State vs . Kinu Munda on 22 May, 2014

[Cites 20, Cited by 0]

Delhi District Court

State vs . Kinu Munda on 22 May, 2014

                                     1
                                                                                         FIR No. 287/11
                                                                                      PS - Kanjhawala



      IN THE COURT OF SH. MAHESH CHANDER GUPTA : 
     ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK 
      COURT : NORTHWEST DISTRICT : ROHINI : DELHI

SESSIONS CASE NO. :  62/13
Unique ID No.     :   02404R0096332012

State              Vs.                        Kinu Munda
                                              S/o Sh. Karmu Munda
                                              R/o House No. M - 226,
                                              Near Britania Chowk,
                                              Shakur Pur, Delhi.
FIR No.            :  287/11
Police Station     :  Kanjhawala
Under Section      :  376 IPC

Date of committal to session Court       :     17/05/2012

Date on which judgment reserved          :     08/05/2014

Date on which judgment announced :             22/05/2014


J U D G M E N T

1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 99 2 FIR No. 287/11 PS - Kanjhawala That on 20/12/2011 complainant/prosecutrix (name withheld being a case u/s 376 IPC) D/o Daud Sureen R/o Village Chabbahal PO Kadopo, PS Barkot Devgada, Orissa, came to the Police Station Kanjhawala on the call of SI Rajesh Kumar and she was interrogated and all the circumstances were brought into the notice of the senior Police officers who directed SI Rajesh Kumar to take the appropriate action in the matter. SI Rajesh Kumar called the NGO Anuradha in the Police Station who counseled the prosecutrix. Prosecutrix made a statement which is to the effect that, she is the resident of the above said address and nowadays she is living at Agar Nagar. She came to Delhi for the first time in the year 2009 and that time she had worked in a kothi at Moti Nagar. Her introduction with Kinu Munda took place about one year back at Moti Nagar Metro Station. After this introduction, Kinu Munda had taken her phone number and she had taken his phone number. Kinu Munda had told her that he will put her on good employment (tumhe achi naukri lagwa dunga). After a few days of the said introduction, she left for her village. When she was living in village one week prior to coming of her to Delhi Kinu Munda telephoned her saying that, arrangement has been made for good employment for her 2 of 99 3 FIR No. 287/11 PS - Kanjhawala (tumhare liye achi naukri ka bandobast ho gaya hai) and asked her to come to Delhi (Tum Delhi Aa Jao). She came to Delhi in the second week of September. Kinu Munda took her from Hazrat Nizamuddin Railway Station to her house at Meer Vihar. Kinu Munda kept her for about one month in his house and he did not put her on job anywhere. She asked him as to why she has not been put on the job on which Kinu said he will perform marriage with her and will make her the land lady of the house (main tumse shadi karunga aur ghar ki malkin banaunga) and when she refused Kinu forcibly committed rape on her. This incident is of the night of 20/09/2011. He kept on saying of making her as land lady of the house and of performing marriage with her (Weh Mujhe Malkin Banane Ki Baat Kehta Raha Va Shadi Karne Ki Baat Kehta Raha). At that time, she was taken in his talks (uss samay main uski bato me aa gai) and she said 'yes' for the marriage. Kinu told her that he is somewhere going out (Kinu Ne Mujhe Kaha Ki Mai Kahin Bahar Ja Raha Hoon). He put her on work at Sainik Vihar. Kinu called her back to him, after some days, after removing her from that job (Kuch Din Baad Kinu Ne Mujhe Wahan Se Kaam Se Hatwa Kar Apne Paas Bula Liya). During this (issi dauran), one female staff told her that he is 3 of 99 4 FIR No. 287/11 PS - Kanjhawala having three wives, of which two live in Jharkhand and one lives at Shakarpur. When she (prosecutrix) asked Kinu about her three wives, he got enraged. Then, he on 09/12/2011 gave beatings to her and forcibly committed 'galat kaam' with her. On 11/12/2011, at about 5:00 a.m., he turned her out from the house. She went to one her known namely Rajni who lives in Agar Nagar and told Rajni all about the incident happened with her and on the same day after preparing a complaint it was given to the Police and for today (20/12/2011) on the call of the Police she has come to the Police Station and her statement has been recorded. She has heard her statement and is correct. Legal action be taken against Kinu Munda S/o Karmu Munda R/o Gali No. 3, Shamshan Ghat, Meet Vihar, Madan Pur Dabas, Delhi. Kinu Munda on the false pretext of marriage had committed 'galat kaam' with her. Medical examination of the prosecutrix was got conducted from the SGM Hospital vide MLC Ex. 19840. On the basis of the statement of the prosecutrix, after inspection of the MLC on finding that offence u/s 376 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Rajesh Kumar. On the pointing out of the prosecutrix, site plan was prepared of the place of incident. On the 4 of 99 5 FIR No. 287/11 PS - Kanjhawala identification of the prosecutrix accused, Kinu Munda was arrested and his medical examination was got conducted. Statement of the prosecutrix was got recorded u/s 164 Cr.P.C. Statements of the witnesses u/s 161 Cr.P.C. were recorded.

Upon completion of the necessary further investigation, challan for the offences u/s 376 IPC was prepared against accused Kinu Munda and was sent to the Court for trial.

2. Since the offence u/s 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 u/s 209 Cr.P.C.

3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 376 IPC was made out against accused Kinu Munda. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.

5 of 99 6 FIR No. 287/11 PS - Kanjhawala

4. In support of its case prosecution has produced and examined nine witnesses. PW1 Dr. Rajesh Dalal, CMO, SGM Hospital, Mangol Puri, PW2 Dr. Bhawna Wadhwa, Specialist Skin, LNJP Hospital, New Delhi, PW3 Dr. Brijesh Singh, CMO, SGM Hospital, Rohini, PW4 Dr. Aditi, Sr. Resident, OBS & Gyane, SGM Hospital, PW5 - Prosecutrix, PW6 W/Constable Kusum Lata, PW7 Sh. Pankaj Sharma, Learned MM, PW8 - Sh. Anuj Bhatia, Nodal Officer, Vodafone, Mobile Services Ltd., PW9 - SI Rajesh Kumar.

5. In brief the witnessography of the prosecution witnesses is as under : PW1 Dr. Rajesh Dalal, CMO, SGM Hospital, Mangol Puri, who deposed that on 21/12/2011, he was posted as CMO, SGM Hospital. On that day, accused Kinu Munda was brought with alleged history of sexual assault, 10 days back. He was brought for his medical examination. He (PW1) examined him. He was conscious and oriented at that time. On local examination there was erosion over upper region of glans. Bilateral testis appears to be normal and well descended in scortum. No other fresh external injury seen. After examination, he 6 of 99 7 FIR No. 287/11 PS - Kanjhawala advised for taking skin opinion for the type of legion (lesion). He prepared his MLC Ex. PW 1/A, which bears his signature at point 'A'. Thereafter, accused was referred for skin opinion.

PW2 Dr. Bhawna Wadhwa, Specialist Skin, LNJP Hospital, New Delhi who deposed that on 21/12/2011, she was posted at SGM Hospital, Delhi. On that day, she medically examined accused Kinu Munda. On examination, single nonindurated tender erosion of size 2 x 2 cm on the upper region of glans. There was no history of extra marital contact prior to the appearance of lesion. The patient can have difficulty in sexual contact because of the painful nature of the lesion, else lesion per se will not cause any problem for sexual contact. Her skin note on Ex. PW1/A is Ex. PW2/B which bears her signature at point 'A'.

PW3 Dr. Brijesh Singh, CMO, SGM Hospital, Rohini, who deposed that, on 21/12/2011 at about 10:20 p.m., patient/prosecutrix (name withheld), aged about 21 years, female, was brought for medical examination, as victim, in case of sexual assault. The doctor concerned on duty had examined her under his supervision. After examining her, 7 of 99 8 FIR No. 287/11 PS - Kanjhawala the patient was referred for gynae department for further examination and opinion. The MLC of prosecutrix (name withheld) is Ex. PW3/A, which bears his name at point 'A'.

PW4 Dr. Aditi, Sr. Resident, OBS & Gyane, SGM Hospital, Mangol Puri, Delhi who deposed that on 20/12/2011, she was posted as above. On that day, patient/prosecutrix (name withheld), D/o Daud Suri, aged about 21 years, female was referred to her for her medical examination and she was produced before her with the alleged history ''missing from home since 1½ months and living with some boy''. The patient gave the history of multiple sexual assault episodes since 1½ months and lastly on 09/12/2011. She examined her internally and found hymen broken. She also gave the nature of injury as sexual assault seems to have occurred at point 'X' on MLC Ex. PW3/A. Urine pregnancy test was found negative. Her gynae note is Ex. PW4/A which bears her signature at point 'A'.

PW5 Prosecutrix is the victim who deposed regarding the incident and proved her complaint dated 14/12/2011 Ex. PW5/A which 8 of 99 9 FIR No. 287/11 PS - Kanjhawala bears her signature at point 'A' and her statement recorded by the IO, on 20/12/2011 Ex. PW5/B which bears her signature at point 'A' and proved the site plan Ex. PW5/C and her statement recorded u/s 164 Cr.P.C. Ex. PW5/D, bearing her signature at point 'A'.

PW6 - W/Constable Kusum Lata, who deposed that on 21/12/2011, she was posted as Constable in PS - Kanjhawala. On that day, she alongwith IO SI Rajesh Kumar, Constable Raj Kumar and complainant reached at Meer Vihar and there at the instance of the complainant, IO prepared the site plan. One boy was coming out from the house there and at the instance of the complainant, he was apprehended and his name was revealed as Kinu Munda, present in the Court. He was arrested. He was brought to Police Station from the PS accused and complainant were taken to Sanjay Gandhi Memorial Hospital where they were medically examined and after the medical examination, accused was produced before the Court and sent to JC. Statement of prosecutrix was got recorded u/s 164 Cr.P.C.

PW7 Sh. Pankaj Sharma, Learned MM, who recorded the 9 of 99 10 FIR No. 287/11 PS - Kanjhawala statement u/s 164 Cr.P.C. of the prosecutrix and deposed that on 21/12/2011, he was posted as MM at Rohini Courts. On that day, an application filed by SI Rajesh Kumar, PS Kanjhawla for recording the statement u/s 164 Cr.P.C. was marked to him by the concerned Court. He fixed the date for recording the statement u/s 164 Cr.P.C. for that day itself vide his endorsement Ex. PW7/A bearing his signature at point 'A'. He recorded the statement of witness/prosecutrix (name withheld), aged

- 21 years on Oath u/s 164 Cr.P.C. in the Court Chamber attached to his Court. The proceedings are Ex. PW5/D (running into three pages) bearing his signatures at points 'A' & 'B'. Signature of the witness was obtained by him at point 'A1'. The witness was duly identified by SI Rajesh Kumar vide his identification statement bearing his signatures at point 'C'. Upon completion of the statement, the IO applied for the copy of the same, which was allowed by him vide his endorsement Ex. PW7/B bearing his signature at point 'A'.

PW8 Sh. Anuj Bhatia, Nodal Officer, Vodafone Mobile Services Ltd., C45, Okhla Phase - II, New Delhi - 110020 who deposed that on 16/03/2012, he supplied the call details of mobile no. 9811750725 10 of 99 11 FIR No. 287/11 PS - Kanjhawala to SI Rajesh Kumar of PS Kanjhawla. The certified copies of the above said call details from 01/03/2011 to 31/12/2011 is collectively exhibited as Ex. PW8/A, bearing his signature at point 'A'. The certificate u/s 65 B of the Evidence Act is Ex. PW8/B bearing his signature at point 'A'. He has also brought the customer application form of this mobile number and as per record the mobile number 9811750725 is in the name of Sugana Munda S/o Karamu Munda R/o F 48/49, Shakur pur, J. J. Colony, New Delhi 34. The copy of the customer application form is Ex. PW8/C, copy of declaration form is Ex. PW8/D, copy of the ID proof is Ex. PW8/E (OSR). Cell ID Chart of Vodafone Delhi Network is Ex. PW8/F, bearing his signature at point 'A'.

