Delhi District Court
State vs . Paramjeet @ Sonu on 21 April, 2015
1
FIR No. 389/11
PS - Vijay Vihar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 70/13
Unique ID No. : 02404R0362602011
State Vs. Paramjeet @ Sonu
S/o Surat Singh
R/o House No. 1709,
Sector - 6, Bahadurgarh,
Haryana.
FIR No. : 389/11
Police Station : Vijay Vihar
Under Sections : 376/328/365 IPC
Date of committal to session Court : 30/01/2012
Date on which judgment reserved : 30/03/2015
Date on which judgment announced : 21/04/2015
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 : 1 of 133 2 FIR No. 389/11 PS - Vijay Vihar That on 05/10/2011, on receipt of DD No/ 25A, SI Bineet Pandey alongwith Constable Ranjit and Lady Constable Pavitra, left for the SGM Hospital, Mangol Puri, Delhi where prosecutrix (name withheld being a case u/s 376 IPC) W/o Joginder R/o Flat No. 182, Pocket - 26, Sector - 24, Rohini, Delhi was found admitted for treatment vide MLC No. 15687/11 and SI Rohit of PS - Miyan Wali Nagar was also found present there. On the MLC of prosecutrix, the Doctor had endorsed, "alleged H/o sexual assault today under influence of some drugs" and had declared her fit for statement. The prosecutrix in the presence of Lady Constable Pavitra made the statement which is to the effect that, she lives at the above address alongwith her husband. Her husband does the business of apples at Kullu Manali in Himachal Pradesh and mostly lives there and comes to her at home in a month or two. For the last six months, she was getting a phone call from one person, who used to phone from mobile nos. 9813524974, 9812672903 and 9996718055 and used to say to redial (Milane Ke Liye Kehta Tha). About 2½ - 3 months ago she had come to Delhi from Panipat and is living on rent at the above said address. Today, on 05/10/2011, at about/between 12:00 noon to 2:00 p.m., the same said person who had 2 of 133 3 FIR No. 389/11 PS - Vijay Vihar told his name Rinku @ Sanjay and is of wrestler type, had phoned her 3/4 times and told her to come near Rithala Metro and today, he will get her job (Rithala Metro Ke Pass Aaja, Aaj Tujhe Naukri Dilwa Dunga). She believing in his talks by catching auto rikshaw from Sector - 24 at about 4:00 p.m. in the evening reached near Rithala Metro Station and when she confirmed by phone (Phone Kar Ke Confirm Kiya), then that person was found present there in one new vehicle (To Weh Aadmi Wahin Ek Nayi Gadi Mei Maujood Mile). With Sanjay, one more person was also there, who was left there by Sanjay after giving him mobile and money and after making her sit in the vehicle, Sanjay made her drink cold drink, due to which she lost her consciousness (Jo Sanjay Ke Sath Ek Aur Aadmi Tha, Jise Sanjay Ne Mobile Aur Paise De Kar Wahin Chor Diya Tha Tatha Mujhe Gadi Mei Bitha Kar Sanjay Ne Thanda Pilaya, Jis Se Mujhe Kuch Hosh Nahi Raha) as she recollect, Sanjay after taking her from a road which passes from the Bajra agricultural fields had taken her in a two room house where two ladies were there (Jo Mujhe Yaad Aata Hai, Us Ke Mutabik, Sanjay Ne Mujhe Bajre Ke Kheton Ke Beech Ek Sadak Jati Hai, Us Raste Le Kar Do Kamron Wale Ek Makan Mei Le Gaya Jahan Do Auratein Thee). Sanjay committed 3 of 133 4 FIR No. 389/11 PS - Vijay Vihar galat kaam with her and after making her sit in a vehicle and by bringing back, alighted her on a road side near Peera Gari from where Police had brought her to the Hospital (Sanjay Ne Mere Sath Galat Kaam Kiya Aur Mujhe Gadi Mei Bitha Kar Vapas La Kar Peera Gari Ke Pas Sadak Kinare Utar Diya, Jahan Se Police Wale Mjhe Hospital Le Kar Aaye). The age of Sanjay may be about 3035 years and she can identify him. The said person by the name Sanjay on the pretext of getting her job and after making her drink intoxicated cold drink, had committed galat kaam with her, without her consent and against her will. Appropriate legal action be taken. Her statement has been recorded in the Hospital in the presence of a Lady Constable after making inquiries from her. She has heard the statement and is correct. On the basis of the statement, on inspection of the MLC and the circumstances finding that offences u/s 376/328 IPC appeared to have been committed, the case was got registered and investigation was proceeded with by SI Bineet Pandey. The sealed exhibits and the sealed pullinda of the clothes of the prosecutrix, as were handed over by the Doctor after the medical examination of the prosecutrix, were taken into Police possession. Site plan was prepared at the instance of the prosecutrix. The counseling of 4 of 133 5 FIR No. 389/11 PS - Vijay Vihar the prosecutrix was got done from Smt. Nazma, NGO, Nav Shrishti wherein, she confirmed her statement made in the FIR. Supplementary statement of the prosecutrix was recorded wherein she disclosed No. HR13F1008, of the Santro Car/the vehicle used by the accused in the commission of the crime. The ownership details of which were enquired from the Haryana, Bahadurgarh Authority. The call details of the mobile phone numbers given by the prosecutrix were obtained. The particulars of the owner of the vehicle came to be known as Rajesh S/o Surat Singh R/o House No. 2496, Sector - 2, Bahadurgarh, Haryana, who in his statement told that on 05/10/2011, his brother Paramjeet @ Sonu S/o Surat Singh, R/o 1709, Sector - 6, Rohini, Delhi had taken away (le kar gaya tha) the vehicle. Thereafter, after inquiries from Paramjeet @ Sonu, he was arrested from Tikri Border, Delhi. His medical examination was got conducted from the Hospital and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession and were deposited in the Malkhana. At the instance of accused Paramjeet @ Sonu, the vehicle No. HR - 13F - 1008 was recovered and the same was taken into Police possession and was deposited in the Malkhana. The pointing out memo of the place of 5 of 133 6 FIR No. 389/11 PS - Vijay Vihar incident was prepared, at the instance of accused Paramjeet @ Sonu. His disclosure statement was recorded. Accused was sent to JC in muffled face. Statement of the prosecutrix was got recorded u/s 164 Cr.P.C. The application for the Test Identification Parade (TIP) of accused Paramjeet @ Sonu was moved and the TIP proceedings were got conducted but the accused Paramjeet @ Sonu, refused to join the TIP. Statements of the witnesses were recorded u/s 161 Cr.P.C. The sealed exhibits were sent to the FSL, Rohini.
Upon completion of the necessary further investigation, challan for the offences u/s 376/328 IPC was prepared against accused Paramjeet @ Sonu and was sent to the Court for trial.
2. Since the offences u/s 376/328 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 u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session and 6 of 133 7 FIR No. 389/11 PS - Vijay Vihar after hearing on charge prima facie a case u/s 328/365/376 IPC was made out against accused Paramjeet @ Sonu. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has in fact produced and examined 20 witnesses as two witnesses namely Dr. Vijay Dhankar and Constable Satish Kumar have been examined as PW9 : PW1 HC Attar Singh, PW2 HC Ram Singh, PW3 Dr. Deepti Bhalla, CMO, BSA Hospital, PW4 W/Constable Pavitra Kumari, PW5 - Prosecutrix (name withheld), PW6 Dr. Hena Kausar, SR, Gynae & Obs., SGM Hospital, PW7 Dr. Brijesh Singh, CMO, SGM Hospital, PW8 Amar Nath Singh, Nodal Officer, Idea Cellular Ltd., PW9 Dr. Vijay Dhankar, HOD, Forensic, BSA Hospital, Rohini, PW9 Constable Satish Kumar, PW10 - Constable Ranjeet, PW11 SI Rohit, PW12 ASI Rajender Singh, PW13 Constable Ravinder, PW14 Israr Babu, Nodal Officer, Vodafone Mobile Service Ltd., PW15 Bihari Lal S/o Ranjeet, PW16 Rajesh S/o Suraj Singh (be read as S/o Surat Singh), PW17 Sh. Vishal Singh, Civil Judge, Tis 7 of 133 8 FIR No. 389/11 PS - Vijay Vihar Hazari Courts, Delhi, PW18 - SI Bineet Pandey, PW19 - Jitender Kumar, Senior Scientific Assistant, (Chemistry), FSL, Rohini, Delhi,
5. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Attar Singh, who deposed that on 06/10/2011, he was posted as Duty Officer in PS Vijay Vihar and was on duty from 12:00 midnight to 8:00 a.m. On that day, at about 12:15 a.m., he received a rukka from Constable Ranjeet which was sent by SI Vineet Pandey. On the basis of the same and on his instructions, the present FIR No. 389/11, u/s 328/376 IPC was registered. He has brought the original FIR Register. The copy of the FIR is Ex. PW1/A which bears his signature at point 'A'. Original FIR seen and returned. He made his endorsement on rukka and the same is Ex. PW1/B which bears his signature at point 'A'. After registration of FIR he handed over copy of FIR and original rukka to Constable Ranjeet for handing over to SI Vineet Pandey as per directions of SHO.
PW2 HC Ram Singh, who deposed that on 06/10/2011, he 8 of 133 9 FIR No. 389/11 PS - Vijay Vihar was posted as MHC(M) in PS - Vijay Vihar. On that day, SI Binit Pandey had deposited three sealed parcels sealed with the seal of 'SD'. Again said two sealed pullinda out of which one was sealed with 'SGMH, GNCT, Delhi' and other was sealed with the seal of 'SD', alongwith sample seal, in the Malkhana. IO had also deposited one Santro Car No. HR 13F1008 in the Malkhana. He made entry at serial no. 570/11. On 21/10/2011, sealed pullinda alongwith sample seal were handed over to SI Vineet Pandey for depositing in FSL Rohini vide RC No. 135/21/11. After depositing the same he deposited the receipt with him. He has brought the original Register No. 19 & 21. The copy of relevant entries of Register No. 19 is collectively Ex. PW2/A, copy of relevant entries of Register No. 21 is Ex. PW2/B and copy of acknowledgment receipt is Ex. PW2/C. The sealed pullindas were remained intact during his custody.
PW3 Dr. Deepti Bhalla, CMO, BSA Hospital, who deposed that on 07/10/2011, one Paramjeet @ Sonu S/o Surat Singh age
- 29 year male was brought to Hospital for medical examination with the alleged H/o having committed sexual assault with the victim on 9 of 133 10 FIR No. 389/11 PS - Vijay Vihar 06/10/2011 at around 6:00 p.m. (As per the written request received from the IO). On examination no evidence of any fresh external injury found over the body of the patient. Thereafter, the patient was referred to SR, Surgery for examination, Sample preservation and expert opinion regarding Sexual Assault. She also referred the patient to Forensic Medical Expert for potency test. She prepared the MLC. The same is Ex. 3/A (be read as Ex. PW3/A) bearing her signatures at point 'A'.
PW4 W/Constable Pavitra Kumari, who deposed that on 05/10/2011, she was posted as Constable in PS - Vijay Vihar. On that day, on the instructions of SHO, she alongwith Constable Ranjeet and IO SI Bineet Pandey reached at Sanjay Gandhi Hospital. One lady/prosecutrix (name withheld) was found admitted in the Hospital and she was under treatment. After medical examination, Doctor told that she is fit for statement. IO recorded statement of prosecutrix (name withheld). Doctor handed over the sealed pullinda and the same were seized vide memo Ex. PW4/A bearing her signatures at point 'A'. IO handed over the rukka to Constable Ranjeet for getting the FIR registered. Thereafter, she alongwith IO and complainant (name 10 of 133 11 FIR No. 389/11 PS - Vijay Vihar withheld) reached near Rithala Metro Station near Red Light and complainant had shown the place from where she was boarded in a vehicle by Sanjay. Complainant was not able to tell the further passage/route. IO prepared the site plan at the spot. Thereafter, they came back to Police Station. NGO Counsellor, Smt. Nazma was called and she made inquiries from complainant. IO recorded the supplementary statement of the prosecutrix. Thereafter, prosecutrix was sent with her relative Jitender. They reached in the Police Station at about 1:00 a.m. and the date has been changed till then and IO recorded her statement on 06/10/2011.
PW5 - prosecutrix is the victim who deposed regarding the incident and proved her statement recorded by the Police Ex. PW5/A and her statement recorded u/s 164 Cr.P.C. Ex. PW5/B. She identified her clothes, one chunni, one kamiz, one salwar and one bra as Ex. P1 to Ex. P4 respectively. She also identified vehicle i.e. Santro Car No. HR13F1008 in which she was taken away by Paramjeet as Ex. P5.
PW6 Dr. Hena Kausar, SR, Gynae & Obs., SGM Hospital, 11 of 133 12 FIR No. 389/11 PS - Vijay Vihar who deposed that on 05/10/2011, prosecutrix (name withheld) w/o Jogender Singh age 32 Year female was brought to Hospital by Police for medical examination with alleged history of sexual assault, on 05/10/2011 at about 6:00 p.m. by a person (Sanjay) and also with alleged history of drug intoxication followed by alleged sexual assault on that day. The patient was initially examined by CMO on duty and thereafter, the patient was referred to SR Gynae whereupon she was examined by her. On examination patient vital stable fully conscious and oriented, on per abdominal examination - soft. On per veginal examination - uteral RV, normal size, bilateral fornices free, non tender. On local examination no external injury mark - on perneal region. Following samples taken and handed over to SI/Vinit Pandey. 1. Right vulval swab.
2. Left vulval swab. 3. Anterial vaginal wall swab. 4. Posterior vaginal wall swab. 5. Right lateral vaginal wall swab. 6. Left lateral vaginal wall swab. 7. Vaginal smear. 8. Pubic hair cutting. 9. Right hand nail cutting. 10. Left hand nail cutting. 11. Right nail scraping.
12. Left nail scraping. 13. EDTA blood sample. 14. Plain blood sample. 15. Sample seal. 16. Clothing (Salwar Kamij, Dupatta of peach colour). Her examination on the MLC is in encircled and is 12 of 133 13 FIR No. 389/11 PS - Vijay Vihar exhibited as Ex. PW6/A bearing her signature at point 'A'.
PW7 Dr. Brijesh Singh, CMO, SGM Hospital, who deposed that on 05/10/2011, prosecutrix (name withheld) w/o Jogender Singh age 32 Year female was brought to Hospital by Police for medical examination with alleged history of sexual assault on that day under the influence of some drugs. On local examination redness present over anterial aspect of neck and upper chest. Thereafter, the patient was referred to Gynae. He prepared the MLC which is Ex. PW7/A bearing her signature at Point 'A'.
PW8 Amar Nath Singh, Nodal Officer, Idea Cellular Ltd., who deposed that he has brought the summoned record. He has brought original Customer Application Form (CAF) of mobile No. 9812672903 which pertains to one Sh. Bihari Lal S/o Ranjeet (OSR). The same is Ex. PW8/A. The supporting document to the identity of Bihari Lal, he has brought xerox copy of Ration Card of Bihari Lal which is Mark 'X'. He has brought the certificate u/s 65B of Evidence Act. His signature is at point 'A'. The same is Ex. PW8/B. The Call Detail Record of 13 of 133 14 FIR No. 389/11 PS - Vijay Vihar telephone No. 9812672903 pertaining to Bihari Lal of the period from 05/10/2011 to 07/10/2011 is also tendered by him in Court. The same is Ex. PW8/C. The same is running into two pages. The Cell ID Chart of Idea Cellular Ltd. of Delhi is also brought by him which is running into 43 pages. The same is exhibited collectively as Ex. PW8/D1 to Ex. PW8/D43 and the Cell ID Chart pertaining to CDR of aforesaid number of Haryana is in one page. The same is Ex. PW8/E. PW9 Dr. Vijay Dhankar, HOD, Forensic, BSA Hospital, Rohini, who deposed that he has been deputed by the MS of the Hospital to depose before the Court. He has seen MLC No. 15/FM/2011 of Paramjeet @ Sonu S/o Suraj Singh, Age 29 years male who was brought to Hospital on 07/10/2011 for medical examination. He was examined by Dr. J. V. Kiran, S. R. Forensic Medicine. At present, Dr. J. V. Kiran is not working in their Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signature of Dr. J. V. Kiran as he has seen him while writing and signing during the course of his duties and he (Dr. J. V. Kiran) worked under him (PW9). As per MLC, it is opined that there is nothing to suggest that the person is not 14 of 133 15 FIR No. 389/11 PS - Vijay Vihar capable of performing sexual intercourse. The MLC is Ex. PW9/A, bearing signature of Dr. J. V. Kiran at point 'A'.
