Delhi District Court
State vs ) Anil @ Balir on 17 December, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 81/01/10
Unique Identification No. 02404R0250672010
State
Versus
1) Anil @ Balir
S/o Sh. Ram Kumar
R/o Village & POKarala,
Delhi81
2) Vinay Kumar
Son of Sh. Bhagwan Dass
R/o A3/32, Utsav Vihar,
Village & PO Karala,
Delhi82
FIR No. 115/10
PS -Kanjhawala
U/s. 376(2) (g)/506/34 IPC
Date of Decision: 27/11/2012
Date of order on Sentence: 17/12/2012
ORDER ON SENTENCE
17/12/2012
Present. Ld. APP for the State.
Convict Vinay from J.C. with counsel Sh. R.P. Sharma.
Convict Anil @ Balir from J.C. with counsel Sh. Surender Kumar.
Heard on the point of sentence.
Learned defence counsel has contended that convict Vinay is aged about
SC No. 81/01/10 1
26 years. He is having father, aged 68 years, mother, aged 65 years, wife and
one child to maintain. He is a small shopkeeper. It is further contended that
convict Vinay is not involved in any other case nor he is a previous convict. It
is further contended that accused Vinay has not committed rape with the
prosecutrix. It is further contended that the only allegation against convict
Vinay as mentioned in Ex. PW1/A is "speak slowly, voice is coming out". It is
further contended that PW6 has nowhere stated that there was any door to the
room, so, there was no occasion for mentioning in Ex. PW1/A to the extent that
"speak slowly, voice is coming out". It is further contended that prosecutrix
has nowhere named accused Vinay. It is further contended that convict Vinay
is not a habitual offender.
In support of his contents learned defence counsel for convict Vinay
has relied upon 2004 CRI. L.J 3901 titled as Chinnakondu Kondaiah V.
State of A.P. , wherein it has been held that considering the fact that accused
was agriculturist having minor children and also aged parents dependent on
him, lesser sentence can be imposed.
It is further contended that convict Vinay is also behind bars in this
case from 16/06/2010 till today.
Learned defence counsel for convict Anil @ Balir has contended that
convict Anil @ Balid is aged about 26 years. He is having parents to maintain.
He is unmarried. He is a driver by profession. It is further contended that he is
not a previous convict nor habitual offender. .
It is further contended that convict Anil @ Balir is also behind bars
in this case from 16/06/2010 till today.
It is further contended that in view of above facts and
circumstances, a lenient view be taken.
SC No. 81/01/10 2
On the other hand, learned Addl. PP has contended that U/s. 376 (2)
(g) of IPC, minimum sentence is provided ten years, which may be for life and
is also punishable with fine. Ld. APP has contended that the judgment relied
upon by learned defence counsel is for offence U/s. 376 of IPC and not U/s.
376(2) (g) of IPC, which is a graver offence. Ld. APP has further contended
that prosecutrix be also compensated for the act of rape committed upon her by
the convicts.
Convicts Vinay and Anil @ Balir have been convicted for the
offences U/s. 376(2) (g) IPC and U/s. 506/34 of IPC.
Section 376(2) (g) of IPC is punishable with rigorous imprisonment
for a term which shall not be less than ten years, but which may be for life and
shall also be liable to fine.
Section 506 of IPC is punishable with imprisonment of either
description which may extend to two years or with fine or with both.
I have considered the submissions made on behalf of both the
convicts. I have also considered their age, character and antecedents. In my
view, there is no adequate or special reason to impose lesser sentence than 10
years minimum sentence as provided.
Accordingly, sentence of 10 years R.I. Is imposed on each convict
namely Vinay and Anil @ Balir with fine of Rs. 5,000/ each, ID three years
S.I. U/s. 376(2) (g) of IPC.
Sentence of two years S.I. Is imposed on each convict namely Vinay
and Anil @ Balir with fine of Rs. 5,000/ each, ID six months S.I. U/s. 506/34
of IPC.
Compensation to the tune of Rs. 50,000/ each convict is also
imposed, in default of payment of compensation, ID three year S.I, payable to
SC No. 81/01/10 3
the prosecutrix, if deposited and no appeal is preferred within the period of
limitation.
Both the substantive sentences of imprisonment shall run
concurrently.
Fine of Rs. 10,000/ is deposited by convict Anil @ Balir but
compensation not deposited.
Fine and compensation not deposited by convict Vinay.
Benefit of U/s. 428 of Cr.P.C. is given to the convict.
Both the convicts namely Vinay and Anil @ Balir are remanded to
serve the sentence.
Announced in the open court
On 17th of December, 2012
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track court, Rohini/Delhi
SC No. 81/01/10 4
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 81/01/10
Unique Identification No. 02404R0250672010
State
Versus
1) Vijay
Son of Gir Raj Singh
R/o A229, Utsav Vihar,
VillageKarala, Delhi81
FIR No. 115/10
PS -Kanjhawala
U/s. 341/366/376(2) (g)/506/34 IPC
Date of Decision: 27/11/2012
Date of order on Sentence: 17/12/2012
ORDER ON SENTENCE
17/12/2012
Present. Ld. APP for the State.
Convict Vijay from J.C. with Sh. Surender Kumar, proxy counsel for Sh.
Raj Kumar, counsel for convict Vijay.
Heard on the point of sentence.
Learned defence counsel has contended that convict Vijay is aged about
24 years. He is having old aged parents, wife and two children to maintain. It is
further contended that he is not a previous convict nor habitual offender. It is
further contended that no other case is pending against him. It is further
contended that he was working as a labourer in tile factory. It is further
SC No. 81/01/10 5
contended that in view of above facts and circumstances, a lenient view be
taken.
It is further contended that convict Vijay is behind bars in this case
from 16/06/2010 till today.
On the other hand, learned Addl. PP has contended that U/s. 376 (2)
(g) of IPC, minimum sentence is provided ten years, which may be for life and
is also punishable with fine. Ld. APP has further contended that prosecutrix be
also compensated for the act of rape committed upon her by the convicts.
Convict Vijay has been convicted for the offences U/s. 341 IPC,
U/s. 366 IPC, U/s. 376(2) (g) IPC and U/s. 506/34 of IPC.
Section 341 of IPC is punishable with simple imprisonment for a
term which may extend to one month or with fine, which may extend to 500
rupees or with both.
Section 366 of IPC is punishable with imprisonment of either
description for a term which may extend to ten years and shall also be liable to
fine.
Section 376(2) (g) of IPC is punishable with rigorous imprisonment
for a term which shall not be less than ten years, but which may be for life and
shall also be liable to fine.
Section 506 of IPC is punishable with imprisonment of either
description which may extend to two years or with fine or with both.
I have considered the submissions made on behalf of convict Vijay.
I have also considered his age, character and antecedents. In my view, there is
no adequate or special reason to impose lesser sentence than 10 years minimum
sentence as provided.
Accordingly, sentence of simple imprisonment for a term of one
SC No. 81/01/10 6
month with fine of 500 rupees, ID one week SI is imposed U/s. 341 of IPC
upon convict Vijay.