PW9 SI Rajesh Kumar is the investigating Officer (IO) of the case, who deposed that on 20/12/2011, he was posted as Sub Inspector in PS Kanjhawla. On that day, he received a complaint of prosecutrix (name withheld) from the Reader of the SHO. He called the complainant in the Police Station. In the evening at about 6:30 p.m. complainant/prosecutrix (name withheld) came in the Police Station. He made inquiries from her and she confirmed the complaint Ex. PW5/A. 11 of 99 12 FIR No. 287/11 PS - Kanjhawala He discussed the matter with the senior officials and they instructed him to take the necessary action. NGO Anuradha was called in the Police Station and she did the counseling of the complainant. He recorded statement of prosecutrix (name withheld) which is already Ex. PW5/B and attested her signature at point 'A', bearing his signature at point 'B'. Thereafter, he alongwith Lady HC Raj Bala took prosecutrix (name withheld) in Sanjay Gandhi Hospital. Prosecutrix (name withheld) was medically examined and after medical examination Doctor handed over the MLC. They came back to Police Station, he prepared rukka Ex. PW9/A, bearing his signature at point 'A' and rukka was handed over to Duty Officer for getting the FIR registered. He recorded the supplementary statement of prosecutrix and she was relieved and gave her instruction to come at PS on the next day. Duty Officer SI Ashwini Kumar handed over to him the computerized copy of FIR and original rukka. The computerized copy of the FIR is Ex. PW9/B, bearing signature of SI Ashwini at point 'A'. He recorded the statement of lady HC Raj Bala. On 21/12/2011 complainant/prosecutrix (name withheld) came in the Police Station and thereafter, he alongwith her, Lady Constable Kusum and Constable Raj Kumar left the Police Station and 12 of 99 13 FIR No. 287/11 PS - Kanjhawala reached at Gali No. 3 near Shamshan Ghat, Mir Vihar and complainant had shown the house where accused Kinu Munda had kept her and committed rape upon her. He prepared the site plan Ex. PW5/C at the instance of the complainant, bearing his signature at point 'B'. In the mean time one person came out from the house and complainant/prosecutrix (name withheld) had identified him as Kinu Munda. Accused Kinu Munda was apprehended at the instance of prosecutrix (name withheld) and he was interrogated and arrested vide arrest memo Ex. PW9/C and his personal search was conducted vide memo Ex. PW9/D, both bearing his (PW9) signature at point 'A'. Thereafter, they came back to Police Station and made inquiries. Thereafter, he alongwith Lady Constable Kusum and Constable Raj Kumar took accused Kinu Munda in Sanjay Gandhi Hospital, where he was medically examined. Thereafter, they reached in the Court. Accused Kinu Munda was produced in the Court and was sent to JC. He moved an application for recording statement of the prosecutrix u/s 164 Cr.P.C. which is Ex. PW9/E, bearing his signature at point 'A'. Her statement was recorded and thereafter, he obtained the copy of the statement vide his application Ex. PW9/F bearing his signature at point 13 of 99 14 FIR No. 287/11 PS - Kanjhawala 'A'. He recorded supplementary statement of the prosecutrix and was set free. They came back to Police Station and he recorded statement of Police Constables. He collected the call details of the mobile phone. After completing the investigation, challan was prepared and filed in the Court. Accused Kinu Munda is present in the Court.

The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.

6. Statement of accused Kinu Munda 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 Kinu Munda examined three defence witnesses namely, DW1 Ms. Limbu Munda W/o Kinu Munda, M226, Shakur Pur, Delhi, DW2 Sh. Mukesh Kumar Jain S/o Sh. Ishwar Chand Jain aged 31 years R/o I2/6, Budh Vihar, Phase I, Delhi and DW3 - Dr. Satish Kumar, MD, Maharaja Agrasen Medical Centre, Y875876, Phase - I, Nangloi, Delhi in his defence.

DW1 Ms. Limbu Munda W/o Sh. Kinu Munda, who 14 of 99 15 FIR No. 287/11 PS - Kanjhawala deposed that Kinu Munda is her husband and (she) married to him 4 years ago. Her husband does not have right hand due to which her husband is unable to do his own work, even she has to put clothes and remove clothes from his body as he is unable to do this himself. Her husband is suffering from disease for the last two years, of the organ from which the urination is done and he is under regular treatment. Due to which he is not able to establish physical relation with her. She knows complainant/prosecutrix (name withheld), who was brought to her by Vikesh. Vikesh had asked her (DW1) to put prosecutrix (name withheld) on some job (Vikesh ne mujhe prosecutrix (name withheld) ko kahi kaam pe rakhne ke liye kaha). She (DW1) had put prosecutrix (name withheld) on job at Pitma Pura, Sainik Vihar. Prosecutrix (name withheld) worked there for about 20 days and thereafter returned back to her. Thereafter, she kept prosecutrix (name withheld) for 4/5 days at her house at House No. 24/11, Gali No. 3, Madan Pur Dabas. 4/5 other girls were also living at that house. Her Bhaiya name Lakhan Munda and Bhabhi Urmila were also living there at that house. After 4/5 days, Vikesh came there to take prosecutrix (name withheld) and Vikesh asked her (DW1) to settle the account (hisab karo) and to give the wages of 15 of 99 16 FIR No. 287/11 PS - Kanjhawala prosecutrix (name withheld) for the 20 days which she had worked. She (DW1) paid Rs. 1,500/ to Vikesh as was the wages of prosecutrix (name withheld) made out. Vikesh had also asked her for Rs. 25,000/ as his traveling expenses of coming and that of going (aane jane ka kharcha). She did not pay Rs. 25,000/ to Vikesh on which he threatened her (mujhe dhamki diya). He said that he will implicate her husband (usne kaha ki mai tumare pati ko fasa degi). Thereafter, her husband has been implicated in a rape case. She further admitted that she runs the Placement Agency and is using the mobile phone number 9811750725.

DW2 Sh. Mukesh Kumar Jain S/o Sh. Ishwar Chand Jain who deposed that he is working with accused Kinu Munda who is running a placement agency under the name and style of Birsa Berojgar Seva Service having its office at M226, Shakur Pur near Britannia Chowk for about 5 years. This firm is registered in the name of Kinu Munda but is run and managed by him (DW2) and Smt. Lembu Munda, wife of accused Kinu Munda. Kinu Munda is handicapped from his hand for the last 15 years (15 saal se iska haath kata hua hai) and for this reason the girls who work in his firm are being handled by Smt. Lembu 16 of 99 17 FIR No. 287/11 PS - Kanjhawala Munda. Kinu Munda cannot come and go anywhere of his own (ye apne aap kahi aa ja nahi sakta) and he does not have any talk with any girl (iski kisi ladki se koi baat nahi hoti) and all the work is being managed either by him (DW2) or by the wife of Kinu Munda (sara kaam main sambhalta hoon ya iski wife sambhalti hai). He lives most of the time at home and he has been looked after by his wife. Whenever he goes out, he goes with him (DW2) and if any water is to be given to him, it is being given by him (DW2) and if he is to go for toilet, he is being helped by him (DW2). In the eighth or ninth month of year 2011, one girl named prosecutrix (name withheld) had come to them for work, her husband Vikesh had brought her. Thereafter, they put her/prosecutrix (name withheld) on work at Pitampura and there she worked for about 20 days at H. No. 82, Sainik Vihar. After 20 days, they received a call from there asking them to take back her/prosecutrix (name withheld) that this girl is not doing the work properly. This girl/prosecutrix (name withheld) was brought back and was kept at the house of Kinu Munda at 24/11, Gali No. 3, Meer Vihar, where the brother Lakhan Munda of Lembu Munda and his wife Urmila were living and besides them other girls were also living there. Thereafter Vikesh, husband of prosecutrix 17 of 99 18 FIR No. 287/11 PS - Kanjhawala (name withheld) came and they told him that his wife/prosecutrix (name withheld) is not working properly and she has worked for about 20 days and her salary for that work comes to Rs. 1,500/ but Vikesh started asking them to pay Rs. 25,000/ as too much expenses have been incurred in bringing and taking her (iske aane jaane me hamara bahut kharcha hua hai). On which they said that they cannot pay this much money to him as she/prosecutrix (name withheld) had worked only for 20 days. They give commission of Rs. 25,000/ only in the eventuality when the girl continuously had worked for one year. On which Vikesh got enraged (is baat par vo bhadak gaya) and started quarreling (jhagra) with Lembu Munda wife of Kinu Munda that if she does not pay this much money then he will implicate her husband in a false case of rape (agar wo ye paisa nahi deti to uske pati ko jhute balatkaar ke case mein phasa dundga) and while uttering these words he went out (ye kahta hua wo chala gaya). All this had happened at House No. 24/11, Gali No. 3, Meer Vihar, where Kinu Munda goes once or twice in a month with him (DW2). Thereafter, Vikesh implicated Kinu Munda in a false case. Thereafter, they came to know that the girl by the name of prosecutrix (name withheld) is not the wife of Vikesh, who also comes to the Court 18 of 99 19 FIR No. 287/11 PS - Kanjhawala with Vikesh and Vikesh has kept her (Vikesh ne use rakha hua hai). Kinu Munda does not talk with any girl and about 250 girls work (Kinu Munda kisi ladki se baat nahi karta hai jabki 250 ladkiyan kam karti hai) as all the mobile phones remains with his wife. The mobile No. 9811750725 is used by Lembu Munda and this mobile number is in the name of devar of Lembu Munda. Kinu Munda is not at wrong and he has not committed any offence and has been falsely implicated.

DW3 - Dr. Satish Kumar, MD, Maharaja Agrasen Medical Centre, Y875876, Phase - I, Nangloi, Delhi who deposed that he is the owner of Maharaja Agresen Medical Centre. Kinu Munda is taking treatment from Maharaja Agresen Medical Centre, since August 2011. Dr. Narender Pal Singh is attending to Kinu Munda. Dr. Narender Pal Singh remained in his medical centre till December, 2011 and after that he suffered with heart attack and left the medical centre. He has been shown two medical prescription dated 22/08/2011 and 20/09/2011. The said medical prescriptions are in the handwriting of Dr. Narender Pal Singh which he identify the said medical prescriptions are Ex. DW3/A1 and A2. He (DW3) had also given the medical treatment to Kinu Munda 19 of 99 20 FIR No. 287/11 PS - Kanjhawala on 05/02/2012. The medical prescription in this regard is Ex. DW3/B. After 05/02/2012, Kinu Munda came to him on 10/05/2012 and on that day, six months ayurvedic treatment was given to him. After six months he (Kinu Munda) came to him and told him that he is not getting the proper relief (thik nahi ho raha hai) on which he referred him to a urosurgeon. The medical prescription in this regard is Ex. DW3/C. He had also advised Kinu Munda to avoid performance of physical relations till he is under treatment because he is not able to do the physical relation.

The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.

