/2009, accused Subhash kidnapped her out of the keeping of lawful guardianship of her parents or that on 05/08/2009, after kidnapping of prosecutrix at the instance of accused Subhash, accused Dheeraj (juvenile) took her to Patna to the 56 of 61 57 FIR No. 246/09 PS - Narela house of accused Vikas (juvenile) knowing that she would be forced or seduced to illicit intercourse or that on 21/08/2009, accused Subhash, in furtherance of the common intention, with accused Dheeraj (juvenile) and Vikas (juvenile), criminally intimidated the prosecutrix by extending the threats to kill her in case she disclosed to anyone about the commission of rape upon her by accused Dheeraj (juvenile) and Vikas (juvenile).
20. 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 57 of 61 58 FIR No. 246/09 PS - Narela or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse : In law, this term is held to mean the 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."
58 of 61 59 FIR No. 246/09 PS - Narela On analysing the testimony of PW4 - Prosecutrix in the light of medical/gynaecological examination vide MLC Ex. PW2/A of the prosecutrix, biological and serological evidence Ex. PW15/F and Ex. PW15/G, together with the MLC of accused Vikas (Juvenile) Ex. PW3/A and MLC of accused Dheeraj (Juvenile) Ex. PW3/B, as discussed here inbefore, 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 by both the accused Vikas and Dheeraj (Juveniles) with PW4 - Prosecutrix without her consent stands proved.
Since accused Dheeraj and Vikas have been declared juveniles, therefore no further discussion is made on this aspect.
21. In view of above and in the circumstances, prosecution has failed to prove its case beyond reasonable doubt against accused Subhash. The hostility of PW4 - prosecutrix has knocked out the bottom of the case of the prosecution. There is nothing on the record to indicate that on 05/08/2009, accused Subhash kidnapped her out of the keeping of lawful guardianship of her parents or that on 05/08/2009, after 59 of 61 60 FIR No. 246/09 PS - Narela kidnapping of prosecutrix at the instance of accused Subhash, accused Dheeraj (juvenile) took her to Patna to the house of accused Vikas (juvenile) knowing that she would be forced or seduced to illicit intercourse or that on 21/08/2009, accused Subhash, in furtherance of the common intention, with accused Dheeraj (juvenile) and Vikas (juvenile), criminally intimidated the prosecutrix by extending the threats to kill her in case she disclosed to anyone about the commission of rape upon her by accused Dheeraj (juvenile) and Vikas (juvenile).
I accordingly acquit Subhash for the offences punishable u/s 363 IPC, u/s 366/34 IPC and u/s 506/34 IPC.
22. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Subhash in the commission of offences punishable u/s 363 IPC, u/s 366/34 IPC and u/s 506/34 IPC is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to the accused Subhash beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Subhash. I, therefore, acquit accused Subhash 60 of 61 61 FIR No. 246/09 PS - Narela for the offences punishable u/s 363 IPC, u/s 366/34 IPC and u/s 506/34 IPC after giving him the benefit of doubt. Accused Subhash is on bail. However, u/s 437A Cr.P.C. the bail bond of accused Subhash shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment.
Announced in the open Court (MAHESH CHANDER GUPTA) on 04th Day of September, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 61 of 61