Sentence of ten years SI is imposed with fine of Rs. 5000/, ID
three years S.I. U/s. 366 of IPC upon convict Vijay.
Sentence of 10 years R.I. is imposed on convict Vijay with fine of
Rs. 5,000/ each, ID three years S.I. U/s. 376(2) (g) of IPC.
Sentence of two years S.I. Is imposed on convict Vijay with fine of
Rs. 5,000/ each, ID six months S.I. U/s. 506/34 of IPC.
Compensation to the tune of Rs. 50,000/ is also imposed upon
convict Vijay, in default of payment of compensation, ID three year S.I,
payable to the prosecutrix, if deposited and no appeal is preferred within the
period of limitation.
All the substantive sentences of imprisonment shall run
concurrently.
Fine and compensation not deposited.
Benefit of U/s. 428 of Cr.P.C. is given to the convict.
Convict Vijay is remanded to serve the sentence.
Announced in the open court
On 17th of December, 2012
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track court, Rohini/Delhi
SC No. 81/01/10 7
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 81/01/10
Unique Identification No. 02404R0250672010
State
Versus
1) Anil @ Balir
S/o Sh. Ram Kumar
R/o Village & POKarala,
Delhi81
2) Vijay
Son of Gir Raj Singh
R/o A229, Utsav Vihar,
VillageKarala, Delhi81
3) Vinay Kumar
Son of Sh. Bhagwan Dass
R/o A3/32, Utsav Vihar,
Village & PO Karala,
Delhi82
FIR No. 115/10
PS -Kanjhawala
U/s. 341/366/376(2) (g)/506/34 IPC
Date of institution of the case: 09/09/2010
Arguments heard on: 19/11/2012
Date of reservation of order: 19/11/2012
Date of Decision: 27/11/2012
JUDGMENT
1. One DD No. 19A was got recorded on 16/06/2010 by one Mishri Devi regarding rape of her daughterprosecutrix by Vijay Singh, Balbir, Vinay and his associates. Thereafter, statement of the prosecutrix was recorded, on SC No. 81/01/10 8 which, a case was registered U/s. 376(2) (g) of IPC.
2. During investigation, rough site plan of the place of occurrence was prepared. Medical examination of the prosecutrix was got conducted and sealed pullandas were taken into possession, handed over by the doctor, by preparing a memo. Birth certificate of the prosecutrix was also taken into possession from her mother. MLC of the prosecutrix was collected. FSL report of the sealed pullandas, after examination, was obtained.
3. Accused Vinay, Vijay and Anil @ Balir were arrested in this case on 16/06/2010. Their medical examinations were got conducted. Their personal search memos were prepared. Blood sample of all the three accused persons were taken into possession. On completion of investigation, case was filed U/s. 341/366/376(2)(g)506/34 of IPC. Case was committed to the Court of Session on 05/10/2010 and was received on 13/10/2010.
4. On 10/11/2010, charge U/s. 376(2) (g) and U/s. 506/34 of IPC was framed against accused Anil @ Balir, Vijay Singh and Vinay Kumar, to which, they pleaded not guilty and claimed trial. Charge U/s. 341 and U/s. 366 of IPC was also framed against accused Vijay Singh, to which, he pleaded not guilty and claimed trial.
5. To prove its case, prosecution has examined PW1 to PW15 in all.
6. On completion of evidence of the prosecution, statements of all the accused persons were recorded. They have denied the case of the prosecution and have stated that they are innocent and have been falsely implicated in this case.
Accused Anil Balir has pleaded that he is innocent has been falsely implicated in this case. He has big land in village Karala near Government School and mother of prosecutrix was demanding from him, which he refused SC No. 81/01/10 9 to pay and he also asked her to pay back money of accused Vinay, on which, she said that she would implicate him in false case, hence, he has been falsely implicated in this case by her on false pretext. He has no concern with this case.
Accused Vijay has stated that he is innocent and has been falsely implicated in this case. He has no concern with this case.
Accused Vinay has come forward with the plea that the prosecutrix owed to him Rs. 350/ as a payment for the grocery items, which she had purchased from his shop and she was avoiding the payment on one or other pretext and one day, when she came to take rice and pulses from his shop and paid him Rs. 50/, he declined to deliver the above mentioned grocery items and politely asked her to pay the arrears first, due to which, she got offended and after quarreling with him, left his shop in anger and in these circumstances, he has been falsely implicated in this case.
7. I have heard Ld. APP for the State, learned defence counsel for all the three accused persons and have gone through the evidence brought on record with material placed before the Court.
8. According to DD No. 19A, which was got recorded by mother of the prosecutrix, she reported about the incident at about 1.30 day and named accused Vijay, Balbir and Vinay, who had committed rape with her daughter in a room. Copy of the DD was handed over to W/ASI Bhagwati Devi for necessary action.
9. Statement of the prosecutrix was also recorded on 16/06/2010, according to which, she told to the IO that she along with her mother, brother and sisters was residing at A3/44, Utsav Vihar, Village Karala, Delhi, and was doing work in a tyre factory of Karala, where one Vijay Singh was also working, who was residing in her colony. She further told to the IO that Vijay SC No. 81/01/10 10 Singh had bad intentions against her and on 15/06/2010, when she was going to call her mother in the market at about 9.00 p.m., in the way, Vijay Singh met her and restrained her. Then Vijay Singh forcibly caught hold her and took her to a nearby vacant room. When she tried to raise noise, then Vijay Singh put his hand on her mouth and forcibly removed her clothes and further told that if she will raise noise, then he will kill her. Thereafter, Vijay Singh committed rape with her against her will and without her consent.
She further told to the IO that meanwhile, one Vinay, resident of her colony and one Anil @ Balir of Karala Village came there and said that "Agar tujhe apni izzat pyari hai to hum sabhi ke saath galat kaam karna padega". Thereafter, Vijay Singh and Vinay stood outside and accused Anil @ Balir forcibly committed rape with her. Vinay, who was at the door outside, said to Anil that they should speak slowly as noise was coming out of the room.
She further told to the IO that thereafter, all these three persons threatened her that if she will tell this fact to anyone, then they will kill her and her mother and after threatening her, she was sent to her house. She came to her house silently and due to fear and insult, she did not disclose this to anyone, but on 16/06/2010, when she became unwell, then she told about the incident to her mother, who took her to PS. The prosecutrix further told to the IO that Vijay Singh and Anil had committed rape with her forcibly without her consent. She was knowing their names and addresses and Vinay had helped them, while standing outside. She was also knowing his name and address and requested that legal action be taken against them.
This statement has been proved by the prosecution as Ex. PW3/A, on which, IO had prepared rukka Ex. PW14/A and got registered a case. SC No. 81/01/10 11
10. Now, let us see what prosecutrix has deposed before the Court as PW3.
11. The prosecutrix has been examined before the Court as PW3. In the cross, she has deposed that earlier, she was residing at A3/44, Utsav Vihar, Karala and was working in a tile factory at Karala. Accused Vijay Singh residing in their colony was also working in the same tile factory and was having evil eye on her, while working in the factory.