7. Learned Counsel for the accused submitted that the prosecutrix was more than 18 years of age and was capable of understanding her good and bad. Learned Counsel for the accused further submitted that the prosecutrix did not want to marry the accused and under the fear of accused she accepted for marrying the accused and in her crossexamination she has stated that "it is wrong to suggest that 20 of 99 21 FIR No. 287/11 PS - Kanjhawala the accused Kinu Munda has forcibly committed rape upon me and I do not know the names of other girls who were living at Mir Vihar," which proves the fact that neither the sexual intercourse was forceful, as alleged nor the prosecutrix intended to marry the accused which proves that if alleged rape was committed with the complainant it was with her consent and without any future commitment and was free from any pressure from any corner. The consent was free can also be proved as no sound of even whisper was being made by the prosecutrix as there other girls were also residing in the house at Mir Vihar were (where) alleged incident took place and voluntarily participation in the act can't amount to Rape. Learned Counsel for the accused further submitted that there is considerable delay in registration of case. Learned Counsel for the accused further submitted that accused was incapable to perform any sexual contact as proved by Government Doctor and he was getting treatment as proved by private Doctor appeared as DW3. Learned Counsel for the accused further submitted that such an act is being done for pleasure and no one shall indulge in an act which shall give pain instead of pleasure. Learned Counsel for accused further submitted that the accused is physically handicapped and cannot apply force on any one.

21 of 99 22 FIR No. 287/11 PS - Kanjhawala Learned Counsel for the accused further submitted that the prosecutrix at any point of time did not raise any hue and cry and even did not inform anyone about the alleged incident, which creates doubt about the story of the prosecutrix. Learned Counsel for the accused further submitted that prosecutrix was very well aware about the fact that accused is already married. Moreover, if a lady is residing for many months in the house of accused, it is unbelievable that she shall not come to know about wife of accused. Moreover, even according to prosecutrix she had sexual relations with accused even after coming to know about three marriages of accused and most interestingly this allegation was also found wrong as accused has only one wife. This all falsify the whole story of the prosecutrix. Learned Counsel for the accused further submitted that there were reasons for the prosecutrix for involving the accused in a false case with an intent to extract money. Learned Counsel for the accused further submitted that the prosecutrix had never visited the house at Mir Vihar as such she was not aware of the names of the girls who were living there again it is unbelievable that a girl who shall reside there for more than a month with two girls shall not even know their names. Learned Counsel for the accused further submitted that PW5 -

22 of 99 23 FIR No. 287/11 PS - Kanjhawala prosecutrix on one hand states that she can read a bit of Hindi and on the other hand she stated that she had written the complaint given to the Police. There is no such hand written complaint on record moreso, when she could not write how she could made a writing of the complaint to Police. She herself proves the fact that there were other people also residing with her at Mir Vihar, which proves that she could not be confined and locked. Learned Counsel for the accused further submitted that PW5 - stated that the site plan was not prepared in her presence but she had told to the Police the places/points details shown in it. Learned Counsel for the accused further submitted that PW5 - prosecutrix does not know when accused Kinu Munda was arrested.

Learned Counsel for the accused referred to the cases and are reported as 'Debara R/o Village - Pipalawand Jamgudapara, P. S. Bhanpuri, Dist. Bastar Vs. State of Chhatisgarh through PS - Bhanpuri, Bastar' 2013 STPL(LECrim) 44792 CHH; 'State of Mizoram Vs. Sh. David Lalthurnmawia & Others' 2013 STPL(LECrim) 44757 GAU; 'Deepak Gulati Vs. State of Haryana' 2013 STPL(LECrim) 44705 SC; 'State of Uttrakhand Vs. Bhagwati Singh Alias Bhagat Singh' 2013 STPL 23 of 99 24 FIR No. 287/11 PS - Kanjhawala (LECrim) 44602 UTT, 'Goma Chettri Vs. Bhuban Chandra Sharma' 2013 STPL(LECrim) 44707 MEGH, 'State Vs. Saurabh Vashisht' 2013 [3] JCC 2007 and 'Kuldeep Tyagi Vs. State of NCT of Delhi' 2013 [2] JCC 840.

Learned Counsel submitted that prosecution has failed to prove its case beyond reasonable doubt and prayed for the acquittal of the accused on the charge levelled against him.

8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.

9. I have heard Ms. Purnima Gupta, Learned Addl. PP for the State and Sh. Man Mohan Sharma, Learned Counsel for the accused and have also carefully perused the entire record.

24 of 99 25 FIR No. 287/11 PS - Kanjhawala

10. The charge for the offences punishable u/s 376 IPC against the accused Kinu Munda is that on 20/09/2011 and 09/12/2011 at his house situated in Gali No. 3, Cremation Ground, Meer Vihar, Madanpur Dabas, Delhi, within the jurisdiction of PS - Kanjhawala, Delhi, he committed rape with prosecutrix (name withheld), aged 21 years without her consent.

11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.

AGE OF THE PROSECUTRIX

12. PW5 - prosecutrix in her statement recorded u/s 164 Cr.P.C. on 21/12/2011 Ex. PW5/D while giving her particulars has stated her age as 21 years.

PW5 - prosecutrix in her statement recorded in the Court on 25 of 99 26 FIR No. 287/11 PS - Kanjhawala 05/11/2012 while giving her particulars has stated her age as 21 years.

Since PW5 - prosecutrix has stated her age as 21 years on 21/12/2011 at the time of recording her statement u/s 164 Cr.P.C. Ex. PW5/D as well as on 05/11/2012 at the time of recording her evidence/statement in the Court and the dates of alleged incident are 20/09/2011 and 09/12/2011, on simple arithmetical calculation, the age of the prosecutrix comes to around 21 years as on the dates of alleged incident on 20/09/2011 and 09/12/2011.

Moreover, the said factum of age of PW5 - prosecutrix has also not been disputed by accused Kinu Munda. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.

In the circumstances, it stands proved on record that PW5 - prosecutrix was aged around 21 years as on the dates of incident on 20/09/2011 and 09/12/2011.

MEDICAL EVIDENCE OF THE PROSECUTRIX

13. PW3 Dr. Brijesh Singh, CMO, SGM Hospital, Rohini has 26 of 99 27 FIR No. 287/11 PS - Kanjhawala deposed that, on 21/12/2011 at about 10:20 p.m., patient/prosecutrix (name withheld), aged about 21 years, female, was brought for medical examination, as victim, in case of sexual assault. The doctor concerned on duty had examined her under his supervision. After examining her, the patient was referred for gynae department for further examination and opinion. The MLC of prosecutrix (name withheld) is Ex. PW3/A, which bears his name at point 'A'.

Despite grant of opportunity, PW3 - Dr. Brijesh Singh was not crossexamined on behalf of the accused.

PW4 Dr. Aditi, Sr. Resident, OBS & Gyane, SGM Hospital, Mangol Puri, Delhi has deposed that on 20/12/2011, she was posted as above. On that day, patient/prosecutrix (name withheld), D/o Daud Suri, aged about 21 years, female was referred to her for her medical examination and she was produced before her with the alleged history ''missing from home since 1½ months and living with some boy''. The patient gave the history of multiple sexual assault episodes since 1½ months and lastly on 09/12/2011. She examined her internally and found hymen broken. She also gave the nature of injury as sexual assault 27 of 99 28 FIR No. 287/11 PS - Kanjhawala seems to have occurred at point 'X' on MLC Ex. PW3/A. Urine pregnancy test was found negative. Her gynae note is Ex. PW4/A which bears her signature at point 'A'.

There is nothing in the crossexamination of PW4 - Dr. Aditi, SR, Gynae so as to impeach her creditworthiness.

In view of above and in the circumstances, the medical and the gynaecological examination vide MLC Ex. PW3/A and Gynae Note Ex. PW4/A of PW5 - prosecutrix stands proved on the record.

VIRILITY OF THE ACCUSED

14. PW1 Dr. Rajesh Dalal, CMO, SGM Hospital, Mangol Puri has deposed that on 21/12/2011, he was posted as CMO, SGM Hospital. On that day, accused Kinu Munda was brought with alleged history of sexual assault, 10 days back. He was brought for his medical examination. He (PW1) examined him. He was conscious and oriented at that time. On local examination there was erosion over upper region of glans. Bilateral testis appears to be normal and well descended in 28 of 99 29 FIR No. 287/11 PS - Kanjhawala scortum. No other fresh external injury seen. After examination, he advised for taking skin opinion for the type of legion (lesion). He prepared his MLC Ex. PW1/A, which bears his signature at point 'A'. Thereafter, accused was referred for skin opinion.

Despite grant of opportunity, PW1 - Dr. Rajesh Dalal was not crossexamined by the accused.

PW2 Dr. Bhawna Wadhwa, Specialist Skin, LNJP Hospital, New Delhi has deposed that on 21/12/2011, she was posted at SGM Hospital, Delhi. On that day, she medically examined accused Kinu Munda. On examination, single nonindurated tender erosion of size 2 x 2 cm on the upper region of glans. There was no history of extra marital contact prior to the appearance of lesion. The patient can have difficulty in sexual contact because of the painful nature of the lesion, else lesion per se will not cause any problem for sexual contact. Her skin note on Ex. PW1/A is Ex. PW2/B which bears her signature at point 'A'.

It is pertinent to reproduce the examinationinchief of PW2 - Dr. Bhawna Wadhwa, which reads as under : "On 21/12/2011, I was posted at SGM Hospital, Delhi.

29 of 99 30 FIR No. 287/11 PS - Kanjhawala On that day, I medically examined accused Kinu Munda.

On examination, single nonindurated tender erosion of size 2 X 2 cm on the upper region of glans.

There is no history of extra marital contact prior to the appearance of lesion.

The patient can have difficulty in sexual contact because of the painful nature of the lesion, else lesion per se will not cause any problem for sexual contact. My skin note on Ex. PW1/A is Ex. PW2/B which bears my signature at point 'A'."

During his crossexamination PW2 - Dr. Bhawna Wadhwa has deposed that : "It is wrong to suggest that the patient Kinu Munda is not capable to perform sexual intercourse during this period, he was having pain due to lesion. I cannot tell the duration of lesion. It may be of short duration or long duration."

From the aforesaid narration of PW2 - Dr. Bhawna Wadhwa, Specialist Skin, it is clearly indicated that, the patient can have difficulty in sexual contact because of the painful nature of the lesion, else lesion per se will not cause any problem for sexual contact meaning thereby, the patient has the capability for performing the sexual 30 of 99 31 FIR No. 287/11 PS - Kanjhawala contact and lesion per se will not cause any problem in making the sexual contact except that it (lesion) may become painful.

There is nothing in the crossexamination of PW2 - Dr. Bhawna Wadhwa so as to impeach her creditworthiness.

In view of above and in the circumstances, it stands proved on the record that accused Kinu Munda was capable to perform sexual intercourse.

15. Now let the testimony of PW5 Prosecutrix be perused and analysed.

PW5 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "First time I came to Delhi in the year, 2009 and at that time I worked in the houses at Moti Nagar. First time I met accused Kinu Munda at Moti Nagar Metro Station, Delhi one year before the present incident. Accused Kinu Munda is present in the Court today (correctly identified by the witness). At that time accused Kinu Munda had taken my contact number and he also gave his contact number to me. Accused told me that he will arrange the good job for me. Thereafter, I returned back to my native place Orissa. Later on, accused called me on phone when I was present at my native place in Orissa and told me to come to 31 of 99 32 FIR No. 287/11 PS - Kanjhawala Delhi as he had arranged one good job for me. In pursuance of the above said talks, I came to Delhi in the month of September. Accused came to Nizamuddin Railway Station to receive me and from there he took me to his house at Meer Vihar via Shukurpur. He kept me at his house for about 1½ months and he did not arrange any job for me on which I asked to accused as to why he had not arranged any job for me despite he called me from Orissa to Delhi on this assurance. On which, he told that he will marry with me. I refused for the same on which accused Kinu Munda committed rape (galat kaam) with me. Accused committed rape with me on 20/09/2011 at about 9:00 p.m. Accused confined me in a room for 23 days by locking the room. Thereafter he again came and told that he will marry me. I became very perturb and due to consistent asking and fear of accused Kinu Munda, I agreed his demand for marriage.

