Delhi District Court
Upon Following Judgments:- Tamjuddin ... vs . on 22 February, 2010
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE -01,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI.
SC No.192/08.
FIR No.244/03.
PS : KANJHAWALA.
U/S. -366A/363/367/376/34 IPC.
STATE
VERSUS
1. MANOJ
S/O. SH. JEEVAN
R/O. VILLAGE-RANI KHERA
DELHI.
2. JITENDER @ AJEET @ PRADHAN
S/O. SHRI KRISHAN
R/O. VILLAGE-MUNDKA,
DELHI.
3. MUKESH
S/O. SHRI OM PRAKASH
R/O. VILLAGE-HIRANKUDNA,
DELHI.
Date of Institution : 26.03.2004.
Date on which received in this court : 22.11.2008.
Arguments heard On : 11.02.2010.
Order Announced On : 19.02.2010.
SHRI VIPIN SANDUJA, APP FOR THE STATE.
SHRI JITENDER SETHI, ADVOCATE FOR THE ACCUSED
MANOJ.
SHRI YOGESH DAGAR, ADVOCATE FOR THE ACCUSED
MUKESH.
SHRI VIKRAM PANWAR, ADVOCATE FOR THE ACCUSED
JITENDER.
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JUDGMENT
1. The name of the Prosecutrix/victim in this judgment is not mentioned as per decision of Hon'ble Supreme Court in the cases of State of Karnatka Versus Puttraja (2004 (1) SCC 475) and Om Prakash Versus State of Uttar Pradesh 2006 CLJ 2913.
2. The factual matrix of the case is that on 8.10.03, on receiving DD No.11A, ASI Puran Singh alongwith Ct. Ramesh Chand went to Sarvodaya Kanya Vidyalaya, Village- Rani Kheda, where they met Kumari Preeti. ASI Puran Singh recorded her statement. Kumari Preeti stated that today i.e. 8.10.03, she alongwith her sister Prosecutrix (P), who is studying in 11th class and she is studying in 7th class, were coming from their house for school. When they reached near the gate of the school, then from behind one Maruti Car, white colour, came and stopped at about 7.45 a.m. accused Manoj, their neighbour, came out from the Maruti Van alongwith two young boys who were sitting in that Maruti Van. Manoj alongwith one of his associates forcibly lifted her :3: sister Prosecutrix (P) in the Maruti Van. They raised noise, but the driver of the Maruti Van immediately ran away towards Kanjhawala alongwith her sister. She further stated that she can identify two other boys. On this statement rukka was prepared and was sent for registration of the FIR. Police registered FIR Under Section 363/366A IPC. During investigation ASI Puran Singh prepared the site plan.
3. The Statement of the Prosecutrix (P) was recorded during the investigation. She stated that on 8.10.03, she alongwith sister were going to school and at about 7.45 a.m. when both of them reached near the school gate, then from behind one white Maruti Van came and stopped near them, three boys and three persons were in the Maruti Van. One boy was driving while three were sitting in the front seat while third boy Manoj was on the backside of the Maruti Van. Accused Manoj who is their neighbour, got out of the car alongwith boy who was sitting in the front seat alongwith the driver and forcibly lifted. She raised noise, but Manoj put his right hand on her neck and left arm at her mouth and :4: pressed and ran away. She further stated that she was taken to village Bijwasan in a farm house. She stated the number of the said car DL-3CG-6085, which was noted down by her. Thereafter, accused Manoj took her in a room situated in a farmhouse. He bolted the room. Their two associates remained outside the room. Thereafter, accused Manoj threatened her that in case she would not co-operate then he would call her in laws and her engagement would be broken. Accused Manoj thereafter committed rape upon her. She also stated the name of other persons, who was driving the van as Mukesh and other boys as Pradhan. Manoj also stated that if they want they have to wait for their turn after the next occasion. All the three accused persons left her in front of the school then she returned to her house. After this statement Section 376 IPC was added in the FIR.
4. The Prosecutrix (P) was taken to SGM Hospital, where she had undergone medical test. Further investigation was conducted by WASI Asha Devi. Accused persons were arrested. They made disclosure statement and also pointed :5: out the place of rape. The medical examination of all the three accused persons was carried out at SGM Hospital. The samples, which were collected and sealed during investigations were sent to FSL Malviya Nagar. The IO WASI Asha Devi got recorded the statement under Section 164 Cr.P.C. or Prosecutrix (P) and her sister Preeti. Accused Jitender and Mukesh were subjected to TIP proceedings, but they refused to join the TIP proceedings. IO seized date of birth certificate of prosecutrix (P) from school.