PW9 Constable Satish Kumar, who deposed that on 07/10/2011, he was posted as Constable in PS Vijay Vihar. On that day, he alongwith SI Bineet Pandey, Constable Umesh took accused Paramjit @ Sonu present in the Court, in BSA Hospital. He was medically examined and after medical examination Doctor handed over the sealed pullinda containing the exhibits which were seized by the IO vide memo Ex. PW9/A bearing his signature at point 'A'. Thereafter, accused Paramjit @ Sonu pointed out the place of occurrence i.e. behind the PTC, Jharoda Kalan, in a Kotha in the field vide pointing out memo Ex. PW9/B bearing his signature at point 'A' and told that he had brought prosecutrix (name withheld) on 05/10/2011 in the Kotha and committed rape upon her.
PW10 - Constable Ranjeet, who deposed that on 05/10/2011, he was posted as Constable in PS Vijay Vihar. On that day, he alongwith SI Bineet Pandey and Lady Constable Pavitra reached BSA 15 of 133 16 FIR No. 389/11 PS - Vijay Vihar Hospital where they found prosecutrix (name withheld) W/o Sh. Jogender under treatment. SI Rohit from PS Miyawali was also present there. SI Rohit told that prosecutrix (name withheld) was found in unconscious condition near Peeragari and she told that rape has been committed upon her after giving some intoxicant to her. IO made inquiries from prosecutrix (name withheld) and incident was found to be of the area of PS Vijay Vihar as prosecutrix (name withheld) has told that accused had made her to sit in a car from Rithala Metro Station. SI Rohit was relieved. IO recorded statement of prosecutrix (name withheld). Doctor handed over the sealed pullinda containing exhibits which were seized by the IO vide memo Ex. PW4/A, bearing her signature at point 'B'. IO prepared rukka and handed over to him for getting the FIR registered. He got the FIR registered in the Police Station and handed over the copy of FIR and original rukka to IO in the Police Station as IO alongwith prosecutrix (name withheld) had also reached at the Police Station. Thereafter, one Nazma Madam of NGO also came in the Police Station and she did the counseling of prosecutrix (name withheld). IO recorded supplementary statement of complainant (name withheld) and (wherein she) told the vehicle No. HR13F1008.
16 of 133 17 FIR No. 389/11 PS - Vijay Vihar IO recorded his statement.
PW11 SI Rohit, who deposed that on 05/10/2011, he was posted as Sub Inspector in PS Miyawali Nagar. On that day, at about 6:20 p.m. he received DD No. 35A, the copy of which is Ex. PW11/A and thereafter he reached at Peeragari Chowk and from there he came to know that victim had already been taken to Sanjay Gandhi Hospital. He reached at Sanjay Gandhi Hospital and where he found prosecutrix (name withheld) w/o Joginder admitted in the Hospital. He made inquiry from her and he came to know that she was taken from Rithala Metro Station by accused and he took her at some unknown place and after giving some intoxicant, he committed rape upon her. Since the occurrence was started from Rithala Metro Station which falls in the jurisdiction of PS Vijay Vihar so he informed in PS Vijay Vihar. SI Bineet Pandey alongwith staff came there and he handed over the complainant (name withheld) to him.
PW12 ASI Rajender Singh, who deposed that on 05/10/2011, he was posted as Duty Officer in PS Miyawali Nagar. On 17 of 133 18 FIR No. 389/11 PS - Vijay Vihar that day, at about 6:20 p.m. he recorded DD No. 35A and thereafter, copy of the same was sent to SI Rohit for further investigation. He has brought the original DD Register. The copy of the same is already exhibited as Ex. PW11/A (OSR).
PW13 Constable Ravinder, who deposed that on 06/10/2011, he was posted as Constable in PS Vijay Vihar. On that day, IO SI Vineet Pandey had sent him to verify about the ownership of vehicle No. HR13F1008. He went to Bahadurgarh in Transport Authority and from there, he inquired about the ownership of the above said vehicle and came to know that the vehicle is registered in the name of Rajesh S/o Surat Singh R/o House No. 2496, Sector II, Bahadurgarh, Haryana, which he handed over to the IO. Thereafter, he alongwith IO SI Vineet Pandey and other staff again reached at House No. 2496, Sector II, Bahadurgarh, where they met Rajesh and who told that Paramjeet @ Sonu is his brother and he has taken away the above said vehicle. Thereafter, they reached Tikri Border Petrol Pump and from there at the instance of Rajesh, they apprehended the accused Paramjeet @ Sonu, present in the Court. He was interrogated and arrested vide 18 of 133 19 FIR No. 389/11 PS - Vijay Vihar arrest memo Ex. PW13/A. His personal search was conducted vide memo Ex. PW13/B and he made disclosure statement Ex. PW13/C, bearing his signature at point 'A'. Thereafter, accused Paramjeet @ Sonu got recovered Santro Car of white colour bearing No. HR13F1008 from the Tikri Border near Petrol Pump and the same was seized vide memo Ex. PW13/D, bearing his signature at point 'A'. Thereafter, they came back to Delhi. On 16/10/2011, one Bihari Lal came in the PS Vijay Vihar and produced to SI Vineet Pandey one photocopy of receipt of State Bank of India of Rs. 2,500/ and the same was seized vide memo Ex. PW13/E, bearing his signature at point 'A'. The photocopy of the receipt is mark 'A'. He correctly identified Santro Car bearing No. HR13F1008 the same which was seized by the IO at the instance of accused Paramjit @ Sonu as already Ex. P5.
PW14 Israr Babu, Nodal Officer, Vodafone Mobile Service Ltd., who deposed that he has brought the summoned record. As per their record of mobile No. 8860028057, which is in the name of prosecutrix (name withheld) w/o Jogender R/o 182, Pocket 26, Sector 24, Rohini, Delhi and permanent resident of 343, Block No. 2, Village 19 of 133 20 FIR No. 389/11 PS - Vijay Vihar Hansoli, Tehsil Samalkhan, District Panipat, Haryana. The copy of the Customer Application Form is Ex. PW14/A. Copy of the ID proof attached with it is Ex. PW14/B. The call details of above said mobile phone from 05/10/2011 to 06/10/2011 is Ex. PW14/C and the certificate under Section 65B in this regard is Ex. PW14/D bearing his signature at point 'A'. The Cell ID chart is Ex. PW14/E, wherein, his signature at point 'A' on the first and last page.
PW15 Bihari Lal S/o Ranjeet, who deposed that he is doing the work of Mason. He does not know Paramjeet @ Sonu and he had never met him. He does not know anything about this case. This witness was also crossexamined by the Learned Addl. PP for the State as he was resiling from his previous statement.
PW16 Rajesh S/o Suraj Singh (be read as S/o Surat Singh), who deposed that he is the registered owner of Car No. HR13F1008 white colour Santro. Police had seized his car and he took the same on superdari vide Superdarinama Ex. PW16/A bearing his signature at point 'A'. He has brought the car which is parked in the 20 of 133 21 FIR No. 389/11 PS - Vijay Vihar parking area of the Court. The car is already exhibited as Ex. P5. He has also brought the registration certificate of his abovesaid car. The copy of the registration certificate is Ex. PW16/B (OSR). On 05/10/2011, this vehicle was with him and he took the same at Rohtak. This witness was also crossexamined by the Learned Addl. PP for the State as he was resiling from his previous statement.
PW17 Sh. Vishal Singh, Civil Judge, Tis Hazari Courts, Delhi, who deposed that on 10/10/2011, he was posted as MM at Rohini Courts. On that day, an application filed by SI Bineet Pandey for recording the statement u/s 164 Cr.P.C. was marked to him by Learned MM, Sh. S. K. Sethi and he fixed the same for recording the statement at 3:00 p.m. on the same day. He recorded the statement of witness prosecutrix (name withheld) on Oath u/s 164 Cr.P.C. in the Court Chamber attached to his Court. The proceedings is Ex. PW17/A (running into three pages) bearing his signatures at points 'A' to 'E'. Upon completion of the statement, the IO SI Bineet Pandey applied for the copy of the same, the application is Ex. PW17/B. The application was allowed and bears his signatures at point 'A'. Thereafter, the entire 21 of 133 22 FIR No. 389/11 PS - Vijay Vihar proceedings was kept in a sealed pullinda, sealed with the Court seal and was sent to the concerned Court.
PW18 - SI Bineet Pandey is the Investigating Officer (IO) of the case, who deposed that on 05/10/2011, he was posted at PS Vijay Vihar. On that day, SHO Vijay Vihar directed him to reach Sanjay Gandhi hospital alongwith Lady Constable as rape case victim namely prosecutrix (name withheld) w/o Jogender was admitted by the Police staff of PS Mianwali. He alongwith Constable Ranjeet and Lady Constable Pavitra reached in Sanjay Gandhi Hospital where he met to SI Rohit of PS Mianwali and he briefed him about the facts of the present case and took him to Gynae Department in the Hospital where victim/prosecutrix (name withheld) was found admitted there. He collected the MLC of prosecutrix (name withheld). He relieved SI Rohit. He received the seal pullinda containing exhibits of prosecutrix and same were seized by him vide memo Ex. PW4/A bearing his signature at point 'X'. He recorded statement of prosecutrix (name withheld) which is already Ex. PW5/A and attested her signature at point 'A' bearing his signature at point 'X'. He prepared rukka Ex. PW18/A bearing his 22 of 133 23 FIR No. 389/11 PS - Vijay Vihar signature at point 'X'. The rukka was handed over to Constable Ranjeet for getting the FIR registered. Thereafter, he alongwith Lady Constable Pavita (be read as Pavitra) and prosecutrix reached at the spot i.e. near Rithala Metro Station. He prepared site plan at the instance of the prosecutrix and the same is Ex. PW 18/B bearing his signature at point 'X'. They came back to Police Station and Constable Ranjeet handed over him the copy of FIR and the original rukka. NGO Counseller Nazma was called and counselling of prosecutrix was got conducted. He recorded the supplementary statement of prosecutrix wherein, the vehicle No. HR13F1008 was disclosed by the prosecutrix. Thereafter, prosecutrix was relieved and he recorded statement of Constable Ranjeet and Lady Constable Pavitra. On next day in the morning, Constable Ravinder was sent to the Transport Authority for collecting the details of ownership of vehicle No. HR13F1008. He had also sent the request for collecting the details of call details of mobile number mentioned by prosecutrix in her statement. Constable Ravinder came back and told him that the owner of the above vehicle is Rajesh S/o Surat Singh R/o H. No. 2496, Sector - 2, Bahadurgarh, Haryana. Thereafter, he alongwith Constable Ravinder and other staff reached at H. No. 2496, Sector 2, 23 of 133 24 FIR No. 389/11 PS - Vijay Vihar Bahadurgarh, Haryana where they met Rajesh S/o Surat Singh whose statement was recorded. Rajesh had disclosed that the above said vehicle stands in his name and the same is being used by his younger brother Paramjeet @ Sonu and on 05/10/2011 the vehicle was with his brother Paramjeet @ Sonu and today he has gone to Tikri Border for some work (objected to by Learned DC on the mode of proof being hearsay). Thereafter, they all alongwith Rajesh reached Tikri Border and at the instance of Rajesh they apprehended the accused Paramjeet @ Sonu. He was interrogated and arrested vide arrest memo already Ex. PW13/A, his personal search was conducted which is already Ex. PW13/B and he made disclosure statement already Ex. PW13/C all bearing his signature at point 'X'. Thereafter, accused Paramjeet @ Sonu got recovered Santro Car No. HR13F1008 from Tikri Border near Patrol Pump and the same was seized vide memo already Ex. PW13/D bearing his signature at point 'X'. They came to BSA Hospital where accused Paramjeet @ Sonu was got medically examined and after medical examination Doctor handed over the sealed pullinda containing exhibits and the same were seized vide memo already Ex. PW9/A bearing his signature at point 'X'. Accused was sent to Police lock up and the case property was deposited 24 of 133 25 FIR No. 389/11 PS - Vijay Vihar in Malkhana. He recorded the statements of witnesses. On 07/10/2011, he alongwith Constable Umesh took accused in the Hospital for forensic examination and he was medically examined. Thereafter, accused had pointed out the place of occurrence i.e. behind Police Training College, Jhadoda vide memo Ex. PW9/B bearing his signature at point 'X'. Accused was produced in the Court in muffled face and was sent to JC. He recorded the statements of witnesses. On 10/10/2011, he moved an application Ex. PW18/C bearing his signature at point 'X' for recording the statement of prosecutrix under section 164 Cr.P.C. and her statement was recorded. Thereafter, he received the copy of the statement vide his application Ex. PW18/D bearing his signature at point 'X'. On 13/10/2011, he got conducted initial TIP of accused Paramjeet @ Sonu. The application for TIP is Ex. PW18/E bearing his signature at point 'X'. Accused refused to participate in TIP proceeding and he obtained the copy of the TIP proceeding vide his application Ex. PW18/F bearing his signature at point 'X'. The TIP proceedings is Ex. PW18/G (not disputed by the Learned DC). Complainant (name withheld) produced one photocopy of the ID card and rent agreement and the same were seized vide memo Ex. PW18/H bearing his signature at point 'X'. The copy of 25 of 133 26 FIR No. 389/11 PS - Vijay Vihar the rent agreement is mark PW18/H1 and the photocopy of the Voter I Card is mark PW18/H2. On 16/10/2011, he recorded the statement of PW Bihari Lal and he had produced one photocopy receipt and the same was seized (vide seizure memo) already Ex. PW13/E bearing his signature at point 'X' and the photocopy of receipt is Mark 'A'. On 21/10/2011 exhibits were deposited in the FSL. He recorded the statement of MHC(M). Call details of the mobile phone were also collected. After completing the investigating chargesheet was prepared and filed in the Court. He correctly identified car already Ex. P5 (Learned DC does not press for producing the car in the Court). Later on, he collected the FSL report and filed in the Court. He tendered result FSL dated 27/02/2012 of biology division and same is now Ex. PW18/J and Ex. PW18/K and the forwarding letter is Ex. PW18/L. He correctly identified accused Paramjit @ Sonu present in the Court.
PW19 - Jitender Kumar, Senior Scientific Assistant, (Chemistry), FSL, Rohini, Delhi, who deposed that he is M. Sc. Chemistry and having 13 years experience in examining the exhibits in Chemistry Division. On 27/09/2012, one sealed parcel was received in 26 of 133 27 FIR No. 389/11 PS - Vijay Vihar their Office in connection with the present case. The same was marked to him for examination. He examined the exhibits and gave his report Ex. PW19/A bearing his signatures at point 'A'. After examination the remnants were resealed and sent to Police.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Paramjeet @ Sonu was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused did not opt to lead any defence evidence.
7. Learned Counsel for accused submitted that the testimony of the prosecutrix does not inspire confidence and her testimony is not corroborated either by ocular evidence or by medical evidence or by scientific evidence. The prosecutrix PW5 (name withheld) has deposed in crossexamination dated 04/07/2013 that : "It is correct that in the report lodged with the Police of Panipat regarding the incident which had taken place in the night, when it was raining out of the said three persons, two persons came to my 27 of 133 28 FIR No. 389/11 PS - Vijay Vihar house and one of them caught hold me and other gave hurt to me on my head and both the said persons committed Galat Kaam with me and the third person was standing outside, I have the name of all these three persons as Sonu, Monu and Rinku to the Police. It is correct that Sonu and Monu are wrestlers of State Level and are of short stature and are having broken ears as that of wrestlers."
The prosecutrix PW5 (name withheld) has further deposed in her crossexamination that : "My statement was recorded, where inquiries were made from me by SI Vineet Pandey. Five/Six persons sitting in the Police Station were also shown to me by the Police. It is correct that five/six persons were shown to me in the Police Station b y the Police to identify the person, who had committed Galat Kaam with me. It is correct that the five/six persons, shown to me by the Police, were of average height and wrestler type built. Sonu and Rinku of Panipat incident were also among the said five/six persons.
Q. Is it correct that after taking black colour THANDA, you were in such a state/condition that you were able to give the name and description of the driver of the vehicle?
A. It is correct.
Q. Is it correct that at the time when you were thrown from the vehicle, you were in such an intoxicated state/condition that you were not able to identify as to who committed the Galat Kaam and who had thrown you from the vehicle?
A. It is correct.
Q. I put it to you that the vehicle involved was a big size Sumo? A. I have no knowledge about the type of vehicles. Vol. I was told by 28 of 133 29 FIR No. 389/11 PS - Vijay Vihar the Police that it was a Sumo Vehicle.
Q. I put it to you that it was Rinku of Panipat, who had committed Galat Kaam with you on 05/10/2011 in the present case and not accused Paramjeet @ Sonu?
A. It is correct.
Q. I put it to you that on 05/03/2013 and 22/04/2013 you made the statement naming present accused Paramjeet @ Sonu falsely out of fear of Sonu, Monu and Rinku of Panipat?