Thereafter, he arranged a job for me at Sainik Vihar saying he will return after some time as he was going out of station. Accused also told me that he will marry with me after returning. During this period accused used to talk with me on phone. When he returned to Delhi, he got me back again to his office from Sainik Vihar. From one of the staff of Kinu Munda namely Budhini, I came to know that accused Kinu Munda was already having three wives and two of them were residing at Jharkhand and one was residing in the house at Shakur Pur i.e. office of accused Kinu Munda. I asked accused Kinu Munda regarding his three wives, on which he became very angry and gave beatings to me and committed rape upon me forcibly. I do not remember the exact date now. Thereafter, accused kept committing rape with me. After 24 days, accused expelled me from his house. Thereafter, I reached the house of Rajni who was known to me and narrated the entire story to her. I lodged the complaint to the Police which is Ex. PW5/A 32 of 99 33 FIR No. 287/11 PS - Kanjhawala which bears my signature at point 'A'."

During her further examinationinchief recorded on 27/02/2013, PW5 - prosecutrix has deposed that : "The complaint dated 14/12/2011 is Ex. PW5/A, bearing my signature at point 'A'. My statement was recorded by the IO on 20/12/2011 which is exhibited as Ex. PW5/B, bearing my signature at point 'A'.

Police had prepared the site plan of Mir Vihar where accused has committed rape with me. The site plan is Ex. PW5/C bearing my signature at point 'A'. Accused Kinu Munda was arrested but he was not arrested in my presence. I was taken to Hospital and medically examined. My statement was also recorded before the Magistrate u/s 164 Cr.P.C.

(At this stage, one sealed envelope sealed with the seal of PS lying in the Court file is opened and proceedings u/s 164 Cr.P.C. of witnesses/prosecutrix (name withheld) conducted by Sh. Pankaj Sharma, MM is taken out). My statement u/s 164 Cr.P.C. is Ex. PW5/D, bearing my signature at point 'A'. I can identify the accused Kinu Munda, if shown to me.

At this stage, the wooden partition is removed. The witness pointed towards the accused Kinu Munda and identified him correctly.

At this stage, the wooden partition is restored to its original position."

33 of 99 34 FIR No. 287/11 PS - Kanjhawala From the aforesaid narration of PW5 - prosecutrix, it is clear that first time she came to Delhi in the year, 2009 and at that time she worked in the houses at Moti Nagar. First time she met accused Kinu Munda at Moti Nagar Metro Station, Delhi one year before the present incident. She correctly identified the accused present in the Court. At that time accused Kinu Munda had taken her contact number and he also gave his contact number to her. Accused told her that he will arrange the good job for her. Thereafter, she returned back to her native place Orissa. Later on, accused called her on phone when she was present at her native place in Orissa and told her to come to Delhi as he had arranged one good job for her. In pursuance of the above said talks, she came to Delhi in the month of September. Accused came to Nizamuddin Railway Station to receive her and from there he took her to his house at Meer Vihar via Shukurpur. He kept her at his house for about 1½ months and he did not arrange any job for her on which she asked to accused as to why he had not arranged any job for her despite he called her from Orissa to Delhi on this assurance. On which, he told that he will marry with her. She refused for the same on which accused Kinu Munda committed rape (galat kaam) with her. Accused committed rape 34 of 99 35 FIR No. 287/11 PS - Kanjhawala with her on 20/09/2011 at about 9:00 p.m. and confined her in a room for 23 days by locking the room. Thereafter, he again came and told that he will marry her. She became very perturb and due to consistent asking and fear of accused Kinu Munda, she agreed his demand for marriage. Thereafter, accused arranged a job for her at Sainik Vihar saying he will return after some time as he was going out of station. Accused also told her that he will marry with her after returning. During this period accused used to talk with her on phone. When he returned to Delhi, he got her back again to his office from Sainik Vihar. From one of the staff of Kinu Munda namely Budhini, prosecutrix came to know that accused Kinu Munda was already having three wives and two of them were residing at Jharkhand and one was residing in the house at Shakur Pur i.e. office of accused Kinu Munda. She asked accused Kinu Munda regarding his three wives, on which he became very angry and gave beatings to her and committed rape upon her forcibly. She does not remember the exact date now. Thereafter, accused kept committing rape with her. After 24 days, accused expelled her from his house. Thereafter, she reached the house of Rajni who was known to her and narrated the entire story to her (Rajni). She (PW5 prosecutrix) lodged 35 of 99 36 FIR No. 287/11 PS - Kanjhawala the complaint to the Police which is Ex. PW5/A which bears her signature at point 'A'. The complaint dated 14/12/2011 is Ex. PW5/A, bearing her signature at point 'A'. Her statement was recorded by the IO on 20/12/2011 which is exhibited as Ex. PW5/B, bearing her signature at point 'A'. Police had prepared the site plan of Mir Vihar where accused has committed rape with her. The site plan is Ex. PW5/C bearing her signature at point 'A'. Accused Kinu Munda was arrested but he was not arrested in her presence. She was taken to Hospital and medically examined. Her statement was also recorded before the Magistrate u/s 164 Cr.P.C. which is Ex. PW5/D, bearing her signature at point 'A'. She correctly identified accused Kinu Munda present in the Court.

PW5 - Prosecutrix during her crossexamination has negated the suggestions that Vikesh has brought her to Delhi or that she was working with Vikesh or that she worked for two months with Vikesh Vol. She was working as maid servant or that accused Kinu Munda's Sala (Brotherinlaw) and his wife were also living in Mir Vihar or that 1015 persons were living in Mir Vihar where she was living or that Kinu Munda had not committed any Galat Kaam (Wrong Deed) with her as he 36 of 99 37 FIR No. 287/11 PS - Kanjhawala was not medically fit Vol. Kinu Munda had committed (Galat Kaam) with her or that a quarrel had been taken place between Kinu Munda and Vikesh due to which on the asking of Vikesh she had lodged the complaint against the Kinu Munda with the Police or that she had lodged a false complaint Ex. PW5/A or that she is making a false deposition in the Court against accused Kinu Munda at the asking of Vikesh or that she is still working with Vikesh or that accused Kinu Munda has forcibly committed rape upon her or that she had made a false statement Ex. PW5/B to the Police or that she is deposing falsely.

Inspite of incisive crossexamination of PW5 - Prosecutrix, nothing material has been brought out 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 version of this witness on the core spectrum of crime has remained intact. The testimony of PW5 - prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused Kinu Munda to falsely implicate him in the 37 of 99 38 FIR No. 287/11 PS - Kanjhawala case.

The testimony of PW5 - Prosecutrix is also found to be corroborated by the medical and gynaecological evidence as discussed hereinbefore.

The testimony of PW5 - Prosecutrix is also found to be in consonance with her statement Ex. PW5/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW5/D.

16. While analysing the testimony of PW5 Prosecutrix, as discussed hereinabove, inspite of incisive crossexamination of PW5 - prosecutrix nothing has come out in her statement which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by the defence to PW5 Prosecutrix that Vikesh has brought her to Delhi or that she was working with Vikesh or that she worked for two months with Vikesh Vol. She was working as maid servant or that accused Kinu Munda's Sala (Brotherinlaw) and his wife were also living in Mir Vihar or that 1015 persons were living in Mir Vihar where she was living or that Kinu Munda had not committed any Galat Kaam (Wrong Deed) with her as he was not medically fit Vol.

38 of 99 39 FIR No. 287/11 PS - Kanjhawala Kinu Munda had committed (Galat Kaam) with her or that a quarrel had been taken place between Kinu Munda and Vikesh due to which on the asking of Vikesh she had lodged the complaint against the Kinu Munda with the Police or that she had lodged a false complaint Ex. PW5/A or that she is making a false deposition in the Court against accused Kinu Munda at the asking of Vikesh or that she is still working with Vikesh or that accused Kinu Munda has forcibly committed rape upon her or that she had made a false statement Ex. PW5/B to the Police or that she is deposing falsely, were put, which were negated by the said PW but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.

However a futile attempt has been made by accused Kinu Munda to save his skin from the clutches of law by way of examination of three defence witnesses namely DW1 - Ms. Limbu Munda, his wife, DW2 - Sh. Mukesh Kumar Jain, his employee and DW3 - Dr. Satish Kumar.

39 of 99 40 FIR No. 287/11 PS - Kanjhawala DW1 - Ms. Limbu Munda in her examinationinchief has deposed which is reproduced and reads as under : "Kinu Munda is my husband and married to him 4 years ago. My husband does not have right hand due to which my husband is unable to do his own work, even I have to put clothes and remove clothes from his body as he is unable to do this himself. My husband is suffering from disease for the last two years, of the organ from which the urination is done and he is under regular treatment. Due to which he is not able to establish physical relation with me.

I know complainant/prosecutrix (name withheld), who was brought to me by Vikesh. Vikesh had asked me to put prosecutrix (name withheld) on some job (Vikesh ne mujhe prosecutrix (name withheld) ko kahi kaam pe rakhne ke liye kaha). I had put prosecutrix (name withheld) on job at Pitma Pura, Sainik Vihar. Prosecutrix (name withheld) worked there for about 20 days and thereafter returned back to me. Thereafter, I kept prosecutrix (name withheld) for 4/5 days at my house at House No. 24/11, Gali No. 3, Madan Pur Dabas. 4/5 other girls were also living at that house. My Bhaiya name Lakhan Munda and Bhabhi Urmila were also living there at that house. After 4/5 days, Vikesh came there to take prosecutrix (name withheld) and Vikesh asked me to settle the account (hisab karo) and to give the wages of prosecutrix (name withheld) for the 20 days which she had worked. I paid Rs. 1500/ to Vikesh as was the wages of prosecutrix (name withheld) made out. Vikesh had also asked me for Rs. 25000/ as his traveling expenses of coming and that of going (aane jane ka kharcha). I did not pay Rs. 25000/ to Vikesh on which he threatened me (mujhe dhamki diya). He said that he will implicate my husband (usne kaha ki mai tumare pati ko fasa degi). Thereafter, my husband has been implicated in a rape case.

40 of 99 41 FIR No. 287/11 PS - Kanjhawala At this stage, the Learned Counsel for the accused prayed to put the question regarding as to who runs the placement agency and about a telephone number already come on the record.

Heard and perused. Permission granted.

Q. Who runs the Placement Agency?

Ans. I run the Placement Agency.

Q. Who is using the mobile phone number 9811750725? Ans. I am using this mobile number."

During her crossexamination by Learned Addl. PP for the State, DW1 - Ms. Limbu Munda has deposed that she has not brought any documentary proof to show that she is running a placement agency.

During her further crossexamination by the Learned Addl. PP for the State, DW1 - Ms. Limbu Munda has deposed that : "No Police complaint was lodged against Vikesh of his threat, if Rs. 25,000/ is not given by me then he will implicate my husband in a false case."

On careful perusal and analysis of the testimony of DW1 Ms. Limbu Munda, it is found that she has floated a theory that, 41 of 99 42 FIR No. 287/11 PS - Kanjhawala "Vikesh had also asked me for Rs. 25000/ as his traveling expenses of coming and that of going (aane jane ka kharcha). I did not pay Rs. 25000/ to Vikesh on which he threatened me (mujhe dhamki diya). He said that he will implicate my husband (usne kaha ki mai tumare pati ko fasa degi). Thereafter, my husband has been implicated in a rape case" but the same has not at all being made probable much established by any cogent evidence therefore falls flat on the ground. Nor any document that she was running a placement agency has been produced or proved on record. DW1 - Ms. Limbu Munda who is the wife of accused during her crossexamination as reproduced herein above has specifically deposed that no Police complaint was lodged against Vikesh of his threat, if Rs. 25,000/ is not given by her then he will implicate her husband in a false case. Why she (DW1 - Ms. Limbu Munda) did not lodge any complaint to the Police against Vikesh of his threat of implication of her husband in a false case? The reason for the same must be known to her. It clearly indicates that, Had Vikesh given any threat, for the implication of her husband in a false case, she (DW1 - Ms. Limbu Munda) being the wife of accused Kinu 42 of 99 43 FIR No. 287/11 PS - Kanjhawala Munda must have lodged the complaint against Vikesh to the Police for the false implication of her husband.