5. SI Ram Kumar Dahiya during investigation got medical examination of accused Manoj at Hindu Rao Hospital. WASI Asha Devi got the photographs prepared, which were taken by the accused belonging to Prosecutrix (P). The statement of the witness recorded and challan was prepared. The challan was filed before learned MM for trial of offence 363/366A/376/34 IPC.
6. Learned MM after compliance of Section 207 Cr.P.C. committed the case to the court of Sessions.
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7. My learned predecessor vide order dated 29.4.04 framed the charge against all the three accused persons. Accused Manoj charged for trial of offence punishable under Section 376 IPC, Accused Jitender and Mukesh charged for trial of offence punishable under Section 109/376/34 IPC and all the three accused persons charged for trial of offence punishable under Section 363/366/34 IPC. All three accused persons pleaded not guilty and claimed trial.
8. My learned Predecessor vide order dated 11.09.08, amended the charge. The amended charge was framed under Section 363/366/34 IPC and Under Section 376 (2) (g) IPC. However, vide order dated 05.05.09 in Criminal Revision Petition No.07/2009, Hon'ble High Court quashed the amended charge and directed that trial shall be proceeded on the basis of charges framed under Section 363/366/376/34 IPC & 109/376/34 IPC.
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9. Prosecution in support of the present case examined PW1 Prosecutrix (P), PW2 Dr. Shalu, PW3 Preeti, PW4 Om Prakash, PW5 HC Ranbir, PW6 Dr. Balbir Singh, PW7 Ct. Naseem Singh, PW8 Ct. Laxmi Narayan, PW9 WCT Sarla, PW10 Ct. Joginder, PW11 HC Ranbir Singh, PW12 HC Om Prakash, PW13 Dr. Parvinder Singh, PW14 Asha, PW15 Rakesh Rana, PW16 SI Ram Kumar Dahiya, PW17 Shri Gurdeep Singh Saini learned ADJ, PW18 SI Puran Singh, PW19 HC Ramesh Chander, PW20 Sanjeev Kumar, PW21 WASI Asha, PW22 Ms. Archana Sinha learned MM, PW23 Shri Tejpal, Vice Principal.
10. Statement of all the three accused persons recorded under Section 313 Cr.P.C. on 06.05.09 and on 03.09.09. All the three accused persons pleaded innocence and only accused Manoj wish to lead evidence in his defence. In defence accused Manoj examined DW1 Randhir Singh and DW2 Desh Ram. As per statement of R.K. Jania, counsel for the accused, defence evidence was closed. Accused Jitender and Mukesh did not wish to examine any witness in their defence.
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11. I have heard Shri Vipin Sanduja, learned APP for the State. The accused persons were granted opportunities to address arguments. Lastly they were granted opportunity to file written arguments on or before 11.02.2010, vide order dated 01.02.2010. Shri Jitender Sethi, advocate for the accused Manoj, Shri Yogesh Dagar, advocate for the accused Mukesh and Shri Vikram Panwar, advocate for the accused Jitender.
12. Shri Jitender Sethi, learned counsel for the accused Manoj Kumar in the written arguments stated that the MLC of the prosecutrix (P) Ex.PW2/A. The alleged history mention of assault and history of finger insertion in rectum. No history of oral rectal sex. Doctor also found that there was no external injury mark. No bleeding or discharge, the hymen was found to be torn, old heeled. The opinion given by doctor is that there was no evidence of rape committed on Prosecutrix (P), therefore, no offence under Section 376 IPC is made out. At the best it attract the offence punishable under Section 354 IPC. Further it is stated that the FIR is ante :9: timed. The PW3 Preeti alleged the incident when she was forcibly taken is around 7.45 a.m. at that time her sister PW1 Prosecutrix (P), passersby, teachers, chowkidars were present but no hue and cry was made. The police did not record statement of star witness i.e. Prosecutrix (P). The statement of prosecutrix is hit by Section 162 Cr.P.C. There is no explanation by the prosecution in this regard. The statement of the prosecutrix recorded under Section 164 Cr.P.C. after six days. The testimony of prosecutrix further established that she had reached at home at around 2 p.m. But IO reached at her house at around 11.30 am, therefore version of the prosecutrix is unbelievable. The statement of PW3 Preeti and PW18 SI Puran Singh clearly shows that no incident has been taken place.
