Delhi District Court
State vs . Mahender on 26 March, 2014
1
FIR No. 69/11
PS - Narela
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 78/13
Unique ID No. : 02404R0192042011
State Vs. Mahender
S/o Shri Siraju
R/o Gali No. 1,
New Basti Bankner,
Narela, Delhi.
FIR No. : 69/11
Police Station : Narela
Under Sections : 376 IPC
Date of committal to session Court : 13/07/2011
Date on which judgment reserved : 13/03/2014
Date on which judgment announced : 26/03/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 112 2 FIR No. 69/11 PS - Narela report under section 173 Cr.P.C. is as under : That on 15/02/2011, complainant Fazra S/o Saddiq R/o 225, Gali no. 1, New Basti Bankner, Narela, Delhi, came to the Police station and got recorded his statement which is to the effect that, he lives at the said address and works in private security. He leaves for his duty at about 6:40 a.m. from his house. He is having five children. His eldest son also goes for his labour work. His wife Zarina also leaves for jungle for grazing goats. Her daughter prosecutrix (name withheld being a case u/s 376 IPC) aged about 15 years stays at home with her younger brothers and she is of low intelligence (mand budhi) and is not able to tell anything rightly and even cannot tell her age and is illiterate. Four days ago, his wife Zarina told him that his neighbour Mahender had committed molestation (chedh chadh) with her daughter/prosecutrix. He (Fazra) himself also inquired from his daughter/prosecutrix and this incident is of dated 12/02/2011. His daughter/prosecutrix told him (Fazra) that neighbour Mahender taking the benefit of the isolation (ekant) in the day had touched her (prosecutrix) private parts and had told her not to disclose about this to anyone. His daughter/prosecutrix told all about the incident to his wife when she returned in the evening 2 of 112 3 FIR No. 69/11 PS - Narela and then his wife had told him (Fazra) about the incident. He (Fazra) till by this time was consulting with his known persons (jaankaron se) as to what action should be taken regarding the activity (harkat) committed by Mahender. But nobody gave him any advice. Today, (15/02/2011) he alongwith his daughter/prosecutrix and his wife has come to the Police Station to lodge the report. Mahender has committed molestation (chedh chadh) with his daughter/prosecutrix, legal action be taken against him and the medical examination of her daughter/prosecutrix be got conducted. Statement has been heard and is correct. On the basis of the said statement and from the inquiries made SI Mohd. Ayub got registered the case u/s 354 IPC and proceeded with the investigation. During the course of investigation, accused Mahender was arrested and released on Police bail. Statement of witnesses were recorded. Medical examination of the prosecutrix was got conducted vide MLC no. 167/11 from SRHC Hospital, Narela. On her MLC, doctor endorsed alleged H/o sexual assault. Prosecutrix did not cooperate during her medical examination. From SRHC Hospital, prosecutrix was referred to Dr. BSA Hospital for further medical examination from SRHC Hospital. Medical examination of the prosecutrix vide MLC no. 53/11 was got conducted in Dr. BSA 3 of 112 4 FIR No. 69/11 PS - Narela Hospital, on which Doctor had endorsed alleged H/o sexual assault as told by patient herself and her father, on L/E : Hymen torn (no evidence of recent fresh trauma). No evidence of any external injury visible (fresh) over genitals or other body parts. No scratch mark over genitals or other body parts. No discharge. P/V : no bleeding, P/V : anal opening intact, no tear, no fresh injury, scanty pubic hair. PV not done. No evidence of any fresh external injury over genitals or other body parts. Opinion reserved till Forensic Science Lab. report and also advised radiology reference for Xray of long bones for age estimation. Due to the bad condition (tabiyat kharab rehne ki vajah se) of the prosecutrix, she was admitted in the hospital by the Doctor. After her discharge from the hospital, her statement u/s 164 of Cr.P.C. was got recorded. On the basis of her statement u/s 164 of Cr.P.C., section 354 IPC was converted into section 376 IPC. On 08/03/2011, accused Mahender was rearrested, in this case. Boneage medical of the prosecutrix was got conducted from SRHC hospital and the opinion was obtained.
Upon completion of necessary further investigation, challan for the offence u/s 376 IPC was prepared against accused Mahender and 4 of 112 5 FIR No. 69/11 PS - Narela was sent to the Court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376 IPC was made out against accused Mahender. The 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 produced and examined 18 witnesses. It is to be mentioned that PW8 Sh. Mangat was examined very briefly in examinationinchief with just two sentences and was dropped by the prosecution being not a witness to the relevant facts. It is also to be mentioned that PW16 - Inspector Satish Kumar (the then SHO) was examined due to the death of IO SI Mohd. Yakub.
5 of 112 6 FIR No. 69/11 PS - Narela PW1 Prosecutrix, PW2 Dr. Arti Sr. Gynae, SRHC Hospital, Narela, PW3 Constable Mukesh, PW4 HC Suresh Kumar, PW5 Sh. Fazara, PW6 Ms. Zarina, PW7 Dr. Abhilasha, SR Gynae BSA, Rohini, Delhi, PW8 Sh. Mangat (Dropped), PW9 HC Naresh Kumar, PW10 Dr. P. Arioli CAS Dental, SRHC Hospital, Narela, Delhi, PW11 Sh. Sunil Gupta, Learned MM, PW12 Dr. Rajesh Kumar, Medical Officer, SRHC Hospital Narela, Delhi, PW13 Smt. Islaman, PW14 - Ms. Anita Chhari, Senior Scientific Officer, FSL, Rohini, Delhi, PW15 - HC Pawan, PW16 - Inspector Satish Kumar (the then SHO, examined due to death of IO SI Mohd. Yakub, PW17 - W/Constable Pooja and PW18 - Constable Satyawan Malik.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Prosecutrix, is the victim who deposed regarding the incident and proved her statement u/s 164 Cr.P.C., Ex. PW1/A bearing her right thumb impression at point 'A'. She also identified her clothes, a salwar, one lady shirt, one brazier and one cloth piece Ex. P1 to P4 respectively.
6 of 112 7 FIR No. 69/11 PS - Narela PW2 Dr. Arti, Sr. Resident Gynae, SRHC Hospital, Narela, who conducted the gynaecological/local examination of the patient/prosecutrix and deposed that on 15/02/2011 prosecutrix (name withheld) with alleged history of sexual assault was referred to Gynae SR by the concerned Doctor at the Satyavadi Harish Chander Hospital at Narela. She was working on that day as Gynae SR in the Hospital. She examined the patient and on local examination her hymen were (was) found ruptured. Patient was not cooperative and she was referred to BSA for further examination because of non availability of Anesthesia facilities in the Hospital. Pubic hair and clothes sample were taken and sealed in a pullinda and handed over to Lady Constable Pooja. Her examination report is Ex. PW2/A and signed by her at point 'A'.
PW3 Constable Mukesh, joined the investigation with IO ASI Mohd. Yaqub and deposed that on 15/02/2011 he was present at Police Station Narela and as per the direction of the Duty Officer he took FIR of this case and original tehrir and went to SRSH (SRHC) Hospital and handed over the same to IO SI Mohd. Yakub. Thereafter, IO 7 of 112 8 FIR No. 69/11 PS - Narela alongwith SI Mohd. Yakub and complainant Fazra went to the house of alleged accused Mahender i.e. Gali No. 1, New Basti, Baknare, Narela in search of the accused. At the instance of complainant Fazra accused Mahender was apprehended and after interrogation he was arrested. He does not remember whether he had signed the documents of arrest or not. He correctly identified the accused in the Court.
PW4 HC Suresh Kumar, is the Duty Officer who deposed that on 15/02/2011, he was working as Duty Officer at PS - Narela from 8:00 a.m. to 4:00 p.m. On that day at about 11:00 SI Mohd. Yakub has given a rukka on the basis of which he got recorded FIR from the Computer Operator under section 354 IPC bearing FIR No. 69/11. After the registration of the FIR copy of the FIR and original tehrir was given to Constable Mukesh to handed over the same to SI Mohd. Yakub at the spot. He has brought the FIR register and the other computerized copy is Ex. PW4/A signed by him at point 'A'. He had also made endorsement Ex. PW4/B on the rukka signed by him at point 'X' regarding registration of the FIR vide kayami DD No. 13A.
8 of 112 9 FIR No. 69/11 PS - Narela PW5 Sh. Fazara, is the father of the prosecutrix who deposed on the facts as were disclosed to him by his wife (PW6 Ms. Zarina) and proved his statement Ex. PW5/A made to the police and proved the arrest memo of the accused Mahender Ex. PW5/B signed by him at point 'A' and also deposed regarding the investigational aspects which he joined.
PW6 Ms. Zarina, is the mother of prosecutrix who deposed regarding the facts disclosed to her by her daughter/prosecutrix and also deposed regarding the lodging of report with the Police by her husband and also deposed about the investigational aspects which she joined.
PW7 Dr. Abhilasha, SR Gynae, BSA, Rohini, Delhi who deposed that on 19/02/2011 at about 2:10 p.m. one patient/prosecutrix (name withheld) D/o Fazara was referred from Satyawadi Raja Harish Chand Hospital, Narela with the history of sexual assault as told by the patient herself and father. She had examined the patient and on local examination she found that the hymen of the patient was torn and there was no evidence of any external recent fresh trauma and there was no 9 of 112 10 FIR No. 69/11 PS - Narela evidence of external injury visible over genitalia or other body parts. No scratch marks over genitalia or other body parts were visible. No discharge per vagina, no bleeding per vagina, anal opening intact, no tear or fresh injury. She had sealed six samples as stated in detail at point 'C' on MLC Ex. PW7/A signed by her at point 'A' and the same were sealed and handed over to HC Naresh Kumar.
PW8 Sh. Mangat, is the uncle of the prosecutrix, who has been dropped by the prosecution.
PW9 HC Naresh Kumar, who deposed that on 19/02/2011, he was posted at PS - Narela as Head Constable. On that day, he took the prosecutrix (name withheld) to BSA Hospital for her medical examination along with her parents as per the instructions of IO. On his request Doctor conducted medical examination of prosecutrix and after examination the MLC, pullindas sealed with the seal of Hospital and one sample weal were handed over to him by the Doctor which were later on taken in possession by the IO vide memo Ex. PW9/A which bears his signatures at point 'A'.
10 of 112 11 FIR No. 69/11 PS - Narela PW10 Dr. P. Arioli CAS Dental, SRHC Hospital, Narela, Delhi, who has seen bone age estimation report of prosecutrix (name withheld) dated 19/04/2011 which was prepared by Dr. Sahaj Chopra, Radiologist in the said Hospital. The said Doctor has left the services of the Hospital and his present whereabouts are not aware. He is acquainted with the handwriting and signature of Dr. Sahaj Chopra as he has seen him signing and writing in the official course of duties. The bone age estimation report is Ex. PW10/A which bears signatures of Dr. Sahaj Chopra at point 'A' in which the age of the patient/prosecutrix (name withheld) has been opined as, 'not less than 14 years and not more than 16 years'.
PW11 Sh. Sunil Gupta, Learned MM, who recorded the statement of the prosecutrix u/s 164 Cr.P.C. deposed that on 05/03/2011, he was working as Link MM of Sh. Deepak Wasan, Learned MM at Rohini Courts. On that day, an application Ex. PW11/A was marked to him by Sh. Deepak Wasan, Learned MM for recording statement u/s 164 Cr.P.C. of prosecutrix. After assuring himself that the prosecutrix was 11 of 112 12 FIR No. 69/11 PS - Narela giving rational answers, he recorded her statement of the prosecutrix which is already Ex. PW1/A which bears his signature at point 'B' and thumb impression of the prosecutrix is at point 'A'. His certificate regarding the proceedings conducted by him is Ex. PW11/B which bears his signature at point 'A'. An application Ex. PW11/C for supply of documents moved by IO was allowed by him at point 'A'.
PW12 Dr. Rajesh Kumar, Medical Officer, SRHC Hospital Narela, Delhi who deposed that on 08/03/2011 at about 4:40 p.m. one patient Mahender S/o Saraju was brought by Constable Mukesh with alleged H/o sexual assault. He examined the patient and also his secondary sexual organ which were well developed and he was of the opinion that there is nothing to suggest that patient cannot perform sexual intercourse and the said examination is from point 'A' to 'A' on the MLC Ex. PW12/A signed by him at point 'A'.
PW13 Smt. Islaman who deposed that she used to do the work (of) checking pregnant women at her house. Date, month and year she does not remember, however, it was around two year ago, one Fazra 12 of 112 13 FIR No. 69/11 PS - Narela who is resident of her village came to her and he told her that his daughter/prosecutrix (name withheld), aged around 1415 years is (in) mensuration. She advised him to get her (his) daughter medically examined from the Hospital. She did not (examine) his daughter. She was also crossexamined by the Learned Addl. PP for the State.