In view of above and in the circumstances, the testimony of DW1 - Ms. Limbu Munda does not inspire confidence and she is a procured witness.

DW2 - Sh. Mukesh Kumar Jain, in his examinationinchief has deposed, which is reproduced and reads as under : "I am working with accused Kinu Munda who is running a placement agency under the name and style of Birsa Berojgar Seva Service having its office at M226, Shakur Pur near Britannia Chowk for about 5 years. This firm is registered in the name of Kinu Munda but is run and managed by myself and Smt. Lembu Munda, wife of accused Kinu Munda. Kinu Munda is handicapped from his hand for the last 15 years (15 saal se iska haath kata hua hai) and for this reason the girls who work in his firm are being handled by Smt. Lembu Munda. Kinu Munda cannot come and go anywhere of his own (ye apne aap kahi aa ja nahi sakta) and he does not have any talk with any girl (iski kisi ladki se koi bat nahi hoti) and all the work is being managed either by me or by the wife of Kinu Munda (sara kaam main sambhalta hoon ya iski wife sambhalti hai). He lives most of the time at home and he has been looked after by his wife. Whenever he goes out, he goes with me and if any water is to be given to him, it is being given by me and if he is to go for toilet, he is being helped by me.

In the eighth or ninth month of year 2011, one girl named 43 of 99 44 FIR No. 287/11 PS - Kanjhawala prosecutrix (name withheld) had come to us for work, her husband Vikesh had brought her. Thereafter we put her (prosecutrix (name withheld)) on work at Pitampura and there she worked for about 20 days at H.No.82, Sainik Vihar. After 20 days, we received a call from there asking us to take back her (prosecutrix (name withheld)) that this girl is not doing the work properly. This girl prosecutrix (name withheld) was brought back and was kept at the house of Kinu Munda at 24/11, Gali No. 3, Meer Vihar, where the brother Lakhan Munda of Lembu Munda and his wife Urmila were living and besides them other girls were also living there. Thereafter Vikesh, husband of prosecutrix (name withheld) came and we told him that his wife (prosecutrix (name withheld)) is not working properly and she has worked for about 20 days and her salary for that work comes to Rs. 1,500/ but Vikesh started asking us to pay Rs. 25,000/ as too much expenses have been incurred in bringing and taking her (iske aane jaane me hamara bahut kharcha hua hai). On which we said that we cannot pay this much money to him as she (prosecutrix (name withheld)) had worked only for 20 days. We give commission of Rs. 25,000/ only in the eventuality when the girl continuously had worked for one year. On which Vikesh got enraged (is baat par vo bhadak gaya) and started quarreling (jhagra) with Lembu Munda wife of Kinu Munda that if she does not pay this much money then he will implicate her husband in a false case of rape (agar wo ye paisa nahi deti to uske pati ko jhute balatkaar ke case mein phasa dundga) and while uttering these words he went out (ye kahta hua wo chala gaya). All this had happened at house no. 24/11, Gali No. 3, Meer Vihar, where Kinu Munda goes once or twice in a month with me. Thereafter, Vikesh implicated Kinu Munda in a false case. Thereafter we came to know that the girl by the name of prosecutrix (name withheld) is not the wife of Vikesh, who also comes to the Court with Vikesh and Vikesh has kept 44 of 99 45 FIR No. 287/11 PS - Kanjhawala her (Vikesh ne use rakha hua hai). Kinu Munda does not talk with any girl and about 250 girls work (Kinu Munda kisi ladki se baat nahi karta hai jabki 250 ladkiyan kam karti hai) as all the mobile phones remains with his wife. The mobile No. 9811750725 is used by Lembu Munda and this mobile number is in the name of devar of Lembu Munda. Kinu Munda is not at wrong and he has not committed any offence and has been falsely implicated."

During his crossexamination by the Learned Addl. PP for the State, DW2 - Sh. Mukesh Kumar Jain has deposed that : "I am working as an employee in the firm of Kinu Munda. I am getting salary of Rs. 13,000/ per month. I do not used to take any receipt from them. Vol. I used to bring money and I used to take my salary from the wife of Kinu Munda. No appointment letter was issued tome when I was employed. I was knowing Kinu Munda so in this way I was appointed. No interview was taken place when I was appointed. I am working as a Supervisor. It is my job to get employed the girls who comes from the village, to pay the salary of those girls, to get those girls relieved from their employer, who were employed by us and used to send those girls in their village. I used to do the work of going out for work of firm (Bahar aane jane ka kaam mai dekhta hu). I used to come in the Office at about 9:00/9:30 a.m. and used to remained in the office till 9:00/9:30 p.m. My house is situated at a distance of about 8/9 km from my office. I am entitled to get four leaves in a month, but I never obtained any leave due to heavy work load and I get the payment in lieu of the said leaves not availed. No attendance register is maintained in our office and I did not mark my attendance in the office."

45 of 99 46 FIR No. 287/11 PS - Kanjhawala "Q. Did Limbu Munda lodged any complaint regarding the said alleged quarrel and threat against Vikesh in the Police Station?

Ans. No."

"Q. How did you come to know that a case has been made against Kinu Munda?

Ans. A phone call had come to me on 19/12/2011 from the Police Station.

Q. Did you go to the Police Station on receipt of such call?

Ans. I did not go to the Police Station. Vol. Wife of Kinu Munda had gone there (Mai nahi gaya, iski wife gai thi)."

"I had not lodged any written complaint to the Police or to the Senior Police official or in the Court regarding the threat to Limbu Munda by Vikesh or that accused Kinu Munda has been falsely implicated in the case. It is wrong to suggest that I am not working in the placement agency of Kinu Munda and have deposed falsely in this regard."

On careful perusal and analysis of the testimony of DW2 Sh. Mukesh Kumar Jain, it is found that he has floated a theory that, "Vikesh started asking from them to pay Rs. 25,000/, on which they 46 of 99 47 FIR No. 287/11 PS - Kanjhawala said that they cannot pay on which Vikesh got enraged (is baat par vo bhadak gaya) and started quarreling (jhagra) with Limbu Munda wife of Kinu Munda that if she (Limbu Munda) does not pay this much money then he (Vikesh) will implicate her (Limbu Munda) husband in a false case of rape (agar wo ye paisa nahi deti to uske pati ko jhute balatkaar ke case mein phasa dunga)" but the same has not at all being made probable much established by any cogent evidence therefore falls flat on the ground. Nor any document regarding his (DW2

- Mukesh Kumar Jain) employment as Supervisor in the firm of accused Kinu Munda has been produced and proved on record. DW1 - Mukesh Kumar, who is the employee of accused Kinu Munda during his cross examination as reproduced hereinabove has specifically deposed that he did not go to the Police Station on receipt of call from Police that a case has been made against Kinu Munda and that he had not lodged any complaint to the Police or to the Senior Police official or in the Court regarding the threat to Limbu Munda by Vikesh or that accused Kinu Munda has been falsely implicated in the case, why he (DW2 - Mukesh Kumar Jain) did not go to Police Station? why he had not lodged any complaint to the Police or to the Senior Police official or in the Court 47 of 99 48 FIR No. 287/11 PS - Kanjhawala regarding the threat to Limbu Munda by Vikesh or that accused Kinu Munda has been falsely implicated in the case? the reasons for the same mush be known to him. It clearly indicates that, Had Vikesh given any threat for the false implication of husband (accused Kinu Munda) of Limbu Munda (DW1) in a false case, DW2 - Mukesh Kumar Jain, being the employee/Supervisor of accused Kinu Munda must have gone to the Police Station on receipt of the call of the Police that a case has been made against Kinu Munda and must have lodged complaint against Vikesh to the Police or to the Senior Police official or in the Court regarding his alleged threat to Limbu Munda (DW1) and against the alleged false implication of accused Kinu Munda.

In view of above and in the circumstances, the testimony of DW2 - Mukesh Kumar Jain does not inspire confidence and he is a procured witness.

On a conjoint reading of the testimonies of DW1 - Limbu Munda and DW2 - Mukesh Kumar Jain, it is found that in her entire testimony DW1 - Limbu Munda has not uttered a single 48 of 99 49 FIR No. 287/11 PS - Kanjhawala word that any person by the name Mukesh Kumar (DW2) was working as Supervisor in her Placement Agency. This very fact further creates doubt and suspicion on the testimony of Sh. Mukesh Kumar Jain, who has been produced and examined as DW2 by the accused.

DW3 - Dr. Satish Kumar in his examinationinchief has deposed which is reproduced and reads as under : "I am the owner of Maharaja Agresen Medical Centre. Kinu Munda is taking treatment from Maharaja Agresen Medical Centre, since August 2011. Dr. Narender Pal Singh is attending to Kinu Munda. Dr. Narender Pal Singh remained in my medical centre till December, 2011 and after that he suffered with heart attack and left the medical centre. I have been shown two medical prescription dated 22/08/2011 and 20/09/2011. The said medical prescriptions are in the handwriting of Dr. Narender Pal Singh which I identify the said medical prescriptions are Ex. DW3/A1 and A2. I had also given the medical treatment to Kinu Munda on 05/02/2012. The medical prescription in this regard is Ex. DW3/B. After 05/02/2012, Kinu Munda came to me on 10/05/2012 and on that day, six months ayurvedic treatment was given to him. After six months he (Kinu Munda ) came to me and told him that he is not getting the proper relief (thik nahi ho raha hai) on which I referred him to a urosurgeon. The medical prescription in this regard is Ex. DW3/C. I had also advised Kinu Munda to avoid performance of physical relations till 49 of 99 50 FIR No. 287/11 PS - Kanjhawala he is under treatment because he is not able to do the physical relation."

During his crossexamination by Learned Addl. PP for the State, DW3 has deposed that : "Dr. Narender Pal, M. D. Medicine had worked in my medical centre from 2011 to December,2012. I am having no record of Dr. Narender Pal, M.D. Medicine of having worked in my said medical centre."

"It is correct that in the documents Ex. DW3/B & Ex. DW3/C my advice to Kinu Munda to avoid performance of physical relations till he is under treatment because he is not able to do physical relation, is not mentioned. Vol. he was orally told about it."

On careful perusal and analysis of the testimony of DW3 - Dr. Satish Kumar, it is found that, no medical record of Dr. Narender Pal, MD Medicine allegedly having worked at his medical centre from 2011 to December, 2012 who allegedly prepared medical prescription dated 22/08/2011 and 20/09/2011 Ex. DW3/A1 and DW3/A2 has been produced and proved on record. No reason/explanation has been placed by DW3 Dr. Satish Kumar for nonproduction of such record of Dr. Narender Pal. As regards the theory floated by DW3 Dr. Satish 50 of 99 51 FIR No. 287/11 PS - Kanjhawala Kumar during his examinationinchief that, "He had also advised Kinu Munda to avoid performance of physical relations till he is under treatment because he is not able to do the physical relations and the medical prescription in this regard is Ex. PW3/C", is concerned, on careful analysis it is found to be not sustainable during his crossexamination itself in which what he (DW3 - Dr. Satish Kumar) has deposed is reproduced and reads as under : "It is correct that in the documents Ex. DW3/B & Ex. DW3/C my advice to Kinu Munda to avoid performance of physical relations till he is under treatment because he is not able to do physical relation, is not mentioned. Vol. he was orally told about it."

(underlined by me) In view of above and in the circumstances, the testimony of DW3 - Dr. Satish Kumar does not inspire confidence and he is a procured witness.

17. 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.

51 of 99 52 FIR No. 287/11 PS - Kanjhawala It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."