13. Accused Manoj was arrested and arrest memo show that he was arrested at about 6 p.m., but there is no mention of offence punishable under Section 376 IPC. It shows that till that time police was not with the version of commission of offence of rape. It is stated in the written :10: arguments that the investigation was unfair, bias and tainted. The DD Entry 11A mentions the telephone number 25952410, who informed the PCR, but no investigation was carried out in this regard. The FIR recorded also not mention the car number as per statement of PW4 Om Prakash, owner of the car number DL-3CG-6085. The car was with him throughout the day on 7.10.2003 and on 08.10.2003. PW19 HC Ramesh Chand also stated in the cross examination that the car was stopped on the basis of suspicion. It shows that car number was deliberately introduced. The entire story of prosecutrix is highly concocted. In view of the statement of PW3 (Preeti) that on 8.30 a.m. her sister was back to the home. It is further stated that PW2 Dr. Shalu advised for X- ray of Prosecutrix for determination of bony age, but PW18 denied this. The conduct of the prosecutrix is self- explanatory to the effect that no offence of kidnapping taken place as neither prosecutrix nor her sister raised any hue and cry. Prosecutrix also not raised any hue and cry when she was taken to the Farm House.
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14. The FSL Report did not find any semen stains on the vaginal swab , pubic hairs, underwear and on the jean pant. The semens stains found on the salwar, underwear was mentioned as AB Group, however, no blood group or semen group was determined to link the accused Manoj. The accused was initially medically examined on 09.10.03, but no undergarments were seized. They were seized on 23.10.2003, it clearly shows the manipulation by the police. The Investigation is biased, tainted and doubtful and there are lacunae and for which accused is entitled to benefit of doubt.
15. Learned counsel for the accused Manoj has relied upon following judgments:- Tamjuddin Ali @ Tammu Vs. State of Delhi 2010 II AD (SC) 62, Bibhushan Vs. State of Maharashtra 2007 IV RCR Criminal 469, Arvinder Kaur and Anr. Vs. State of Punjab 2007 III RCR Criminal 818 (Para 24 &
28), 2007 II RCR Criminal 158 (Paras 11 to 15) & Ramu Vs. State of Haryana 2002 I Chandigarh Criminal Case 127.
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16. Written arguments filed on behalf of Accused Mukesh by his counsel Shri Yogesh Dagar. It is stated in the written arguments that accused is innocent and has no nexus qua the commission of alleged offence. He is falsely implicated in this case. On the basis of disclosure statement made by co-accused Manoj, which is not admissible as per Indian Evidence Act. The statement of prosecutrix (P) which never blamed any allegation against accused Mukesh even his name is not disclosed. She stated that accused Manoj forcibly put her inside the car and committed rape. The co- accused namely Pradhan taken the photographs. The accused persons were shown to her in the Police Station, therefore, nothing incriminating has come in the evidence against the accused Mukesh. The prosecution played a drama of TIP proceedings. As a consequence accused refused to join the TIP proceedings. As per prosecution version accused was driving the vehicle at the time of alleged occurrence of the offence but PW4 Om Prakash in his statement stated that on the date of incident the car number DL-3CG-6085 was remained with him upto 8.10.2003 till 6 :13: pm. The prosecution witnesses failed to establish the case against the accused Mukesh. He is innocent and entitled to acquittal. Learned counsel for the accused Mukesh has also relied upon following judgment i.e. Ajesh Kumar VS The State 2009 (4) JCC 2615.
17. Shri Vikram Panwar, learned counsel for the accused Jitender also filed written arguments. In the written arguments it is stated that accused Jitender was neither named in the FIR no his description given. Prosecutrix (P) mention the name of one Pradhan. Prosecution failed to explain the arrest of accused Jitender. As per Arrest Memo the name is Jitender @ Ajit, there is no mention of Pradhan. The alleged role of Pradhan was attributed to the accused Jitender by the police. There is no other evidence or material collected or produced before the Court to show that the accused Jitender only was known as Pradhan. The identification of the accused is extremely doubtful. PW1 has not identified the accused as Pradhan or qua the alleged role of Pradhan. The identify is also extremely doubtful as :14: prosecutrix admitted that she has seen and identify the accused in the police station and she was declared hostile as well. The accused denied the TIP proceedings on the ground that he has already been shown to the witnesses at Police Station.