A. It is correct. Vol. When I had earlier come to depose before the Court, prior to the Court date hearing, Sonu, Monu and Rinku of Panipat had given me beatings on the forearms and knees forcing me to name accused Paramjeet @ Sonu while the actual culprit was Rinku of Panipat. Prior to that when the hearing of the bail application of accused Paramjeet @ Sonu was pending before the Hon'ble Delhi High Court in order to save myself from the pressure and harassment of these persons Sonu, Monu and Rinku of Panipat, I consumed poison."
Learned Counsel further submitted that after going through this crossexamination of the prosecutrix, the prosecution case is liable to be rejected.
Learned Counsel further submitted that the principle of appreciation of evidence in such cases is that first of all it must ensure that the testimony of the prosecutrix inspires confidence. If it inspires 29 of 133 30 FIR No. 389/11 PS - Vijay Vihar confidence, then their must have some corroboration to the testimony of th prosecutrix by way of ocular version, medical and scientific evidence to bring home the charges against the accused person. If testimony of the prosecutrix does not inspire confidence, the prosecution case is liable to be rejected at that stage alone and there is no need to further go into other aspects of the prosecution evidence. Learned Counsel further submitted that the prosecutrix was medically examined and no injury on the person of the prosecutrix was found, thus the medical evidence is total inconsistent with the prosecution version. Learned Counsel further submitted that during the course of investigation the IO of this case had seized certain exhibits and the same were sent to FSL for examination. The FSL report is Ex. PW19/A which shows the result that, "On Chemical, Microscopic TLC & GCHS examination, ethyl and methyl alcohol, alkaloids barbiturates, tranquilizers could not be detected in exhibits '1M' & '1N'." Learned Counsel further submitted that according to the FSL report Ex. PW18/J, the group of the semen samples of the accused could not be determined, thus, the scientific evidence also does not support the story that some intoxicating substance mixed in cold drink to be taken by the prosecutrix and further allegation of rape, but 30 of 133 31 FIR No. 389/11 PS - Vijay Vihar the aforesaid reports of FSL belies the story as alleged by the prosecutrix. Learned Counsel further submitted that according to the MLC of the prosecutrix Ex. PW7/A, the alleged history was supplied to the Doctor by the prosecutrix as under : Alleged history of sexual assault on 05/10/2011 at about 6:00 p.m. by a person (Sanjay) alleged history some drug intoxication followed by alleged sexual assault today. The name of the accused person is not mentioned in MLC Ex. PW7/A. This piece of evidence shows that the name of the accused was not known to the prosecutrix till the time of her medical examination and as such the accused person has been falsely implicated in this case just to blackmail and extort money from him. Learned Counsel further submitted that it has come in the crossexamination of PW18 - SI Bineet Pandey dated 08/07/2014 that : "During the investigation of the case, I had come to know that prosecutrix was also complainant in two other similar type of cases". He has deposed in further crossexamination that, "It is correct that during investigation that FIR No. 486/2011 under section 389/182/211/120B IPC and 13(ID) POC Act PS - Chandni Bagh, Panipat, Haryana was registered against the prosecutrix. Again said, it was not in my knowledge." Learned Counsel further submitted 31 of 133 32 FIR No. 389/11 PS - Vijay Vihar that the relevant certified documents have also placed on record against the prosecutrix showing her past conduct. Learned Counsel further submitted that the prosecution has failed to prove the alleged place of occurrence. No site plan of the place of occurrence has been placed on record. Learned Counsel further submitted that the accused submitted that there is variation on the type of vehicle allegedly used in the crime. During her crossexamination, PW5 - prosecutrix has deposed that it was a Sumo vehicle while the Police has seized a Santro Car. Learned Counsel further submitted that the accused submitted that the site plan Ex. PW18/B does not show kidnapping. Accused Paramjeet @ Sonu is not named in the site plan though, he was known to the prosecutrix. There is no reference of Sumo or any other car except mentioning of car. There is mentioning of name of Sanjay. Learned Counsel further submitted that as per the site plan Ex. PW18/B, it cannot be said that it was accused Paramjeet @ Sonu who took the prosecutrix in his car. Learned Counsel further submitted that the accused submitted that PW15 - Sh. Bihari Lal and PW16 - Rajesh, brother of the accused have turned hostile and did not support the case of the prosecution. Learned Counsel further submitted that the prosecution has failed to prove its 32 of 133 33 FIR No. 389/11 PS - Vijay Vihar case against accused Paramjeet @ Sonu and prayed for the acquittal of the accused on all the charges levelled against him. Learned Counsel referred to the cases and are reported as 'Suraj Mal Vs. The State' AIR 1979 SC 1408; 'Anil Kumar Vs. State of Punjab' 2000 (4) Crimes 283 (SC); 'Devesh Kumar Vs. State' 2010 (1) JCC 762; 'Rehmat Vs. The State of Haryana' 1996 1 SVLR (CR.) (SC); 'Kundan Lal & Ors. Vs. State' 2002 (2) JCC 873, 'Sadhu Ram @ Dalip Vs. State' 2010 (3) LRC 368 (Del), 'Ram Badal Vs. The State' 1987 CC Cases 383 (HC) and 'Vijay Singh Vs. State of MP' 2005 CRI.L.J. 299.
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 the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. R. S. Malik, Learned Counsel for the accused and have also 33 of 133 34 FIR No. 389/11 PS - Vijay Vihar carefully perused the entire record.
10. The charge for the offences punishable u/s 328/365/376 IPC against the accused Paramjeet @ Sonu is that on 05/10/2011 at about 4:00 p.m., near Rithala Metro Station, within the jurisdiction of PS - Vijay Vihar, he caused some stupefying or intoxicating substance mixed in cold drink to be taken by prosecutrix (name withheld) to facilitate the commission of abduction and rape upon her and that on the above date, time and place he abducted the prosecutrix (name withheld), with intent to cause her to be secretly and wrongfully confined and thereafter wrongfully confined her in the house and that on the aforesaid date, time and at a house of two rooms, he committed rape upon prosecutrix (name withheld) against her wishes and without her consent.
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.
34 of 133 35 FIR No. 389/11 PS - Vijay Vihar AGE OF THE PROSECUTRIX
12. PW5 - Prosecutrix in her statement recorded in the Court on 05/03/2013 while giving her particulars has stated her age as 32 years.
Since PW5 - prosecutrix has stated her age as 32 years on 05/03/2013 at the time of recording her evidence/statement in the Court and the date of alleged incident is 05/10/2011, on simple arithmetical calculation, the age of the prosecutrix comes to 30 years and 07 months as on the date of alleged incident on 05/10/2011.
Moreover, the said factum of age of PW5 - prosecutrix has also not been disputed by accused Paramjeet @ Sonu. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW5 - prosecutrix was aged 30 years and 07 months as on the date of incident on 05/10/2011.
35 of 133 36 FIR No. 389/11 PS - Vijay Vihar MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW7 Dr. Brijesh Singh, CMO, SGM Hospital has deposed that on 05/10/2011, prosecutrix (name withheld) w/o Jogender Singh age 32 Year female was brought to Hospital by Police for medical examination with alleged history of sexual assault on that day under the influence of some drugs. On local examination redness present over anterial aspect of neck and upper chest. Thereafter, the patient was referred to Gynae. He prepared the MLC which is Ex. PW7/A bearing his signature at Point 'A'.
During his crossexamination PW7 - Dr. Brijesh Singh has deposed that : "Q. Please see the endorsement encircled at point "P" is correct that it is not mentioned therein that the alleged history was told by the patient himself or herself?
Ans. The alleged word mentioned therein itself indicates that the history was told by herself or himself.
It is wrong to suggest that the alleged history at Point "P" was told by the PCR personal. I did not fill the entry at point "Q" vol. it was filled by the duty constable at the Hospital. The entries at point "R" are also filled by the duty constable at the Hospital. Q. If one rubs any soft tissue of the body on continuous rubbing it attains redness?
Ans. It may be.
36 of 133 37 FIR No. 389/11 PS - Vijay Vihar Q. Can the redness as mentioned in local examination at point "S" can be there by rubbing the skin by the patient herself or himself. Ans. It may be.
The patient when was examined by me was fully conscious vol. the same has been detailed in MLC.
Q. I put it to you that you did not feel it necessary to take the stomach wash as the patient was not appearing drugged as she was well conscious?
Ans. It is correct.
Q. To ascertain the nature of drug stomach wash is necessary, is it correct?
Ans. In all cases it is not necessary.
Q. In this case, why you did not refer the patient for stomach wash? Ans. As the patient was fully conscious and oriented and her vitals were found to be absolutely normal at the time of examination. Moreover, stomach wash is a traumatic procedure therefore it was deliberately avoided.
Q. Is it correct that you did not conduct anything for ascertaining drug or ruling out the presence of drug.
(Question disallowed as to what the witness has done and performed has been deposed by him)."
There is nothing in the crossexamination of PW7 - Dr. Brijesh Singh so as to impeach his creditworthiness.
PW6 Dr. Hena Kausar, SR, Gynae & Obs., SGM Hospital 37 of 133 38 FIR No. 389/11 PS - Vijay Vihar has deposed that on 05/10/2011, prosecutrix (name withheld) w/o Jogender Singh age 32 Year female was brought to Hospital by Police for medical examination with alleged history of sexual assault, on 05/10/2011 at about 6:00 p.m. by a person (Sanjay) and also with alleged history of drug intoxication followed by alleged sexual assault on that day. The patient was initially examined by CMO on duty and thereafter, the patient was referred to SR Gynae whereupon she was examined by her. On examination patient vital stable fully conscious and oriented, on per abdominal examination - soft. On per veginal examination - uteral RV, normal size, bilateral fornices free, non tender. On local examination no external injury mark - on perneal region. Following samples taken and handed over to SI/Vinit Pandey. 1. Right vulval swab.
2. Left vulval swab. 3. Anterial vaginal wall swab. 4. Posterior vaginal wall swab. 5. Right lateral vaginal wall swab. 6. Left lateral vaginal wall swab. 7. Vaginal smear. 8. Pubic hair cutting. 9. Right hand nail cutting. 10. Left hand nail cutting. 11. Right nail scraping.
12. Left nail scraping. 13. EDTA blood sample. 14. Plain blood sample. 15. Sample seal. 16. Clothing (Salwar Kamij, Dupatta of peach colour). Her examination on the MLC is in encircled and is 38 of 133 39 FIR No. 389/11 PS - Vijay Vihar exhibited as Ex. PW6/A bearing her signature at point 'A'.
During her crossexamination PW6 Dr. Hena Kausar has deposed that : "The patient was produced before me at 10:20 p.m. It is correct that at point "Y" there is overwriting of time which is done by me and finally it is readable as 6:00 p.m. It is further correct that it is not counter signed by me. It is correct that I have not mentioned in MLC Ex. PW6/A about examination of perineal region which is disclosed by me today in court. Vol it is part of local examination. There is a cutting encircled at point "Z" which is in my hand, which is not signed by me. It is correct that at Point 10 and 11 nail scrapings and cuttings are taken with a view to ascertain the possible resistance by the victim. Vol. it is covered within the guidelines."
There is nothing in the crossexamination of PW6 - Dr. Hena Kausar so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical and the gynaecological examination of PW5 - prosecutrix vide MLC Ex. PW7/A and Ex. PW6/A on the MLC Ex. PW7/A stands proved on the record.
39 of 133 40 FIR No. 389/11 PS - Vijay Vihar VIRILITY OF THE ACCUSED PARAMJEET @ SONU
14. PW3 Dr. Deepti Bhalla, CMO, BSA Hospital has deposed that on 07/10/2011, one Paramjeet @ Sonu S/o Surat Singh age - 29 year male was brought to Hospital for medical examination with the alleged H/o having committed sexual assault with the victim on 06/10/2011 at around 6:00 p.m. (As per the written request received from the IO). On examination no evidence of any fresh external injury found over the body of the patient. Thereafter, the patient was referred to SR, Surgery for examination, Sample preservation and expert opinion regarding Sexual Assault. She also referred the patient to Forensic Medical Expert for potency test. She prepared the MLC. The same is Ex. 3/A (be read as Ex. PW3/A) bearing her signatures at point 'A'.
PW9 Dr. Vijay Dhankar, HOD, Forensic, BSA Hospital, Rohini, who deposed that he has been deputed by the MS of the Hospital to depose before the Court. He has seen MLC No. 15/FM/2011 of Paramjeet @ Sonu S/o Suraj Singh, Age 29 years male who was brought to Hospital on 07/10/2011 for medical examination. He was examined by Dr. J. V. Kiran, S. R. Forensic Medicine. At present, Dr. J.
40 of 133 41 FIR No. 389/11 PS - Vijay Vihar V. Kiran is not working in their Hospital and his present whereabouts are not known. He is acquainted with the handwriting and signature of Dr. J. V. Kiran as he has seen him while writing and signing during the course of his duties and he (Dr. J. V. Kiran) worked under him (PW9). As per MLC, it is opined that there is nothing to suggest that the person is not capable of performing sexual intercourse. The MLC is Ex. PW9/A, bearing signature of Dr. J. V. Kiran at point 'A'.
There is nothing in the crossexamination of PW3 - Dr. Deepti Bhalla and PW9 Dr. Vijay Dhankar so as to impeach their creditworthiness.
In view of above and in the circumstances, it stands proved on the record that accused Paramjeet @ Sonu was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW18 SI Bineet Pandey IO during the course of his examinationinchief tendered FSL Result i.e. biological and serological reports dated 27/02/2012 as Ex. PW18/J and Ex. PW18/K respectively.
41 of 133 42 FIR No. 389/11 PS - Vijay Vihar As per biological report Ex. PW18/J the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed envelope sealed with the seal of "SGMH GNCT DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m', '1n' & '1o' each again sealed in a cloth parcel with the above mentioned seal.
Exhibit '1a' : Cotton wool swab on a plastic stick kept in a tube described as 'Rt. Vulval swab'.
Exhibit '1b' : Cotton wool swab on a plastic stick kept in a tube described as 'Lt. Vulval swab'.
Exhibit '1c' : Cotton wool swab on a plastic stick kept in a tube described as 'Anterior vaginal wall swab'. Exhibit '1d' : Cotton wool swab on a plastic stick kept in a tube described as 'Post. vaginal wall swab'. Exhibit '1e' : Cotton wool swab on a plastic stick kept in a tube described as 'Rt. Lateral vaginal wall'. Exhibit '1f' : Cotton wool swab on a plastic stick kept in a tube described as 'Lt. Lateral vaginal wall'.
Exhibit '1g1' : Two microslides having faint whitish smear
& '1g2' described as 'Vaginal smear'.
Exhibit '1h' : Bunch of hair described as 'Pubic hair cutting'.
Exhibit '1i' : Few nail clippings described as 'Rt. Hand nail
cutting'.
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FIR No. 389/11
PS - Vijay Vihar
Exhibit '1j' : Few nail clippings described as 'Lt. Hand nail
cutting'.
Exhibit '1k' : Cotton wool swab on a plastic stick kept in a
tube described as 'Rt. Nail scraping'.
Exhibit '1l' : Cotton wool swab on a plastic stick described
as 'Lt. Nail scraping'.
Exhibit '1m' : Dark brown foul smelling liquid kept in a tube
described as 'EDTA Blood sample'.
Exhibit '1n' : Dark brown foul smelling liquid kept in a tube.
Exhibit '1o' : One sealed cloth parcel containing exhibits
'1o1', '1o2', '1o3' & '1o4'.
Exhibit '1o1' : One salwar having dirty stains.
Exhibit '1o2' : One lady's shirt.
Exhibit '1o3' : One chunni.
Exhibit '1o4' : One brassiere.
Parcel '2' : One sealed cardboard box parcel sealed
with the seal of "SD" containing exhibits '2a', '2b', '2c', '2d', '2e', '2f', '2g', '2h' & '2i'.
Exhibit '2a' : Dark brown foul smelling liquid kept in a tube described as 'Blood sample'.
Exhibit '2b' : Gauze cloth piece having brown stains described as 'Blood soaked gauze'.
Exhibit '2c' : Few strands of hair kept in a tube described as 'Plucked pubic hair'.
Exhibit '2d' : Few strands of hair kept in a tube described as 'Cut pubic hair'.
Exhibit '2e' : Bunch of hair kept in a tube described as 'Cut 43 of 133 44 FIR No. 389/11 PS - Vijay Vihar scalp hair'.
Exhibit '2f' : Bunch of hair kept in a tube described as 'Plucked scalp hair'.
Exhibit '2g' : One underwear.
Exhibit '2h1' : Two microslides having very faint whitish
& '2h2' smear described as 'Peripheral smear'.