PW14 - Ms. Anita Chhari, Sr. Scientific Officer, FSL, Rohini, Delhi who proved the biological and serological reports Ex. PW14/A and Ex. PW14/B respectively bearing her signature at point 'A'.
PW15 - HC Pawan Kumar is the MHC(M) who deposed that on 19/02/2011, he was posted as MHC(M) in PS - Narela. On that day, SI Mohd. Yakub had deposited one sealed pullinda sealed with the seal of 'SD' alongwith sample seal in the malkhana and on the same day, he had also deposited three sealed parcels sealed with the seal of SRHC Hospital alongwith one sample seal in the malkhana. He (PW15) made entry at Serial No. 83 of Register No. 19. On 20/09/2011, on the instructions of the IO, the seal pullindas alongwith sample seals were handed over to Constable Jaswinder for depositing in FSL, Rohini vide 13 of 112 14 FIR No. 69/11 PS - Narela RC No. 187/21/11. After depositing the pullindas in the FSL, Constable Jaswinder had deposited the acknowledgment receipt with him. He has brought the Register No. 19 & 21. Copy of relevant entry of Register No. 19 is Ex. PW15/A and copy of relevant entry of Register No. 21 is Ex. PW15/B and copy of the acknowledgment receipt is Ex. PW15/C (OSR).
PW16 - Inspector Satish Kumar (the then SHO examined due to the death of IO SI Mohd. Yakub) who deposed that on 01/06/2011, he was posted as SHO in PS - Narela and on that day case file alongwith chargesheet prepared by SI Md. Yakub was put up before him. He perused the file and thereafter, chargesheet was forwarded to the Court through ACP for Judicial verdict. IO SI Md. Yakub has been expired. He is acquainted with the handwriting and signatures of SI Md. Yakub as he has seen him signing and writing during the course of his duties. The statement of prosecutrix Ex. PW5/A bearing her thumb impression at point 'A' was recorded by SI Md. Yakub on 15/02/2011 and he (Md. Yakub) had attested the thumb impression of prosecutrix at point 'A' bearing signatures of Md. Yakub at point 'B'. Rukka was also prepared by SI Md. Yakub which is Ex. PW16/A bearing signatures of SI Md.
14 of 112 15 FIR No. 69/11 PS - Narela Yakub at point 'A'. The site plan was prepared by SI Mohd. Yakub which is Ex. PW16/B bearing his signatures at point 'A'. The seizure memo Ex. PW9/A was also prepared by SI Mohd. Yakub bearing his signatures at point 'A'. The seizure memo of the exhibits which were handed over to SI Mohd. Yakub after the medical examination of prosecutrix (name withheld) D/o Fazra was also prepared by SI Mohd. Yakub which is Ex. PW16/C bearing his signatures at point 'A'. The disclosure statement of accused Mahender prepared by SI Mohd. Yakub is Ex. PW16/D bearing his signatures at point 'A'. The arrest memo of accused Mahender dated 08/03/2011 and personal search memo of the same date were also prepared by SI Mohd. Yakub which is Ex. PW16/E and PW16/F respectively bearing his signatures at point 'A'. The arrest memo of accused Mahender which is already exhibited as Ex. PW5/B was also prepared by SI Mohd. Yakub bearing his signatures at point 'B'. The seizure memo of the exhibits which were handed over by the doctor after medical examination of the accused Mahender was also prepared by SI Mohd. Yakub and the same is Ex. PW16/G bearing his signatures at point 'A'. SI Mohd. Yakub moved an application for recording statement of the prosecutrix on 05/03/2011 which is Ex. PW11/A bearing his 15 of 112 16 FIR No. 69/11 PS - Narela signatures at point 'A' and the same was forwarded by him vide his endorsement Ex. PW16/H bearing his signatures at point 'A'. SI Mohd. Yakub also moved the application for obtaining the copy of the statement recorded u/s 164 Cr.P.C. which is Ex. PW11/C bearing his signatures at point 'B'.
PW17 - W/Constable Pooja who deposed that on 15/02/2011 she was posted as Constable in PS Narela. On that day she alongwith IO SI Md. Yaqub took prosecutrix alongwith her parents in SRHC Hospital. Prosecutrix was medically examined in the hospital and after her medical examination, doctor handed over the sealed pullindas and same were seized by the IO vide memo already exhibited as Ex. PW16/C. PW18 - Constable Satyawan Malik who deposed that on 04/06/2011 he was posted as Constable in PS Narela. On that day he alongwith SI Md. Yaqub had taken the custody of accused Mahender and thereafter they took him to the SRHC Hospital. Accused Mahender was medically examined and after medical examination doctor handed over 16 of 112 17 FIR No. 69/11 PS - Narela the sealed pullinda containing the exhibits which were seized by the IO vide memo Ex. PW16/G bearing his signature at point 'B'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Mahender was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and opted to lead defence evidence. In his defence accused has examined two witnesses namely DW1 - Smt. Mukesh, his daughterinlaw and DW2 - Sunil, his son.
DW1 - Smt. Mukesh has deposed that she does not know when this incident occurred however it is a false case which is been made against the accused by the complainant because of the enmities/grudges between the complainant Fazra. On 12/02/2011, it was Saturday. On that day, she was at her home along with her fatherinlaw (accused), motherinlaw, her great grand motherin law, her husband and her three children. She remained at her home throughout the day 17 of 112 18 FIR No. 69/11 PS - Narela and night. No member of the family had gone out on that day. Fazra does the duty and is having three sons and one daughter besides his wife who stays at the house. They are not on talking term with the wife of Fazra. When Fazra goes on duty, his other family member remains at the home. On 12/02/2011, wife of Fazra and his children were present at their house. Conduct of Fazra is not good in the mohalla. She knows the family members of Fazra since her birth (bachpan se janti hu). The daughter of Fazra repeats the thing when the same is repeated by them (jab hum bolte hain to hamare piche dohra deti hain). In her (DW1) presence, no brain test has been done of daughter of Fazra (prosecutrix). No sufferance of fits by the prosecutrix (name withheld) has been seen by her (DW1). They had seen Police Officials visiting the house of Fazra. Vol. Fazra used to tie goats in front of their main door and there used to take place quarrel on this. There used to be quarrel between Mahender and Fazra on the question of lifting of the garbage/excreta (kuda uthane par) of the goats. Her fatherinlaw Mahender is suffering from injury in his foot for the last four years due to which he is also not able to walk properly. It is a false case as she also has a daughter of nine years old and she (DW1) stays at home.
18 of 112 19 FIR No. 69/11 PS - Narela DW2 - Sunil has deposed that he does not recollect of which date the incident is. On 12/02/2011, he was present at his house throughout the day and night. Besides him, his father, his mother, his grandmother, his wife and his children were present at the house throughout the day and night. He knows Fazra since his birth. He works as a guard on the bridge under construction at Narela. When Fazra goes on his duty, his other family members remains at home. He knows the prosecutrix (name withheld) since his childhood. Prosecutrix (name withheld) lives in their gali since her childhood. Whenever they say anything to her, she repeats that. No medical examination of the prosecutrix (name withheld) has ever been conducted in his presence. Nor he had ever seen prosecutrix (name withheld) suffering from any fits. Fazra is a quarrelsome person. He has found Police Official visiting his house frequently. Fazra used to tie sheep and goats (bhed bakri) in front of their house and whenever they used to say to him to clean that place then he used to pick up quarrel with them. Fazra has intentionally foisted this case and he was a quarrelsome person in the locality. His (DW2) father due to injury in his foot used to take aid of 19 of 112 20 FIR No. 69/11 PS - Narela crutches (baisakhi) while walking.
The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. Learned Counsel for accused submitted that the FIR was registered after a delay of three (03) days. FIR was initially registered u/s 354 IPC on 15/02/2011. After 18 days of the registration of the FIR on 05/03/2011, Investigating Agency approached the concerned Learned Metropolitan Magistrate for recording the statement of the prosecutrix u/s 164 Cr.P.C. wherein, the prosecutrix took a somersault and changed her entire allegation, accusation against accused Mahender. The allegations against accused Mahender which were initially of molesting and touching the private parts of the prosecutrix got improved into allegation of rape. The delay in the registration of the FIR has hit the authenticity of the case. Learned Counsel for accused further submitted that the statement u/s 164 Cr.P.C. of the prosecutrix was recorded without oath therefore has no authenticity. Statement u/s 164 Cr.P.C. shows major improvement as the allegation of touching the private parts 20 of 112 21 FIR No. 69/11 PS - Narela of the prosecutrix were changed into allegation of rape. The statement u/s 161 Cr.P.C. does not reveal the name of the accused person. The statement u/s 164 Cr.P.C. also shows that the incident of rape was seen by the elder brother of the prosecutrix but the elder brother has not been made a witness in the present case whose evidence holds a very crucial position in proving the prosecution case. Learned Counsel for accused further submitted that all the statements of the witnesses recorded u/s 161 Cr.P.C. tell the story of touching the private parts of the prosecutrix by the accused. Learned Counsel for accused further submitted that the medical examination reports do not support the prosecution story as there is no visible evidence being observed by the examining Doctor in both the MLCs being conducted at SRHC Hospital vide MLC No. 167/11 dated 15/02/2011 and at BSRA Hospital vide MLC No. 53 dated 19/02/2011. Learned Counsel for accused further submitted that as per the version of the FIR, the prosecutrix told her mother about the incident and her mother in turn narrated the whole incident of accused molesting her daughter to her husband, the complainant. However, in the evidence recorded u/s 164 Cr.P.C., the prosecutrix has narrated the incident to her elder brother, who is not made a witness by the prosecution. Learned 21 of 112 22 FIR No. 69/11 PS - Narela Counsel for accused further submitted that the evidence given by the witnesses in the present case is vague, as they are not aware as to when the incident took place and there are major improvements made by the witnesses in their statements and are the tutored witnesses. Learned Counsel for accused further submitted that prosecutrix being mentally weak but no document of her being mentally weak has been produced on the record. Learned Counsel for accused further submitted that prosecutrix stated that her clothes were stained with blood and got torn and were also seized by the Police but no such pullinda is on the record or was deposited with the MHC(M). Learned Counsel for accused further submitted that the prosecutrix during her crossexamination recorded on 30/01/2012 has deposed, "it is correct that a quarrel do take place between my father Fazra and accused Mahender as my father ties cattle outside the house of Mahender. It is correct that the waste of the cattle was being thrown in front of the house of Mahender which was objected to by Mahender. It is correct that for the said reason, my father had threatened Mahender accused to send him to Jail." Learned Counsel submitted that it is because of the abovesaid reason, the complainant Fazra, father of the prosecutrix wanted to teach the accused a lesson and 22 of 112 23 FIR No. 69/11 PS - Narela has falsely roped the accused in the present case, by firstly putting the allegation of touching the private parts and when the purpose is not solved, then by changing the statement from touching the private parts to the allegation of rape upon the prosecutrix. He further submitted that this is the defence taken by the accused in the present case. Learned Counsel for the accused submitted that the prosecution has failed to prove its case and prayed for acquittal of the accused on the charge levelled against him. He referred to the cases and are reported as 'Ram Sharan & Anr. Vs. State NCT of Delhi' 2012 (1) JCC 688 and 'State Vs. Anwar Hussain' 2012 (4) JCC 2806.
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 Sh. S. C. Sroai, Learned Addl. PP for the State 23 of 112 24 FIR No. 69/11 PS - Narela and Sh. Raghav Kapoor, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offence punishable u/s 376 IPC against accused Mahender is that on 12/02/2011 at unknown time at House No. 285, Gali No. 1, New Basti Bankner, Narela, Delhi and within the jurisdiction of PS - Narela Industrial Area, he raped the prosecutrix (name withheld) aged around 15 years (who was a bit mentally retarded) D/o Sh. Fazra.
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.
AGE OF THE PROSECUTRIX
12. PW1 - prosecutrix during her crossexamination has deposed that : 24 of 112 25 FIR No. 69/11 PS - Narela "I was born on second but I do not remember month and year."
PW5 - Fazara, father of the prosecutrix, during his examinationinchief has deposed that : "My daughter/prosecutrix (name withheld) have (is) little unsane (insane) from her mental capability and she was not attending any School. I have not brought the certificate. I do not remember the date of birth of my daughter exactly."