18. It is further stated in the written arguments that the offence of abatement of rape is not made out as per medical record, which is doubtful, contradictory to the oral testimony of the prosecutrix. Prosecutrix (P) told the false facts to the doctors. The prosecutrix failed to proved that the alleged photographs were of hers or from the alleged camera were clicked by accused Pradhan. The seizure of the Camera and Roll is not for the accused Jitender, which is doubtful as per statement of PW19 Ramesh Chand. The prosecution has produced only four photographs and four negatives not the entire photographs and negatives of the Roll. Therefore, police has tampered with the alleged evidence. PW4 Om Prakash specifically stated that on 8.10.2003 the car bearing number DL-3CG-6085 remained with him till 6 p.m. The testimony of the PW1 shows that the accused Jitender has no :15: prior knowledge of act of the accused Manoj, therefore, the charge of abatement failed in the absence of instigation or aiding or facilitation by the co-accused. The prosecution failed to prove that PW1 was minor as Ossification Test was deliberately withheld. The birth certificate produced by mother Mark 14A shows the date of birth as 20.7.1988, whereas the school record shows as 22.7.1988. There is a conflict in the date of birth of the prosecutrix (P). It is also stated in the written arguments that entire case of the prosecution is full of improbabilities and contradictions. The FIR was lodged after a gap of 1 ½ hours. PW3 Prosecutrix knew the accused Manoj but not named in the first information to the police vide PCR call Ex.PW12/A and DD No.11A Ex.PW5/A. Learned counsel for the accused Jitender has relied upon following judgment.:- 1. Arjun Singh Vs. State of Himachal Pradesh IV (2008) CCR 550 (SC), 2. Ganpat Singh and Others Vs. State of Rajasthan, 1998 SCC (Cri) 201,
3. Shaikh Umar Ahmad Shaikh and Another Vs. State of Maharashtra, 1998 SCC (Cri) 1276, 4. Manzoor Vs State of U.P., 1982 SCC (Cri) 356.
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19. The law is well settled that burden lies on prosecution will prove the charges beyond reasonable doubt. The written submissions of all the three accused persons discussed herein above. Now the testimonies of all the prosecution witnesses examined, scrutinized and analyzed to arrive at conclusion whether prosecution establish charges beyond reasonable doubts or not.
20. The first charge against all the three accused persons is of offence punishable under Section 363/366/34 IPC. The prosecution relied on testimony of star witness PW1 Prosecutrix P and her sister PW3 Preeti. They both are the eyewitnesses of the incident. PW1 Prosecutrix P appeared in the witness box and deposed that on 08.10.03 she alongwith her younger sister Preeti were gone to the Sarvodya Kanya Vidhyala, Rani Khera, Delhi. She was studying in 11th standard and her sister Preeti was studying in 7th standard. At about 7.45 am when they reached near the gate of school a white Maruti Car stopped near her. There were three boys in the car, one of them was neighbour accused Manoj. PW1 :17: identified by the three accused persons. One boy was sitting next to the driver and Manoj got down from the car and forcibly took her inside the car. She raised alarm then accused Manoj kept his hand on her mouth and other hand put on her neck. Thereafter they drove the car towards Kanjhawala Road. Thereafter they took her to a Farm House at Bijwasan when she got down from the car, she noted down the car number i.e. DL-3CG-6086. The accused Manoj took her to a room in that Farm House and bolted the door from inside. The two other accused persons kept sitting outside. The accused Manoj asked her to remove her clothes, but she refused and then accused threatened her that he will call her in laws in the room and her relationship would be broken. Accused Manoj removed her clothes forcibly, thereafter put her on the bed and forcibly committed rape upon her. One Pradhan had forcibly clicked her photographs. Accused Manoj threatened that in case she discloses the incident to anyone then the photographs would be shown on her wedding day to her in laws. Thereafter they took her in the same car. Accused Manoj told accused Pradhan if he also wants to :18: involve in the same act then he has to wait for his turn. They dropped the prosecutrix at the gate of her school, from there she came back to her home and disclosed the incident to her mother and grandfather. They called the police, the police officials came at her house and they all went to the police station. She proved her statement to the police Ex.PW1/A. She further testified that she was taken to the hospital for medical examination. Her salwar was seized by the doctor thereafter she had taken the police to the place of occurrence and pointed out that place. Police prepared the site plan. Thereafter she was produced before learned MM for recording of her statement in his chamber under Section 164 Cr.P.C. She further testified that accused persons were not arrested in her presence and she identified them in the Police Station. She identified her salwar Ex.P1. She also proved her statement recorded under Section 164 Cr.P.C. Ex.PW1/B. She deposed that she was born on 22.7.1988.