PW3, the prosecutrix, has further deposed that on 15/06/2010, when she came back to her house, her mother was not present in house, so, she went to call her from the market. Meanwhile, accused Vijay Singh met her in the way to the market. Accus0ed Vijay Singh restrained her and forcibly took her to a vacant room. when she raised alarm, accused Vijay Singh pressed her mouth with his hands. When she again tried to raise alarm, accused Vijay Singh threatened her that he will kill her and her brother. Thereafter, accused Vijay Singh removed her clothes and forcibly committed rape with her.
PW3, the prosecutrix, has further deposed that meanwhile, accused Anil @ Balir and Vinay also came there and they also threatened her that if she will not do sexual intercourse with them, then they will prepare her video and will show the same in the area and to her family.
PW3, the prosecutrix, has further deposed that thereafter, accused Vijay Singh and Vinay came out and accused Anil forcibly committed rape with her. At that time, accused Vijay told to speak slowly as voice was coming out of the room. After committing rape, all the three accused persons threatened her to kill her, her mother and her brother, if she will disclose the same to anyone. Thereafter, she was sent back to her house.
PW3, the prosecutrix, has further deposed that she came back to her SC No. 81/01/10 12 house and did not tell about the incident to her family members due to shame and fear. On the next day, when her condition deteriorated, her mother asked as to what had happened, then she told her mother about the incident and her mother took her to PS Kanjhawala, where her statement was recorded Ex. PW3/A. She was taken to SGM hospital for medical examination. In the hospital, her wearing clothes were taken into possession by the doctor.
12. Learned defence counsels have contended that accused persons have been falsely implicated in this case as PW3, the prosecutrix, did not raise any alarm, while she was being taken forcibly from the market, as deposed by her.
13. In this respect, in the cross examination, PW3, the prosecutrix, has stated that she had tried to raise noise in the market, while accused Vijay was taking her but accused Vijay threatened her that he will kill his mother and brother, which shows that due to fear, she did not raise alarm, hence, the contention of learned defence counsels is not tenable in any manner.
14. Learned defence counsels have further contended that PW3, the prosecutrix, has made certain improvement in her cross examination as she has stated in the cross examination that while she was being taken by accused Vijay, in the way, three boys came in a vehicle i.e. car of blue colour. Later on, she came to know the names of those boys from the colony persons as Anil, Vijay @ Vinay and Sanjay and from the way, she was taken in a vacant room, in the said car. Learned defence counsels have further contended that according to the complaint and statement of PW3, the prosecutrix, before the Court, she was taken to the room by accused Vijay and there, other accused persons reached, whereas in the cross examination, she has stated that she was taken to a room in a car, so, she cannot be relied upon in any manner.
15. Learned defence counsels have further contended that during the SC No. 81/01/10 13 incident, accused Vinay had told her that he was preparing the video film of rape being committed by the accused persons and if she will raise any noise or alarm, then he will show the same in the colony. She had told this fact to the police, whereas this fact is not appearing in the statement of prosecutrix Ex. PW3/A or in any supplementary statement, which raises doubts on the creditability of this witness and she has been confronted with her statement Ex. PW3/A, where this fact is not appearing in any manner.
16. Learned defence counsels have further contended that according to Ex. PW3/A, allegations were made only against three accused persons i.e. Anil @ Balir, Vijay and Vinay and name of accused Sanjay was not mentioned therein at any time in any manner, having any role, whereas in the cross examination, PW3, the prosecutrix, has stated that accused Sanjay had not committed rape with her and he had threatened her only. Accused Sanjay was having a knife like object with him at that time and threatened her by showing the said knife like object.
17. Learned defence counsels have further contended that even PW3, the prosecutrix, had not given any supplementary statement regarding involvement of accused Sanjay and threat given by him to the prosecutrix. Learned defence counsels have further contended that even in the examination in chief, PW3, the prosecutrix, has nowhere stated that accused Sanjay was also involved in any manner. Learned defence counsels have further contended that chargesheet has been filed against these three accused persons only and neither at any time, accused Sanjay was arrested nor he was chargesheeted as an accused in this case at any time, so, the prosecutrix cannot be relied upon and this improvement raises doubt on the trustworthiness of the prosecutrix.
18. In my view, in further cross examination, PW3, the prosecutrix, has SC No. 81/01/10 14 stated that when she was forcibly lifted by the accused persons, she tried to raise noise but her mouth was gagged, so, she was unable to raise the alarm, hence, the contention of learned defence counsels in this respect cannot be accepted.
19. Learned defence counsels have further contended that identity of the accused persons is also doubtful as in the cross examination, PW3, the prosecutrix, has stated that later on, she came to know the names of those boys from the colony persons as Anil, Vijay and Sanjay. PW3, the prosecutrix, has referred this fact in the cross examination in reference to other three persons, who came there, while she was being taken by accused Vijay under threat towards a vacant room.
20. Learned defence counsels have further contended that according to the cross examination of PW3, the prosecutrix,when she was taken to a vacant room in the said car. There was no light in the said room but it was having a door. The said door was closed with the latch and has further stated in the cross examination that she was detained in the said room by the accused persons for more than half an hour, when she was raped. There was no light in the room. There was no light or streetlight outside the room. She was lifted from a place ahead of the market, where no one was present and there was darkness. Hence, identity of accused persons i.e. Anil @ Balir, Vinay and Vijay Singh is doubtful.
21. In the same cross examination, PW3, the prosecutrix, has stated that she knows accused Anil, Vinay @ Vijay and Sanjay by face as they used to harass her whenever she used to go to the market, which shows that prosecutrix was knowing these accused persons by fact but she came to know later on about the names of these accused persons from colony persons, hence, she SC No. 81/01/10 15 cannot be disbelieved regarding the identity of these accused persons involved in the incident in any manner.
22. Smt. Mishro Devi, mother of the prosecutrix, has been examined as PW7. She has deposed that earlier she was residing at H.No. A3/44, utsav Vihar, Karala, Delhi, alongwith her children. She was having five daughters and one son. Prosecutrix is her youngest daughter, who was aged about 16 years at that time. She was working in a tile factory in Karala.
PW7 Mishro Devi has further deposed that on 16/06/2010, her daughter, the prosecutrix, was not well and she was looking very perplexed. She asked her why she was so, then she replied that accused Vijay Singh, who was also working in the same factory, along with accused Anil, who was resident of Village Karala, had committed rape forcibly with her on the previous night. She further told that one of their associate i.e. accused Vijay had helped them by remaining present outside. On hearing this, she took the prosecutrix to PS and lodged the report.