In case "Jarnail Singh Vs. State of Haryana", 2013 VII AD (S.C.) 313 in para 20, the Hon'ble Supreme Court has held that, it would be just and appropriate to apply Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
In the instant case, since there is absence of the matriculation or equivalent certificate; the date of birth certificate from the school (other than a play school) first attended; the birth certificate given by a corporation or a municipal authority or a panchayat of PW1 - prosecutrix as provided under Rule 12 (3)(a) (i)
(ii) and (iii) therefore the medical opinion with respect to PW1 -
25 of 112 26 FIR No. 69/11 PS - Narela prosecutrix can be taken into consideration under clause (b) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
Now let the testimony of PW10 - Dr. P. Arioli CAS Dental, SRHC Hospital, Narela, Delhi, who proved the bone age estimation of PW1 - prosecutrix be perused and analysed.
PW10 Dr. P. Arioli CAS Dental, SRHC Hospital, Narela, Delhi, who proved the bone age estimation report of the prosecutrix prepared by Dr. Sahaj Chopra, Radiologist and has deposed that he has seen bone age estimation report of prosecutrix (name withheld) dated 19/04/2011 which was prepared by Dr. Sahaj Chopra, Radiologist in the said Hospital. The said Doctor has left the services of the Hospital and his present whereabouts are not aware. He is acquainted with the handwriting and signature of Dr. Sahaj Chopra as he has seen him signing and writing in the official course of duties. The bone age estimation report is Ex. PW10/A which bears signature of Dr. Sahaj Chopra at point 'A' in which the age of the patient/prosecutrix (name withheld) has been opined as 'not less than 14 years and not more than 16 26 of 112 27 FIR No. 69/11 PS - Narela years'.
Despite grant of opportunity, PW10 Dr. P. Arioli was not crossexamined on behalf of the accused. Nor any evidence to the contrary has been produced or proved on the record by the accused.
In the circumstances, it stands proved that the estimated age of prosecutrix was not less than 14 years and not more than 16 years as on the date of bone age estimation on 19/04/2011.
As the date of alleged incident is 12/02/2011 and the estimated age of the prosecutrix is not less than 14 years and not more than 16 years as on the date of bone age estimation on 19/04/2011, on simple arithmetical calculation, the age of prosecutrix comes to between 1416 years as on the date of incident on 12/02/2011.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged between 1416 years as on the date of alleged incident on 12/02/2011.
It is pertinent to reproduce para 20 of Jarnail Singh's case (Supra) of the Hon'ble Supreme Court which reads as under : "On the issue of determination of age of a minor, one only 27 of 112 28 FIR No. 69/11 PS - Narela needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to hereinabove reads as under : "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the 28 of 112 29 FIR No. 69/11 PS - Narela case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for 29 of 112 30 FIR No. 69/11 PS - Narela passing appropriate order in the interest of the juvenile in conflict with law."
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other 30 of 112 31 FIR No. 69/11 PS - Narela material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion." MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW2 Dr. Arti, Sr. Resident Gynae, SRHC Hospital, Narela, who conducted the gynaecological/local examination of the patient/prosecutrix and deposed that on 15/02/2011 prosecutrix (name withheld) with alleged history of sexual assault was referred to Gynae SR by the concerned Doctor at the Satyavadi Harish Chander Hospital at Narela. She was working on the day as Gynae SR in the Hospital. She examined the patient and on local examination her hymen were (was) found ruptured. Patient was not cooperative and she was referred to BSA for further examination because of non availability of Anesthesia facilities in the Hospital. Pubic hair and clothes sample were taken and sealed in a pullinda and handed over to Lady Constable Pooja. Her examination report is Ex. PW2/A and signed by her at point 'A'.
During her crossexamination, PW2 - Dr. Arti has deposed that she has not observed Haematoma on examination of accused (Be 31 of 112 32 FIR No. 69/11 PS - Narela read as prosecutrix). Hymen ruptured was not fresh.
There is nothing in the crossexamination of PW2 - Dr. Arti so as to impeach her creditworthiness.
PW7 Dr. Abhilasha, SR Gynae, BSA, Rohini, Delhi who deposed that on 19/02/2011 at about 2:10 p.m. one patient/prosecutrix (name withheld) D/o Fazara was referred from Satyawadi Raja Harish Chand Hospital, Narela with the history of sexual assault as told by the patient herself and father. She had examined the patient and on local examination she found that the hymen of the patient was torn and there was no evidence of any external recent fresh trauma and there was no evidence of external injury visible over genitalia or other body parts. No scratch marks over genitalia or other body parts visible. No discharge per vagina, no bleeding per vagina, anal opening intact, no tear or fresh injury. She had sealed six samples as stated in detail at point 'C' on MLC Ex. PW7/A signed by her at point 'A' and the same were sealed and handed over to HC Naresh Kumar.
During her crossexamination, PW7 - Dr. Abhilasha has deposed that as the patient was not cooperating in Satyawadi Harish 32 of 112 33 FIR No. 69/11 PS - Narela Chand Hospital, the concerned Doctor has referred to their Hospital. The patient was cooperative for examination as well as for sampling. The patient was responding at the time of her examination. The contents on the MLC Ex. PW7/A was written by her.
There is nothing in the crossexamination of PW7 - Dr. Abhilasha so as to impeach her creditworthiness.
In view of above and in the circumstances, the medical/gynaecological examination vide Report/MLC Ex. PW2/A and MLC Ex. PW7/A of PW1 prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
14. PW12 Dr. Rajesh Kumar, Medical Officer, SRHC Hospital Narela, Delhi who medically examined the patient/accused Mahender and deposed that on 08/03/2011 at about 4:40 p.m. one patient Mahender S/o Saraju was brought by Constable Mukesh with alleged H/o sexual assault. He examined the patient and also his secondary sexual organ which were well developed and he was of the opinion that there is 33 of 112 34 FIR No. 69/11 PS - Narela nothing to suggest that patient cannot perform sexual intercourse and the said examination is from point 'A' to 'A' on the MLC Ex. PW12/A signed by him at point 'A'.
Despite grant of opportunity PW12 - Dr. Rajesh Kumar was not crossexamined on behalf of accused.
In view of above and in the circumstances, it stands proved on the record that accused Mahender was capable to perform sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
15. PW14 - Ms. Anita Chhari, Sr. Scientific Officer, FSL, Rohini, Delhi who proved the biological and serological reports Ex. PW14/A and Ex. PW14/B respectively bearing her signature at point 'A'.
The biological report Ex. PW14/A reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL 34 of 112 35 FIR No. 69/11 PS - Narela Parcel '1' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '1', wrapped in a paper.
Exhibit '1' : Few strands of black hair described as 'Pubic hair clipping of victim'.
Parcel '2' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '2', kept in a plastic container.
Exhibit '2' : Nail clippings described as 'Nail clippings of victim'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '3a', '3b', '3c' and '3d'.
Exhibit '3a' : One salwar. Exhibit '3b' : One lady's shirt. Exhibit '3c' : One brassiere. Exhibit '3d' : One cloth piece. Parcel '5' : One sealed cloth parcel sealed with the seal
of "SD" containing exhibits '5a', '5b', '5c1', '5c2', '5d', '5e', '5f', '5g' & '5h', kept in a cardboard box.
Exhibit '5a' : Dark brown foul smelling liquid, kept in a test tube labelled as 'Blood Sample etc.' 35 of 112 36 FIR No. 69/11 PS - Narela Exhibit '5b' : Dark brown foul smelling liquid, kept in a test tube labelled as 'Blood Sample etc.' Exhibit '5c1' : Two microslides having faint smear labelled as & '5c2' 'Vaginal smear etc.' Exhibit '5d' : Cotton wool swab on a plastic stick kept in a plastic tube labelled as 'Vaginal swab etc'. Exhibit '5e' : Nail clippings, kept in a injection vial labelled as 'Nail scrapping etc' Exhibit '5f' : A bunch of black hair, kept in a test tube labelled as 'Scalp hair etc.' Exhibit '5g' : A few strands of black hair, kept in an injection vial labelled as 'Pubic hair etc.' Exhibit '5h' : Yellowish liquid material, kept in an injection vial labelled as 'Urine sample etc.' Parcel '7' : One sealed plastic container sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '7'. Exhibit '7' : Yellowish foul smelling liquid described as 'Semen sample of accused'.
Parcel '8' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '8', kept in a test tube.
Exhibit '8' : Dark brown foul smelling liquid described as 'Blood sample of accused' RESULT OF ANALYSIS 36 of 112 37 FIR No. 69/11 PS - Narela
1. Semen could not be detected on exhibits '1', '2', '3a', '3b', '3c', '3d', '5c1', '5c2', '5d', '5e', '5f', '5g', '5h' & '7'.
2. Blood was detected on exhibits '3a', '5a', '5b' & '8'.
3. Blood could not be detected on exhibits '1', '2', '3b', '3c', '3d', '5d', '5e', '5f', '5g', '5h' & '7'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'AC FSL DELHI'.
The serological report Ex. PW14/B reads as under : Exhibits Species of origin ABO Grouping/Remarks '3a' Salwar Human Inconclusive result '5a' Blood Sample Sample was putrefied hence no opinion '5b' Blood Sample Sample was putrefied hence no opinion '8' Blood Sample Sample was putrefied hence no opinion At the outset, it is to be mentioned that there are no parcel no. 4 and parcel no. 6 mentioned in the biological report Ex. PW14/A. However, the total number of the sealed parcels are six, the description 37 of 112 38 FIR No. 69/11 PS - Narela of which is made in the said report.
As per the biological report Ex. PW14/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1, 2 & 3 belong to the prosecutrix which were seized vide seizure memo Ex. PW16/C, dated 15/02/2011, parcel no. 5 belongs to the prosecutrix which was seized vide seizure memo Ex. PW9/A, dated 19/02/2011 and parcel no. 7 & 8 belong to the accused Mahender which were seized vide seizure memo Ex. PW16/G dated 04/06/2011.
On careful perusal and analysis of the biological and serological evidence on record, blood was detected on exhibit '3a' (salwar of the prosecutrix), exhibit '5a' (Blood sample of the prosecutrix), exhibit '5b' (Blood sample of the prosecutrix) & exhibit '8' (Blood sample of the accused); blood could not be detected on exhibit '1' (Pubic hair clipping of victim), exhibit '2' (Nail clippings of victim), exhibit '3b' (Lady's shirt of the prosecutrix), exhibit '3c' (Brassier of the prosecutrix), exhibit '3d' (One cloth piece of the prosecutrix), exhibit '5d' (Vaginal swab of the prosecutrix), exhibit '5e' (Nail scrapping 38 of 112 39 FIR No. 69/11 PS - Narela of the prosecutrix), exhibit '5f' (Scalp hair of the prosecutrix), exhibit '5g' (Pubic hair of the prosecutrix), exhibit '5h' (Urine sample of the prosecutrix) & exhibit '7' (Semen sample of the accused); and semen could not be detected on exhibit '1' (Pubic hair clipping of the victim), exhibit '2' (Nail clippings of the victim), exhibit '3a' (salwar of the prosecutrix), exhibit '3b' (Lady's shirt of the prosecutrix), exhibit '3c' (Brassier of the prosecutrix), exhibit '3d' (Cloth piece of the prosecutrix), exhibit '5c1' & exhibit '5c2' (Vaginal smear of the prosecutrix), exhibit '5d' (Vaginal swab of the prosecutrix), exhibit '5e' (nail scrapping of the prosecutrix), exhibit '5f' (Scalp hair of the prosecutrix), exhibit '5g' (Pubic hair of the prosecutrix), exhibit '5h' (Urine sample of the prosecutrix) & exhibit '7' (Semen sample of the accused). As per the serological report Ex. PW14/B 'Samples were putrefied hence no opinion' could be given on exhibit '5a' (Blood Sample of prosecutrix ), '5b' (Blood Sample of prosecutrix) & '8' (Blood Sample of accused). However, inconclusive result with respect to ABO Grouping was given on exhibit '3a' (salwar of the prosecutrix) but the species of origin of blood was concluded to be 'Human'.
In the circumstances, it clearly stands established on the 39 of 112 40 FIR No. 69/11 PS - Narela record that Human blood was detected on exhibit '3a' (Salwar of the prosecutrix).