Exhibit '2i1' : Two microslides having brown smear
& '2i2' described as 'Blood smear'.
RESULTS OF ANALYSIS
1. Blood was detected on exhibits '1m', '1n', '2a', '2b', '2i1' & '2i2'.
2. Blood could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1h', '1i', '1j', '1k', '1l', '1o1', '1o2', '1o3', '1o4', '2c', '2d', '2e', '2f', '2g', '2h1' & '2h2'.
3. Human semen was detected on exhibits '1a', '1b', '1c', '1e', '1f', '1g1', '1g2', '1o1' & '2g'.
4. Semen could not be detected on exhibits '1d', '1h', '1i', '1j', '1k', '1l', '1o2', '1o3', '1o4', '2c', '2d', '2e', '2f', '2h1', '2h2', '2i1' & '2i2'.
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'.
The serological report Ex. PW18/K reads as under : Exhibits Species of origin ABO Grouping/Remarks 44 of 133 45 FIR No. 389/11 PS - Vijay Vihar Blood Stains:
'1m' Blood sample Sample blood putrefied, hence no opinion '1n' Blood sample Sample blood putrefied, hence no opinion '2a' Blood sample Sample blood putrefied, hence no opinion '2b' Gauze cloth piece Human 'B' group Semen stains:
'1a' Cotton wool swab No reaction '1b' Cotton wool swab No reaction '1c' Cotton wool swab No reaction '1e' Cotton wool swab No reaction '1f' Cotton wool swab No reaction '1o1' Salwar 'AB' group '2g' Underwear No reaction
As per the biological report Ex. PW18/J, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW4/A, dated 06/10/2013 & parcel no. 2 belongs to the accused Paramjeet @ Sonu which was seized vide seizure memo Ex.
PW9/A, dated 07/10/2011.
45 of 133 46 FIR No. 389/11 PS - Vijay Vihar On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1m' (Dark brown foul smelling liquid described as EDTA Blood sample of prosecutrix), exhibit '1n' (Dark brown foul smelling liquid stated to be blood of prosecutrix), exhibit '2a' (Blood sample of accused Paramjeet @ Sonu), exhibit '2b' (Blood soaked gauze of accused Paramjeet @ Sonu), exhibit '2i1' (Blood smear of accused Paramjeet @ Sonu) & exhibit '2i2' (Blood smear of accused Paramjeet @ Sonu); blood could not be detected on exhibit '1a' (Rt. Vulval swab of the prosecutrix), exhibit '1b' (Lt. Vulval swab of the prosecutrix), exhibit '1c' (Anterior vaginal wall swab of the prosecutrix), exhibit '1d' (Post. Vaginal wall swab of the prosecutrix), exhibit '1e' (Rt. Lateral vaginal wall of the prosecutrix), exhibit '1f' (Lt. Lateral vaginal wall of the prosecutrix), exhibit '1h' (Pubic hair cutting of the prosecutrix), exhibit '1i' (Rt. Hand nail cutting of the prosecutrix), exhibit '1j' (Lt. Hand nail cutting of the prosecutrix), exhibit '1k' (Rt. Nail scrapping of the prosecutrix), exhibit '1l' (Lt. Nail scrapping of the prosecutrix), exhibit '1o1' (Salwar of the prosecutrix), exhibit '1o2' (Lady's shirt of the prosecutrix), exhibit '1o3' (Chunni of the prosecutrix), exhibit 46 of 133 47 FIR No. 389/11 PS - Vijay Vihar '1o4' (Brassiere of the prosecutrix), exhibit '2c' (Plucked pubic hair of the accused Paramjeet @ Sonu), exhibit '2d' (Cut pubic hair of the accused Paramjeet @ Sonu), exhibit '2e' (Cut scalp hair of the accused Paramjeet @ Sonu), exhibit '2f' (Plucked scalp hair of the accused Paramjeet @ Sonu), exhibit '2g' (Underwear of the accused Paramjeet @ Sonu), exhibit '2h1' (Peripheral smear of the accused Paramjeet @ Sonu) & exhibit '2h2' (Peripheral smear of the accused Paramjeet @ Sonu); Human semen was detected on exhibit '1a' (Rt. Vulval swab of the prosecutrix), exhibit '1b' (Lt. Vulval swab of the prosecutrix), exhibit '1c' (Anterior vaginal wall swab of the prosecutrix), exhibit '1e' (Rt. Lateral vaginal wall of the prosecutrix), exhibit '1f' (Lt. Lateral vaginal wall of the prosecutrix), exhibit '1g1' (Vaginal smear of the prosecutrix), exhibit '1g2' (Vaginal smear of the prosecutrix), exhibit '1o1' (Salwar of the prosecutrix) & exhibit '2g' (Underwear of the accused Paramjeet @ Sonu) and semen could not be detected on exhibit '1d' (Post. Vaginal wall swab of the prosecutrix), exhibit '1h' (Pubic hair cutting of the prosecutrix), exhibit '1i' (Rt. Hand nail cutting of the prosecutrix), exhibit '1j' (Lt. Hand nail cutting of the prosecutrix), exhibit '1k' (Rt. Nail scrapping of the prosecutrix), exhibit 47 of 133 48 FIR No. 389/11 PS - Vijay Vihar '1l' (Lt. Nail scrapping of the prosecutrix), exhibit '1o2' (Lady's shirt of the prosecutrix), exhibit '1o3' (Chunni of the prosecutrix), exhibit '1o4' (Brassiere of the prosecutrix), exhibit '2c' (Plucked pubic hair of the accused Paramjeet @ Sonu), exhibit '2d' (Cut pubic hair of the accused Paramjeet @ Sonu), exhibit '2e' (Cut scalp hair of the accused Paramjeet @ Sonu), exhibit '2f' (Plucked scalp hair of the accused Paramjeet @ Sonu), exhibit '2h1' (Peripheral smear of the accused Paramjeet @ Sonu), exhibit '2h2' (Peripheral smear of the accused Paramjeet @ Sonu), exhibit '2i1' (Blood smear of the accused Paramjeet @ Sonu) & exhibit '2i2' (Blood smear of the accused Paramjeet @ Sonu). As per the serological report Ex. PW18/K 'Samples were putrefied hence no opinion' could be given with regard to 'Species of origin' and ABO Grouping/Remarks on the exhibit '1m' (Blood Sample of the prosecutrix), exhibit '1n' (Blood Sample of the prosecutrix) & exhibit '2a' (Blood Sample of the accused Paramjeet @ Sonu). The opinion as 'Human' and ABO Grouping/Remarks as 'B Group' was given on the exhibit 2b (Blood soaked gauze of accused Paramjeet @ Sonu). The opinion as 'No Reaction' with regard to 'ABO Grouping/Remarks' and no opinion with regard to 'Species of origin' was given on the exhibit 48 of 133 49 FIR No. 389/11 PS - Vijay Vihar '1a' (Rt. Vulval swab of the prosecutrix), exhibit '1b' (Lt. Vulval swab of the prosecutrix), exhibit '1c' (Anterior vaginal wall swab of the prosecutrix), exhibit '1e' (Rt. Lateral vaginal wall of the prosecutrix), exhibit '1f' (Lt. Lateral vaginal wall of the prosecutrix). The opinion as 'AB Group' with regard to ABO Grouping/Remarks and no opinion with regard to 'Species of origin' was given on the exhibit 1o1 (Salwar of the prosecutrix). The opinion as 'No Reaction' with regard to ABO Grouping/Remarks and no opinion with regard to 'Species of origin' was given on the exhibit 2g (Underwear of the accused Paramjeet @ Sonu).
As per the biological report Ex. PW18/J, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1a' (Rt. Vulval swab of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1b' (Lt. Vulval swab of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1c' (Anterior vaginal wall swab of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1e' (Rt. Lateral vaginal wall of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1f' (Lt. Lateral 49 of 133 50 FIR No. 389/11 PS - Vijay Vihar vaginal wall of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1g1' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1g2' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1o1' (Salwar of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011) & exhibit '2g' (Underwear of the accused Paramjeet @ Sonu seized vide seizure memo Ex. PW9/A dated 07/10/2011). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1a', '1b', '1c', '1e', '1f', '1g1', '1g2', '1o1' and '2g' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Paramjeet @ Sonu and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
FORENSIC EVIDENCE (CHEMICAL)
16. PW19 - Jitender Kumar has proved the Forensic Evidence 50 of 133 51 FIR No. 389/11 PS - Vijay Vihar (Chemical) Report Ex. PW19/A bearing his signatures at point 'A'.
As per the chemical examination report Ex. PW19/A the description of articles contained in parcel and result of analysis reads as under : DETAILS OF THE PARCELS/EXHIBITS RECEIVED No. of Parcels/ No. of Seals and Description of Parcels/ Exhibits Seal Impression Exhibits Parcel - 1 Five seals of "PSH One sealed envelope. It was FSL DELHI" found to contain exhibits 1a, 1b, 1c, 1d, 1e, 1f, 1g1, 1g2, 1h, 1i, 1j, 1k, 1l, 1m, 1n, 1o1, 1o2, 1o3 & 1o4 Exhibit '1M' One vaccutainer containing reddish brown colour liquid approx 1 ml stated to be blood.
Exhibit '1N' One vaccutainer containing reddish brown colour liquid approx 1 ml stated to be blood.
RESULTS OF EXAMINATION REPORT On Chemical, Microscopic, TLC & GCHS examination, ethyl and methyl alcohol, alkaloids, barbiturates, tranquilizers could not be detected in exhibits '1M' & '1N'.
51 of 133 52 FIR No. 389/11 PS - Vijay Vihar As per the Chemical Examination Report Ex. PW19/A, with regard to the description of the articles/exhibits contained in the Parcel No. 1 it is noticed that Parcel No. 1 belongs to the prosecutrix.
On careful perusal and analysis of the Chemical Examination Report Ex. PW19/A, it shows that ethyl and methyl alcohol, alkaloids, barbiturates, tranquilizers could not be detected in exhibit '1m' (Reddish brown colour liquid stated to be blood of the prosecutrix) and exhibit '1n' (Reddish brown colour liquid stated to be blood of the prosecutrix).
17. Now let the testimony of PW5 Prosecutrix be perused and analysed.
PW5 prosecutrix, in her examinationinchief recorded on 05/03/2013 has deposed which is reproduced and reads as under : "My husband for the last 1012 years was engaged in the 52 of 133 53 FIR No. 389/11 PS - Vijay Vihar business of apples. About two years ago, three persons came to me and they gave Rs. 35,000/ to my husband and thereafter, for two to three days, the said persons telephoned me to inquire as to where my husband is, on which I told them he has not come so far and they told that they have to take money from my husband. It was raining very heavily. Out of the said three persons, two persons came to my house and one of them caught hold of me and the other gave a hurt to me on my head. (Court observation : The witness made a gesture towards the back of her head while deposing regarding the hurt given to her on the head). Both the said persons committed galat kaam (wrong deed) with me. Galat Kaam I mean that they torn my clothes and the act which is done by a husband with his wife. I was not knowing the names of the said two persons. I disclosed about the incident committed by the said two persons to my neighbours. The neighbours asked me whether I was knowing those two persons, I said 'no'. The third person who was standing outside on that day when the said two persons had entered into my house and committed galat kaam with me, I called the said third person after two days by telephoning him. The neighbours were tipped about it. The said third person came to my house. Then, the Police was called by me. Police made inquiries from him and inquired from him about the said two persons who had committed galat kaam with me. The said third person was taken by the Police on the bike with them. The said third person was of village Khalila. Till date, I do not know the names of all the three persons. Police got me medically examined. As my medical examination was got conducted by the Police, a word had spread in the locality, during the same time, my son named Ankit, aged around eight years at that time, was got kidnapped from his School. Due to being the village atmosphere and as I was told about my kins, the brothers and others in the village and a sort of Panchayat was held counselling me not 53 of 133 54 FIR No. 389/11 PS - Vijay Vihar to pursue the matter any further, so I did not lodge any Police complaint about the said incident. My statement was recorded before the Magistrate and in the said statement, I had told that there was a quarrel between the said three persons and between me and my husband and family members and for this reason, I had wrongly named and falsely implicated the said three persons. After that, I returned back to my house. After 2/3 days thereof, my son Ankit was dropped at my parental house. Thereafter, for two or three months, I kept well (Mein theek rahi). As the Panipat is a small area and due to the word of defamation (Badnami) nobody was ready to give the house on rent to me. After one or two months of the committal of the aforesaid incident by the aforesaid three persons, Sonu Monu who also used to say that lovingly he is also called as Rinku and whose name later on I came to know as Paramjit, telephoned me. I can identify the said Paramjit @ Sonu Monu @ Rinku if shown to me.
At this stage the wooden partition has been removed and witness pointed out towards accused Paramjit @ Sonu Monu @ Rinku and correctly identified him.
At this stage the wooden partition has been restored to its original position.
Accused Paramjit phoned me for three months at Panipat but he did not come and meet me. He used to phoned me by three four different numbers. One of the number was having '74' at its end, One of the number was having '55' at its end. I am illiterate and only fifth class pass. Paramjit told me to come to Delhi as "you have already been defamed" (tumhari pehle he badnami ho gaye he) and in Delhi nobody will come to know about you and he will arrange some small (choti moti) job for me. I had lied to him that I am 8th class pass. I shifted to Delhi 54 of 133 55 FIR No. 389/11 PS - Vijay Vihar within 20/25 days with my bag and luggage and started living in House No. 182, Pocket 26, Sector 24, Rohini thereof. I made a call to Paramjit 20 days thereafter after obtaining the Delhi number. I do not remember the Delhi number. Paramjit used to say to come to my flat but I declined saying that my husband can come at any time. He told me neither I allow him to come to flat nor I meet him on which he used to get angry and in this angerness was not calling me for days together even for ten days. He kept on saying like this for three months but I did not meet him. After three months he (Paramjit) told me on phone, "you are not calling me for tea, let you come for tea" and asked me to come to meet the person who is to give the job / employment to me and it was fifth day of 10th calender month, about 1½ years from today and it was the Dussehra day. I asked Paramjit as to how I will recognize him. He told me when you step out the house and hire the auto let he to have a talk with the autowalla and he will pay the auto fare. He called me at Rithala Metro station and autowalla dropped me at Rithala Metro Station. I reached at Rithala Metro Station at about 3:00 p.m. and had waited for Paramjit for one hour upto 4:00 p.m. He was present nearby and was watching me and he was taking rounds of that place in a vehicle. When I telephoned him he did not picked it up. Thereafter, he coming near to me and rolling down the windowpane of the vehicle and gave a call on my phone and when I picked it up but it was disconnected form the other side. He on seeing me started laughing and saying that he is the person (main he hoon woh ladka). After identifying from his features, his ears, his physique like a wrestler and his wearing Gem studded rings regarding which he used to tell during the phone calls which lasted for a period, then only I sat in the vehicle. He was accompanied by one more other person at that time in the vehicle. He did not step out of the vehicle. The vehicle was white colour car. I do not know its make and 55 of 133 56 FIR No. 389/11 PS - Vijay Vihar number."
During her further examinationinchief recorded on 22/04/2013 (Before Lunch), PW5 - prosecutrix has deposed that : "Thereafter, Paramjeet after giving two mobile phones of big size and some money to the other person who was present in the vehicle made him alighted from the vehicle (Gaadi se utar diya). Paramjeet then sped away with me in that vehicle. Paramjeet in the vehicle had asked me whether I would like to have tea or cold drink (thanda) and he brought the black colour thanda for me and after about 1015 minutes of its bringing, I drank that black colour thanda . After drinking that black colour thanda, my tounge (tongue) stuck in my mouth (meri jib nahi uthi) and I became numb/ senseless and became a sort of statue. And Paramjeet drove the vehicle with me for about an hour and had passed through the way going outside Delhi on the sides of which the agricultural field like Bajra fell. The house in which I was taken by Paramjeet, Paramjeet continued to make call to that person before I was taken in that house. I do not know whether it was colony or village, the house in which I was taken by Paramjeet. The vehicle was stopped at a distance away from the house where I was taken by Paramjeet. There after alighting me from the vehicle as I was not able to walk and my eyes were red , Paramjeet after holding my arm had taken me in that house and on the way to that house the children were playing and there were pits (Gadhe). There were two rooms in that house. There in the house two ladies, one boy of aged about 1820 years and one child (Bacha) were present and that child was making some toys (Khilone bana raha 56 of 133 57 FIR No. 389/11 PS - Vijay Vihar tha). Paramjeet made me to sit in the first room of that house. Both the ladies were coming to the room and after seeing me were laughing/smiling. Paramjeet put the bolt of the room from inside (ander se kundi mar li). That room was having the gas stove, utensils, the clothes were hanging on the cloth line (bilanglni). When Paramjeet forcibly pulled (khicha) me towards him, as I was not able to stand, I either used to fell on the utensils or on the gas stove and then Paramjeet after lifting me used to push on the Diwan lying there and as after felling on the utensils a noise was made, the ladies present there used to knock at the door on which Paramjeet after opening the bolt used to say something to the ladies on which the ladies used to go after smiling and thereafter again the bolt was put by Paramjeet. As I was very much tired and my hands and feet were not working, my all the clothes were removed by Paramjeet and thereafter, he committed Galat Kam with me. Galat Kam I mean what is being done by a husband with his wife. Thereafter, firstly he put on his clothes and then he made me wear clothes. Thereafter, Paramjeet took me out from that room and made me to sit in the vehicle in which he had brought me. The vehicle was parked just outside (Barna) just outside of the gate of the house. I do not know as to which way he took and brought me back and dropped me. The place where I was dropped by Paramjeet, there a crowd had gathered, the boys present in the crowd put (dala) water on my head. (Court Observation : The witness made a gesture with her right hand while making this part of the statement regarding putting of the water on her head). On which I started weeping bitterly (jor jor se rone lagi). I asked the persons present there as to which place is this? And I was told that it is Peeragari. I do not know as to whom among the crowd made a call to the Police and as to when the Police came there and when police had taken me and I came to know at about 2:00 a.m. in the night, I came 57 of 133 58 FIR No. 389/11 PS - Vijay Vihar to know that I am in the Hospital. I do not know the name of the Hospital. Police had asked me as to who am I?, from where I have come? Two times my statements were recorded by two different Police. I do not know what was done by the police and what was done by the doctor. On the next day in the evening at about 7:00 p.m. I was discharged from the hospital."