PW7 Mishro Devi has further deposed that thereafter, police took her daughter to SGM hospital, where she was medically examined and thereafter, they came back to PS with lady Constable. PW7 Mishro Devi has also identified DD No. 19A, on which, she had put her thumb impression, photocopy of which is Ex. PW6/DA. In this DD, names of accused persons have already been mentioned as Vijay, Balbir and Vinay with their associates. In the cross examination, PW7 Mishro Devi has stated that names of all the four accused persons were told to her by the prosecutrix. Accused persons were known to them by face as they used to stand at a grocery shop near her residence but she was not knowing their residential addresses. PW7 Mishro Devi has further stated in the cross examination that the facts, which were told SC No. 81/01/10 16 to her by her daughter, the prosecutrix, were told by her to the IO and her statement was recorded. Her daughter was knowing the name of 4th accused and later on, they came to know the name of 4th accused. Police had told them that they had caught hold fourth accused by the name of Sanjay and was put in the jail, but Sanjay was not shown to them.
23. Again, neither PW3, the prosecutrix, nor PW7 Mishro Devi can be relied upon in this respect that one Sanjay was also involved in the incident because neither in DD No. 19A, name of fourth accused was mentioned nor any supplementary statement to this effect has been recorded either of PW3, the prosecutrix, or of PW7 Mishro Devi. There is no evidence on record that any Sanjay was arrested in this case as an accused being associate of all these three accused persons, hence, this part of the deposition of PW3, the prosecutrix, and PW7 Mishro Devi can safely be discarded and this improvement is not affecting their trustworthiness and creditability in any manner.
24. Learned defence counsels have further contended that PW3, the prosecutrix, and PW7 Mishro Devi, her mother, have contradicted each other as PW3, the prosecutrix, has stated that there was a door to the vacant room, in which, she was raped, whereas PW7 Mishro Devi has stated in the cross examination that there was no door in the room, which was pointed out by her daughter as place of occurrence. The same was found dirty and untidy. There was no water connection in the said room.
25. Learned defence counsels have further contended that in the cross examination, PW7 Mishro Devi has stated that her daughter told her that she was taken by four persons in a blue colour car. Her daughter had not told the names of those boys to her , whereas according to DD No. 19A, PW7 Mishro Devi disclosed the names of these three accused persons with their associate SC No. 81/01/10 17 being responsible for the incident, hence, the identity of all these three accused persons is doubtful and witnesses cannot be relied upon in any manner.
26. In my view, the contradictions and discrepancies as pointed out by the learned defence counsels are minor and negligible. PW3, the prosecutrix, has deposed that she was knowing accused Vijay Singh, who was working with her in the same tile factory, so, identity of accused Vijay Singh is not in dispute in any manner. From the depositions of both these witnesses i.e. PW3, the prosecutrix and PW7 Mishro Devi, it has come in the evidence that the accused persons were known to them by face being resident of the same area and had been seen by both the witnesses on various occasions, so, their identity is not doubtful as contended by learned defence counsels. Accused persons have been arrested in this case at the instance of PW3, the prosecutrix on 16/06/2010, so, it cannot be said that identity of the accused persons is doubtful in any manner and depositions of PW3, the prosecutrix and PW7 Mishro Devi cannot be discarded and they cannot be disbelieved in any manner about the same.
27. PW3, the prosecutrix, has not stated about her date of birth except mentioning her age as 16 years, while being examined as PW3. PW7 Mishro Devi, mother of prosecutrix, has stated that prosecutrix was aged about 16 years at the time of incident. Date of birth certificate of prosecutrix was seized in this case vide memo Ex. PW14/C. It was also got verified vide application Ex. PW14/E. Photocopy of date of birth certificate of the prosecutrix is showing her date of birth as 06/04/1994 Ex. PW14/D and the report of verification is Ex. PW14/F on the back of the photocopy of date of birth certificate itself.
28. In this respect, PW4 Sukhbir Sharma, from Sub Registrar Office, SC No. 81/01/10 18 Birth and Death, Shahdara South Zone, near Karkardooma Court, Delhi, has proved the summoned record i.e. birth register of MCD containing entry No. 595 dated 19/04/94 regarding date of birth of prosecutrix. According to the record, same has been entered as 06/04/94, showing address 584, Trilok Pur, father's name Lala Ram and mother's name as Smt. Misro. Photocopy of the said entry is Ex. PW4/A. Nothing came out from the cross examination of this witness to disbelieve his deposition and he has corroborated the other witnesses and has proved the date of birth of prosecutrix as 06/04/94.
29. PW14 SI Ashok Kumar has proved all these documents in his deposition and he has not been cross examined in any manner about these documents, so, prosecution has been able to prove the date of birth of prosecutrix as 06/04/1994. Incident is dated 15/06/2010, so, at that time, she was aged about 16 years.
30. According to deposition of PW3, the prosecutrix, after recording her statement Ex. PW3/A, was taken to SGM hospital by the police. In the hospital, her wearing clothes were taken into possession by the doctor. She has also identified her wearing clothes before the Court as Ex. P1 and Ex. P2.
31. In the cross examination, PW1, the prosecutrix, has stated that after the incident, when she came back to her house, she did not take any bath. She was taken by her mother to PS on foot. She was not wearing undergarments, when she had gone to PS with her mother.
PW3, the prosecutrix, has further stated in the cross examination that while she was taken to hospital for her medical examination by one police official and two lady police officials in a vehicle, her mother did not accompany her as she had gone to take her clothes. Her medical examination was completed at about 4/5.00 p.m. and after her medical examination, she was SC No. 81/01/10 19 taken back to the PS and at about 11 p.m. in the night, she came back to her house. Thereafter, on the next day or any other day, she had not gone anywhere.
32. PW7 Mishro Devi, mother of the prosecutrix, has stated that police official took her daughter to SGM hospital, where she was got medically examined and after her medical examination, they came back to PS with lady constable. Thereafter, police official took her daughter at the place of occurrence, where police had prepared the site plan.
In the cross examination, PW7 Mishro Devi has stated that from the PS, her daughter was taken to hospital for her medical examination and she stayed in the PS. They reached at PS at about 9.00 a.m. Her daughter came back to PS, after her medical examination, after about 1½ hour and they were relieved at about 12/1.00 a.m. night PW7 Mishro Devi has further deposed in the cross examination that after the incident, clothes of her daughter stained with dirt and she took bath and changed the clothes and those wearing clothes of her daughter, which she was wearing at the time of incident, were lifted by the police from her house.
33. Learned defence counsels have further contended that both PW3, the prosecutrix and PW7 Mishro Devi have contradicted each other regarding the fact as to whether the prosecutrix had taken bath after the incident and further as to whether her wearing clothes were taken into possession from the house by the police or were taken from the house by them or these were taken into possession by the doctor, so, regarding the seizure of wearing clothes of PW3, neither PW3, the prosecutrix nor PW7 Mishro Devi can be relied upon.