On a conjoint reading of the medical/gynaecological examinations vide Report/MLC Ex. PW2/A and MLC Ex. PW7/A of the PW1 - prosecutrix together with the MLC of the accused Mahender Ex. PW12/A; in the light of biological and serological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW14/A and serological report Ex. PW14/B, prosecution has discharged its initial burden of proving the presence of Human blood on exhibit '3a' (salwar of the prosecutrix seized vide seizure memo Ex. PW16/C). Accused was under an obligation to explain how and under what circumstances, the Human blood came to be present on exhibit '3a' (salwar of the prosecutrix). The absence of such an explanation both in the section 40 of 112 41 FIR No. 69/11 PS - Narela 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
It is also to be noticed that the alleged incident is of dated 12/02/2011 and it was reported to the Police on 15/02/2011 vide Ex. PW5/A and the medical/gynaecological examination of PW1 - prosecutrix was conducted at SRHC Hospital on 15/02/2011 vide Report/MLC Ex. PW2/A and the sealed exhibits (Parcel No. 1, 2 & 3 as per biological report Ex. PW14/A) were seized vide seizure memo Ex. PW16/C dated 15/02/2011 and further medical/gynaecological examination of PW1 - prosecutrix was conducted at Dr. BSA Hospital on 19/02/2011 vide MLC Ex. PW7/A and the sealed exhibit (Parcel No. 5 as per biological report Ex. PW14/A) was seized vide seizure memo Ex. PW9/A dated 19/02/2011. During the said period from 12/02/2011 to 15/02/2011 and from 15/02/2011 to 19/02/2011 prosecutrix must have answered the call of nature a number of times and must have taken bath a number of times and must have urinated a number of times and this not being a case of recent sexual intercourse activity and for the said reasons, it appears that human semen could not be detected on exhibits '1', '2', 41 of 112 42 FIR No. 69/11 PS - Narela '5c1', '5c2', '5d', '5e', '5f', '5g' and '5h', as detailed hereinabove.
16. Now let the testimonies of PW1 - prosecutrix, PW5 Sh. Fazara, father of the prosecutrix and PW6 Ms. Zarina, mother of the prosecutrix be perused and analysed.
PW1 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "About one year before, accused Mahender present in the Court (correctly identified) called me at his house and requested me to bring bidi/cigarette and match box from the market i.e. donald. I brought the same and given to the accused Mahender. Thereafter, the accused opened my salwar by pushing nada and thereafter he laid me on the bed, no other person was present in his house and thereafter he has forcefully did wrong act with me. Wrong act I mean sexual intercourse which husband generally do with his wife. Accused has also put his hand into my vagina. During the time when accused committed wrong act with me, I cried and blood was also coming out from my vagina. After committing rape with me, accused Mahender himself left me at my house. I have also bleeding from my private part. Accused has also given me note of five rupees. I had informed all the facts to my mother who in turn stated to my father and my father made a complaint to the Police officials. Accused is my neighbourer and is present in the Court today. Accused Mahender is living in my neighbourhood leaving apart 23 houses from my house.
Police officials got me medically examined. My statement 42 of 112 43 FIR No. 69/11 PS - Narela u/s 164 Cr.P.C. was also got recorded in the Court.
At this stage, a sealed envelope sealed with the seal of 'SG' is opened which containing the papers regarding recording of statement of prosecutrix u/s 164 Cr.P.C. I have put my right thumb impression on my statement Ex. PW1/A at point 'A'."
"I can identify accused, who is present in Court today (correctly identified). After committing a rape accused has given me a five rupees note for taking some food article. I can identify my clothes which was sealed by concerned Doctor if shown to me."
"I can identify the clothes which I was wearing at the time of commission of offence if shown to me.
At this stage, a parcel no. 3 sealed with the seal of FSL is opened which containing a salwar, one lady shirt, one brazier and one cloth piece. Same are shown to the witness who identify the same. Same are exhibited as Ex. P1 to P4 respectively."
From the aforesaid narration of PW1 - prosecutrix, it is clear that about one year before, accused Mahender present in the Court called her at his house and requested her to bring bidi/cigarette and match box from the market i.e. donald. She brought the same and given to the accused Mahender. Thereafter, the accused opened his salwar by pushing nada and thereafter he laid her on the bed, no other person was present in his house and thereafter he has forcefully did wrong act with her. Wrong act she means sexual intercourse which husband generally 43 of 112 44 FIR No. 69/11 PS - Narela do with his wife. Accused has also put his hand into her vagina. During the time when accused committed wrong act with her, she cried and blood was also coming out from her vagina. After committing rape with her, accused Mahender himself left her at her house. She had also bleeding from her private part. Accused has also given her note of five rupees. She had informed all the facts to her mother who in turn stated to her father and her father made a complaint to the Police officials. Accused is her neighbourer and is present in the Court. Accused Mahender is living in her neighbourhood leaving apart 23 houses from her house. Police officials got her medically examined. Her statement u/s 164 Cr.P.C. was also got recorded in the Court. She has put her right thumb impression on her statement Ex. PW1/A at point 'A'. She correctly identified the accused in the Court and deposed that after committing rape accused has given her a five rupees note for taking some food article. She also identified her clothes which were sealed by concerned Doctor which she was wearing at the time of commission of offence which are a salwar, one lady shirt, one brazier and one cloth piece as Ex. P1 to P4 respectively.
PW1 - Prosecutrix during her crossexamination has 44 of 112 45 FIR No. 69/11 PS - Narela negated the suggestions that a false case has been registered against accused Mahender or that she is (a) tutored witness or that she has deposed at the instance of her parents and the Police or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - prosecutrix, 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 cross examination and her testimony is consistent throughout. The testimony of PW1 - 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 PW1 - Prosecutrix is also found to be corroborated by the medical/gynaecological evidence as well as the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in 45 of 112 46 FIR No. 69/11 PS - Narela consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW1/A. The testimony of PW1 - Prosecutrix is also found to be corroborated by PW5 Sh. Fazara, her father and PW6 Ms. Zarina, her mother, to whom prosecutrix disclosed the facts relating to the crime shortly after the incident, at the first available opportunity, being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW5 - Sh. Fazara, in his examinationinchief has deposed that : "I have five issues. Normally I left for office from my house at about 7:00 a.m. I am illiterate. On 26/01/2011 my daughter/prosecutrix (name withheld) aged around 14 years was called by our front door neighbour Mahender and asked her to bring Bidi packet and match box. When she brought the Bidi packet and match box accused Mahender Singh bolted the door from inside and Nara of my daughter's salwar was broken and thereafter, accused has committed rape upon her person. When I returned back from my office at about 7:30 p.m. all the facts were informed by my wife and thereafter, we had dual exchanged with words with accused Mahender. I alongwith my wife went to the police station on the next day and lodged the FIR against the 46 of 112 47 FIR No. 69/11 PS - Narela accused. Police recorded my statement which is Ex. PW5/A thumb mark at point 'A'. Police got my daughter medically examined and also got recorded her statement from the concerned court under section 164 Cr.P.C. My daughter/prosecutrix (name withheld) have little unsane from her mental capability and she was not attending any school. I have not brought the certificate. I do not remember the date of birth of my daughter exactly. Accused was later on arrested by the police and prepared her (his) arrest memo which is Ex. PW5/B signed by me at point A. Accused Mahender is present in the Court today. (correctly identified)"
On a leading question put by the Learned Addl. PP for the State, PW5 - Fazra has deposed that : "It is correct that the incident had taken place on 12/02/2011 and we had reported the matter to the Police on 15/02/2011."
From the aforesaid narration of PW5 - Fazara it is clear that the he is having five issues. Normally, he leaves for office from his house at about 7:00 a.m. He is illiterate. On 26/01/2011 his daughter/prosecutrix aged around 14 years was called by their front door neighbour Mahender who asked her to bring Bidi packet and match box. When she brought the Bidi packet and match box accused Mahender Singh bolted the door from inside and Nara of his daughter's salwar was 47 of 112 48 FIR No. 69/11 PS - Narela broken and thereafter, accused has committed rape upon her person. When he (PW5) returned back from his office at about 7:30 p.m. all the facts were informed by his wife and thereafter, they had dual exchanged with words with accused Mahender. He alongwith his wife went to the Police Station on the next day and lodged the FIR against the accused. Police recorded his statement which is Ex. PW5/A thumb mark at point 'A'. Police got his daughter medically examined and also got recorded her statement from the concerned Court under section 164 Cr.P.C. His daughter/prosecutrix have little unsane from her mental capability and she was not attending any school. He has not brought the certificate. He does not remember the date of birth of his daughter exactly. Accused was later on arrested by the Police and his arrest memo was prepared which is Ex. PW5/B signed by him (PW5) at point 'A'. He correctly identified the accused Mahender present in the Court.
In reply to the leading question pertaining to the date of incident and of the reporting the matter with the police asked by the Learned Addl. PP for the State, PW5 - Fazara has deposed that, it is correct that the incident had taken place on 12/02/2011 and they had 48 of 112 49 FIR No. 69/11 PS - Narela reported the matter to the police on 15/02/2011.
During his crossexamination PW5 - Fazara has negated the suggestions that his daughter is not suffering from any mental problem or that he was at his home on 26/01/2011 vol. he was on his duty or that he is deposing falsely as to what he has deposed herein above about quarrel between him and accused Mahender vol. the quarrel had taken place after 7:30 p.m. in the evening or that no such incident took place with his daughter or that the said case is false or that the accused has been falsely planted in this case on the grounds of previous enmity or that he had tutored his daughter to depose falsely in this case or that his daughter had falsely deposed in this case at his instance or that his daughter has falsely deposed in this case on the basis of his tutoring or that he is deposing falsely.
PW6 - Zarina in her examinationinchief has deposed that : "I have five issues. Four were sons and one is my daughter named prosecutrix (name withheld). My daughter/prosecutrix (name withheld) was about 14 years of age at the time of present incident. I do 49 of 112 50 FIR No. 69/11 PS - Narela not remember the date time and year. On the day of the incident my daughter/prosecutrix (name withheld) was called by Mahender and after giving Rs. 10/ and asked her to bring Bidi Matchis (Match Box). Mahender was alone in his house at that time. I had returned to my house after giving the food/lunch box to my husband at her (his) work place. When my daughter/prosecutrix (name withheld) had brought the Bidi and Matchis and gave it to Mahender who took her inside and closed the door of his house and committed Galat Kaam with her. My daughter returned weeping to the house and narrated the whole incident (to) me. In the evening when my husband come to the house from duties and I narrated the whole incident to him. On which myself and my husband went to the house of Mahender and inquired from him and he quarreled with us and caused injuries by throwing me away and I had sustained head and hand injuries and also threatened me to burn my house. Thereafter, I alongwith my husband went to the police station and my husband lodged the report. Police officials got medically examined my daughter. Thereafter, we returned to our house. Accused Mahender is present in the court today (correctly identified). My daughter/prosecutrix (name withheld) has (is) mentally week (weak)."
From the aforesaid narration of PW6 - Zarina, it is clear that she is having five issues. Four were sons and one is her daughter/prosecutrix. Her daughter/prosecutrix was about 14 years of age at the time of present incident. She does not remember the date time and year. On the day of the incident her daughter/prosecutrix was called 50 of 112 51 FIR No. 69/11 PS - Narela by Mahender and after giving Rs. 10/ and asked her to bring Bidi Matchis (Match Box). Mahender was alone in his house at that time. She had returned to her house after giving the food/lunch box to her husband at his work place. When her daughter/prosecutrix had brought the Bidi and Matchis and gave it to Mahender who took her inside and closed the door of his house and committed Galat Kaam with her. Her daughter returned weeping to the house and narrated the whole incident to her. In the evening when her husband come to the house from duties and she narrated the whole incident to him. On which she and her husband went to the house of Mahender and inquired from him and he quarreled with them and caused injuries by throwing her away and she had sustained head and hand injuries and also threatened her to burn her house. Thereafter, she alongwith her husband went to the Police Station and her husband lodged the report. Police officials got medically examined her daughter. Thereafter, they returned to their house. She correctly identified the accused Mahender present in the Court. Her daughter/prosecutrix is mentally weak.
During her crossexamination PW6 - Zarina has negated the 51 of 112 52 FIR No. 69/11 PS - Narela suggestions that no such incident took place with her daughter or that the said case is false or that the accused has been falsely planted in this case on the grounds of previous enmity or that she had tutored her daughter to depose falsely in this case or that her daughter had falsely deposed in this case at her instance or that her daughter has falsely deposed in this case on the basis of her tutoring or that she is deposing falsely.
Inspite of incisive crossexamination of PW5 - Fazara and PW6 - Zarina, nothing material has been brought out so as to impeach their creditworthiness. They have withstood the rigors of cross examination without being shaken. Their testimonies on careful perusal and analyses and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII (S.C.)1] are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused Mahender to falsely implicate him in the case.