During her further examinationinchief recorded on 22/04/2013 (After Lunch), PW5 - prosecutrix has deposed that : "My statement was recorded by the Police, the same is Ex. PW5/A, bearing my signature at point 'A'. My statement was also recorded u/s 164 Cr.P.C.
At this stage, one envelope sealed with the seal of 'VS', lying in the Court file is opened and proceedings u/s 164 Cr.P.C. are taken out. The envelop is Ex. PX1. My statement u/s 164 Cr.P.C. is Ex. PW5/B, bearing my signature at point 'A'. My clothes were taken into possession at the Hospital, which consisted of salwar and kamiz. I can also identify my clothes, if shown to me.
At this stage, MHC(M) has produced a sealed parcel No. 1, sealed with the seal of FSL. Same is opened and it found containing one chunni, one kamiz, one salwar & one bra, which the witness identifies to (be) the same belonging to her and the same are Ex. P1 to Ex. P4 respectively.
I can identify the vehicle in which I was taken away by Paramjeet, if shown to me.
58 of 133 59 FIR No. 389/11 PS - Vijay Vihar At this stage, Supardar (Superdar) Rajesh has produced the vehicle i.e. Santro Car HR13F1008 and stated that the vehicle is parked in the parking of Rohini Courts.
At this stage, the witness and the defence Counsel and Supdar (Superdar) have gone in the parking of the Rohini Courts and after coming there, the witness states that the vehicle which was used by Paramjeet in taking me away is the same vehicle, the Santro Car. The Santro Car is Ex. P5."
From the aforesaid narration of PW5 - prosecutrix, it is clear that her husband for the last 1012 years was engaged in the business of apples. About two years ago, three persons came to her and they gave Rs. 35,000/ to her husband and thereafter, for two to three days, the said persons telephoned her to inquire as to where her husband is, on which she told them he has not come so far and they told that they have to take money from her husband. It was raining very heavily. Out of the said three persons, two persons came to her house and one of them caught hold of her and the other gave a hurt to her on her head. (Court observation : The witness made a gesture towards the back of her head while deposing regarding the hurt given to her on the head). Both the said persons committed galat kaam (wrong deed) with her. Galat Kaam she means that they torn her clothes and the act which is done by a 59 of 133 60 FIR No. 389/11 PS - Vijay Vihar husband with his wife. She was not knowing the names of the said two persons. She disclosed about the incident committed by the said two persons to her neighbours. The neighbours asked her whether she was knowing those two persons, she said 'no'. The third person who was standing outside on that day when the said two persons had entered into her house and committed galat kaam with her, she called the said third person after two days by telephoning him. The neighbours were tipped about it. The said third person came to her house. Then, the Police was called by her. Police made inquiries from him and inquired from him about the said two persons who had committed galat kaam with her. The said third person was taken by the Police on the bike with them. The said third person was of village Khalila. Till date, she does not know the names of all the three persons. Police got her medically examined. As her medical examination was got conducted by the Police, a word had spread in the locality, during the same time, her son named Ankit, aged around eight years at that time, was got kidnapped from his School. Due to being the village atmosphere and as she was told about her kins, the brothers and others in the village and a sort of Panchayat was held counselling her not to pursue the matter any further, so she did not lodge 60 of 133 61 FIR No. 389/11 PS - Vijay Vihar any Police complaint about the said incident. Her statement was recorded before the Magistrate and in the said statement, she had told that there was a quarrel between the said three persons and between her and her husband and family members and for this reason, she had wrongly named and falsely implicated the said three persons. After that, she returned back to her house. After 2/3 days thereof, her son Ankit was dropped at her parental house. Thereafter, for two or three months, she kept well (Mein theek rahi). As the Panipat is a small area and due to the word of defamation (Badnami) nobody was ready to give the house on rent to her. After one or two months of the committal of the aforesaid incident by the aforesaid three persons, Sonu Monu who also used to say that lovingly he is also called as Rinku and whose name later on she came to know as Paramjit, telephoned her. She correctly identified accused Paramjit @ Sonu Monu @ Rinku in the Court. Accused Paramjit phoned her for three months at Panipat but he did not come and meet her. He used to phoned her by three four different numbers. One of the number was having '74' at its end, one of the number was having '55' at its end. She is illiterate and only fifth class pass. Paramjit told her to come to Delhi as she has already been defamed (tumhari pehle he 61 of 133 62 FIR No. 389/11 PS - Vijay Vihar badnami ho gaye he) and in Delhi nobody will come to know about you and he will arrange some small (choti moti) job for her. She had lied to him that she is 8th class pass. She shifted to Delhi within 20/25 days with her bag and luggage and started living in House No. 182, Pocket 26, Sector 24, Rohini thereof. She made a call to Paramjit 20 days thereafter after obtaining the Delhi number. She does not remember the Delhi number. Paramjit used to say to come to her flat but she declined saying that her husband can come at any time. He told her neither she allow him to come to flat nor she meet him on which he used to get angry and in this angerness was not calling her for days together even for ten days. He kept on saying like this for three months but she did not meet him. After three months he (Paramjit) told her on phone, "you are not calling me for tea, let you come for tea" and asked her to come to meet the person who is to give the job / employment to her and it was fifth day of 10th calender month, about 1½ years from today and it was the Dussehra day. She asked Paramjit as to how she will recognize him. He told her when she step out the house and hire the auto let he to have a talk with the autowalla and he will pay the auto fare. He called her at Rithala Metro Station and autowalla dropped her at Rithala Metro 62 of 133 63 FIR No. 389/11 PS - Vijay Vihar Station. She reached at Rithala Metro Station at about 3:00 p.m. and had waited for Paramjit for one hour upto 4:00 p.m. He was present nearby and was watching her and he was taking rounds of that place in a vehicle. When she telephoned him he did not picked it up. Thereafter, he coming near to her and rolling down the windowpane of the vehicle and gave a call on her phone and when she picked it up but it was disconnected form the other side. He on seeing her started laughing and saying that he is the person (main he hoon woh ladka). After identifying from his features, his ears, his physique like a wrestler and his wearing Gem studded rings regarding which he used to tell during the phone calls which lasted for a period, then only she sat in the vehicle. He was accompanied by one more other person at that time in the vehicle. He did not step out of the vehicle. The vehicle was white colour car. She does not know its make and number. Thereafter, Paramjeet after giving two mobile phones of big size and some money to the other person who was present in the vehicle made him alighted from the vehicle (Gaadi se utar diya). Paramjeet then sped away with her in that vehicle. Paramjeet in the vehicle had asked her whether she would like to have tea or cold drink (thanda) and he brought the black colour thanda for her and after 63 of 133 64 FIR No. 389/11 PS - Vijay Vihar about 1015 minutes of its bringing, she drank that black colour thanda. After drinking that black colour thanda, her tongue stuck in her mouth (meri jib nahi uthi) and she became numb/senseless and became a sort of statue. And Paramjeet drove the vehicle with her for about an hour and had passed through the way going outside Delhi on the sides of which the agricultural field like Bajra fell. The house in which she was taken by Paramjeet, Paramjeet continued to make call to that person before she was taken in that house. She does not know whether it was colony or village, the house in which she was taken by Paramjeet. The vehicle was stopped at a distance away from the house where she was taken by Paramjeet. There after alighting her from the vehicle as she was not able to walk and her eyes were red, Paramjeet after holding her arm had taken her in that house and on the way to that house the children were playing and there were pits (Gadhe). There were two rooms in that house. There in the house two ladies, one boy of aged about 1820 years and one child (Bacha) were present and that child was making some toys (Khilone bana raha tha). Paramjeet made her to sit in the first room of that house. Both the ladies were coming to the room and after seeing her were laughing/smiling. Paramjeet put the bolt of the room from inside (ander 64 of 133 65 FIR No. 389/11 PS - Vijay Vihar se kundi mar li). That room was having the gas stove, utensils, the clothes were hanging on the cloth line (bilanglni). When Paramjeet forcibly pulled (khicha) her towards him, as she was not able to stand, she either used to fell on the utensils or on the gas stove and then Paramjeet after lifting her used to push on the Diwan lying there and as after felling on the utensils a noise was made, the ladies present there used to knock at the door on which Paramjeet after opening the bolt used to say something to the ladies on which the ladies used to go after smiling and thereafter again the bolt was put by Paramjeet. As she was very much tired and her hands and feet were not working, her all the clothes were removed by Paramjeet and thereafter, he committed Galat Kaam with her. Galat Kaam she means what is being done by a husband with his wife. Thereafter, firstly he put on his clothes and then he made her wear clothes. Thereafter, Paramjeet took her out from that room and made her to sit in the vehicle in which he had brought her. The vehicle was parked just outside (Barna) just outside of the gate of the house. She does not know as to which way he took and brought her back and dropped her. The place where she was dropped by Paramjeet, there a crowd had gathered, the boys present in the crowd put (dala) water on 65 of 133 66 FIR No. 389/11 PS - Vijay Vihar her head. (Court Observation : The witness made a gesture with her right hand while making this part of the statement regarding putting of the water on her head). On which she started weeping bitterly (jor jor se rone lagi). She asked the persons present there as to which place is this? And she was told that it is Peeragari. She does not know as to whom among the crowd made a call to the Police and as to when the Police came there and when Police had taken her and she came to know at about 2:00 a.m. in the night, she came to know that she is in the Hospital. She does not know the name of the Hospital. Police had asked her as to who she is? from where she has come? Two times her statements were recorded by two different Police. She does not know what was done by the Police and what was done by the Doctor. On the next day in the evening at about 7:00 p.m. she was discharged from the hospital. Her statement was recorded by the Police, the same is Ex. PW5/A, bearing her signature at point 'A'. Her statement was also recorded u/s 164 Cr.P.C. At this stage, one envelope sealed with the seal of 'VS', lying in the Court file is opened and proceedings u/s 164 Cr.P.C. are taken out. The envelop is Ex. PX1. Her statement u/s 164 Cr.P.C. is Ex. PW5/B, bearing her signature at point 'A'. Her clothes were taken into possession 66 of 133 67 FIR No. 389/11 PS - Vijay Vihar at the Hospital, which consisted of salwar and kamiz. She also identified one chunni, one kamiz, one salwar & one bra to be the same belonging to her and the same are Ex. P1 to Ex. P4 respectively. She also identified Santro Car HR13F1008 as Ex. P5.
PW5 - Prosecutrix during her crossexamination/re examination by the Learned Addl. PP for the State recorded on 04/07/2013 and 16/08/2013, after her crossexamination by the Learned Defence Counsel has deposed that : "Presently I am living at Panipat, Haryana. I am living at Panipat since I left Delhi after registration of the present case."
"I do not remember the date of the complaint made by me and by my mother at Panipat against Sonu, Monu and Rinku of Panipat even after my coming to Delhi. It is wrong to suggest that I do not remember the date of complaint for the reason that I did not make any complaint at Panipat against Sonu, Monu & Rinku of Panipat.
Q. I put it to you that you had not made complaint at Panipat against Sonu, Monu & Rinku of Panipat but you had made complaint against Paramjeet and his brothers at Panipat as they were threatening and harassing you?
Ans. It is correct. Vol. I had made complaint against Paramjeet and his brothers at Panipat being in the impression that on behalf of
67 of 133 68 FIR No. 389/11 PS - Vijay Vihar Paramjeet and his brother, Sonu, Monu & Rinku are threatening and harassing me.
It is wrong to suggest that I am making wrong excuse for my making complaints against Paramjeet & his brothers or that I had consciously made the complaints against accused Paramjeet and his brothers as they were in fact threatening me regarding the present case.
I did not lodge any complaint regarding the incident of the consumption of poison, in order to save myself from the pressure and harassment of accused Sonu, Monu & Rinku of Panipat took place with me, at the time of hearing of the bail application of Paramjeet at Hon'ble Delhi High Court.
It is correct that I had made a complaint to Hon'ble Mr. Justice Manmohan of Delhi High Court and the copies thereof were also sent to Commissioner of Police, Home Minister and Hon'ble Chief Justice of Supreme Court regarding the pressurization of me by Paramjeet and his brothers.
Q. I put it to you that in the criminal case lodged at Panipat by you, there were no accused by the name of Sonu, Monu & Rinku in that case and none of the accused in that case was having wrestler type body structure ?
Ans. There were accused by the name of accused Sonu, Monu and Rinku as I was told by the Panchayat and there were also one accused who was having wrestler type body and the two accused were of the age ranging from 4550 years.
It is wrong to suggest that I am deposing falsely in this regard.
68 of 133 69 FIR No. 389/11 PS - Vijay Vihar It is wrong to suggest that I have compromised the matter with the accused and have been won over by him and his family members after my examination on 22.4.2013 and that is why I have taken a somersault during my crossexamination recorded on 04.7.2013 and cooked up a false story of Sonu, Monu & Rinku of Panipat in order to save the present accused Paramjeet @ Sonu."
During her crossexamination by the Learned Defence Counsel, recorded on 16/08/2013, after her crossexamination/re examination on behalf of the State PW5 - prosecutrix has deposed that : "It is correct that I had made the complaint against Paramjeet and his brothers at the time of hearing of bail application of accused Paramjeet at Delhi High Court when I had consumed poison, to Hon'ble Mr. Justice Manmohan of Delhi High Court and the copies thereof were also sent to Commissioner of Police, Home Minister and Hon'ble Chief Justice of Supreme Court under the pressure of Sonu, Monu & Rinku of Panipat. It is correct that the said complaints were got made by me by Sonu, Monu & Rinku so that Paramjeet may not come out on bail.
Q. I put it to you that Sonu, Monu & Rinku of Panipat have since been killed in an encounter of Punjab Police? Ans. I have heard about the encounter of one among them but do not know his name."
69 of 133 70 FIR No. 389/11 PS - Vijay Vihar Inspite of incisive crossexamination of PW5 - prosecutrix by the Learned Counsel for the accused nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of crossexamination. The testimony of PW5 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW5 - Prosecutrix is also found to be corroborated by the medical evidence as well as the biological and serological evidence as discussed hereinbefore.
The testimony of PW5 - Prosecutrix is also found to be in consonance with her statement Ex. PW5/A made to the Police.
The testimony of PW5 - prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW5/B. 70 of 133 71 FIR No. 389/11 PS - Vijay Vihar It is also to be noticed that PW5 - prosecutrix during her examinationinchief has correctly identified the accused by the name, Paramjit @ Sonu Monu @ Rinku and has not disputed the identity of the accused Paramjit @ Sonu Monu @ Rinku, being not the person/accused mentioned as Sanjay @ Rinku in her statement to the Police Ex. PW5/A as well as in her statement recorded u/s 164 Cr.P.C. Ex. PW5/B.
18. 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 71 of 133 72 FIR No. 389/11 PS - Vijay Vihar 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."
72 of 133 73 FIR No. 389/11 PS - Vijay Vihar On analysing the testimony of PW5 - Prosecutrix in the light of medical and gynaecological examination vide MLC Ex. PW7/A, Ex. PW6/A on the MLC Ex. PW7/A of the prosecutrix and biological and serological evidence, together with the MLC of accused Ex. PW3/A and Ex. PW9/A, as discussed hereinbefore, 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.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by the accused Paramjeet @ Sonu with PW5 - Prosecutrix without her consent.