34. PW5 lady Constable Sheela had taken the prosecutrix along with her mother PW7 Mishro Devi from PS to SGM hospital for her medical SC No. 81/01/10 20 examination on 16/06/2010. PW14 SI Ashok Kumar was also with them. After medical examination of the prosecutrix, doctor had handed over to PW5 lady constable Sheela, 12 sealed pullandas containing clothes, vaginal swab and two sample seals, which she handed over to PW14 SI Ashok Kumar, who seized the same vide memo Ex. PW5/A. PW5 lady constable Sheela has further deposed that after the medical examination of the prosecutrix, she brought her back to PS. From PS, she along with the prosecutrix, her mother and SI Ashok Kumar reached at Utsav Vihar, where rough site plan was prepared by SI Ashok Kumar. Thereafter, they came back to PS alongwith accused persons Anil, Vinay and Vijay, who were arrested from Utsav Vihar on the pointing of prosecutrix.
35. Learned defence counsels have contended that according to PW3, the prosecutrix and PW7 Mishro Devi, PW7 Mishro Devi had not accompanied the police and the prosecutrix to SGM hospital for medical examination of the prosecutrix, whereas according to PW6 lady Constable Sheela, PW7 Mishro Devi had also accompanied them to SGM hospital for medical examination of the prosecutrix. Learned defence counsels have further contended that according to cross examination of PW5 lady Constable Sheela, they had gone to SGM hospital for medical examination of the prosecutrix in the evening , whereas according to PW7 Mishro Devi, they reached at the PS at about 9.00 a.m. and her daughter came back to PS after medical examination after about half an hour, which shows that her daughter, the prosecutrix, came back to PS after her medical examination after about half an hour of 9.00 a.m., whereas according to PW3, the prosecutrix, her medical examination was completed at about 4/5.00 p.m. ,so, it is not certain as to whether the medical examination of the prosecutrix was conducted in the morning or in the evening. SC No. 81/01/10 21
36. According to MLC of prosecutrix Ex. PW11/A, she was taken to SGM hospital for her medical examination by W/Constable Sheela i.e. PW5 on 16/06/2010 at about 5.00 p.m. Learned defence counsels have contended that there is overwriting in the time, according to which, 6.00 p.m. has been altered into 5.00 p.m., so, the witnesses cannot be relied upon.
37. Learned defence counsels have further contended that PW7 Mishro Devi has stated in the cross examination that she and her daughter had gone to PS empty handed, carrying no bags etc. From the PS, her daughter was taken to hospital for her medical examination, whereas PW7 stayed in the PS, which shows that witnesses have contradicted each other as to whether PW7 Mishro Devi had also gone to SGM hospital or not, hence, they cannot be relied upon.
38. PW5 lady Constale Sheela has stated in the cross examination that after the medical examination, prosecutrix had changed her wearing clothes, which shows that clothes were brought by PW7 Mishro Devi from her house and that is why she did not accompany the prosecutrix to SGM hospital at the time of her medical examination but must have reached later on in the hospital with the clothes of the prosecutrix, which she changed in the hospital and the wearing clothes were taken into possession by the doctor, so, there is no contradiction in this respect in the depositions of PW3, the prosecutrix, PW5 lady Constable Sheela and PW7 Mishro Devi and the evidence of these witnesses require to be read in a synchronized manner to give it a correct meaning according to the circumstances.
39. PW14 SI Ashok Kumar has stated that after recording the statement of prosecutrix, he along with PW5 lady Constable Sheela took prosecutrix to SGM hospital, where she was medically examined vide MLC No. 7970/10. After her medical examination, doctor had handed over 12 sealed pullandas SC No. 81/01/10 22 along with sample seal to lady constable Sheela, who handed over the same to him and he seized the same vide memo Ex. PW5/A.
40. According to the cross examination of PW14 SI Ashok Kumar, PW7 Mishro Devi also accompanied them, when prosecutrix was taken to hospital for her medical examination. They reached in the hospital at about 4.00 p.m. and came back at about 9.00 p.m. They came back to PS straightway from the hospital.
41. PW14 SI Ashok Kumar has not been cross examined in any manner about the wearing clothes of the prosecutrix and PW14 SI Ashok Kumar has corroborated about the time, when prosecutrix was taken to SGM hospital for her medical examination i.e. at about 4.00 p.m., which corroborates with the MLC Ex. PW11/A of the prosecutrix, wherein time of arrival of the prosecutrix has been shown as 5.00 p.m. on 16/06/2010. In such circumstances, these contradictions, as pointed out, are in fact not contradictions/discrepancies, being minor in nature and can be overlooked and only on these minor discrepancies, witnesses cannot be disbelieved.
42. According to PW3, the prosecutrix, after her medical examination, she was brought to PS and thereafter, she accompanied the police to the place of occurrence, where site plan was prepared at her instance. Thereafter, accused persons were searched and firstly, accused Vijay was arrested on her pointing and thereafter, accused Vinay and Anil were arrested on her pointing.
43. Learned defence counsels have contended that according to the case of the prosecution, rough site plan was prepared on 16/06/2010 itself, whereas according to cross of PW3, the prosecutrix, after her medical examination, she was taken back to PS and at about 11 p.m. in the night, she came back to her house. Thereafter, on the next day or any other day, she had not gone anywhere SC No. 81/01/10 23 and has further deposed that on 3rd day, she had gone to PS with her mother. At that time, they were called by the police. They reached at the PS at about 11/12.00 p.m. She had gone to the place of occurrence in a car with three police officials. Her mother also reached at the place of occurrence separately on foot. She had pointed out the room i.e. place of occurrence by going nearby the room to the police. From the place of occurrence, she was left by the police at her house. Learned defence counsels have further contended that in view of this part of cross examination of PW3, the prosecutrix, it is clear that on 16/06/2010, rough site plan was not prepared, rather on the next day, prosecutrix was taken to the place of occurrence for pointing out and further after pointing out, she was left at her house, which also further shows that accused persons were not apprehended on her pointing out. So, rough site plan of the place of occurrence cannot be relied upon nor it is proved that accused persons were apprehended on 16/06/2010 itself on the pointing of prosecutrix.
44. PW5 lady Constable Sheela has also stated that she accompanied the police party with the prosecutrix and her mother to Utsav Vihar, where rough site plan was prepared by PW14 SI Ashok Kumar. Thereafter, they came back to PS alongwith the three accused persons, which shows that after preparation of rough site plan, accused persons were arrested in the way.
45. Learned defence counsels have contended that PW5 lady constable Sheela has not been able to disclose in the cross examination as to whether there was any door in the room or it was found locked or was open, which shows that she had not gone to the place of occurrence and has deposed falsely in this respect.
46. PW7 Mishro Devi has stated that after medical examination of the prosecutrix, they came back to PS with lady Constable. Thereafter, lady police SC No. 81/01/10 24 official took her daughter to the place of occurrence, where police had prepared rough site plan and in the cross examination, she has stated that they were relieved at about 12/1.00 a.m. night and they came back to the house. In the morning, police officials came to her house and they took her daughter to the place of occurrence. PW7 Mishro Devi has also admitted that on 17/06/2010, police had taken her daughter to the place of occurrence, in the morning and she also reached there on foot, but did not accompany the police. PW7 has further deposed in the cross examination that after pointing out the place of occurrence, they both were relieved by the police and they came back to their house on foot.