17. While analysing the testimonies of PW1 - prosecutrix, PW5 52 of 112 53 FIR No. 69/11 PS - Narela Sh. Fazara, her father and PW6 Ms. Zarina, her mother as discussed hereinabove inspite of incisive crossexamination of PW1 - prosecutrix, PW5 Sh. Fazara and PW6 Ms. Zarina nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW1 Prosecutrix that a false case has been registered against accused Mahender or that she is (a) tutored witness or that she has deposed at the instance of her parents and the Police or that she is deposing falsely, the suggestions to PW5 - Fazara that his daughter is not suffering from any mental problem or that he was at his home on 26/01/2011 vol. he was on his duty or that he is deposing falsely as to what he has deposed herein above about quarrel between him and accused Mahender vol. the quarrel had taken place after 7:30 p.m. in the evening or that no such incident took place with his daughter or that the said case is false or that the accused has been falsely planted in this case on the grounds of previous enmity or that he had tutored his daughter to depose falsely in this case or that his daughter had falsely deposed in this case at his instance or that his daughter has falsely deposed in this case on the basis of his tutoring or that he is deposing falsely and the 53 of 112 54 FIR No. 69/11 PS - Narela suggestions to PW6 - Zarina that no such incident took place with her daughter or that the said case is false or that the accused has been falsely planted in this case on the grounds of previous enmity or that she had tutored her daughter to depose falsely in this case or that her daughter had falsely deposed in this case at her instance or that her daughter has falsely deposed in this case on the basis of her tutoring or that she is deposing falsely, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further, there is not an iota of evidence led or produced by the accused on the record to show that he has been falsely implicated due to enmity except for raising a bare plea that he has been falsely planted in this case on the grounds of previous enmity.
However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examination of his daughterinlaw, DW1 - Smt. Mukesh and his son DW2 - Sunil.
DW1 - Smt. Mukesh in her examinationinchief has deposed that she does not know when this incident occurred however it 54 of 112 55 FIR No. 69/11 PS - Narela is a false case which is been made against the accused by the complainant because of the enmities/grudges between the complainant Fazra. On 12/02/2011, it was Saturday. On that day, she was at her home along with her fatherinlaw (accused), motherinlaw, her great grand motherin law, her husband and her three children. She remained at her home throughout the day and night. No member of the family had gone out on that day. Fazra does the duty and is having three sons and one daughter besides his wife who stays at the house. They are not on talking term with the wife of Fazra. When Fazra goes on duty, his other family member remains at the home. On 12/02/2011, wife of Fazra and his children were present at their house. Conduct of Fazra is not good in the mohalla. She knows the family members of Fazra since her birth (bachpan se janti hu). The daughter of Fazra repeats the thing when the same is repeated by them (jab hum bolte hain to hamare piche dohra deti hain). In her (DW1) presence, no brain test has been done of daughter of Fazra (prosecutrix). No sufferance of fits by the prosecutrix (name withheld) has been seen by her (DW1). They had seen Police Officials visiting the house of Fazra. Vol. Fazra used to tie goats in front of their main door and there used to take place quarrel on this. There 55 of 112 56 FIR No. 69/11 PS - Narela used to be quarrel between Mahender and Fazra on the question of lifting of the garbage/excreta (kuda uthane par) of the goats. Her fatherinlaw Mahender is suffering from injury in his foot for the last four years due to which he is also not able to walk properly. It is a false case as she also has a daughter of nine years old and she (DW1) stays at home.
On careful perusal and analysis of the testimony of DW1 - Smt. Mukesh, it is found that the Theory that, "On 12/02/2011, it was Saturday. On that day, she (DW1) was at her home along with her fatherinlaw (accused), motherinlaw, her great grand motherin law, her husband and her three children. She remained at her home throughout the day and night. No member of the family had gone out on that day."
AND the Theory that, "There used to be quarrel between Mahender and Fazra on the question of lifting of the garbage/excreta (kuda uthane par) of the goats" have been propounded by DW1 - Smt. Mukesh.
DW2 - Sunil in his examinationinchief has deposed that 56 of 112 57 FIR No. 69/11 PS - Narela he does not recollect of which date the incident is. On 12/02/2011, he was present at his house throughout the day and night. Besides him, his father, his mother, his grandmother, his wife and his children were present at the house throughout the day and night. He knows Fazra since his birth. He works as a guard on the bridge under construction at Narela. When Fazra goes on his duty, his other family members remains at home. He knows the prosecutrix (name withheld) since his childhood. Prosecutrix (name withheld) lives in their gali since her childhood. Whenever they say anything to her, she repeats that. No medical examination of the prosecutrix (name withheld) has ever been conducted in his presence. Nor he had ever seen prosecutrix (name withheld) suffering from any fits. Fazra is a quarrelsome person. He has found Police Official visiting his house frequently. Fazra used to tie sheep and goats (bhed bakri) in front of their house and whenever they used to say to him to clean that place then he used to pick up quarrel with them. Fazra has intentionally foisted this case and he was a quarrelsome person in the locality. His (DW2) father due to injury in his foot used to take aid of crutches (baisakhi) while walking.
57 of 112 58 FIR No. 69/11 PS - Narela On careful perusal and analysis of the testimony of DW2 - Sunil, it is found that the Theory that, "On 12/02/2011, he (DW2) was present at his house throughout the day and night. Besides him, his father, his mother, his grandmother, his wife and his children were present at the house throughout the day and night."
AND the Theory that, "Fazra used to tie sheep and goats (bhed bakri) in front of their house and whenever they used to say to him to clean that place then he used to pick up quarrel with them"
have been propounded by DW2 - Sunil.
On careful perusal and analysis of the evidence on record, it is found that the Theory that, "On 12/02/2011, it was Saturday. On that day, she (DW1) was at her home along with her fatherinlaw (accused), motherinlaw, her great grand motherinlaw, her husband and her three children. She remained at her home throughout the day and night. No member of the family had gone out on that day." as propounded by DW1 - Smt. Mukesh and the
58 of 112 59 FIR No. 69/11 PS - Narela Theory that, "On 12/02/2011, he (DW2) was present at his house throughout the day and night. Besides him, his father, his mother, his grandmother, his wife and his children were present at the house throughout the day and night." as propounded by DW2 - Sunil have not at all being made probable much established by any cogent evidence by the accused therefore falls flat on the ground.
It is also to be noticed, the said theories so propounded by the accused were not put/suggested either to PW1 - prosecutrix or PW5 - Fazra or PW6 - Ms. Zarina during their cross examinations. Nor even a single word regarding the said theories was uttered by accused during his statement u/s 313 Cr.P.C.
Moreover, PW1 - prosecutrix during her crossexamination has specifically deposed that "No body lives in the house of Mahender except Mahender."
In the circumstances, the said Theories so propounded by DW1 - Smt. Mukesh and DW2 - Sunil are merely an afterthought and do not inspire confidence.
As regards the Theory that, "There used to be quarrel 59 of 112 60 FIR No. 69/11 PS - Narela between Mahender and Fazra on the question of lifting of the garbage/excreta (kuda uthane par) of the goats." as propounded by DW1 - Smt. Mukesh and the Theory that, "Fazra used to tie sheep and goats (bhed bakri) in front of their house and whenever they used to say to him to clean that place then he used to pick up quarrel with them." as propounded by DW2 - Sunil are concerned, the bottom of the said Theories has been knocked out, as to what has been deposed by PW5 - Fazra during his crossexamination which is reproduced and reads as under : "Q. Is it correct that the quarrel used to take place between you and Mahender, as you used to tie your goats in front of the house of Mahender and they used to create dirtyness by their excreta?
Ans. I never tied my goats in front of his house rather Mahender used to tie his buffalo in front of our house and the buffaloes used to excrete dung because of that quarrel used to take place between Mahender and me.
Q. I put it to your (you) that because of the quarrel which had taken place for the aforesaid reason, you had threatened Mahender that you will get him sent to the jail?
60 of 112
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A. It is incorrect."
Moreover, it has also not been denied by DW1 - Smt. Mukesh and DW2 - Sunil, during their crossexamination by Learned Addl. PP for the State that they did not make any complaint/phone to the Police at number 100 regarding the quarrel on the tying of goats.
The relevant part of crossexamination of DW1 - Smt. Mukesh reads as under : "We did not made (make) any call to the Police at number 100 regarding the quarrel of goats. Vol. Since old persons were quarreling among themselves."
The relevant part of crossexamination of DW2 - Sunil reads as under : "We did not make any complaint/phone to the Police regarding the quarrel which used to take place between Fazra and my father. Vol. Since the quarrel used to take place between the old age person so we did not make any complaint."
On careful perusal and analysis it is indicated that the 61 of 112 62 FIR No. 69/11 PS - Narela explanation doled out by the said DWs for not making any complaint/phone to the Police at number 100 on the quarrels which allegedly used to take place on the issue of tying of goats by PW5 - Fazra in front of the house of accused is found to have no substance, moreso when it was specifically suggested to PW5 - Fazra, during his crossexamination, as reproduced hereinabove that because of the said quarrels, he (PW5 - Fazra) had threatened accused Mahender to get him to the jail which he negated. Had PW5 - Fazra threatened the accused, DW1 - Smt. Mukesh who is none else but daughterinlaw of accused and DW2 - Sunil who is none else but son of accused, would have certainly made the complaint to Police or phone at No. 100 to the Police but they didn't.
In the circumstances, there appears to be substance in the suggestion put to DW1 - Smt. Mukesh during her crossexamination by the Learned Addl. PP that she has been tutored to deposed in favour of accused Mahender who is her fatherinlaw and the suggestion put to DW2 - Sunil during his crossexamination by Learned Addl. PP that he has been tutored to depose in favour of accused Mahender, who is his 62 of 112 63 FIR No. 69/11 PS - Narela father in order to save him from the punishment, which though they negated.
In view of above and in the circumstances, it is clearly indicates that DW1 - Smt. Mukesh and DW2 - Sunil are the procured witnesses. Their testimonies do not inspire confidence.
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 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.
63 of 112 64 FIR No. 69/11 PS - Narela 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."
On analysing the testimony of PW1 - Prosecutrix in the light of medical/gynaecological examination vide Report/MLC Ex. PW2/A and MLC Ex. PW7/A of the prosecutrix, biological and serological evidence Ex. PW14/A and Ex. PW14/B and MLC of accused 64 of 112 65 FIR No. 69/11 PS - Narela Mahender Ex. PW12/A, as discussed hereinbefore, the act of performing of sexual intercourse activity by complete penetration of penis or by partial penetration of the penis, 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 accused Mahender with PW1 - Prosecutrix without her consent.
19. Learned Counsel for accused submitted that the FIR was registered after a delay of three (03) days. FIR was initially registered u/s 354 IPC on 15/02/2011. After 18 days of the registration of the FIR on 05/03/2011, Investigating Agency approached the concerned Learned Metropolitan Magistrate for recording the statement of the prosecutrix u/s 164 Cr.P.C. wherein, the prosecutrix took a somersault and changed her entire allegation, accusation against accused Mahender. The allegations against accused Mahender which were initially of molesting and touching the private parts of the prosecutrix got improved into allegation of rape. The delay in the registration of the FIR has hit the 65 of 112 66 FIR No. 69/11 PS - Narela authenticity of the case.
I have carefully perused and analysed the evidence on record.
Undisputably, IO SI Mohd. Yakub has expired and he has not been examined as a witness in the instant case. PW16 - Inspector Satish Kumar who was the SHO of PS - Narela at the relevant time has been examined to prove the proceedings conducted by IO SI Mohd. Yakub (since expired) being acquainted with the handwriting and signature of IO SI Mohd. Yakub.
The perusal of the record shows that on the statement of Fazra, father of the prosecutrix dated 15/02/2011 Ex. PW5/A, the FIR Ex. PW4/A u/s - 354 IPC, PS - Narela was registered.
PW11 - Sh. Sunil Gupta, Learned MM has proved the statement of the prosecutrix recorded on 05/03/2011 u/s 164 Cr.P.C. Ex. PW1/A which bears his signature at point 'B' and the thumb impression of the prosecutrix at point 'A'.
From above it is clearly indicated that the statement u/s 164 Cr.P.C. Ex. PW1/A was recorded on 05/03/2011 after about 18 days of 66 of 112 67 FIR No. 69/11 PS - Narela the recording of the statement of PW5 - Fazra Ex. PW5/A on the basis of which FIR Ex. PW4/A was registered u/s 354 IPC.
The statement of PW1 - prosecutrix was recorded u/s 161 Cr.P.C. on 15/02/2011.
PW2 - Dr. Arti, SR, Gynae, SRHC Hospital, Narela has proved the medical/gynaecological examination of the prosecutrix conducted by her on 15/02/2011 vide Report/MLC Ex. PW2/A. PW7 - Dr. Abhilasha, SR, Gynae, BSA Hospital has proved the gynaecological examination of the prosecutrix conducted by her on 19/02/2011 vide MLC Ex. PW7/A. Pursuant to the gynaecological examination conducted on 19/02/2011 by PW7 - Dr. Abhilasha, SR Gynae, BSA Hospital, on 05/03/2011 an application for recording the statement of the prosecutrix u/s 164 Cr.P.C. Ex. PW16/H was moved by IO SI Mohd. Yakub (since expired) interalia mentioning therein that during the course of investigation, it is revealed that prosecutrix (name withheld) has been raped by the accused and pursuant to that the statement u/s 164 Cr.P.C. Ex. PW1/A was recorded by PW11 - Sh. Sunil Gupta, Learned MM.