NOW LET THE SUBMISSIONS/PLEA RAISED BY THE LEARNED DEFENCE COUNSEL BE ANALYSED AND APPRECIATED
19. Learned Counsel for accused submitted that the testimony of the prosecutrix does not inspire confidence. The prosecutrix PW5 (name withheld) has deposed in crossexamination dated 04/07/2013 73 of 133 74 FIR No. 389/11 PS - Vijay Vihar that, "It is correct that in the report lodged with the Police of Panipat regarding the incident which had taken place in the night, when it was raining out of the said three persons, two persons came to my house and one of them caught hold me and other gave hurt to me on my head and both the said persons committed Galat Kaam with me and the third person was standing outside, I have the name of all these three persons as Sonu, Monu and Rinku to the Police. It is correct that Sonu and Monu are wrestlers of State Level and are of short stature and are having broken ears as that of wrestlers." The prosecutrix PW5 has further deposed in her crossexamination that, "My statement was recorded, where inquiries were made from me by SI Vineet Pandey. Five/Six persons sitting in the Police Station were also shown to me by the Police. It is correct that five/six persons were shown to me in the Police Station by the Police to identify the person, who had committed Galat Kaam with me. It is correct that the five/six persons, shown to me by the Police, were of average height and wrestler type built. Sonu and Rinku of Panipat incident were also among the said five/six persons. Q. Is it correct that after taking black colour THANDA, you were in such a state/condition that you were able to give the name and description of the driver of the vehicle?
74 of 133 75 FIR No. 389/11 PS - Vijay Vihar A. It is correct.
Q. Is it correct that at the time when you were thrown from the vehicle, you were in such an intoxicated state/condition that you were not able to identify as to who committed the Galat Kaam and who had thrown you from the vehicle?
A. It is correct.
Q. I put it to you that the vehicle involved was a big size Sumo? A. I have no knowledge about the type of vehicles. Vol. I was told by the Police that it was a Sumo Vehicle.
Q. I put it to you that it was Rinku of Panipat, who had committed Galat Kaam with you on 05/10/2011 in the present case and not accused Paramjeet @ Sonu?
A. It is correct.
Q. I put it to you that on 05/03/2013 and 22/04/2013 you made the statement naming present accused Paramjeet @ Sonu falsely out of fear of Sonu, Monu and Rinku of Panipat?
A. It is correct. Vol. When I had earlier come to depose before the Court, prior to the Court date hearing, Sonu, Monu and Rinku of Panipat had given me beatings on the forearms and knees forcing me to name accused Paramjeet @ Sonu while the actual culprit was Rinku of Panipat. Prior to that when the hearing of the bail application of accused Paramjeet @ Sonu was pending before the Hon'ble Delhi High Court in order to save myself from the pressure and harassment of these persons Sonu, Monu and Rinku of Panipat, I consumed poison."
Learned Counsel further submitted that after going through this crossexamination of the prosecutrix, the prosecution case is liable to 75 of 133 76 FIR No. 389/11 PS - Vijay Vihar be rejected.
I have carefully perused and analysed the evidence on record.
The testimony of PW5 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW5 - prosecutrix has been 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 to falsely implicate him in the case.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
On analysing the entire testimony of PW5 - prosecutrix it transpires that she has described the scenario implicating the accused Paramjeet @ Sonu to be the author of the crime, of the committal of the 76 of 133 77 FIR No. 389/11 PS - Vijay Vihar sexual assault upon her.
At the cost of repetition, it is also to be noticed that PW5
- prosecutrix during her examinationinchief has correctly identified the accused by the name, Paramjit @ Sonu Monu @ Rinku and has not disputed the identity of the accused Paramjit @ Sonu Monu @ Rinku, being not the person/accused mentioned as Sanjay @ Rinku in her statement to the Police Ex. PW5/A as well as in her statement recorded u/s 164 Cr.P.C. Ex. PW5/B. It is not in dispute that accused Paramjeet @ Sonu refused to join the Test Identification Parade (TIP) proceedings Ex. PW18/G and that the TIP proceedings Ex.PW18/G has also not disputed by the Learned Counsel for the accused.
It is pertinent to reproduce the relevant part of examinationinchief of PW18 - SI Bineet Pandey IO, which reads as under : 77 of 133 78 FIR No. 389/11 PS - Vijay Vihar "On 13/10/2011, I got conduction (conducted) initial TIP of accused Paramjeet @ Sonu.
At this stage, one sealed envelop sealed with the seal of VS is opened and proceeding of judicial TIP of accused Paramjeet @ Sonu conducted by Sh. Vishal Singh, MM is taken out. The application for TIP is Ex. PW18/E bearing my signature at point X. Accused refused to participate in TIP proceeding and I obtained the copy of the TIP proceeding vide my application Ex. PW18/F bearing my signature at point X. The TIP proceedings is Ex. PW18/G (not disputed by the Ld. DC)."
On careful perusal of the TIP proceedings of accused Paramjeet @ Sonu Ex. PW18/G, it is found that for refusing to join the TIP he has made the statement to the effect that, "I do not want to join TIP as I have been falsely implicated in this case by the complainant."
The said statement of the accused for refusing to join the TIP clearly indicates that he has not given any ground relating to the possibility of his identification by the complainant/prosecutrix which created an apprehension in his mind like he was shown or his photographs were shown to the complainant/prosecutrix by the Police, for refusing to join the Test Identification Parade (TIP), that, Had he 78 of 133 79 FIR No. 389/11 PS - Vijay Vihar joined the TIP then he may have been identified by the complainant/prosecutrix.
In the circumstances, accused was under an obligation to explain how and under what circumstances, he refused to join the TIP. The absence of such an explanation becomes an additional link in the prosecution case.
As regards the plea raised by the Learned Counsel for the accused that, "the testimony of the prosecutrix does not inspire confidence. The prosecutrix PW5 (name withheld) has deposed in cross examination dated 04/07/2013 that, "It is correct that in the report lodged with the Police of Panipat regarding the incident which had taken place in the night, when it was raining out of the said three persons, two persons came to my house and one of them caught hold me and other gave hurt to me on my head and both the said persons committed Galat Kaam with me and the third person was standing outside, I have the name of all these three persons as Sonu, Monu and Rinku to the Police. It is correct that Sonu and Monu are wrestlers of State Level and are of 79 of 133 80 FIR No. 389/11 PS - Vijay Vihar short stature and are having broken ears as that of wrestlers." The prosecutrix PW5 has further deposed in her crossexamination that, "My statement was recorded, where inquiries were made from me by SI Vineet Pandey. Five/Six persons sitting in the Police Station were also shown to me by the Police. It is correct that five/six persons were shown to me in the Police Station by the Police to identify the person, who had committed Galat Kaam with me. It is correct that the five/six persons, shown to me by the Police, were of average height and wrestler type built. Sonu and Rinku of Panipat incident were also among the said five/six persons.
Q. Is it correct that after taking black colour THANDA, you were in such a state/condition that you were able to give the name and description of the driver of the vehicle?
A. It is correct.
Q. Is it correct that at the time when you were thrown from the vehicle, you were in such an intoxicated state/condition that you were not able to identify as to who committed the Galat Kaam and who had thrown you from the vehicle?
A. It is correct.
Q. I put it to you that the vehicle involved was a big size Sumo? A. I have no knowledge about the type of vehicles. Vol. I was told by the Police that it was a Sumo Vehicle.
Q. I put it to you that it was Rinku of Panipat, who had committed Galat Kaam with you on 05/10/2011 in the present case and not accused 80 of 133 81 FIR No. 389/11 PS - Vijay Vihar Paramjeet @ Sonu?
A. It is correct.
Q. I put it to you that on 05/03/2013 and 22/04/2013 you made the statement naming present accused Paramjeet @ Sonu falsely out of fear of Sonu, Monu and Rinku of Panipat?
A. It is correct. Vol. When I had earlier come to depose before the Court, prior to the Court date hearing, Sonu, Monu and Rinku of Panipat had given me beatings on the forearms and knees forcing me to name accused Paramjeet @ Sonu while the actual culprit was Rinku of Panipat. Prior to that when the hearing of the bail application of accused Paramjeet @ Sonu was pending before the Hon'ble Delhi High Court in order to save myself from the pressure and harassment of these persons Sonu, Monu and Rinku of Panipat, I consumed poison." and that, "after going through this crossexamination of the prosecutrix, the prosecution case is liable to be rejected", is concerned, on careful perusal and analysis of the evidence on record, the same is found to have no substance in view of the categorical deposition made by PW5 - prosecutrix during her examinationinchief recorded on 05/03/2013 and on 22/04/2013 (before lunch) which remained completely unchallenged on behalf of the accused.
81 of 133 82 FIR No. 389/11 PS - Vijay Vihar It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
At the cost of repetition, PW5 - prosecutrix in her examinationinchief recorded on 05/03/2013 has specifically deposed which is reproduced and reads as under : ".....Accused Paramjit phoned me for three months at Panipat but he did not come and meet me. He used to phoned me by three four different numbers. One of the number was having '74' at its end, One of the number was having '55' at its end. I am illiterate and only fifth class pass. Paramjit told me to come to Delhi as "you have already been defamed" (tumhari pehle he badnami ho gaye he) and in Delhi nobody will come to know about you and he will arrange some small (choti moti) job for me. I had lied to him that I am 8 th class pass. I shifted to Delhi within 20/25 days with my bag and luggage and started living in House No. 182, Pocket 26, Sector 24, Rohini thereof. I made a call to Paramjit 20 days thereafter after obtaining the Delhi number. I do not remember the Delhi number. Paramjit used to say to come to my flat but I declined saying that my husband can come at any time. He told me neither I allow him to come to flat nor I meet him on which he used to get angry and in this angerness was not calling me for days together even for ten days. He kept on saying like this for three months but I did 82 of 133 83 FIR No. 389/11 PS - Vijay Vihar not meet him. After three months he (Paramjit) told me on phone, "you are not calling me for tea, let you come for tea" and asked me to come to meet the person who is to give the job / employment to me and it was th fifth day of 10 calender month, about 1½ years from today and it was the Dussehra day. I asked Paramjit as to how I will recognize him. He told me when you step out the house and hire the auto let he to have a talk with the autowalla and he will pay the auto fare. He called me at Rithala Metro station and autowalla dropped me at Rithala Metro Station. I reached at Rithala Metro Station at about 3:00 p.m. and had waited for Paramjit for one hour upto 4:00 p.m. He was present nearby and was watching me and he was taking rounds of that place in a vehicle. When I telephoned him he did not picked it up. Thereafter, he coming near to me and rolling down the windowpane of the vehicle and gave a call on my phone and when I picked it up but it was disconnected from the other side. He on seeing me started laughing and saying that he is the person (main he hoon woh ladka). After identifying from his features, his ears, his physique like a wrestler and his wearing Gem studded rings regarding which he used to tell during the phone calls which lasted for a period, then only I sat in the vehicle. He was accompanied by one more other person at that time in the vehicle. He did not step out of the vehicle. The vehicle was white colour car. I do not know its make and number."
(Underlined by me) During her further examinationinchief recorded on 22/04/2013 (Before Lunch), PW5 - prosecutrix has specifically 83 of 133 84 FIR No. 389/11 PS - Vijay Vihar deposed which is reproduced and reads as under : "Thereafter, Paramjeet after giving two mobile phones of big size and some money to the other person who was present in the vehicle made him alighted from the vehicle (Gaadi se utar diya).
Paramjeet then sped away with me in that vehicle. Paramjeet in the vehicle had asked me whether I would like to have tea or cold drink (thanda) and he brought the black colour thanda for me and after about 1015 minutes of its bringing, I drank that black colour thanda. After drinking that black colour thanda, my tounge (tongue) stuck in my mouth (meri jib nahi uthi) and I became numb/senseless and became a sort of statue. And Paramjeet drove the vehicle with me for about an hour and had passed through the way going outside Delhi on the sides of which the agricultural field like Bajra fell. The house in which I was taken by Paramjeet, Paramjeet continued to make call to that person before I was taken in that house. I do not know whether it was colony or village, the house in which I was taken by Paramjeet. The vehicle was stopped at a distance away from the house where I was taken by Paramjeet. There after alighting me from the vehicle as I was not able to walk and my eyes were red, Paramjeet after holding my arm had taken me in that house and on the way to that house the children were playing and there were pits (Gadhe). There were two rooms in that house. There in the house two ladies, one boy of aged about 1820 years and one child (Bacha) were present and that child was making some toys (Khilone bana raha tha). Paramjeet made me to sit in the first room of that house. Both the ladies were coming to the room and after seeing me were laughing/smiling. Paramjeet put the bolt of the room from inside (ander se kundi mar li). That room was having the gas stove, utensils, the clothes were hanging on the cloth line (bilanglni). When Paramjeet forcibly pulled (khicha) 84 of 133 85 FIR No. 389/11 PS - Vijay Vihar me towards him, as I was not able to stand, I either used to fell on the utensils or on the gas stove and then Paramjeet after lifting me used to push on the Diwan lying there and as after felling on the utensils a noise was made, the ladies present there used to knock at the door on which Paramjeet after opening the bolt used to say something to the ladies on which the ladies used to go after smiling and thereafter again the bolt was put by Paramjeet. As I was very much tired and my hands and feet were not working, my all the clothes were removed by Paramjeet and thereafter, he committed Galat Kam with me.
Galat Kam I mean what is being done by a husband with his wife. Thereafter, firstly he put on his clothes and then he made me wear clothes. Thereafter, Paramjeet took me out from that room and made me to sit in the vehicle in which he had brought me. The vehicle was parked just outside (Barna) just outside of the gate of the house. I do not know as to which way he took and brought me back and dropped me."
(Underlined by me) It is also evident from the record that the factum of the consuming of black colour THANDA by the prosecutrix and the factum of the committal of Galat Kaam upon her on 05/10/2011 have not been disputed even in the extracted part of the crossexamination of PW5 - prosecutrix conducted by the Learned Counsel for the accused, forming the basis of the plea raised by the Learned Counsel for the accused.
85 of 133 86 FIR No. 389/11 PS - Vijay Vihar Moreover, the said plea raised by the Learned Counsel for the accused by extracting out a part of the crossexamination of PW5 - prosecutrix on the premises that she has taken a Uturn as to what she deposed in her examinationinchief does not come to the rescue of the accused as on analysing the entire testimony of PW5 - prosecutrix it transpires that she has described the scenario implicating the accused Paramjeet @ Sonu to be the author of the crime, of the committal of the sexual assault upon her. Further, it is settled law that if any witness has taken complete UTurn from what he had deposed in examinationin chief, then the chiefexamination part of the witness cannot be thrown out. (Ref. Brij Pal Singh (Shri) Vs. CBI 2011 VII AD (DELHI) 371).
Dealing with the effect of deposition in opposition by the witness in the crossexamination, the Hon'ble Supreme Court in cases Radha Mohan Singh @ Lal Saheb & Ors Vs. State of U.P. AND Kaushal Kishore Singh & Anr. Vs. State of U.P. (2006) 2 SCC 450, observed as under : ".....The testimony of PW1 - Ganesh Singh, who is an 86 of 133 87 FIR No. 389/11 PS - Vijay Vihar injured witness and PW4 Ramji Singh clearly establish the guilt of the accused. According to the case of the prosecution the incident took place shortly after sunset. The eyewitnesses have deposed that after the incident the deceased Hira Singh was carried on a cot to the "bandh", which is on the outskirts of the village. As no conveyance was available, the first informant had to wait for quite some time and thereafter a tempo was arranged on which the deceased was taken to the District Hospital where he medically examined by PW2 - Dr. Siddiqui at 9:00 p.m. It has come in the evidence that the village is at a distance of six miles from Police Station Kotwali, Ballia. The nonavailability of any conveyance is quite natural as it was Holi festival. Even PW3 - Mohan Yadav fully supported the prosecution case in his examinationinchief. In his cross examination, which was recorded on the same date, he gave details of the weapons being carried by each of the accused and also the specific role played by them in assaulting the deceased and other injured persons. As his crossexamination could not be completed it was resumed on the next day and then he gave a statement that he could not see the incident on account of darkness. His testimony has been carefully examined by the Learned Sessions Judge and also by two Learned Judges of the High Court (Hon'ble K. K. Mishra), J. and Hon'ble U. S. Tripathi, J.) and they have held that the witness, on account of pressure exerted upon him by the accused, tried to support them in his crossexamination on the next day. It has been further held that the statement of the witness, as recorded on the first day including his crossexamination, was truthful and reliable. It is well settled 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 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 87 of 133 88 FIR No. 389/11 PS - Vijay Vihar on a careful scrutiny thereof. (See 'Bhagwan Singh V. State of Haryana' AIR 1976 SC 202, 'Rabindra Kumar Dey V. State of Orissa' AIR 1977 SC 170, 'Syad Akbar V. State of Karnataka' AIR 1979 SC 1848 and 'Khujji V. State of M.P' AIR 1991 SC 1853)."