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

52 of 99 53 FIR No. 287/11 PS - Kanjhawala 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 PW5 - Prosecutrix in the light of medical evidence vide MLC Ex. PW3/A and gynaecological examination vide Gynae Notes Ex. PW4/A of the prosecutrix, together with the MLC of the accused Kinu Munda Ex. PW1/A, the Skin Note Ex. PW2/B on the MLC Ex. PW1/A, as discussed hereinbefore, the act 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 Kinu Munda with PW5 - Prosecutrix without her consent.

53 of 99 54 FIR No. 287/11 PS - Kanjhawala

18. Learned Counsel for the accused submitted that the prosecutrix did not want to marry the accused and under the fear of accused she accepted for marrying the accused and in her cross examination she has stated that "it is wrong to suggest that the accused Kinu Munda has forcibly committed rape upon me and I do not know the names of other girls who were living at Mir Vihar," which proves the fact that neither the sexual intercourse was forceful, as alleged nor the prosecutrix intended to marry the accused which proves that if alleged rape was committed with the complainant it was with her consent and without any future commitment and was free from any pressure from any corner. The consent was free can also be proved as no sound of even whisper was being made by the prosecutrix as there other girls were also residing in the house at Mir Vihar were (where) alleged incident took place and voluntarily participation in the act can't amount to Rape.

I have carefully perused and analysed the evidence on record.

The testimony of PW5 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the 54 of 99 55 FIR No. 287/11 PS - Kanjhawala testimony of PW5 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. The version of this witness on the core spectrum of crime has remained intact.

With due respect, it appears that the Learned Counsel for the accused has either not read or misread the testimony of PW5 - prosecutrix.

During her crossexamination PW5 - prosecutrix has deposed that "It is wrong to suggest that accused Kinu Munda has forcibly committed rape upon me". The said part of her testimony has to be read as a whole and not in isolation from the entire statement, ignoring its proper reference.

It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.

On analysing the entire testimony of PW5 - prosecutrix 55 of 99 56 FIR No. 287/11 PS - Kanjhawala it transpires that she has described the scenario implicating the accused to be the author of the crime, of the committal of the sexual assaults upon her without her consent. The accused has 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 crime has remained intact.

At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW5 - prosecutrix which reads as under : "First time I came to Delhi in the year, 2009 and at that time I worked in the houses at Moti Nagar. First time I met accused Kinu Munda at Moti Nagar Metro Station, Delhi one year before the present incident. Accused Kinu Munda is present in the Court today (correctly identified by the witness). At that time accused Kinu Munda had taken my contact number and he also gave his contact number to me. Accused told me that he will arrange the good job for me. Thereafter, I returned back to my native place Orissa. Later on, accused called me on phone when I was present at my native place in Orissa and told me to come to Delhi as he had arranged one good job for me. In pursuance of the above said talks, I came to Delhi in the month of September. Accused came to Nizamuddin Railway Station to receive me and from there he took me to his house at Meer Vihar via Shukurpur. He kept me at his house for 56 of 99 57 FIR No. 287/11 PS - Kanjhawala about 1½ months and he did not arrange any job for me on which I asked to accused as to why he had not arranged any job for me despite he called me from Orissa to Delhi on this assurance. On which, he told that he will marry with me. I refused for the same on which accused Kinu Munda committed rape (galat kaam) with me. Accused committed rape with me on 20/09/2011 at about 9:00 p.m. Accused confined me in a room for 23 days by locking the room. Thereafter he again came and told that he will marry me. I became very perturb and due to consistent asking and fear of accused Kinu Munda, I agreed his demand for marriage.

(underlined by me) Section 375 IPC defines Rape and provides that a man is said to commit 'rape' who has sexual intercourse with a woman under circumstances falling under any of the six descriptions enumerated 57 of 99 58 FIR No. 287/11 PS - Kanjhawala therein and except in the cases excepted therein.

Explanation appended to Section 375 IPC provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Section 375 IPC nowhere provides that it should only be a forcible sexual intercourse by a man with a woman so as to be covered within its mischief.

In the circumstances, the plea of the Learned Counsel for the accused that neither sexual intercourse was forceful nor the prosecutrix intended to marry the accused which proves that the alleged rape was committed with the prosecutrix with her consent and without any future commitment and was free from any pressure from an corner, is found to have no substances. The testimony of PW5 - prosecutrix as reproduced hereinabove does not indicate in any manner that accused after calling her (PW5 - prosecutrix) from Orissa to Delhi on the assurance of providing her good job had obtained any licence to commit sexual intercourse (galat kaam) upon the prosecutrix as and when he wished without her consent and against her will.

58 of 99 59 FIR No. 287/11 PS - Kanjhawala In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

19. Learned Counsel for the accused submitted that there is considerable delay in registration of case.

I have carefully perused and analysed the evidence on record.

Learned Counsel for the accused has not specified as to how much is the delay in the registration of the case.

The testimony of PW5 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW5 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. The version of this witness on the core spectrum of crime has remained intact.

On analysing the entire testimony of PW5 - prosecutrix 59 of 99 60 FIR No. 287/11 PS - Kanjhawala it transpires that she has described the scenario implicating the accused to be the author of the crime, of the committal of the sexual assaults upon her without her consent and how, in what circumstances and under what difficulties she lodged the complaint with the Police on 14/12/2011 Ex. PW5/A. At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW5 - prosecutrix which reads as under : "First time I came to Delhi in the year, 2009 and at that time I worked in the houses at Moti Nagar. First time I met accused Kinu Munda at Moti Nagar Metro Station, Delhi one year before the present incident. Accused Kinu Munda is present in the Court today (correctly identified by the witness). At that time accused Kinu Munda had taken my contact number and he also gave his contact number to me. Accused told me that he will arrange the good job for me. Thereafter, I returned back to my native place Orissa. Later on, accused called me on phone when I was present at my native place in Orissa and told me to come to Delhi as he had arranged one good job for me. In pursuance of the above said talks, I came to Delhi in the month of September. Accused came to Nizamuddin Railway Station to receive me and from there he took me to his house at Meer Vihar via Shukurpur. He kept me at his house for about 1½ months and he did not arrange any job for me on which I asked to accused as to why he had not arranged any job for me despite he called me from Orissa to Delhi on this assurance. On which, he told that he 60 of 99 61 FIR No. 287/11 PS - Kanjhawala will marry with me. I refused for the same on which accused Kinu Munda committed rape (galat kaam) with me. Accused committed rape with me on 20/09/2011 at about 9:00 p.m. Accused confined me in a room for 23 days by locking the room. Thereafter he again came and told that he will marry me. I became very perturb and due to consistent asking and fear of accused Kinu Munda, I agreed his demand for marriage.

"The complaint dated 14/12/2011 is Ex. PW5/A, bearing my signature at point 'A'. My statement was recorded by the IO on 20/12/2011 which is exhibited as Ex. PW5/B, bearing my signature at point 'A'.

(Underlined by me)

61 of 99 62 FIR No. 287/11 PS - Kanjhawala During her crossexamination, PW5 - prosecutrix has deposed which is reproduce and reads as under : "I have made the complaint to the Police for the first time perhaps two years back in December, 2011. I do not remember the date."

"Q. For how much time did you remain/stay at Police Station when you had gone there for lodging your complaint firstly? A. When I went firstly at the Police Station, my complaint was not lodged and I was sent back and my complaint was not received. Thereafter, my complaint was received in the Office of Police. I am not very much educated. I have studied upto 78th class. I understand Hindi. I can read some Hindi (Thodi padh sakti hu). I had written myself the first complaint which I had made to the Police and had written the same at my house/place where I was living. I used to sign in English. Q. How many times you have made complaint to the Police? Ans. First time, when I made the complaint to the Police it was not taken. Second time, when I made complaint it was taken by the Police."

(Underlined by me) The sight cannot be lost of the fact of not much educated level of the prosecutrix and the rigors through which she had undergone since September, 2011 when she had come to Delhi from 62 of 99 63 FIR No. 287/11 PS - Kanjhawala Orissa on the assurance of having arranged a good job for her by the accused and of the committal of sexual assaults upon her by the person/accused who had called her to Delhi and of her expulsion from his house by accused (on 11/12/2011) and the apathy of Police not registering her complaint in the beginning.

In view of above and in the circumstances, the delay in the registration of the case sufficiently and satisfactorily stands explained by PW5 - prosecutrix.

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.

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)].

63 of 99 64 FIR No. 287/11 PS - Kanjhawala Delay in lodging of FIR is a normal phenomenon especially in cases like rape or outraging the modesty of a women, the aggrieved or the injured person or her relations will naturally think twice before giving a complaint to the police (Ref. Mohd. Habib Vs. State (Delhi Administration) 1989 CRLJ 137 (Delhi).

The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).

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 64 of 99 65 FIR No. 287/11 PS - Kanjhawala 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 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 65 of 99 66 FIR No. 287/11 PS - Kanjhawala 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 Vs. State of Haryana AIR 2009 SC 2190' has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."

In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such 66 of 99 67 FIR No. 287/11 PS - Kanjhawala 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 circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.

20. Learned Counsel for the accused submitted that accused was incapable to perform any sexual contact as proved by Government Doctor and he was getting treatment as proved by private Doctor appeared as DW3. Learned Counsel for the accused further submitted that such an act is being done for pleasure and no one shall indulge in an act which shall give pain instead of pleasure.

I have carefully perused and analysed the evidence on record.

The evidence of PW1 - Dr. Rajesh Dalal, CMO, SGM Hospital, Mangol Puri and PW2 - Dr. Bhawna Wadhwa, Specialist Skin, LNJP Hospital, New Delhi has been reproduced, discussed and analysed 67 of 99 68 FIR No. 287/11 PS - Kanjhawala hereinbefore.

At the cost of repetition, PW1 - Dr. Rajesh Dalal, CMO, SGM Hospital, Mangol Puri has deposed that on 21/12/2011, he was posted as CMO, SGM Hospital. On that day, accused Kinu Munda was brought with alleged history of sexual assault, 10 days back. He was brought for his medical examination. He (PW1) examined him. He was conscious and oriented at that time. On local examination there was erosion over upper region of glans. Bilateral testis appears to be normal and well descended in scortum. No other fresh external injury seen. After examination, he (PW1) advised for taking skin opinion for the type of legion (lesion). He prepared his MLC Ex. PW 1/A, which bears his signature at point 'A'. Thereafter, accused was referred for skin opinion.

Despite grant of opportunity PW1 - Dr. Rajesh Dalal was not crossexamined on behalf of accused.

At the cost of repetition, PW2 - Dr. Bhawna Wadhwa, Specialist Skin has deposed that on 21/12/2011, she was posted at SGM Hospital, Delhi. On that day, she medically examined accused Kinu Munda. On examination, single nonindurated tender erosion of size 2 x 2 cm on the upper region of glans. There was no history of extra marital 68 of 99 69 FIR No. 287/11 PS - Kanjhawala contact prior to the appearance of lesion. The patient can have difficulty in sexual contact because of the painful nature of the lesion, else lesion per se will not cause any problem for sexual contact. Her skin note on Ex. PW1/A is Ex. PW2/B which bears her signature at point 'A'.

During her crossexamination PW2 - Dr. Bhawna Wadhwa, Specialist Skin has deposed which is reproduced and reads as under : "It is wrong to suggest that the patient Kinu Munda is not capable to perform sexual intercourse during the period, he was having pain due to lesion. I cannot tell the duration of lesion. It may be short duration or long duration."

(Underlined by me) From the aforesaid narration of PW2 - Dr. Bhawna Wadhwa, Specialist Skin, it is clearly indicated that, the patient can have difficulty in sexual contact because of the painful nature of the lesion, else lesion per se will not cause any problem for sexual contact meaning thereby, the patient has the capability for performing the sexual contact and lesion per se will not cause any problem in making the sexual contact except that it (lesion) may become painful.