67 of 112 68 FIR No. 69/11 PS - Narela PW6 - Zarina, mother of the prosecutrix in her examinationinchief has specifically deposed that her daughter/prosecutrix (name withheld) is mentally weak.
PW5 - Fazra during his examinationinchief has deposed that : "My daughter prosecutrix (name withheld) have little unsane from her mental capability and she was not attending any School".
PW5 - Fazra during his crossexamination by the Learned Counsel for the accused has specifically deposed that : "I did not get any medical treatment of my daughter for her mental problem. It is wrong to suggest that my daughter is not suffering from any mental problem Q. Did you give any mental medical treatment paper to the IO? Ans. I do not know whatever document I had, given to the Police."
PW5 - Fazra during his crossexamination by the Learned Counsel for the accused has deposed that : "I do not recollect as to how many times I met the Police and went to the Police Station in connection with this case. Vol. I am illiterate as and when the Police called, I met the Police."
68 of 112 69 FIR No. 69/11 PS - Narela I have carefully gone through the statements u/s 161 Cr.P.C., u/s 164 Cr.P.C. Ex. PW1/A of PW1 - prosecutrix as well as the testimonies of PW1 - prosecutrix, PW5 - Fazra, her father as well as PW6 - Zarina, her mother. On careful perusal and analysis, it is found that they are the illiterate persons and have deposed the facts what they experienced, perceived and observed.
Sight cannot be lost of the illiteracy of PW1 - prosecutrix, her father PW5 - Fazra and her mother PW6 - Zarina. PW5 - Fazra during his crossexamination by the Learned Addl. PP for the State admitted it to be correct that the incident had taken place on 12/02/2011 and he reported the matter to the Police on 15/02/2011. PW5 - Fazra reported the incident to the Police on 15/02/2011 when it was disclosed to him by his wife PW6 - Zarina to whom the incident was disclosed by her daughter/prosecutrix, at the first available opportunity being relevant u/s 6 & 8 of Indian Evidence Act, 1872.
PW5 - Fazra in his statement to the Police Ex. PW5/A dated 15/02/2011 has specifically deposed that : 69 of 112 70 FIR No. 69/11 PS - Narela "He (Fazra) till by this time was consulting with his known persons (jaankaron se) as to what action should be taken regarding the activity (harkat) committed by Mahender. But nobody gave him any advice. Today, he alongwith his daughter/prosecutrix and his wife has come to the Police Station to lodge the report."
In view of above and in the circumstances, the delay in reporting the incident which took place on 12/02/2011, to the Police on 15/02/2011 stands satisfactorily and sufficiently explained.
The statement of the prosecutrix u/s 164 Cr.P.C. Ex. PW1/A was recorded on 05/03/2011 by PW11 - Sh. Sunil Gupta, Learned MM, on the application Ex. PW16/H moved by IO SI Mohd. Yakub (since expired) for the reasons detailed hereinabove.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
70 of 112 71 FIR No. 69/11 PS - Narela Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of 71 of 112 72 FIR No. 69/11 PS - Narela sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : 72 of 112 73 FIR No. 69/11 PS - Narela "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
20. Learned Counsel for accused submitted that the statement u/s 164 Cr.P.C. of the prosecutrix was recorded without oath therefore 73 of 112 74 FIR No. 69/11 PS - Narela has no authenticity. Statement u/s 164 Cr.P.C. shows major improvement as the allegation of touching the private parts of the prosecutrix were changed into allegation of rape. The statement u/s 161 Cr.P.C. does not reveal the name of the accused person. The statement u/s 164 Cr.P.C. also shows that the incident of rape was seen by the elder brother of the prosecutrix but the elder brother has not been made a witness in the present case whose evidence holds a very crucial position in proving the prosecution case.
I have carefully perused and analysed the evidence on record.
The perusal of statement of PW1 - prosecutruix dated 05/03/2011 recorded u/s 164 Cr.P.C. Ex. PW1/A is found to be recorded "without oath" by PW11 - Sh. Sunil Gupta, Learned MM. It is also been indicated that before recording the statement of PW1 - prosecutrix u/s 164 Cr.P.C. Ex. PW1/A, PW11 - Sh. Sunil Kumar, Learned MM had put some preliminary questions to test her understanding mentioned therein.
It is also further indicated that during the course of putting some preliminary questions to PW1 - prosecutrix, before recording her 74 of 112 75 FIR No. 69/11 PS - Narela statement u/s 164 Cr.P.C. Ex. APW1/A, one of the preliminary questions put to her was;
Q. Do you understand the meaning of oath?
Ans. No. In view of the said reply to the said question, PW11 - Sh. Sunil Gupta, Learned MM after observing that "As the victim does not understand the meaning of oath, so she is not being administered oath" he proceeded to record the statement of PW1 - prosecutrix u/s 164 Cr.P.C. (Ex. PW1/A) "without oath".
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused that since the statement of prosecutrix u/s 164 Cr.P.C. was not recorded on oath therefore has no authenticity.
As regards the plea that the statement u/s 164 Cr.P.C. (Ex. PW1/A) shows major improvement as the allegations of touching of private parts of prosecutrix were changed into allegation of rape, is concerned, on careful perusal and analysis of the statement u/s 164 Cr.P.C. dated 05/03/2011 (Ex. PW1/A) and the statement u/s 161 Cr.P.C.
75 of 112 76 FIR No. 69/11 PS - Narela dated 15/02/2011 of the prosecutrix, it is found that in fact so called improvements made in statement u/s 164 Cr.P.C. (Ex. PW1/A) are the 'clarifications' or 'elaboration' of facts in response to the questions put to her which she was not supported to state in the statement u/s 161 Cr.P.C. dated 15/02/2011. The core facts about the committal of sexual assault by the accused by way of complete penetration of his body part by which urine is passed (Wahi Jis Se Peshab Karte Hain) (penis) into her (PW1
- prosecutrix) place of urination (Peshab Ki Jagah) (vagina), remained identical.
As regards the plea that the statement u/s 161 Cr.P.C. of the prosecutrix does not reveal the name of the accused person, is concerned, on careful perusal and analysis of the same it is found that it sufficiently indicates and point towards the accused. The relevant part of the statement u/s 161 Cr.P.C. dated 15/02/2011 of the prosecutrix reads as under : "Q. Who had taken out (Kis Ne Bahar Nikal Diya)? Ans. Name does not know, lives near the house (Naam Pata Nahi Ghar Ke Paas Rehta Hai)"
During her statement recorded u/s 164 Cr.P.C. Ex. PW1/A, it is also been indicated that PW1 - prosecutrix has identified accused
76 of 112 77 FIR No. 69/11 PS - Narela Mahender, when she murmured in Haryanvi dialect sounding his name as 'Vahender' 'Bhander'. He lives near their house.
The relevant part of statement of PW1 - prosecutrix recorded u/s 164 Cr.P.C. Ex. PW1/A reads as under : "Q. Who has done all this?
(Kisne Kiya Ye Sab) Ans. (Not clear, as she has Haryanvi dialect, it sounds like) Vahender, Bhander, he lives near to their house (Hamare Ghar Ke Paas Rehta Hai Veh)."
Moreover, during her crossexamination by the Learned Counsel for the accused PW1 - prosecutrix has specifically deposed that : "Mahender's house is situated two houses away from our house."
During her examinationinchief PW1 - prosecutrix has correctly identified the accused present in the Court and has specifically deposed that accused is her neighbourer and is present in the Court. Accused Mahender is living in her neighbourhood 77 of 112 78 FIR No. 69/11 PS - Narela leaving 23 houses from her house.
As regards the plea that the statement u/s 164 Cr.P.C. (Ex. PW1/A) also shows that the incident of rape was seen by the elder brother of the prosecutrix but the elder brother has not been made a witness in the present case whose evidence holds a very crucial position in proving the prosecution case, is concerned, on perusal the relevant part of statement u/s 164 Cr.P.C. Ex. PW1/A of the prosecutrix reads as under : Q. then, did you tell anyone (Fir Kiso Ko Bataya)? Ans. My elder brother told to my mother that galat kaam has been committed with prosecutrix (name withheld). Her elder brother himself had seen all this while being committed (Mere Bade Bhai Ne Meri Maa Ko Bataya Ki prosecutrix (name withheld) Ke Sath Galat Kaam Hua Hai. Mere Bade Bhai Ne Khud Ye Sab Hote Huye Dekha Tha).
It is evident from the record that during the incisive and lengthy crossexamination of PW1 - prosecutrix, she was not confronted with the 'aforesaid fact'. 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.
78 of 112 79 FIR No. 69/11 PS - Narela 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).
So far as the nonciting of elder brother of the prosecutrix as a witness in the present case is concerned, it is evident from the record that during the crossexamination of PW16 - Inspector Satish Kumar (who had deposed being SHO concerned on behalf of IO Mohd. Yakub since he had expired), accused neither voiced his concern nor raised any apprehension regarding the nonciting of elder brother of the prosecutrix. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. In such a situation, the accused cannot be heard saying that since the most material witness was withheld by the prosecution therefore, adverse inference should be drawn against the prosecution.
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. State of U.P.' (1979) 4 SCC 345; 'State of U.P. Vs. Anil Singh' AIR 1988 79 of 112 80 FIR No. 69/11 PS - Narela 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.
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 all the statements of the witnesses recorded u/s 161 Cr.P.C. tell the story of touching the private parts of the prosecutrix by the accused.
I have carefully perused and analysed the evidence on record.
The perusal of the record shows that on the statement of Fazra, father of the prosecutrix dated 15/02/2011 Ex. PW5/A, the FIR Ex. PW4/A u/s - 354 IPC, PS - Narela was registered.
80 of 112 81 FIR No. 69/11 PS - Narela The statements u/s 161 Cr.P.C. of PW1 - prosecutrix and Zarina, her mother were also recorded on 15/02/2011. The statements of Fazra, father of the prosecutrix, Zarina, her mother u/s 161 Cr.P.C. were also recorded on 05/03/2011, as well as the statement of the prosecutrix u/s 164 Cr. P.C. Ex. PW1/A was also recorded on 05/03/2011.
The relevant part of the statement u/s 161 Cr.P.C. of PW1 - prosecutrix recorded on 15/02/2011 reads : "Q. What has happened with you?
(Aapke Sath Kya Hua Hai) Ans. Has been touched with hand.
(Hath Se Cheda Hai) Q. What has been touched?
(Kya Cheda Hai) Ans. Body has been pulled out, Much blood oozed.
(Sharir Bahar Nikal Diya Ghana Khoon Nikla) Q. How it was taken out?
(Kaise Bahar Nikala) Ans. Took out by hand (Hath Se Nikala)."
From the aforesaid narration of PW1 - prosecutrix, it is clearly indicated that it is not a simplicitor case of touching the private 81 of 112 82 FIR No. 69/11 PS - Narela parts of prosecutrix by the accused. Had it been so, then how, much blood oozed out. On careful perusal and analysis of the statement of PW5 - Fazra Ex. PW5/A dated 15/02/2011; statements u/s 161 Cr.P.C. dated 15/02/2011, statements u/s 161 Cr.P.C. dated 05/03/2011 of PW5 - Fazra and PW6 - Zarina; statement u/s 164 Cr.P.C. dated 05/03/2011 of PW1 - prosecutrix Ex. PW1/A; in conjunction with the MLCs dated 15/02/2011 and 19/02/2011 of PW1 - prosecutrix Ex. PW2/A and Ex. PW7/A respectively, it clearly indicates of the committal of sexual assault by the accused by way of complete penetration of his body part by which urine is passed (penis) into her (PW1 - prosecutrix) place of urination (vagina).
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 the medical examination reports do not support the prosecution story as there is no visible evidence being observed by the examining Doctor in both the MLCs being conducted at SRHC Hospital vide MLC No. 167/11 dated 82 of 112 83 FIR No. 69/11 PS - Narela 15/02/2011 and at BSRA Hospital vide MLC No. 53 dated 19/02/2011.
I have carefully perused and analysed the evidence on record.
PW2 Dr. Arti, Sr. Resident Gynae, SRHC Hospital, Narela, who conducted the gynaecological/local examination of the patient/prosecutrix and deposed that on 15/02/2011 prosecutrix (name withheld) with alleged history of sexual assault was referred to Gynae SR by the concerned Doctor at the Satyavadi Harish Chander Hospital at Narela. She was working on the day as Gynae SR in the Hospital. She examined the patient and on local examination her hymen were (was) found ruptured. Patient was not cooperative and she was referred to BSA for further examination because of non availability of Anesthesia facilities in the Hospital. Pubic hair and clothes sample were taken and sealed in a pullinda and handed over to Lady Constable Pooja. Her examination report is Ex. PW2/A and signed by her at point 'A'.