(Underlined by me) In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
20. Learned Counsel for accused submitted that the prosecutrix was medically examined and no injury on the person of the prosecutrix was found, thus the medical evidence is total inconsistent with the prosecution version.
I have carefully perused and analysed the evidence on record.
The medical and the gynaecological evidence has been discussed and analysed hereinbefore. PW7 - Dr. Brijesh Singh, CMO, SGM Hospital has proved the preliminary medical examination of the prosecutrix vide MLC Ex. PW7/A. PW6 - Dr. Hena Kausar, SR, Gynae & Obs., SGM Hospital has proved the 88 of 133 89 FIR No. 389/11 PS - Vijay Vihar gynaecological examination of PW5 - prosecutrix Ex. PW6/A on the MCL Ex. PW7/A. At the cost of repetition, PW7 Dr. Brijesh Singh, CMO, SGM Hospital has deposed that on 05/10/2011, prosecutrix (name withheld) w/o Jogender Singh age 32 Year female was brought to Hospital by Police for medical examination with alleged history of sexual assault on that day under the influence of some drugs. On local examination redness present over anterial aspect of neck and upper chest. Thereafter, the patient was referred to Gynae. He prepared the MLC which is Ex. PW7/A bearing his signature at Point 'A'.
At the cost of repetition, PW6 - Dr. Hena Kausar, SR, Gynae & Obs., SGM Hospital has deposed that on 05/10/2011, prosecutrix (name withheld) w/o Jogender Singh age 32 Year female was brought to Hospital by Police for medical examination with alleged history of sexual assault, on 05/10/2011 at about 6:00 p.m. by a person (Sanjay) and also with alleged history of drug intoxication followed by alleged sexual assault on that day. The patient was initially examined by 89 of 133 90 FIR No. 389/11 PS - Vijay Vihar CMO on duty and thereafter, the patient was referred to SR Gynae whereupon she was examined by her. On examination patient vital stable fully conscious and oriented, on per abdominal examination - soft. On per veginal examination - uteral RV, normal size, bilateral fornices free, non tender. On local examination no external injury mark - on perneal region. Following samples taken and handed over to SI/Vinit Pandey. 1. Right vulval swab. 2. Left vulval swab. 3. Anterial vaginal wall swab.
4. Posterior vaginal wall swab. 5. Right lateral vaginal wall swab. 6. Left lateral vaginal wall swab. 7. Vaginal smear. 8. Pubic hair cutting.
9. Right hand nail cutting. 10. Left hand nail cutting. 11. Right nail scraping. 12. Left nail scraping. 13. EDTA blood sample. 14. Plain blood sample. 15. Sample seal. 16. Clothing (Salwar Kamij, Dupatta of peach colour). Her examination on the MLC is in encircled and is exhibited as Ex. PW6/A bearing her signature at point 'A'.
There is nothing in the crossexamination of PW7 - Dr. Brijesh Singh and PW6 Dr. Hena Kausar so as to impeach their creditworthiness.
As regards the plea raised by the Learned Counsel for the 90 of 133 91 FIR No. 389/11 PS - Vijay Vihar accused that no injury was found on the person of the prosecutrix, is concerned, the absence of any injury does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or rupture of hymen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda 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. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
91 of 133 92 FIR No. 389/11 PS - Vijay Vihar It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for accused submitted that during the course of investigation the IO of this case had seized certain exhibits and the same were sent to FSL for examination. The FSL report is Ex. PW19/A which shows the result that, "On Chemical, Microscopic TLC & GCHS examination, ethyl and methyl alcohol, alkaloids barbiturates, 92 of 133 93 FIR No. 389/11 PS - Vijay Vihar tranquilizers could not be detected in exhibits '1M' & '1N'." Thus the scientific evidence also does not support the story that some intoxicating substance mixed in cold drink to be taken by the prosecutrix and the FSL report belies the story as alleged by the prosecutrix.
I have carefully perused and analysed the evidence on record.
PW19 - Jitender Kumar has proved the Forensic Evidence (Chemical) Report Ex. PW19/A bearing his signatures at point 'A'.
At the cost of repetition, as per Chemical Examination Report Ex. PW19/A the description of articles contained in parcel and result of analysis reads as under : DETAILS OF THE PARCELS/EXHIBITS RECEIVED No. of Parcels/ No. of Seals and Description of Parcels/ Exhibits Seal Impression Exhibits 93 of 133 94 FIR No. 389/11 PS - Vijay Vihar Parcel - 1 Five seals of "PSH One sealed envelope. It was FSL DELHI" found to contain exhibits 1a, 1b, 1c, 1d, 1e, 1f, 1g1, 1g2, 1h, 1i, 1j, 1k, 1l, 1m, 1n, 1o1, 1o2, 1o3 & 1o4 Exhibit '1M' One vaccutainer containing reddish brown colour liquid approx 1 ml stated to be blood.
Exhibit '1N' One vaccutainer containing reddish brown colour liquid approx 1 ml stated to be blood.
RESULTS OF EXAMINATION REPORT On Chemical, Microscopic, TLC & GCHS examination, ethyl and methyl alcohol, alkaloids, barbiturates, tranquilizers could not be detected in exhibits '1M' & '1N'.
Nondetection of any ethyl and methyl alcohol, alkaloids, barbiturates, tranquilizers in exhibits '1M' (Reddish brown colour liquid stated to be blood of the prosecutrix) & '1N' (Reddish brown colour liquid stated to be blood of the prosecutrix) does not falsify the case of the prosecution which is otherwise proved on record by the clear, cogent and convincing evidence.
94 of 133 95 FIR No. 389/11 PS - Vijay Vihar The sight cannot be lost of the fact that the gynaecological examination of PW5 - prosecutrix Ex. PW6/A on the MLC Ex. PW7/A was conducted on 05/10/2011 at 10:20 p.m. by PW6
- Dr. Hena Kausar, SR Gynae and the samples including the samples of exhibit '1M' (EDTA blood samples) and exhibit '1N' (Plain blood sample) of the prosecutrix were taken and during this period of about six hours, from the alleged administration of the intoxicant in the cold drink (THANDA) to the prosecutrix at about 4:00 p.m., it cannot be ruled out that due to physiological and metabolic activity in the body of the prosecutrix the intoxicant must have been neutralized, whereby remained nondetected in the Chemical Examination Report Ex. PW19/A. In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for accused submitted that according to the FSL report Ex. PW18/J, the group of the semen samples of the 95 of 133 96 FIR No. 389/11 PS - Vijay Vihar accused could not be determined, thus, the scientific evidence also does not support the story of the allegation of the rape and the FSL Report belies the story as alleged by the prosecutrix.
I have carefully perused and analysed the evidence on record.
The biological and the serological evidence Ex. PW18/J and Ex. PW18/K has been reproduced, discussed and analysed here inbefore.
At the cost of repetition, as per the biological report Ex. PW18/J, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1a' (Rt. Vulval swab of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1b' (Lt. Vulval swab of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1c' (Anterior vaginal wall swab of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1e' (Rt. Lateral vaginal wall of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), 96 of 133 97 FIR No. 389/11 PS - Vijay Vihar exhibit '1f' (Lt. Lateral vaginal wall of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1g1' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1g2' (Vaginal smear of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011), exhibit '1o1' (Salwar of the prosecutrix seized vide seizure memo Ex. PW4/A dated 06/10/2011) & exhibit '2g' (Underwear of the accused Paramjeet @ Sonu seized vide seizure memo Ex. PW9/A dated 07/10/2011). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1a', '1b', '1c', '1e', '1f', '1g1', '1g2', '1o1' and '2g' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Paramjeet @ Sonu and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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23. Learned Counsel for accused submitted that according to the MLC of the prosecutrix Ex. PW7/A, the alleged history was supplied to the Doctor by the prosecutrix as under : Alleged history of sexual assault on 05/10/2011 at about 6:00 p.m. by a person (Sanjay) alleged history some drug intoxication followed by alleged sexual assault today. The name of the accused person is not mentioned in MLC Ex. PW7/A. This piece of evidence shows that the name of the accused was not known to the prosecutrix till the time of her medical examination and as such the accused person has been falsely implicated in this case just to blackmail and extort money from him.
I have carefully perused and analysed the evidence on record.
Nonmentioning of the name of the accused Paramjeet @ Sonu in the alleged history of the MLC Ex. PW7/A does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
98 of 133 99 FIR No. 389/11 PS - Vijay Vihar At the cost of repetition, it is also to be noticed that PW5
- prosecutrix during her examinationinchief has correctly identified the accused by the name, Paramjit @ Sonu Monu @ Rinku and has not disputed the identity of the accused Paramjit @ Sonu Monu @ Rinku being not the person/accused mentioned as Sanjay @ Rinku in her statement to the Police Ex. PW5/A as well as in her statement recorded u/s 164 Cr.P.C. Ex. PW5/B. In case "Noor Salam Vs. State (Govt. of NCT of Delhi)", 2013 II AD (Cri.) (DHC) 322 it has been held that it is not mandatory for Doctor to record in MLC or to make enquiry from injured about name of assailant. Generally Doctors on duty do not ask for assailant's name. Omission of injured to disclose assailant's name to Doctor does not discredit her testimony.
As regards the theory propounded by the Learned Counsel for the accused that, "The name of the accused person is not mentioned in MLC Ex. PW7/A. This piece of evidence shows that 99 of 133 100 FIR No. 389/11 PS - Vijay Vihar the name of the accused was not known to the prosecutrix till the time of her medical examination and as such the accused person has been falsely implicated in this case just to blackmail and extort money from him", is concerned, the same has not at all been made probable, much established by any cogent evidence. Nor the said theory so propounded by the Learned Counsel for the accused was put to PW5
- prosecutrix during her entire lengthy and incisive crossexamination. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else. In the circumstances, the said theory, so propounded, is merely an afterthought and falls flat on the ground.
Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
100 of 133 101 FIR No. 389/11 PS - Vijay Vihar At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for accused submitted that it has come in the crossexamination of PW18 - SI Bineet Pandey dated 08/07/2014 that, "During the investigation of the case, I had come to know that prosecutrix was also complainant in two order (other) similar type of cases". He has deposed in further crossexamination that, "It is correct that during investigation that FIR No. 486/2011 under section 389/182/211/120B IPC and 13(ID) POC Act PS - Chandni Bagh, Panipat, Haryana was registered against the prosecutrix. Again said, it was not in my knowledge." Learned Counsel further submitted that the relevant certified documents have also placed on record against the prosecutrix showing her past conduct.
101 of 133 102 FIR No. 389/11 PS - Vijay Vihar I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap and as to what he intends to convey from the said plea so raised. Does he intend to convey that the prosecutrix is a woman of "easy virtues" or a woman of "loose moral character".
If it is so, it is not permissible as every woman has a right to protect her dignity and cannot be subjected to rape only for that reason.
In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"
can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be 102 of 133 103 FIR No. 389/11 PS - Vijay Vihar cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.
The Hon'ble Supreme Court in case, 'Md. Iqbal & Anr. Vs. State of Jharkhand' AIR 2013 SC 3077 while relying upon the observations of Narender Kumar Vs. State (NCT of Delhi) AIR 2012 SC 2281 had noted that even if a woman is of easy virtue or used to sexual intercourse, it cannot be a licence for any person to commit rape and it further held : "24. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in 103 of 133 104 FIR No. 389/11 PS - Vijay Vihar case the Court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
The Court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for accused submitted that the prosecution has failed to prove the alleged place of occurrence. No site plan of the place of occurrence has been placed on record.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, "the prosecution has failed to prove the alleged place of 104 of 133 105 FIR No. 389/11 PS - Vijay Vihar occurrence. No site plan of the place of occurrence has been placed on record", is concerned, PW18 - SI Bineet Pandey during his cross examination has specifically deposed that, "Prosecutrix did not take us to the place where the alleged rape was committed. I had asked prosecutrix to take me to the place of incident but she did not take me there. It is wrong to suggest that prosecutrix did not take me to the alleged place of rape for the reason that no such rape had occurred".
In the circumstances, there is an explainable reason and does not, in any way, adversely affect the case of the prosecution for the reason that PW5 - prosecutrix did not take the Police to the place of the occurrence. Moreover, it is evident from the record that no cross examination has been conducted of PW5 prosecutrix on behalf of the accused, with regard to the pointing out of the place of occurrence. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so accused is to blame himself and none else. In such a situation, the accused cannot be heard saying that since the prosecution has failed to prove the alleged place of occurrence, therefore adverse inference should be drawn against 105 of 133 106 FIR No. 389/11 PS - Vijay Vihar the prosecution.
Moreover, the sight cannot be lost of the fact that PW5 - prosecutrix who was made numb/senseless and a sort of statue by administering cold drink (Thanda), one is left wandering as to how, in such adverse circumstances, she could be expected to have anticipated the occurrence having an element of surprise and as to how her mental faculties could be expected to be attuned to absorb the details regarding the particulars of the place of incident. She was not taken by the accused for the survey of the locality/area, where the place of incident was situated.
At the cost of repetition, PW5 - prosecutrix during her examinationinchief recorded on 22/04/2013 (before lunch) has specifically deposed which is reproduced and reads as under : ".....Paramjeet then sped away with me in that vehicle. Paramjeet in the vehicle had asked me whether I would like to have tea or cold drink (thanda) and he brought the black colour thanda for me and after about 1015 minutes of its bringing, I drank that black colour thanda .
After drinking that black colour thanda, my tounge (tongue) stuck in my mouth (meri jib nahi uthi) and I became numb/ senseless and 106 of 133 107 FIR No. 389/11 PS - Vijay Vihar became a sort of statue. And Paramjeet drove the vehicle with me for about an hour and had passed through the way going outside Delhi on the sides of which the agricultural field like Bajra fell.
The house in which I was taken by Paramjeet, Paramjeet continued to make call to that person before I was taken in that house. I do not know whether it was colony or village, the house in which I was taken by Paramjeet. The vehicle was stopped at a distance away from the house where I was taken by Paramjeet. There after alighting me from the vehicle as I was not able to walk and my eyes were red , Paramjeet after holding my arm had taken me in that house and on the way to that house the children were playing and there were pits (Gadhe). There were two rooms in that house. There in the house two ladies, one boy of aged about 1820 years and one child (Bacha) were present and that child was making some toys (Khilone bana raha tha). Paramjeet made me to sit in the first room of that house. Both the ladies were coming to the room and after seeing me were laughing/smiling. Paramjeet put the bolt of the room from inside (ander se kundi mar li). That room was having the gas stove, utensils, the clothes were hanging on the cloth line (bilanglni). When Paramjeet forcibly pulled (khicha) me towards him, as I was not able to stand, I either used to fell on the utensils or on the gas stove and then Paramjeet after lifting me used to push on the Diwan lying there and as after felling on the utensils a noise was made, the ladies present there used to knock at the door on which Paramjeet after opening the bolt used to say something to the ladies on which the ladies used to go after smiling and thereafter again the bolt was put by Paramjeet. As I was very much tired and my hands and feet were not working, my all the clothes were removed by Paramjeet and thereafter, he committed Galat Kam with me.
Galat Kam I mean what is being done by a husband with his wife. Thereafter, firstly he put on his clothes and then he made me wear 107 of 133 108 FIR No. 389/11 PS - Vijay Vihar clothes. Thereafter, Paramjeet took me out from that room and made me to sit in the vehicle in which he had brought me. The vehicle was parked just outside (Barna) just outside of the gate of the house. I do not know as to which way he took and brought me back and dropped me."
(Underlined by me) At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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26. Learned Counsel for the accused submitted that there is variation on the type of vehicle allegedly used in the crime. During her crossexamination, PW5 - prosecutrix has deposed that it was a Sumo vehicle while the Police has seized a Santro Car.
I have carefully perused and analysed the evidence on record.
PW5 - Prosecutrix during her examinationinchief recorded on 05/03/2013 has deposed which is reproduced and reads as under : "The vehicle was white colour car. I do not know its make and number."
PW5 - Prosecutrix during her examinationinchief recorded on 22/04/2013 (after lunch) has deposed which is reproduced and reads as under : "I can identify the vehicle in which I was taken away by Paramjeet, if shown to me.
At this stage, Supardar (Superdar) Rajesh has produced the vehicle i.e. Santro Car HR13F1008 and stated that the vehicle is parked 109 of 133 110 FIR No. 389/11 PS - Vijay Vihar in the parking of Rohini Courts.