47. According to PW14 SI Ashok Kumar, after medical examination, he along with prosecutrix and her mother PW7 Mishro Devi left the PS for investigation along with lady constable Sheela i.e. PW5, Constable Satyaprakash and PW2 Constable Rakesh. They all reached at the place of occurrence, which was pointed out by the prosecutrix. He prepared rough site plan Ex. PW14/B. Thereafter, they left in search of the accused persons.
48. Learned defence counsels have further contended that both PW3, the prosecutrix and PW7 Mishro Devi have clearly stated in the cross examination that place of occurrence was pointed out by the prosecutrix on 17/06/2010 and thereafter, accused persons were apprehended, whereas according to the record, rough site plan was prepared on 16/06/2010 and even accused persons were apprehended, according to their arrest memos, on 16/06/2010 itself at about 11 p.m. night.
49. Learned defence counsels have further contended that according to cross of PW14 SI Ashok Kumar, they left the PS in a government vehicle at about 9.15 p.m. for the place of occurrence and he had prepared rough site plan SC No. 81/01/10 25 Ex. PW14/B outside the room. So, the contradiction in this respect is material and it is not certain whether the rough site plan was prepared on 16/06/2010, as deposed by the police witnesses, or on 17/06/2010, as deposed by PW3, the prosecutrix and PW7 Mishro Devi.
50. PW2 constable Rakesh has also stated that place of occurrence was pointed out by the prosecutrix on 16/06/2010 and according to his cross examination, they had reached at the spot at about 10.30 p.m. and left the same after about 510 minutes. It was a single room surrounded by the boundary wall. PW2 Constable Rakesh has also stated in the cross examination that door was open and no one was present in the room. Site plan was prepared by the IO ,while standing outside the room. There was no light at the place, where site plan was prepared.
51. Learned defence counsels have contended that again, it is contradictory whether there was any door to the room or not and it seems to be highly improbable that in absence of any light at about 10.30 p.m night, IO had prepared the rough site plan, while standing outside a room. Learned defence counsels have further contended that there was no park nearby the place of occurrence and the other houses were also at a distance of 200 to 300 meters from the place of occurrence, which shows that there was no possibility of any light at the place of occurrence, in which, IO could have prepared the rough site plan, hence, the police witnesses cannot be relied upon to the extent that rough site plan was prepared by the IO on 16/06/2010 itself on the pointing of prosecutrix.
52. PW1 ASI Kanwar Singh was working as duty officer on 16/06/2010 from 4.00 p.m. to 12.00 a.m. night. On that day, at about 10.05 p.m., PW14 SI Ashok Kumar handed over to him rukka, on the basis of which, SC No. 81/01/10 26 he recorded FIR of this case, copy of which is Ex. PW1/A. He also made endorsement on the rukka Ex. PW1/B. PW1 has not been cross examined in any manner to the extent that FIR was antedated and ante time, so, he cannot be disbelieved in any manner.
53. PW2 Constable Rakesh joined the investigation with PW14 SI Ashok Kumar and they reached at the spot with Constable Manoj, constable Surender , prosecutrix i.e. PW3 and her mother i.e PW7 along with PW5 lady Constable Sheela, where the place of occurrence was pointed out by the prosecutrix.
PW2 Constable Rakesh has further deposed that thereafter, they reached in front of H.No. A229, Utsav Vihar, where at the instance of prosecutrix, accused Vijay and Vinay were arrested vide memo Ex. PW2/A and Ex. PW2/B. Personal searches of accused Vijay and Vinay were conducted vide memos Ex. PW2/C and Ex. PW2/D. PW2 Constable Rakesh has further deposed that thereafter, they reached at Village Karala in search of accused Anil, who was found present in front of his house. He was arrested vide memo Ex. PW2/E and his personal search was conducted vide memo Ex. PW2/F. Thereafter, they came back to PS. Thereafter, he alongwith Constable Satyaprakash took all the three accused persons to SGM hospital. After medical examination, doctor handed over the blood samples of these accused persons and pullandas containing undergarments of the accused persons and sample seal. Thereafter, they came back to PS and handed over these sealed pullands and sample seal to the IO, which were seized vide memo Ex. PW2/G. In the cross examination, PW2 Constable Rakesh has stated that they had reached at the spot at about 10.30 p.m., which is corroborating with SC No. 81/01/10 27 the fact that FIR was recorded at 10.05 p.m. In the cross examination, PW2 Constable Rakesh has stated that prosecutrix had disclosed the addresses of the accused persons. They went on foot to arrest the accused persons. Firstly, they reached at the house of accused Vijay, who was arrested at about 11 p.m. Merely that PW2 Constable Rakesh has not been able to disclose certain surrounding situations does not mean that he did not accompany the police party for the arrest of the accused persons.
54. According to the arrest memo of accused Vijay Ex. PW2/A, it was witnessed by PW2 constable Rakesh and also by PW3, the prosecutrix. Accused Vijay was arrested at about 11 p.m. and one Meenu, his wife, was informed about the arrest of accused. Accused Vijay has not raised any defence that he was not arrested from the place, as deposed by the witnesses and about the date. In his statement recorded U/s. 313 Cr.P.C., he has stated that he has been falsely arrested in this case and was sent for medical examination. So, neither he has disputed his place of arrest nor date of arrest as 16/06/2010 and time. Hence, the contentions of learned defence counsels in this respect about the contradictions and discrepancies appearing in the depositions of PW3, the prosecutrix and PW7 Mishro Devi, her mother, are of no consequence.
55. This fact is further corroborating with the MLC of accused Vijay Ex. PW9/B, according to which, he was taken to SGM hospital on 16/06/2010 at about 11.59 p.m. for his medical examination. PW9 Dr. Sanjay Kumar Jain, who has proved his MLC, has not been cross examined on behalf of accused Vijay in any manner that the MLC was antedated and ante time in any manner.
56. Accused Vinay was arrested in front of H.No. 229, Utsav Vihar. His time of arrest is 11.08 p.m. on 16/06/2010. The arrest memo is Ex. PW2/B and SC No. 81/01/10 28 is witnessed by PW2 constable Rakesh and PW3, the prosecutrix. Similarly, MLC of accused Vinay Ex. PW9/A is dated 16/06/2010 of time at about 11.55 p.m. PW9 Dr. Sanjay Kumar Jain has not been cross examined in any manner. PW2 constable Rakesh has deposed that accused Vinay was also arrested on 16/06/2010. In the statement of accused, accused Vinay has denied that he was arrested vide memo Ex. PW2/B on the pointing of prosecutrix and his personal search was conducted vide memo Ex. PW2/D. Accused Vinay has stated that prosecutrix owed to him Rs. 350/ as payment of grocery items, which she had purchased from his shop and was avoiding payment on one or other pretext and one day, when she came to take rice and pulses from his shop and paid Rs. 50/, he declined to deliver the grocery items and asked her to pay the arrears first and due to which, she got offended and after quarreling with him, left his shop in anger. He has been falsely implicated in this case.