69 of 99 70 FIR No. 287/11 PS - Kanjhawala There is nothing in the crossexamination of PW2 - Dr. Bhawna Wadhwa so as to impeach her creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused. However, a futile attempt has been made by accused to save its skin from the clutches of law by way of examination of DW3 Dr. Satish Kumar.

During his examinationinchief, DW3 - Dr. Satish Kumar has deposed that : "...I had also given the medical treatment to Kinu Munda on 05/02/2012. The medical prescription in this regard is Ex. DW3/B. After 05/02/2012, Kinu Munda came to me on 10/05/2012 and on that day, six months ayurvedic treatment was given to him. After six months he (Kinu Munda) came to me and told me that he is not getting the proper relief (thik nahi ho raha hai) on which I referred him to a urosurgeon. The medical prescription in this regard is Ex. DW3/C. I had also advised Kinu Munda to avoid performance of physical relations till he is under treatment because he is not able to do the physical relation."

However, during his crossexamination by the Learned Addl. PP for the State, DW3 Dr. Satish Kumar has deposed which is reproduced and reads as under : "It is correct that in the documents Ex. DW3/B & Ex.

70 of 99 71 FIR No. 287/11 PS - Kanjhawala DW3/C my advice to Kinu Munda to avoid performance of physical relations till he is under treatment because he is not able to do physical relation, is not mentioned. Vol. he was orally told about it."

(Underlined by me) The said part of crossexamination of DW3 Dr. Satish Kumar clearly indicates that he is a procured witness. Had he (DW3

- Dr. Satish Kumar) advised patient/accused Kinu Munda to avoid performance of physical relations till he is under treatment, what was the hitch on the part of DW3 - Dr. Satish Kumar not to mention such an important advice on the prescriptions Ex. DW3/B and Ex. DW3/C. No explanation has been placed by DW3 - Dr. Satish Kumar in this regard. It is a matter of common experience that Doctors make the prescriptions in writing so that it is a reminder to the patient as to what has been prescribed and advised by the Doctor.

In the circumstances, the testimony of DW3 - Dr. Satish Kumar does not inspire confidence.

71 of 99 72 FIR No. 287/11 PS - Kanjhawala Section 91 of Indian Evidence Act, 1872 provides for the exclusion of oral by documentary evidence.

It reads as under :

91. Evidence of terms of contracts, grants and other dispositions or property reduced to form of documents. when the terms of a contract, or of a grant, or of any other disposition of property,have been reduced to the form of a document, and in all cases in which any matter is required by law to be reproduced to the form of a document, no evidence shall be given in proof of the terms of such contact, grant and other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.

        XX                     XX                      XX                                  XX

        XX                     XX                      XX                                  XX

It is to be noticed that 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."

72 of 99 73 FIR No. 287/11 PS - Kanjhawala In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:

".....even slight penetration is sufficient and emission is unnecessary."

PW5 - prosecutrix during her crossexamination has specifically negated the suggestion that Kinu Munda had not committed any Galat Kaam (Wrong Deed) with her as he was not medically fit.

The relevant part of crossexamination of PW5 - prosecutrix is reproduced and reads as under : "It is wrong to suggest that Kinu Munda had not committed any Galat Kaam (Wrong Deed) with me as he was not medically fit. Vol. Kinu Munda had committed with me."

As far as the plea of the Learned Counsel for the accused that such act is being done for pleasure and no one shall indulge in an act which shall give pain instead of pleasure, is concerned, such fact must be especially within the knowledge of the accused and the burden of proving such fact was upon him.

73 of 99 74 FIR No. 287/11 PS - Kanjhawala Section 106 Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.

It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

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 the accused is physically handicapped and cannot apply force on any one.

I have carefully perused and analysed the evidence on record.

PW5 - prosecutrix during her crossexamination has deposed that "It is correct that the Kinu Munda is not having his right arm (Sidha Hath)".

As far as the plea that accused being physically handicapped and was not able to apply force on any one is 74 of 99 75 FIR No. 287/11 PS - Kanjhawala concerned, it is evident from the record that during the cross examination of PW5 - prosecutrix accused neither voiced his concern nor raised any apprehension regarding the same. 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.

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).

On analysing the entire testimony of PW5 - prosecutrix it transpires that she has described the scenario implicating the accused to be the author of the crime, of the committal of the sexual assaults upon her without her consent and also of giving of beatings to her.

At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW5 - prosecutrix which reads as under : "Later on, accused called me on phone when I was present 75 of 99 76 FIR No. 287/11 PS - Kanjhawala at my native place in Orissa and told me to come to Delhi as he had arranged one good job for me. In pursuance of the above said talks, I came to Delhi in the month of September. Accused came to Nizamuddin Railway Station to receive me and from there he took me to his house at Meer Vihar via Shukurpur. He kept me at his house for about 1½ months and he did not arrange any job for me on which I asked to accused as to why he had not arranged any job for me despite he called me from Orissa to Delhi on this assurance. On which, he told that he will marry with me. I refused for the same on which accused Kinu Munda committed rape (galat kaam) with me. Accused committed rape with me on 20/09/2011 at about 9:00 p.m."

"I asked accused Kinu Munda regarding his three wives, on which he became very angry and gave beatings to me and committed rape upon me forcibly. I do not remember the exact date now. Thereafter, accused kept committing rape with me."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

22. Learned Counsel for the accused submitted that the prosecutrix at any point of time did not raise any hue and cry and even did not inform anyone about the alleged incident, which creates doubt about the story of the prosecutrix.

76 of 99 77 FIR No. 287/11 PS - Kanjhawala I have carefully perused and analysed the evidence on record.

At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW5 - prosecutrix which reads as under : "He kept me at his house for about 1½ months and he did not arrange any job for me on which I asked to accused as to why he had not arranged any job for me despite he called me from Orissa to Delhi on this assurance. On which, he told that he will marry with me. I refused for the same on which accused Kinu Munda committed rape (galat kaam) with me. Accused committed rape with me on 20/09/2011 at about 9:00 p.m. Accused confined me in a room for 23 days by locking the room. Thereafter he again came and told that he will marry me. I 77 of 99 78 FIR No. 287/11 PS - Kanjhawala became very perturb and due to consistent asking and fear of accused Kinu Munda, I agreed his demand for marriage.

(Underlined by me) As regards the nonraising of hue and cry and not informing anyone about the incident is concerned, it does not falsify the testimony of the prosecutrix which is otherwise proved on record by clear, cogent and convincing evidence. Nor, it in any way imputes consent on the part of the prosecutrix. The sight cannot be lost of the fact of not much educated level of the prosecutrix and the rigors through which she had undergone since September, 2011 when she 78 of 99 79 FIR No. 287/11 PS - Kanjhawala had come to Delhi from Orissa on the assurance of arranging job for her by accused and of the committal of sexual assaults upon her by the person/accused who had called her to Delhi and of giving of beatings to her. During this entire period she remained very perturbed due to the fear of accused Kinu Munda and remained under his total dominance and control, in an unknown city. One is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to raise hue and cry.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

23. Learned Counsel for the accused submitted that prosecutrix was very well aware about the fact that accused is already married. Moreover, if a lady is residing for many months in the house of accused, it is unbelievable that she shall not come to know about wife of accused. Moreover, even according to prosecutrix she had sexual relations with accused even after coming to know about three marriages of accused and most interestingly this allegation was also found wrong as accused has 79 of 99 80 FIR No. 287/11 PS - Kanjhawala only one wife. This all falsify the whole story of the prosecutrix.

I have carefully perused and analysed the evidence on record.

With due respect, it appears that the Learned Counsel for the accused has either not read or misread the testimony of PW5 - prosecutrix. PW5 - prosecutrix has specifically deposed that she was kept by accused at his house at Meer Vihar and not at his house at Shakur Pur, Delhi where he was living with his wife. Moreover, during the crossexamination of PW5 - prosecutrix, accused has not disputed that she was not living at Meer Vihar.

The relevant part of crossexamination of PW5 - prosecutrix is reproduced and reads as under : "At Mir Vihar only one or two girls were living. It is wrong to suggest that accused Kinu Munda's Sala (Brotherinlaw) and his wife were also living in Mir Vihar. It is wrong to suggest that 1015 persons were living in Mir Vihar where i was living"

"Q. I put it to you that on the date of incident, accused Kinu Munda was living with his wife at Shakur Pur, Delhi.(?) A. He (Kinu Munda) used to come/visit at Mir Vihar where he had kept me.

80 of 99 81 FIR No. 287/11 PS - Kanjhawala Q. I put it to you that on 20/09/2011 and 09/12/2011, accused Kinu Munda was living with his wife at Shakur Pur, Delhi.

A. It is incorrect. Vol. On the said dates Kinu Munda was present at Mir Vihar where he had kept me."

During her examinationinchief PW5 - prosecutrix has specifically deposed which is reproduced and reads as under : "Later on, accused called me on phone when I was present at my native place in Orissa and told me to come to Delhi as he had arranged one good job for me. In pursuance of the above said talks, I came to Delhi in the month of September. Accused came to Nizamuddin Railway Station to receive me and from there he took me to his house at Meer Vihar via Shukurpur."

In view of the aforesaid narration of PW5 - prosecutrix, the theory that, "Prosecutrix was very well aware about the fact that accused is already married. Moreover, if a lady is residing for many months in the house of accused, it is unbelievable that she shall not come to know about wife of accused", so propounded by the accused falls flat on the ground.

PW5 - prosecutrix in her examinationinchief has 81 of 99 82 FIR No. 287/11 PS - Kanjhawala categorically deposed which is reproduced and reads as under : "Thereafter, he arranged a job for me at Sainik Vihar saying he will return after some time as he was going out of station. Accused also told me that he will marry with me after returning. During this period accused used to talk with me on phone. When he returned to Delhi, he got me back again to his office from Sainik Vihar. From one of the staff of Kinu Munda namely Budhini, I came to know that accused Kinu Munda was already having three wives and two of them were residing at Jharkhand and one was residing in the house at Shakur Pur i.e. office of accused Kinu Munda. I asked accused Kinu Munda regarding his three wives, on which he became very angry and gave beatings to me and committed rape upon me forcibly. I do not remember the exact date now. Thereafter, accused kept committing rape with me."

Even during his examinationinchief DW2 - Mukesh Kumar Jain has deposed that the prosecutrix was brought back at House No. 24/11, Gali No. 3, Meer Vihar from House No. 82, Sainik Vihar, where she worked for 20 days.

In his entire testimony, DW2 - Mukesh Kumar Jain has not uttered a single word that PW5 - prosecutrix was kept by accused Kinu Munda at his house at Shakar Pur where he was living with his wife.

The relevant part of examinationinchief of DW2 - Mukesh 82 of 99 83 FIR No. 287/11 PS - Kanjhawala Kumar reads as under : "Thereafter we put her (prosecutrix (name withheld)) on work at Pitampura and there she worked for about 20 days at H.No.82, Sainik Vihar. After 20 days, we received a call from there asking us to take back her (prosecutrix (name withheld)) that this girl is not doing the work properly. This girl prosecutrix (name withheld) was brought back and was kept at the house of Kinu Munda at 24/11, Gali No. 3, Meer Vihar, where the brother Lakhan Munda of Lembu Munda and his wife Urmila were living and besides them other girls were also living there."

(Underlined by me) In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

24. Learned Counsel for the accused submitted that there were reasons for the prosecutrix for involving the accused in a false case with an intent to extract money.

I have carefully perused and analysed the evidence on record.

The testimony of PW5 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the 83 of 99 84 FIR No. 287/11 PS - Kanjhawala testimony of PW5 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. The version of this witness on the core spectrum of crime has remained intact.