At this stage, the witness and the defence Counsel and Supdar (Superdar) have gone in the parking of the Rohini Courts and after coming there, the witness states that the vehicle which was used by Paramjeet in taking me away is the same vehicle, the Santro Car. The Santro Car is Ex. P5."
During her crossexamination by the Learned Counsel for the accused recorded on 04/07/2013, PW5 - prosecutrix has deposed that : "Q. I put it to you that the vehicle involved was a big size Sumo.
Ans. I have no knowledge about the type of vehicles. Vol. I was told by the Police that it was s Sumo vehicle."
From the aforesaid narration of PW5 - prosecutrix it is clearly indicated that she has identified the vehicle (Santro Car Ex. 5) which was used by accused Paramjeet in taking her away and she has not deposed about the type and make of the vehicle even during her cross examination as reproduced hereinabove, what she has categorically deposed is that she has no knowledge about the type of vehicles and voluntarily deposed that she was told by the Police that it was a Sumo 110 of 133 111 FIR No. 389/11 PS - Vijay Vihar vehicle.
PW18 - SI Bineet Pandey IO during his examinationin chief has specifically deposed that : "I recorded the supplementary statement of prosecutrix wherein the vehicle no. HR13F1008 was disclosed by the prosecutrix."
"On next day in the morning Ct. Ravinder was sent to the transport authority for collecting the details of ownership of vehicle no. HR13F1008."
"Constable Ravinder came back and told me that the owner of the above vehicle is Rajesh S/o Surat Singh R/o H. NO. 2496, Sec. 2, Bahadurgarh, Haryana . Thereafter I alongwith Ct. Ravinder and other staff reached at H. No. 2496, Sec. 2, Bahadurgarh, Haryana where we met Rajesh S/o Surat Singh whose statement was recorded."
"Thereafter we all alongwith Rajesh reached Tikri Border and at the instance of Rajesh we apprehended the accused Paramjeet @ Sonu. He was interrogated and arrested vide arrest memo already Ex. PW13/A, his personal search was conducted which is already Ex. PW13/B and he made disclosure statement already Ex. PW13/C all bearing my signature at point X. Thereafter accused Paramjeet @ Sonu got recovered Santro Car no. HR13F1008 from Tikri Border near Patrol Pump and the same was seized vide memo already Ex. PW13/D bearing my signature at point X."
111 of 133 112 FIR No. 389/11 PS - Vijay Vihar "I can identify the car if shown to me. The car is already Ex. P5 (Ld. DC does not press for producing the car in the court today)."
During his crossexamination, PW18 - SI Bineet Pandey IO has specifically deposed that : "It is correct that I had seized the Santro Car No. HR 13F 1008 white colour during the investigation."
On careful perusal and analysis of the testimony of PW18 - SI Bineet Pandey, IO it is found to be clear, cogent, convincing and a graphic details of the steps which he took during the course of investigation. There is nothing in his crossexamination so as to impeach his creditworthiness. There is also nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case. The said PW has deposed regarding the facts as to what he acted, perceived, observed and experienced during the course of investigation.
It is also to be noticed that PW18 - SI Bineet Pandey IO was not crossexamined nor confronted with on the fact voluntarily deposed by PW5 - prosecutrix during her crossexamination as 112 of 133 113 FIR No. 389/11 PS - Vijay Vihar reproduced hereinabove that she was told by the Police that it was a Sumo vehicle.
It is also evident from the record that during the cross examination of PW5 - prosecutrix, the accused did not voice his concern or raised any apprehension on the aspect relating to the disclosure of the vehicle No. HR 13F 1008 to the IO in her supplementary statement, regarding which has been deposed by PW18 - SI Bineet Pandey IO during his examinationinchief as reproduced hereinabove.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for the accused submitted that the site plan Ex. PW18/B does not show kidnapping. Accused Paramjeet @ Sonu is not named in the site plan though, he was known to the prosecutrix. There is no reference of Sumo or any other car except mentioning of car. There is mentioning of name of Sanjay. Learned Counsel further submitted that as per the site plan Ex. PW18/B, it cannot be said that it 113 of 133 114 FIR No. 389/11 PS - Vijay Vihar was accused Paramjeet @ Sonu who took the prosecutrix in his car.
I have carefully perused and analysed the evidence on record.
The testimony of PW5 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW5 - prosecutrix has been 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 to falsely implicate him in the case.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
So far as the plea raised by the Learned Counsel for the accused that, "the site plan Ex. PW18/B does not show kidnapping. Accused Paramjeet @ Sonu is not named in the site plan though, he was 114 of 133 115 FIR No. 389/11 PS - Vijay Vihar known to the prosecutrix. There is no reference of Sumo or any other car except mentioning of car. There is mentioning of name of Sanjay. As per the site plan Ex. PW18/B, it cannot be said that it was accused Paramjeet @ Sonu who took the prosecutrix in his car", is concerned, PW18 - SI Bineet Pandey during his examinationinchief has specifically deposed that, "I prepared site plan at the instance of the prosecutrix and the same is Ex. PW18/B bearing my signature at point 'X'. During his crossexamination, PW18 - SI Bineet Pandey has categorically deposed that, "I prepared the site plan during the investigation of the case. I have seen site plan Ex. PW18/B and there is a mention of name of Sanjay in the foot note. It is correct that name of accused Paramjeet @ Sonu is not mentioned in the site plan Ex. PW18/B. During investigation I had gone to Rithala Metro Station but I did not find anyone who had seen prosecutrix sitting in the car. It is correct that the name of Sanjay, which was earlier told to me by the prosecutrix was found to be incorrect".
Moreover, the said theory propounded by the Learned Counsel for the accused that, "the site plan Ex. PW18/B does not show 115 of 133 116 FIR No. 389/11 PS - Vijay Vihar kidnapping. Accused Paramjeet @ Sonu is not named in the site plan though, he was known to the prosecutrix. There is no reference of Sumo or any other car except mentioning of car. There is mentioning of name of Sanjay. As per the site plan Ex. PW18/B, it cannot be said that it was accused Paramjeet @ Sonu who took the prosecutrix in his car" is concerned, it is evident from the record that the same was not put to PW5 - prosecutrix during her entire incisive and lengthy crossexamination. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.
At the cost of repetition, it is also to be noticed that PW5
- prosecutrix during her examinationinchief has correctly identified the accused by the name, Paramjit @ Sonu Monu @ Rinku and has not disputed the identity of the accused Paramjit @ Sonu Monu @ Rinku being not the person/accused mentioned as Sanjay @ Rinku in her statement to the Police Ex. PW5/A as well as in her statement recorded u/s 164 Cr.P.C. Ex. PW5/B. 116 of 133 117 FIR No. 389/11 PS - Vijay Vihar At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused submitted that PW15 - Sh. Bihari Lal and PW16 - Rajesh, brother of the accused have turned hostile and did not support the case of the prosecution.
117 of 133 118 FIR No. 389/11 PS - Vijay Vihar I have carefully perused and analysed the evidence on record.
The testimonies of PW15 - Sh. Bihari Lal and PW16 - Rajesh, brother of the accused have been discussed and detailed hereinbefore.
At the cost of repetition, PW15 Bihari Lal S/o Ranjeet, who deposed that he is doing the work of Mason. He does not know Paramjeet @ Sonu and he had never met him. He does not know anything about this case. This witness was also crossexamined by the Learned Addl. PP for the State as he was resiling from his previous statement.
During his crossexamination by the Learned Addl. PP for the State, PW15 - Bihari Lal has deposed that : "Delhi Police had met me in connection with the present case as I was called at Police Station in Rohini. Police had made a telephone call to me at my mobile No. 9812672903."
From the aforesaid narration of PW15 - Bihari Lal, it is 118 of 133 119 FIR No. 389/11 PS - Vijay Vihar clearly indicated that mobile No. 9812672903 belongs to him. The factum that mobile No. 9812672903 belongs to Bihari Lal also stands proved by PW8 Amar Nath Singh, Nodal Officer, Idea Cellular Ltd.
At the cost of repetition, PW8 Amar Nath Singh, Nodal Officer, Idea Cellular Ltd. in his examinationinchief has deposed that he has brought the summoned record. He has brought original Customer Application Form (CAF) of mobile No. 9812672903 which pertains to one Sh. Bihari Lal S/o Ranjeet (OSR). The same is Ex. PW8/A. The supporting document to the identity of Bihari Lal, he has brought xerox copy of Ration Card of Bihari Lal which is Mark 'X'. He has brought the certificate u/s 65B of Evidence Act. His signature is at point 'A'. The same is Ex. PW8/B. The Call Detail Record of telephone No. 9812672903 pertaining to Bihari Lal of the period from 05/10/2011 to 07/10/2011 is also tendered by him in Court. The same is Ex. PW8/C. The same is running into two pages. The Cell ID Chart of Idea Cellular Ltd. of Delhi is also brought by him which is running into 43 pages. The same is exhibited collectively as Ex. PW8/D1 to Ex. PW8/D43 and the 119 of 133 120 FIR No. 389/11 PS - Vijay Vihar Cell ID Chart pertaining to CDR of aforesaid number of Haryana is in one page. The same is Ex. PW8/E. During his crossexamination, PW8 - Amar Nath has deposed that : "Q. Please see the record which you have brought and proved on the record and point out what was the location of the caller of the mobile phone number 9812672903 on 05/10/2011 during the period from 2:30 p.m. to 5:00 p.m. within the jurisdiction of Rohini/Rithala area?
A. The relevant entries are encircles at points 'A' & 'B' of Ex. PW8/C and in conjunction with the entries in Cell ID, the caller was present at Mundka and Bahadurgarh respectively.
It is wrong to suggest that I am deposing falsely." There is nothing in the crossexamination of PW8 Amar Nath Singh, Nodal Officer, Idea Cellular Ltd. so as to impeach his creditworthiness. Nor it has been explained by the Learned Counsel for the accused as to in what manner the crossexamination of PW8 Amar Nath Singh comes to the rescue of the accused. Nor it has been explained as to what benefit he intends to reap from the cross examination of PW8 - Amar Nath.
120 of 133 121 FIR No. 389/11 PS - Vijay Vihar At the cost of repetition, PW16 Rajesh S/o Suraj Singh (be read as S/o Surat Singh), who deposed that he is the registered owner of Car No. HR13F1008 white colour Santro. Police had seized his car and he took the same on superdari vide Superdarinama Ex. PW16/A bearing his signature at point 'A'. He has brought the car which is parked in the parking area of the Court. The car is already exhibited as Ex. P5. He has also brought the registration certificate of his abovesaid car. The copy of the registration certificate is Ex. PW16/B (OSR). On 05/10/2011, this vehicle was with him and he took the same at Rohtak. This witness was also crossexamined by the Learned Addl. PP for the State as he was resiling from his previous statement.
PW16 - Rajesh during his crossexamination by the Learned Addl. PP for the State has admitted it to be correct that accused Paramjeet @ Sonu is his brother. During his examination inchief, he has specifically deposed that he was the registered owner of Car No. HR13F1088 White Colour Santro Ex. P5 and also deposed that he took the same on Superdari vide Superdaginama Ex.
121 of 133 122 FIR No. 389/11 PS - Vijay Vihar PW16/A and also proved the photocopy of its Registration Certificate as Ex. PW16/B. PW18 - SI Bineet Pandey during his crossexamination has admitted it to be correct that he had seized the Santro Car No. HR13F1008 (Ex. P5) white colour during the investigation.
The said part of crossexamination of PW18 - SI Bineet Pandey, clearly indicates the factum of seizure of Santro Car No. HR13F1008 Ex. P5 during the course of investigation by the Police. Nor the said fact has also been disputed by the accused. Nor it has been disputed by the accused that its (Santro Car No. HR13F1008 Ex. P5) registered owner was PW16 - Rajesh, brother of the accused, to whom it was released on Superdari vide Superdaginama Ex. PW16/A and the copy of its registration certificate is Ex. PW16/B. During the crossexamination of PW18 - SI Bineet Pandey IO, it was suggested to him that public witness Bihari Lal was a stock 122 of 133 123 FIR No. 389/11 PS - Vijay Vihar witness, which he negated. Bihari Lal has been examined as PW15, who has turned hostile. It is to be noticed that sometimes irrelevant suggestions are made to the witnesses during crossexamination without any basis by Learned Defence Counsel which consume precious judicial time, had PW15 - Bihari Lal been a stock witness of the Police as was suggested to IO, which he negated, then he (PW15 - Bihari Lal) certainly would not have turned hostile.
The hostility of PW15 - Sh. Bihari Lal and PW16 - Rajesh does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is settled legal proposition that the dependable part of the evidence of a hostile witness can be relied on.
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 123 of 133 124 FIR No. 389/11 PS - Vijay Vihar 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 Narayan 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 124 of 133 125 FIR No. 389/11 PS - Vijay Vihar testimony which he finds to be creditworthy and act upon it. If in a given 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 on 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)', (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 125 of 133 126 FIR No. 389/11 PS - Vijay Vihar Alli Vs. The State of Uttar Pradesh', AIR 1957 SC 366.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for accused submitted that it is not a case of rape but it is a case of consent.
I have carefully perused and analysed the evidence on record.
The testimony of PW5 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW5 - prosecutrix has been 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 to falsely implicate him in the case.
So far as the theory propounded by the Learned Counsel for the accused that, "it is not a case of rape but it is a case of 126 of 133 127 FIR No. 389/11 PS - Vijay Vihar consent", is concerned, on careful perusal and analysis of the entire evidence on record, it is found that the said theory so propounded has not at all been made probable much established by any cogent evidence. Nor the said theory so propounded was put to PW5 - prosecutrix during her entire incisive and lengthy crossexamination. Nor even a single word regarding the said theory so propounded was uttered by the accused during his statement recorded u/s 313 Cr.P.C.
In the circumstances, the said theory so propounded is found to have no substance and is merely an afterthought and falls flat on the ground.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel further submitted that the husband of the prosecutrix has not been examined nor has been cited as a witness.
I have carefully perused and analysed the evidence on record.
127 of 133 128 FIR No. 389/11 PS - Vijay Vihar The testimony of PW5 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW5 - prosecutrix has been 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 to falsely implicate him in the case.
So far as the plea raised by the Learned Counsel for the accused that, the husband of the prosecutrix has not been examined nor has been cited as a witness, is concerned, it is evident from the record that during the crossexamination of PW18 - SI Bineet Pandey, IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. 128 of 133 129 FIR No. 389/11 PS - Vijay Vihar State of U.P.' (1979) 4 SCC 345; 'State of U.P. Vs. Anil Singh' AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar' 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
The Hon'ble Supreme Court in case Takhaji Hiraji Vs Thakore Kubersing Chamansing 2001 IV AD (S.C) 393 has observed that : "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which would have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Non 129 of 133 130 FIR No. 389/11 PS - Vijay Vihar examination of such other witnesses may not be material. In such a case the Court ought to scrutinies the worth of the evidence adduced. The Court of facts must ask itself Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of the witnesses."
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
130 of 133 131 FIR No. 389/11 PS - Vijay Vihar In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for the accused referred to the cases and are reported as 'Suraj Mal Vs. The State' AIR 1979 SC 1408; 'Anil Kumar Vs. State of Punjab' 2000 (4) Crimes 283 (SC); 'Devesh Kumar Vs. State' 2010 (1) JCC 762; 'Rehmat Vs. The State of Haryana' 1996 1 SVLR (CR.) (SC); 'Kundan Lal & Ors. Vs. State' 2002 (2) JCC 873, 'Sadhu Ram @ Dalip Vs. State' 2010 (3) LRC 368 (Del), 'Ram Badal Vs. The State' 1987 CC Cases 383 (HC) and 'Vijay Singh Vs. State of MP' 2005 CRI.L.J. 299.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials 131 of 133 132 FIR No. 389/11 PS - Vijay Vihar would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
32. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 05/10/2011, at about 4:00 p.m., near Rithala Metro Station, accused Paramjeet @ Sonu after making sit PW5 - prosecutrix, aged around 31 years in Santro Car No. HR13F1008 white colour, Ex. P5 caused some stupefying or intoxicating substance mixed in cold drink offered to her, (on drinking the same her tongue stuck in her mouth and she became numb/senseless and became a sort of statue), to facilitate the commission of abduction and rape upon her and that he abducted the prosecutrix with intent to cause her to be secretly and wrongfully confined and thereafter wrongfully confined her in a house and that at the house, he committed rape upon the prosecutrix against her wishes and without her consent.
I accordingly hold accused Paramjeet @ Sonu guilty for the offences punishable u/s 328/365/376 IPC and convict him thereunder.
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33. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Paramjeet @ Sonu in the commission of the offences u/s 328/365/376 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 the accused Paramjeet @ Sonu beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Paramjeet @ Sonu guilty for the offences punishable u/s 328/365/376 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 21st Day of April, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 133 of 133