57. Accused Vinay has not disclosed as to when this incident had happened nor it has been proved in any manner that he was running a grocery shop and prosecutrix used to purchase grocery items from his shop. PW7 Mishro Devi has denied that accused was having any grocery shop at that time or prior to that. One Seema Devi, wife of accused Vinay, was informed about arrest of accused Vinay. She has also not been examined as defence witness in any manner to prove that accused Vinay was not arrested on the date, time and place, as deposed by the witnesses.
58. Accused Anil @ Balir was arrested on 16/06/2010 at about 11.20 p.m. vide arrest memo Ex. PW2/E. It is also witnessed by PW2 Constable Rakesh and PW3, the prosecutrix. Information about arrest of accused Anil was given to one Ram Kumar, son of Sh. Hoshiyar Singh, R/o village & PO Karala, Delhi. In the statement recorded U/s. 313 Cr.P.C., in this respect, SC No. 81/01/10 29 accused has stated that he has been falsely implicated in this case and wrongly arrested in this case. Nowhere accused Anil has stated that he was not arrested on the date, time and place, as deposed by the witnesses. He has challenged his arrest to the extent of false implication only.
59. In the explanation given U/s. 313 Cr.P.C., accused Anil @ Balir has stated that he has big land in Village Karala near government school and mother of prosecutrix was demanding money from him, which he refused. He asked her to pay back the money of accused Vinay, on which, she stated that she will implicate him in a false case. No date or time has been given of this incident by accused Anil @ Balir. More so, no reason has been given as to why mother of the prosecutrix was demanding money from accused Anil, whether it was loan or she wants to extort money from him.
60. One fact is proved from these explanations of the accused persons that they were known to PW3, the prosecutrix and PW7 Mishro Devi, so, contention of learned defence counsels about the identity of accused persons is of no consequence.
61. PW5 lady Constable Sheela has also corroborated with PW2 Constable Rakesh regarding the arrest of accused persons on the date, time and place, as deposed by the witnesses, so, some overwriting in the time of arrest in the arrest memos of the accused persons, as argued by learned defence counsels, are also not affecting the trustworthiness of witnesses in any manner. Nothing came out from the cross examination of PW5 lady Constable Sheela to disbelieve her testimony regarding the arrest of the accused persons. PW14 SI Ashok Kumar, IO of the case, has also deposed the same facts regarding the arrest of the accused persons from the place, date and time, as deposed by other witnesses.
SC No. 81/01/10 30
62. PW3, the prosecutrix and PW7 Mishro Devi have stated in the cross examination that accused persons were arrested on the next date i.e. 17/06/2010, but it is not so. All the police witnesses have stated that accused persons were arrested o0n 16/06/2010 on the date, time and place, as deposed by them, which is corroborating with the medical examination, which has not been denied by the accused persons in any manner. The discrepancies/ contradictions, which are minor in nature, have appeared due to certain circumstances. It has come in the cross of PW3, the prosecutrix, while she was being confronted with her statement Ex. PW3/A that she cannot read or write and can only sign, which shows that illiteracy has played a major role for such discrepancy/contradiction and both the PWs failed to understand what was the meaning of next day, whether it was next day of 15/06/2010 or 16/06/2010, although, PW7 Mishro Devi, mother of the prosecutrix, has specifically stated that it was 17/06/2010, when her daughterprosecutrix was taken by the police to the place of occurrence but it is not in dispute that accused persons were arrested after preparation of rough site plan, which was prepared on 16/06/2010, so, under such circumstances, when other oral evidence and documentary evidence is leading to the conclusion that the accused persons were arrested on 16/06/2010, then cross examination of both PW3, the prosecutrix and PW7 Mishro Devi contrary to this fact cannot be believed in favour of the accused persons in any manner, hence, only on this ground, it cannot be said that the accused persons were not arrested on the day, time and place, as deposed by the witnesses.
63. Not only this, after the medical examination of all the three accused persons, their blood samples were taken, which were sealed and seized on the same day and according to the IO PW14 SI Ashok Kumar, these were deposited SC No. 81/01/10 31 with the MHC(M) on 16/06/2010 itself. PW10 HC Vijay, MHC(M) has deposed about the same and he has not been cross examined in any manner that he made entries regarding deposit of blood samples of all the three accused persons antedated and ante time in register No. 19.
64. Sealed pullandas of wearing clothes and other exhibits were also seized and deposited with PW10 HC Vijay, on the same day of the prosecutrix, received from the hospital.
According to PW8 Constable Roshan Lal, on 17/08/2010, as per directions of IO, he took 16 sealed pullandas with the seal of SGM Hospital vide RC No. 5821/10 and deposited the same in the FSL. Thereafter, he handed over the receipt on RC to MHC(M). None tampered with the same. PW8 Constable Roshan Lal has not been cross examined in any manner by learned defence counsels. This has been corroborated by PW10 HC Vijay, who has deposed that he handed over 16 sealed pullandas to PW8 Constable Roshan Lal and has also proved the entries in register No. 19 as Ex. PW10/A and acknowledgment on RC as Ex. PW10/C with photocopy of RC as Ex. PW10/B.
65. These pullandas were examined by Dr. Dhruv Sharma PW13. He found blood on Ex. 1a i.e. one salwar of the prosecutrix , Ex. 12 i.e. blood sample of prosecutrix , Ex. 13 i.e. blood sample of accused and Ex. 17 i.e. blood sample of accused Vijay Kumar. According to his report Ex. PW13/A, human semen was detected on Ex. 1a i.e. salwar and also on Ex. 2, 3,4,5,6,7, 8, 14 and 18 i.e. anterior vaginal swab, posterior vaginal swab, left lateral vaginal swab, right lateral vaginal swab, right vulva swab, left vulva swab and vaginal smear of the prosecutrix. Human semen was also detected in the undergarments of accused Anil and underwear of accused Vijay. PW13 Dr. Dhruv Sharma has proved his report as Ex. PW13/A. SC No. 81/01/10 32
66. The exhibits were also examined serologically vide report Ex. PW13/B, according to which, human blood of "B" group was found of Ex. 1a i.e. Salwar, human blood was found on Ex. 13 i.e. blood sample of accused, human blood was found on Ex. 17 i.e. blood sample of accused Vijay and Ex. 1a was found containing human blood of "B" group. Semen stains of "B" group were found on Ex. 1a i.e. salwar of prosecutrix and Ex. 18 i.e. underwear of accused Vijay. So, according to both the reports, human semen was found inside the vagina of the prosecutrix, the samples of which were taken on 16/06/2010. Prosecutrix has specifically stated that she had not taken bath on that day and she was raped on the previous night i.e. 15/06/2010. Human semen was also detected on Ex. 14 i.e. nicker of accused Anil. Prosecutrix has specifically stated that firstly, she was raped forcibly without her consent by accused Vijay and thereafter by accused Anil. Ex. 18 is underwear of accused Vijay, so, the presence of human semen on the wearing clothes of accused Anil and Vijay with further finding of FSL to the extent that salwar of prosecutrix i.e. Ex.1a and Ex.18 i.e. underwear of accused Vijay were having human blood of "B" group, proves and corroborates that prosecutrix was raped firstly by accused Vijay and thereafter by accused Anil.