During her crossexamination PW2 Dr. Arti has deposed that : "I have not observed Haematoma on examination of accused (Be read as prosecutrix). Hymen raptured (ruptured) was not fresh."
83 of 112 84 FIR No. 69/11 PS - Narela PW7 Dr. Abhilasha, SR Gynae, BSA, Rohini, Delhi who deposed that on 19/02/2011 at about 2:10 p.m. pne patient/prosecutrix (name withheld) D/o Fazara was referred from Satyawadi Raja Harish Chand Hospital, Narela with the history of sexual assault as told by the patient herself and father. She had examined the patient and on local examination she found that the hymen of the patient was torn and there was no evidence of any external recent fresh trauma and there was no evidence of external injury visible over genitalia or other body parts. No scratch marks over genitalia or other body parts visible. No discharge per vagina, no bleeding per vagina, anal opening intact, no tear or fresh injury. She had sealed six samples as stated in detail at point 'C' on MLC Ex. PW7/A signed by her at point 'A' and the same were sealed and handed over to HC Naresh Kumar.
During her crossexamination PW7 Dr. Abhilasha has deposed that : "As the patient was not cooperating in Satyawadi Harish Chand Hospital, the concerned Doctor has referred to our Hospital. The patient was cooperative for examination as well as for sampling. The 84 of 112 85 FIR No. 69/11 PS - Narela patient was responding at the time of her examination. The contents of the MLC Ex. PW7/A was written by me."
There is nothing in the crossexamination of PW2 - Dr. Arti and PW7 - Dr. Abhilasha so as to impeach their creditworthiness.
As regards absence of any external injury over genitalia or other body parts 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 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 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).
85 of 112 86 FIR No. 69/11 PS - Narela Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
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.
23. Learned Counsel for accused submitted that as per the version of the FIR, the prosecutrix told her mother about the incident and 86 of 112 87 FIR No. 69/11 PS - Narela her mother in turn narrated the whole incident of accused molesting her daughter to her husband, the complainant. However, in the evidence recorded u/s 164 Cr.P.C., the prosecutrix has narrated the incident to her elder brother, who is not made a witness by the prosecution.
I have carefully perused and analysed the evidence on record.
At the outset, it is to be mentioned that the plea regarding the nonciting of elder brother of the prosecutrix by the prosecution has already been discussed and dealt with hereinbefore.
The perusal of the record shows that on the statement of Fazra, father of the prosecutrix dated 15/02/2011 Ex. PW5/A, the FIR Ex. PW4/A u/s - 354 IPC, PS - Narela was registered.
PW11 - Sh. Sunil Gupta, Learned MM has proved the statement of the prosecutrix recorded on 05/03/2011 u/s 164 Cr.P.C. Ex. PW1/A which bears his signature at point 'B' and the thumb impression of the prosecutrix at point 'A'.
PW1 - prosecutrix has proved her statement recorded u/s 164 Cr.P.C. dated 05/03/2011 Ex. PW1/A bearing her thumb impression 87 of 112 88 FIR No. 69/11 PS - Narela at point 'A'. The testimonies of PW1 - prosecutrix, PW5 - Fazra, her father and PW6 - Zarina, her mother have been reproduced, discussed and analysed hereinbefore. It is evident from the record that on the said plea so raised by Learned Counsel for the accused, neither PW5 - Fazra nor PW6 Zarina nor PW1 - prosecutrix were confronted with during the course of their lengthy and incisive crossexamination. For such failure accused is to blame himself and none else.
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 the evidence given by the witnesses in the present case is vague, as they are not aware as to when the incident took place and there are major improvements 88 of 112 89 FIR No. 69/11 PS - Narela made by the witnesses in their statements and are the tutored witnesses.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW1 - prosecutrix on careful perusal and analysis has been found to be natural, clear, cogent, trustworthy and reliable.
At the cost of repetition, it is pertinent to reproduce the examinationinchief of PW1 - prosecutrix which reads as under : "About one year before, accused Mahender present in the Court (correctly identified) called me at his house and requested me to bring bidi/cigarette and match box from the market i.e. donald. I brought the same and given to the accused Mahender. Thereafter, the accused opened my salwar by pushing nada and thereafter he laid me on the bed, no other person was present in his house and thereafter he has forcefully did wrong act with me. Wrong act I mean sexual intercourse which husband generally do with his wife. Accused has also put his hand into my vagina. During the time when accused committed wrong act with me, I cried and blood was also coming out from my vagina. After committing rape with me, accused Mahender himself left me at my house. I have also bleeding from my private part. Accused has also given me note of five rupees. I had informed all the facts to my mother 89 of 112 90 FIR No. 69/11 PS - Narela who in turn stated to my father and my father made a complaint to the Police officials. Accused is my neighbourer and is present in the Court today. Accused Mahender is living in my neighbourhood leaving apart 23 houses from my house.
Police officials got me medically examined. My statement u/s 164 Cr.P.C. was also got recorded in the Court.
At this stage, a sealed envelope sealed with the seal of 'SG' is opened which containing the papers regarding recording of statement of prosecutrix u/s 164 Cr.P.C. I have put my right thumb impression on my statement Ex. PW1/A at point 'A'."
"I can identify accused, who is present in Court today (correctly identified). After committing a rape accused has given me a five rupees note for taking some food article. I can identify my clothes which was sealed by concerned Doctor if shown to me."
"I can identify the clothes which I was wearing at the time of commission of offence if shown to me.
At this stage, a parcel no. 3 sealed with the seal of FSL is opened which containing a salwar, one lady shirt, one brazier and one cloth piece. Same are shown to the witness who identify the same. Same are exhibited as Ex. P1 to P4 respectively."
During her crossexamination PW1 prosecutrix has deposed which is reproduced and reads as under : "We are five brothers and sisters namely Akbar, Saleem, Zarina, Nawab and myself. My house is situated at Nai Basti, Narela. I was born on second but I do not remember month and year. Nobody lives in the house of Mahender except Mahender. Mahender's house is a 90 of 112 91 FIR No. 69/11 PS - Narela two storey house. I do not know at what time my father leave for his job and comes back from job. I am living with my parents and brothers and sisters. It is correct that on 15 February, 2011 i.e. the date of incident, my mother, father and every other body was at home. Mahender's house is situated two houses away from our house. The road outside our house is a busy road but no vehicle passes through the road. On the date of incident, I was at my home and Mahender was at his house. On the date of incident Mahender was sitting outside my house. The rape was committed by Mahender at his house. There were two rooms in Mahender's house. In the room, where rape was committed was having one window (jangla) and one door. I was called by Mahender at his house. At the time when Mahender called me at his house my mother had gone for grazing the goats. I raised an alarm at the time when rape was committed upon me by the accused (chikhichillai). I did not sustain any injury. Blood was oozing from my private part. My clothes were also got torn. The blood which had oozed out was cleaned/wiped by Mahender. I had given blood stained clothes to my mother and the same were given to the Police. When I raised an alarm my mother and father had reached there. On 05/03/2011, I was present at my home from morning till night. I was also cleaning the house on that day (pocha mar rahi thi). It is correct to suggest that on 05/03/2011 I was present at my home and did not go any where. It is correct that I had not signed on any paper as far as I remember on 05/03/2011. It is correct that a quarrel do take place between my father and Mahender as my father Fazra ties cattle outside the house of Mahender. It is correct that the waste of the cattle was being thrown in front of the house of Mahender which was objected to by Mahender. It is correct that for the said reason, my father had threatened Mahender to send him to jail. My statement was recorded before a Magistrate. It is correct that whatever I had told in my statement 91 of 112 92 FIR No. 69/11 PS - Narela to the Magistrate, I had also told earlier to my father as well as to the Police by me. It is wrong to suggest that a false case has been registered against accused Mahender. It is wrong to suggest that I am tutored witness. It is wrong to suggest that I have deposed at the instance of my parents and the Police. It is wrong to suggest that I am deposing falsely."
On analysing the entire testimony of PW1 - prosecutrix, it transpires that she has described the scenario implicating the accused Mahender to be the author of crime, of the committal of sexual assault upon her. The accused failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. She has withstood the rigors of crossexamination without being shaken. Her version on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against accused Mahender to falsely implicate him in the case. She is not a tutored witness. Had she been a tutored witness, she would have deposed on the facts regarding which Learned Counsel for accused has raised the plea that she is not aware as to when the incident took place. Moreover, the so called improvements are merely the 'clarifications' or 'elaboration' of facts in response to the questions put to her which she was not supposed to state in the statements u/s 161 Cr.P.C. or u/s 164 92 of 112 93 FIR No. 69/11 PS - Narela Cr.P.C. Ex. PW1/A. The testimonies of PW5 Fazra, father of the prosecutrix and PW6 - Zarina, mother of the prosecutrix have been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimonies of PW5 - Fazra and PW6 Zarina on careful perusal and analysis have been found to be natural, clear, reliable, inspiring confidence and having a ring of truth.
At the cost of repetition, it is pertinent to reproduce the examinationinchief of PW5 - Fazra, which reads as under : "I have five issues. Normally I left for office from my house at about 7:00 a.m. I am illiterate. On 26/01/2011 my daughter/prosecutrix (name withheld) aged around 14 years was called by our front door neighbour Mahender and asked her to bring Bidi packet and match box. When she brought the Bidi packet and match box accused Mahender Singh bolted the door from inside and Nara of my daughter's salwar was broken and thereafter, accused has committed rape upon her person. When I returned back from my office at about 7:30 p.m. all the facts were informed by my wife and thereafter, we had dual exchanged with words with accused Mahender. I alongwith my wife went to the police station on the next day and lodged the FIR against the accused. Police recorded my statement which is Ex. PW5/A thumb mark at point 'A'. Police got my daughter medically examined and also got 93 of 112 94 FIR No. 69/11 PS - Narela recorded her statement from the concerned court under section 164 Cr.P.C. My daughter/prosecutrix (name withheld) have little unsane from her mental capability and she was not attending any school. I have not brought the certificate. I do not remember the date of birth of my daughter exactly. Accused was later on arrested by the police and prepared her (his) arrest memo which is Ex. PW5/B signed by me at point A. Accused Mahender is present in the Court today. (correctly identified)"
During his crossexamination, PW5 - Fazra has deposed which is reproduced and reads as under : "I am working as a private security guard. I did not get any medical treatment of my daughter for her mental problem. It is wrong to suggest that my daughter is not suffering from any mental problem.
Q. Did you give any mental medical treatment paper to the IO? Ans. I do not know whatever document I had given to the Police. Q. Did you state to the police in your statement that when she brought the Bidi Packet and Match Box accused Mahender Singh bolted the door from inside and Nara of my daughter's salwar was broken and thereafter accused has committed rape upon her person. Ans. I stated to the police in my statement (confronted from statement Ex. PW5/A wherein it is not so recorded).
It is correct that on 26/01/2011 was a Holiday. It is wrong to suggest that I was at my home on 26/01/2011. Vol. I was on my duty.
94 of 112 95 FIR No. 69/11 PS - Narela None of my other family member was present at home on 26/01/2011. Q. Did you state to the police that when I returned back from my office about 7.30 p.m. and all the facts were informed by my wife and thereafter we have dual exchange of words with accused Mahender. Ans. I had stated to the police in my statement (Confronted with statement Ex. PW5/A wherein it is not so recorded).
On that day accused Mahender had caused injuries to my wife. I had not suffered any injury. I have informed this fact to the police. It is wrong to suggest that I am deposing falsely as to what you have deposed hereinabove. Vol. the quarrel had taken place after 7:30 p.m. in the evening. On 05/03/2011 I was on duty. Vol. the day the incident occured (occurred) with my daughter. It is correct to suggest that the incident occured (occurred) with my daughter on 05/03/2011. On 05/03/2011 my wife had come to my duty place to give me food. Prosecutrix (name withheld) was at home on that day i.e. 05/03/2011. Q. On 05/03/2011 you were on duty and your wife had come to you to give you food and your daughter/prosecutrix (name withheld) was at home. Is it correct that your daughter/prosecutrix (name withheld) had not gone anywhere on 05/03/2011.
Ans. It is correct. Vol. Prosecutrix (name withheld) was alone at home.