While raising the said plea, Learned Counsel for the accused has failed to specify the reasons for the prosecutrix for involving the accused in a false case with an intent to extract money.

Nor PW5 - prosecutrix during her entire incisive and lengthy crossexamination has been crossexamined on the said aspect on the intent to extract money.

However, accused has made a futile attempt to save his skin from the clutches of law by way of examination of DW1 - Limbu Munda, his wife and DW2 Sh. Mukesh Kumar Jain his employee. DW1

- Ms. Limbu Munda has propounded a theory that, "Vikesh had also asked me for Rs. 25,000/ as his traveling expenses of coming and that of going (aane jane ka kharcha). I did not pay Rs. 25,000/ to Vikesh on which he threatened me (mujhe dhamki diya). He said that he will implicate my husband (usne kaha ki mai tumare pati ko 84 of 99 85 FIR No. 287/11 PS - Kanjhawala fasa degi). Thereafter, my husband has been implicated in a rape case."

AND DW2 - Mukesh Kumar Jain has propounded a theory that, "Thereafter Vikesh, husband of prosecutrix (name withheld) came and we told him that his wife (prosecutrix (name withheld)) is not working properly and she has worked for about 20 days and her salary for that work comes to Rs. 1,500/ but Vikesh started asking us to pay Rs. 25,000/ as too much expenses have been incurred in bringing and taking her (iske aane jaane me hamara bahut kharcha hua hai). On which we said that we cannot pay this much money to him as she (prosecutrix (name withheld)) had worked only for 20 days. We give commission of Rs. 25,000/ only in the eventuality when the girl continuously had worked for one year. On which Vikesh got enraged (is baat par vo bhadak gaya) and started quarreling (jhagra) with Lembu Munda wife of Kinu Munda that if she does not pay this much money then he will implicate her husband in a false case of rape (agar wo ye paisa nahi deti to uske pati ko jhute 85 of 99 86 FIR No. 287/11 PS - Kanjhawala balatkaar ke case mein phasa dundga) and while uttering these words he went out (ye kahta hua wo chala gaya). Thereafter, Vikesh implicated Kinu Munda in a false case."

On careful perusal and analysis of the entire evidence on record, the said theories so propounded by DW1 - Limbu Munda, his wife and DW2 Sh. Mukesh Kumar Jain his employee have not at all being made probable much established by any cogent evidence. Therefore, falls flat on the ground. Moreover, the said theories so propounded by the said DWs were not put/suggested to PW5 - prosecutrix during the course of her incisive and lengthy cross examination. Nor even a single word regarding the said theories so propounded was uttered by the accused during his statement u/s 313 Cr.P.C. In the circumstances, these theories are merely an afterthought and do not inspire confidence.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

86 of 99 87 FIR No. 287/11 PS - Kanjhawala

25. Learned Counsel for the accused submitted that the prosecutrix had never visited the house at Mir Vihar as such she was not aware of the names of the girls who were living there again it is unbelievable that a girl who shall reside there for more than a month with two girls shall not even know their names.

I have carefully perused and analysed the evidence on record.

With due respect, the plea so raised is repetitive and has already been dealt with at one place or the other in the judgment.

87 of 99 88 FIR No. 287/11 PS - Kanjhawala At the cost of repetition, as discussed and analysed here inbefore, it stands established on the record. PW5 - prosecutrix was kept by accused at his house at Meer Vihar and not at his house at Shakar Pur, Delhi where he was living with his wife.

PW5 - prosecutrix during her crossexamination has specifically deposed that : "I do not know the names of the girls who were living at Mir Vihar."

As regards the theory raised by Learned Counsel for accused that "It is unbelievable that a girl who shall reside there (Mir Vihar) for more than a month with two girls shall not even know their names" is concerned, on the said aspect the information must have been obtained from PW5 - prosecutrix during her incisive and lengthy crossexamination. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.

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 88 of 99 89 FIR No. 287/11 PS - Kanjhawala 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.

26. Learned Counsel for the accused submitted that PW5 - prosecutrix on one hand states that she can read a bit of Hindi and on the other hand she stated that she had written the complaint given to the Police. There is no such hand written complaint on record moreso, when she could not write how she could made a writing of the complaint to Police. She herself proves the fact that there were other people also residing with her at Mir Vihar, which proves that she could not be confined and locked.

I have carefully perused and analysed the evidence on record.

The testimony of PW5 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the 89 of 99 90 FIR No. 287/11 PS - Kanjhawala testimony of PW5 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. The version of this witness on the core spectrum of crime has remained intact.

As regards the theory floated by Learned Counsel for the accused that "PW5 prosecutrix on one hand states that she can read a bit of Hindi and on the other hand she stated that she had written the complaint given to the Police. There is no such hand written complaint on record moreso, when she could not write how she could made a writing of the complaint to Police and when there were other people also residing with her at Mir Vihar then how, she could be confined and locked", is concerned, on the aspects that when she could not write how she could made a writing of the complaint to the Police and when there were other people also residing with her at Mir Vihar then, how, she could be confined and locked, the information regarding the same must have been obtained from PW5 - prosecutrix during her lengthy and incisive crossexamination. In so far as on the aspect that there is no such hand written complaint on record, the 90 of 99 91 FIR No. 287/11 PS - Kanjhawala information regarding the same must have been obtained from PW9 - SI Rajesh Kumar, IO during his crossexamination. They (PW5 - prosecutrix and PW9 - SI Rajesh Kumar, IO) were the only competent witnesses who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

27. Learned Counsel for the accused submitted that PW5 - stated that the site plan was not prepared in her presence but she had told to the Police the places/points, details shown in it.

I have carefully perused and analysed the evidence on record.

91 of 99 92 FIR No. 287/11 PS - Kanjhawala It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea.

PW5 - prosecutrix during her examinationinchief has deposed that : "Police had prepared the site plan of Mir Vihar where accused has committed rape with me. The site plan Ex. PW5/C bearing my signature at point 'A'."

During her crossexamination PW5 - prosecutrix has specifically deposed that : "Q. Please see the site plant (plan) Ex. PW5/C, was this document prepared in your presence (Aap Ke Samne)?

A. It was not prepared in my presence but I had told to the Police about the places/points, details shown in it."

From the aforesaid narration of PW5 - prosecutrix, it is clearly indicated that at the instance of PW5 - prosecutrix who told the Police about the places/points, details on the basis of which accordingly Site Plan Ex. PW5/C bearing her signature at point 'A' was prepared by the IO. In the circumstances, nothing turns much on the plea so raised by the Learned Counsel for the accused.

92 of 99 93 FIR No. 287/11 PS - Kanjhawala PW9 - SI Rajesh Kumar IO during his examinationinchief has specifically deposed that : "I prepared the site plan Ex. PW5/C at the instance of the complainant, bearing my signature at point 'B'."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

28. Learned Counsel for the accused submitted that PW5 - prosecutrix does not know when accused Kinu Munda was arrested.

I have carefully perused and analysed the evidence on record.

It is not made clear by Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea.

The testimony of PW5 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW5 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the 93 of 99 94 FIR No. 287/11 PS - Kanjhawala accused to falsely implicate him in the case. The version of this witness on the core spectrum of crime has remained intact.

PW5 - prosecutrix during her examinationinchief has correctly identified accused Kinu Munda present in the Court.

PW5 - prosecutrix during her examinationinchief has deposed that "Accused Kinu Munda was arrested but he was not arrested in my presence."

During her crossexamination, PW5 - prosecutrix has candidly deposed that : "Q. Do you know when Kinu Munda was arrested?

A. I do not know."

From the aforesaid narration of PW5 - prosecutrix, it is clearly indicated that she has candidly deposed that accused Kinu Munda was arrested and she does not know when he was arrested and that he was not arrested in her presence.

Moreover, the factum of arrest of Kinu Munda and his identity have not been challenged during the entire incisive and lengthy crossexamination of PW5 - prosecutrix.

In the circumstances, nothing turns much on the plea so 94 of 99 95 FIR No. 287/11 PS - Kanjhawala raised by the Learned Counsel for the accused.

PW9 - SI Rajesh Kumar, IO during his examinationinchief has categorically deposed that : "On 21/12/2011 complainant (name withheld) came in the Police Station and thereafter, I alongwith her, Lady Constable Kusum and Constable Raj Kumar left the Police Station and reached at Gali No. 3 near Shamshan ghat, Mir Vihar and complainant had shown the house where accused Kinu Munda had kept her and committed rape upon her. I prepared the site plan Ex. PW5/C at the instance of the complainant, bearing my signature at point 'B'. In the mean time one person came out from the house and complainant (name withheld) had identified him as Kinu Munda. Accused Kinu Munda was apprehended at the instance of prosecutrix (name withheld) and he was interrogated and arrested vide arrest memo Ex. PW9/C and his personal search was conducted vide memo Ex. PW9/D, both bearing my signature at point 'A'."

During his crossexamination, PW9 - SI Rajesh Kumar, IO has negated the suggestion that accused Kinu Munda was lifted from his house.

It is also to be noticed that the said suggestion put to PW9 - SI Rajesh Kumar, IO has not at all being made probable much established by any cogent evidence. Moreover, the testimonies of DW1 - Ms. Limbu Munda, wife of accused and DW2 - Sh.

95 of 99 96 FIR No. 287/11 PS - Kanjhawala Mukesh Kumar, employee of accused are also totally silent on the said aspect regarding which the suggestion was put to PW9 - SI Rajesh Kumar. In the circumstances, the theory propounded by the Learned Counsel for the accused that, "Accused Kinu Munda was lifted from his house" is found to have no substance and falls flat on the ground.

Further, on careful perusal and analysis of the testimony of PW9 - SI Rajesh Kumar, the same is found to be clear, cogent and inspiring confidence. He has given a graphic description of the steps taken by him during the course of investigation. Inspite of his incisive crossexamination nothing material has been brought out so as to impeach his creditworthiness. There is also nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

29. Learned Counsel for the accused referred to the cases and 96 of 99 97 FIR No. 287/11 PS - Kanjhawala are reported as 'Debara R/o Village - Pipalawand Jamgudapara, P. S. Bhanpuri, Dist. Bastar Vs. State of Chhatisgarh through PS - Bhanpuri, Bastar' 2013 STPL(LECrim) 44792 CHH; 'State of Mizoram Vs. Sh. David Lalthurnmawia & Others' 2013 STPL(LECrim) 44757 GAU; 'Deepak Gulati Vs. State of Haryana' 2013 STPL(LECrim) 44705 SC; 'State of Uttrakhand Vs. Bhagwati Singh Alias Bhagat Singh' 2013 STPL (LECrim) 44602 UTT, 'Goma Chettri Vs. Bhuban Chandra Sharma' 2013 STPL(LECrim) 44707 MEGH, 'State Vs. Saurabh Vashisht' 2013 [3] JCC 2007 and 'Kuldeep Tyagi Vs. State of NCT of Delhi' 2013 [2] JCC 840.

I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials 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 97 of 99 98 FIR No. 287/11 PS - Kanjhawala subsequent voyage".

30. In view of above and in the circumstances, prosecution has thus categorically proved its case beyond shadows of all reasonable doubts that on 20/09/2011 and 09/12/2011 accused Kinu Munda at his house situated in Gali No. 3, Cremation Ground, Meer Vihar, Madanpur Dabas, Delhi, committed rape upon PW5 prosecutrix (name withheld), age around 21 years without her consent.

I accordingly hold accused Kinu Munda guilty for the offence punishable u/s 376 IPC and convict him thereunder.

31. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Kinu Munda in the commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Kinu Munda beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Kinu Munda guilty for the offence 98 of 99 99 FIR No. 287/11 PS - Kanjhawala punishable u/s 376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 22nd Day of May, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi0 99 of 99

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Delhi District Court

State vs . Kinu Munda on 22 May, 2014