67. PW13 Dr. Dhruv Sharma has identified the exhibits before the court from Ex. P2 to Ex. P16 in all, which were examined by him on the basis of which, he had given his reports Ex. PW13/A and Ex. PW13/B. PW13 has not been cross examined by learned defence counsels for the accused persons in any manner, hence, his testimony remains unrebutted and unshaken.
68. Ex. 11 i.e. blood sample of the prosecutrix was examined by PW15 Dr. Kanak Lata Verma to find out the presence of alcohol in the same but the same could not be detected and she has proved her report Ex. PW15/A. SC No. 81/01/10 33 She has also identified the said sample before the Court as Ex. P17.
69. The prosecutrix was examined in SGM hospital by PW11 Dr. Ajay Kumar, CMO, SGM hospital , on 16/06/2010 at about 5.00 p.m., aged about 16 years, with the alleged history of sexual assault. He did not find any fresh evidence of any physical injury all over the body of the prosecutrix. He referred the prosecutrix for further examination to SR Gynae and prepared her MLC Ex. PW11/A.
70. PW12 Dr. Megha was working as SR, Gynae on that day. She examined the prosecutrix. She was not wearing undergarments at that time. On local examination, her hymen was found torn. Her clothes i.e. red salwar and half kurta were preserved. Anterior and posterior vaginal swab were also preserved. Right and left vulva swab were also preserved. Vaginal smear was also taken. Pubic hair were also preserved. Her nail scrapings of both the hands were also taken and preserved. Her blood sample was also taken. These were sealed with the seal of hospital and were handed over to the police. She had given her opinion on MLC Ex. PW11/A. In the cross examination, PW12 Dr. Megha has specifically stated that during the examination of the prosecutrix, no police official was present. The pullandas were sealed by her assistant and she signed the same. This cross examination rules out the possibility of tampering with the wearing clothes of the prosecutrix, hence, the contradictions, as pointed out by learned defence counsels appearing in the cross examination of PW3, the prosecutrix and PW7 Mishro Devi, mother of the prosecutrix, are of no consequence. One Salwar, which was seized by the doctor, was found having human semen on it, which proves that the clothes, which she was wearing at the time of rape, were seized. It is not suggested to PW12 Dr. Megha that clothes were produced by the police SC No. 81/01/10 34 for seizure as case property in this case, hence, neither PW3, the prosecutrix nor PW7 Mishro Devi can be disbelieved in any manner only on minor contradictions/discrepancies.
71. PW9 Dr. Sanjay Kumar Jain has identified the writing and signatures of Dr. Kundan on the MLCs of the accused persons. MLC of accused Vinay Kumar is Ex. PW9/A, of accused Vijay Kumar is Ex. PW9/C and that of accused Anil @ Balir is Ex. PW9/C. According to the opinion of Dr. Kundan, there was nothing to suggest that all the accused persons were not capable of having sexual intercourse. PW9 Dr. Sanjay Kumar Jain has also not been cross examined in any manner by the learned defence counsels in any manner, hence, his testimony is unshaken and unrebutted in this respect and also that blood samples of all the three accused were taken and undergarments of accused persons were seized and were handed over.
72. In view of above discussion, the testimonies of PW3, the prosecutrix and PW7 Mishro Devi are inspiring confidence and they are trustworthy, which has been corroborated by the police officials and further has been corroborated by the medical evidence and FSL report. Medical and FSL witnesses have not been cross examined, due to which, their testimonies went unrebutted and unshaken. Other witnesses are independent witnesses and nothing has been brought on record to disbelieve their testimonies in any manner, so, contradictions/discrepancies, as pointed out by learned defence counsels, being minor in nature, cannot be believed nor the same are of such nature that they are going to the root of the case rendering the witnesses unbelievable. Accused persons have not been able to raise any plausible defence nor have been able to prove in any manner that they have been falsely implicated in this case due to the reasons, as stated by them, so, PW3, the prosecutrix and PW7 Mishro Devi SC No. 81/01/10 35 cannot be disbelieved.
73. Accused Vijay has been charged for offences U/s. 341 of IPC and U/s. 366 of IPC. According to the deposition of PW3, the prosecutrix, accused Vijay met her on the way and restrained her and took her forcibly in a vacant room. It has already been discussed above that the prosecutrix was aged about 16 years at that time. Accordingly, from the corroborative deposition of PW3, the prosecutrix, prosecution has been able to prove offence U/s. 341 of IPC against accused Vijay beyond reasonable doubts, for which, he is held guilty and convicted for the same.
74. It is also proved beyond reasonable doubts that accused Vijay kidnapped/abducted the prosecutrix with the intention that she will be forced to illicit intercourse and at that time, prosecutrix was aged about 16 years i.e. under 18 years and consequently, she was raped by accused Vijay Singh in a vacant room, hence, accused Vijay is held guilty and convicted for the offence U/s. 366 of IPC.
75. All the three accused persons have been charged for offence U/s. 376(2) (g) of IPC. According to the deposition of PW3, the prosecutrix, firstly, was raped by accused Vijay Singh and when she tried to raise alarm, accused Vijay Singh pressed her mouth with his hands and threatened to kill her and her brother and then committed rape. Thereafter, she was raped under threat by accused Anil @ Balir, while accused Vinay stood outside to guard the place and after committing rape, all the three accused persons threatened her to kill her, her mother and her brother, if she will disclose about the incident to anyone. So, it has been proved beyond reasonable doubts that firstly, accused Vijay Singh committed rape forcibly without the consent of the prosecutrix SC No. 81/01/10 36 with her in the vacant room and meanwhile, accused Vinay and Anil @ Balir also reached there and accused Anil @ Balir also committed rape with her under threat, while accused Vinay and Vijay stood outside to guard the place.
76. According to explanation 1 of Section 376 of IPC, wherein a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
77. Accused Vijay Singh had taken the prosecutrix to a vacant room and there, accused Anil @ Balir and Vinay also reached and under threat, firstly, accused Vijay committed rape without her consent and then, accused Anil @ Balir also committed rape with the prosecutrix without her consent and accused Vijay and Vinay stood outside to guard the place, so, the accused persons were acting in furtherance of their common intention and accused Vijay and Anil @ Balir had committed rape with the prosecutrix forcibly without her consent. So, offence U/s. 376 (2) (g) of IPC and U/s. 506/34 of IPC are proved against all the three accused persons Vijay, Vinay and Anil @ Balir beyond reasonable doubts, for which, they are held guilty and convict for the same. Announced in the open court On 27th of November, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track court, Rohini/Delhi SC No. 81/01/10 37