I do not recollect as to how many times I met the Police and went to the Police Station in connection with this case. Vol. I am illiterate as and when the Police called I met the Police. I do not recollect as to how many times my statement was recorded by the Police 95 of 112 96 FIR No. 69/11 PS - Narela nor I recollect as to how many papers I have signed of the Police. The statement which I made to the Police was not read over to me. Vol. Police had recorded what I had stated to the Police. I had gone alone at the time of lodging the report with the Police. It is correct that there used to be quarrel with Mahender prior to the incident. Q. Is it correct that the quarrel used to take place between you and Mahender, as you used to tie your goats in front of the house of Mahender and they used to create dirtyness by their excreta? Ans. I never tied my goats in front of his house rather Mahender used to tie his buffalo in front of our house and the buffalos (buffaloes) used to excrete dung because of that quarrel used to take place between Mahender and me.
Q. I put it to your (you) that because of the quarrel which had taken place for the aforesaid reason, you had threatened Mahender that you will get him sent to the jail.
Ans. It is incorrect.
It is wrong to suggest that no such incident took place with my daughter. It is further wrong to suggest that the said case is false or that the accused has been falsely planted in this case on the grounds of previous enmity. It is further wrong to suggest that I had tutored my daughter to depose falsely in this case or that my daughter had falsely deposed in this case at my instance or that my daughter has falsely deposed in this case on the basis of my tutoring. It is wrong to suggest that I am deposing falsely."
96 of 112 97 FIR No. 69/11 PS - Narela At the cost of repetition, it is pertinent to reproduce the examinationinchief of PW6 - Zarina, which reads as under : "I have five issues. Four were sons and one is my daughter named prosecutrix (name withheld). My daughter/prosecutrix (name withheld) was about 14 years of age at the time of present incident. I do not remember the date time and year. On the day of the incident my daughter/prosecutrix (name withheld) was called by Mahender and after giving Rs. 10/ and asked her to bring Bidi Matchis (Match Box). Mahender was alone in his house at that time. I had returned to my house after giving the food/lunch box to my husband at her (his) work place. When my daughter/prosecutrix (name withheld) had brought the Bidi and Matchis and gave it to Mahender who took her inside and closed the door of his house and committed Galat Kaam with her. My daughter returned weeping to the house and narrated the whole incident (to) me. In the evening when my husband come to the house from duties and I narrated the whole incident to him. On which myself and my husband went to the house of Mahender and inquired from him and he quarreled with us and caused injuries by throwing me away and I had sustained head and hand injuries and also threatened me to burn my house. Thereafter, I alongwith my husband went to the police station and my husband lodged the report. Police officials got medically examined my daughter. Thereafter, we returned to our house. Accused Mahender is present in the court today (correctly identified). My daughter/prosecutrix (name withheld) has (is) mentally week (weak)."
During her crossexamination, PW6 - Zarina has 97 of 112 98 FIR No. 69/11 PS - Narela deposed which is reproduced and reads as under : "Q. Did you state to the police in your statement that On the day of the incident my daughter/prosecutrix (name withheld) was called by Mahender and after giving Rs. 10/ and asked her to bring Bidi Matchis (Match Box). Mahender was alone in his house at that time. I had returned to my house after giving the food/lunch box to my husband at her work place. When my daughter/prosecutrix (name withheld) had brought the Bidi and Matchis and gave it to Mahender who took her inside and closed the door of his house and committed Galat Kaam with her.
Ans. Yes I had stated to the police in my statement (Confronted with statement Ex.PW6/DA wherein it is not so recorded).
I do not know the date,month and year of the incident. Police was in formed about the injuries sustained by me. I am deposing today whatever my advocate has tutored me and whatever happened with my daughter. It is correct that my daughter is mentally well.
It is wrong to suggest that no such incident took place with my daughter. It is further wrong to suggest that the said case is false or that the accused has been falsely planted in this case on the grounds of previous enmity. It is further wrong to suggest that I had tutored my daughter to depose falsely in this case or that my daughter had falsely deposed in this case at my instance or that my daughter has falsely deposed in this case on the basis of my tutoring. It is wrong to suggest that I am deposing falsely."
On analysing the testimonies of PW5 - Fazra and PW6 -
98 of 112 99 FIR No. 69/11 PS - Narela Zarina, it is clearly indicated that they are the illiterate persons and have deposed the facts of the incident which were disclosed to them by their daughter PW1 - prosecutrix, in the manner they perceived and retained and have deposed regarding the facts they observed, experienced and perceived. The deposition of the wrong date of the incident by PW5 - Fazra and of the deposition of the stray fact by PW6 - Zarina that she has deposed whatever her Advocate tutored her, do not falsify the case of the prosecution as the core facts about the committal of the sexual assault upon their daughter by accused Mahender has remained intact. Moreover, the so called improvements are the 'clarifications' or 'elaboration' of facts in response to the questions put to them which they were not supposed to state in the statement u/s 161 Cr.P.C. Ex. PW6/DA (PW6 - Zarina) and Ex. PW5/A (PW5 - Fazra). Had they been the tutored witnesses, they would have deposed on the facts regarding which the Learned Counsel for the accused has raised the plea that they are not aware as to when the incident took place or that they have deposed vaguely.
99 of 112 100 FIR No. 69/11 PS - Narela In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
100 of 112 101 FIR No. 69/11 PS - Narela The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
101 of 112 102 FIR No. 69/11 PS - Narela It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material 102 of 112 103 FIR No. 69/11 PS - Narela particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
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 prosecutrix being mentally weak but no document of her being mentally weak has been produced on the record.
I have carefully perused and analysed the evidence on record.
PW5 - Fazra during his examinationinchief has deposed 103 of 112 104 FIR No. 69/11 PS - Narela that, "My daughter prosecutrix (name withheld) have little unsane from her mental capability and she was not attending any School".
PW5 - Fazra during his crossexamination by the Learned Counsel for the accused has specifically deposed that : "I did not get any medical treatment of my daughter for her mental problem. It is wrong to suggest that my daughter is not suffering from any mental problem.
Q. Did you give any mental medical treatment paper to the IO? Ans. I do not know whatever document I had, given to the Police."
PW6 - Zarina, mother of the prosecutrix in her examinationinchief has specifically deposed that, "Her daughter/prosecutrix (name withheld) has (is) mentally week (weak)".
During her crossexamination PW6 - Zarina has deposed that, "it is correct that my daughter is mentally well".
PW13 - Islaman during her crossexamination by the Learned Addl. PP for the State has deposed that, "it is correct that 104 of 112 105 FIR No. 69/11 PS - Narela prosecutrix (name withheld) is mentally ill".
During her crossexamination by the Learned Counsel for the accused PW13 - Islaman has deposed that : "Whenever questions are put to the prosecutrix, she answers them rationally. No medical treatment pertaining to the mental health of prosecutrix was got done by her parents. It is incorrect to suggest that the prosecutrix is mentally ill."
Statement u/s 164 Cr.P.C. of the prosecutrix Ex. PW1/A was recorded by PW11 - Sh. Sunil Gupta, Learned MM. PW11 - Sh. Sunil Gupta, Learned MM, after recording the preliminary questions put to the prosecutrix and before recording the statement u/s 164 Cr.P.C. Ex. PW1/A has also observed that, "she (prosecutrix) is a bit slow in answering questions".
Although undisputably, no document regarding the mental problem of PW1 - prosecutrix has been produced or proved on record by the prosecution but at the same time nor any document disproving the said factum of mental problem has been produced or proved on the 105 of 112 106 FIR No. 69/11 PS - Narela record on behalf of accused.
On careful perusal and analysis of the entire evidence on record, except for the fact that PW1 - prosecutrix was slow in thinking and a bit slow in answering questions, nothing more is indicated.
Further, there is nothing on the record to indicate that PW1 - prosecutrix is not a competent witness to testify. As per her understanding, she gave the answers to the questions put to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused submitted that prosecutrix stated that her clothes were stained with blood and got torn and were also seized by the Police but no such pullinda is on the record or was deposited with the MHC(M).
I have carefully perused and analysed the evidence on record.
106 of 112 107 FIR No. 69/11 PS - Narela With due respect, it appears that Learned Counsel for accused has either misread or not read the evidence on record.
PW17 - W/Constable Pooja who took the prosecutrix for her medical examination to the Hospital and has deposed regarding the seizure of the sealed pullinda handed over by the Doctor after her medical examination vide seizure memo Ex. PW16/C. PW17 - W/Constable Pooja in her examinationinchief has deposed which is reproduced and reads as under : "On 15/02/2011 I was posted as Constable in PS Narela. On that day I alongwith IO SI Md. Yaqub took prosecutrix (name withheld) alongwith her parents in SRHC Hospital. Prosecutrix (name withheld) was medically examined in the hospital and after her medical examination, doctor handed over the sealed pullindas and same were seized by the IO vide memo already exhibited as Ex. PW16/C."
During her crossexamination, PW17 - W/Constable Pooja has deposed that : "It is incorrect to suggest that I did not accompany SI Md. Yaqub to the hospital alongwith prosecutrix. It is further incorrect to suggest that I am deposing falsely."
107 of 112 108 FIR No. 69/11 PS - Narela There is nothing in the crossexamination of PW17 - W/Constable Pooja so as to impeach her creditworthiness.
The testimony of PW17 - W/Constable Pooja is also corroborated by PW2 - Dr. Arti, SR, Gynae, SRHC Hospital, Narela who in her examinationinchief has deposed which is reproduced, at the cost of repetition and reads as under : "On 15/02/2011 prosecutrix (name withheld) with alleged history of sexual assault was refer (referred) to Gynae SR by the concerned Doctor at the Satyavadi Harish Chander Hospital at Narela. I was working on the day as Gynae SR in the Hospital. I examined the patient and on local examination her hymen were (was) found ruptured. Patient was not cooperative and she was referred to BSA for further examination because of non availability of Anesthesia facilities in the Hospital. Pubic hair and clothes sample were taken and sealed in a pullinda and handed over to Lady Constable Pooja. My examination report is Ex. PW2/A and signed by me at point 'A'."
PW16 - Inspector Satish Kumar during his examinationin chief has deposed that : "The seizure memo of the exhibits which were handed over to SI Mohd. Yakub after the medical examination of prosecutrix (name withheld) d/o Fazra was also prepared by SI Mohd. Yakub which is 108 of 112 109 FIR No. 69/11 PS - Narela Ex.PW16/C bearing his signatures at point 'A'."
PW1 - prosecutrix during her examinationinchief recorded on 30/01/2012 has identified and proved her clothes, a salwar, one lady shirt, one brazier and one cloth piece Ex. P1 to P4 respectively.
The fact regarding the deposition of the sealed pullinda seized vide seizure memo Ex. PW16/C in the malkhana and of its sending to FSL has been proved by PW15 - HC Pawan Kumar who in his examinationinchief has deposed which is reproduced and reads as under : "On 19/02/2011, I was posted as MHC(M) in PS - Narela. On that day, SI Mohd. Yakub had deposited one sealed pullinda sealed with the seal of 'SD' alongwith sample seal in the malkhana and on the same day, he had also deposited three sealed parcels sealed with the seal of SRHC Hospital alongwith one sample seal in the malkhana. I made entry at Serial No. 83 of Register No. 19. On 20/09/2011, on the instructions of the IO, the seal pullindas alongwith sample seals were handed over to Constable Jaswinder for depositing in FSL, Rohini vide RC No. 187/21/11. After depositing the pullindas in the FSL, Constable Jaswinder had deposited the acknowledgment receipt with me. Today I have brought the Register No. 19 & 21. Copy of relevant entry of Register No. 19 is Ex. PW15/A and copy of relevant entry of Register No. 21 is Ex. PW15/B and copy of the acknowledgment receipt is Ex.
109 of 112 110 FIR No. 69/11 PS - Narela PW15/C (OSR)."
On perusal of the biological report Ex. PW14/A, as reproduced, discussed and analysed hereinbefore, it is found that parcel no. 1 to 3 containing the exhibits detailed therein were seized vide seizure memo Ex. PW16/C dated 15/02/2011 and as per the results of analysis, interalia 'Human blood' was detected on exhibit '3a' (salwar of the prosecutrix).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for accused referred to the cases and are reported as 'Ram Sharan & Anr. Vs. State NCT of Delhi' 2012 (1) JCC 688 and 'State Vs. Anwar Hussain' 2012 (4) JCC 2806.
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. 110 of 112 111 FIR No. 69/11 PS - Narela 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 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".
28. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 12/02/2011 at unknown time at House No. 285, Gali No. 1, New Basti Bankner, Narela, Delhi, accused Mahender committed rape upon PW1 prosecutrix aged between 14 to 16 years, without her consent and against her will.
I accordingly hold accused Mahender guilty for the offence punishable u/s 376 IPC and convict him thereunder.
29. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Mahender in the commission of the offence u/s 376 IPC is concerned, the same is 111 of 112 112 FIR No. 69/11 PS - Narela 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 Mahender beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Mahender guilty for the offence punishable u/s 376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 26th Day of March, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 112 of 112