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21. In the detailed cross examination by Shri R.S. Malik, learned counsel on behalf of accused Jitender, she deposed that her younger sister had also accompanied to the police station namely Preeti. She had stated the time of reaching at home at around 2 p.m. after when she was dropped by the accused persons outside the school. She denied the suggestion that while going to the police station she was discussion of the statement she should make before the police. She explained that first police recorded statement of her sister and thereafter her statement. She denied the knowledge that her parents engaged a counsel when her statement was recorded before the court. She admitted that her counsel had accompanied her today in the court. She denied the suggestion that she has made the statement before the court as she made before the police, otherwise, criminal proceedings would be initiated against her and made statement before the court under pressure. She further deposed that there are residential houses on the both sides of the road from her house to school. She used to leave her house at around 7.35 am. She admits that there ware large :20: number of girl studying at the school and at the time of incident many girls were going to the school. She admits that there is a temple of Baba Ghantadev near the school having common wall. There is Primary MCD School of boys is also situated in front of her school. She denied the suggestion that many persons of the village came to the Mandir in the morning. She admits that there was a railway crossing at Ghevra More, where a guard room and police post is situated. She admits that she did not raised any alarm at the railway crossing but explained that her mouth did not shut by the accused persons and she was not able to see the road. She confronted with her statement Ex.PW1/A about the railway crossing in Chhawla, guard room and police post.
22. She further deposed that the Farm House was huge and on the way from the school to the farm house she resisted and made efforts to rescue herself. Her clothes torn in the scuffle with the accused Manoj at the Farm House. Those clothes were shown to the police and same were seized. She denied the suggestion that her clothes were not :21: torn and she had gone with the accused persons on her own freewill and consent, and she did not hand over the clothes to the police. She further deposed that she was virgin before the present incident and it was her first sexual encounter. Accused Manoj had committed rape upon her and she had experienced lot of pain in her private parts, but cannot tell whether any bleeding from the private part. She had not received any injuries on her private part, however, has received injuries on her feet. She further explained that the rape was committed on the bed situated at the farm house. She was given fist and leg blows by the accused Manoj. At the time of commission of rape accused was lying on herself and her hands were pressed in between. She admits that after dropping her at the school, she did not go to the school, she did not raise alarm when she was dropped. She denied the suggestion that she was not threatened by the accused persons when she was dropped. She admits that when she remained absent from the school she gave application. She did not send any application for leave for 8.10.2003. She denied the suggestion that she did not accompany her :22: younger sister while going to the school. She denied that she had seen by villagers while roaming with some persons and telephoned the police. She denied that villagers have also accompanied to her parents and school authorities. She denied the suggestion that she was not kidnapped by any person and no incident had taken place.
23. She admits mentioning of the word "Bura Kaam"
in her statement before the police and before the learned MM word Rape or Balatkaar word was not mentioned. She further admits that the word rape is mentioned in bracket in her statement Ex.PW1/A. She was confronted with her statement Ex.PW1/A and Ex.PW1/B in respect of the fact that she had taken the police to the spot and site plan was prepared by the IO. She denied the suggestion that no such incident took place as described by her in her chief examination. She admits that except accused Manoj other two accused persons do not belong to her village, and she did not know these two accused persons. She denied that she has seen both the accused persons except Manoj for the :23: first time in the Court. She denied the suggestion that accused namely Pradhan is not present in the court. She denied that accused persons did not kidnapped her and no incident of rape ever took place with her. She denied that she had not told to the police and MM that accused Pradhan had forcibly taken her photographs.
24. Learned Counsel for the accused Manoj, Shri R.S. Nandal, Advocate cross examined PW1 Prosecutrix P after adopting the cross examination conducted on behalf of the accused Jitender by Shri R.S. Malik, learned counsel for the accused Jitender. In this cross examination PW1 deposed that no public person came to the spot on hearing of her cries of help as none was present. She admits that house of Rizak Ram and Abhay Ram is situated nearby. She stated that the age of her younger sister is about 12 years and her brother Sumit is aged about 6 years. She further deposed that her in laws were at Bijwasan. Her parents had seen one boy at Bijwasan but she did not engage, at the time of incident. She explained that she had not seen the Farm House was locked :24: from outside. The bed in the Farm House was made of wood and no other person was present except accused persons in the Farm House. She denied that she was taken to the Farm House and there is no bed. She further explained her sister had already gone to the PS before she was taken to the PS by her mother and grandfather. She denied the suggestion that her age is more than 18 years old. Her X-ray were taken at the hospital. She denied the suggestion that there is enmity between her family and with the family of accused Manoj and at the instance of her family members she is deposing falsely against the accused Manoj. She denied the suggestion that on the day of incident her photographs were not taken and the same were prior to the day of incident.
25. Shri R.K. Tushir, learned counsel for the accused Mukesh adopted the earlier cross examination. In this cross examination PW1 Prosecutrix P deposed that house of accused situated in front of her house. She denied that she used to visit the house of accused Manoj. She denied that there is no driver in the name of Mukesh. She explained that :25: she had never seen Mukesh prior to the incident. She denied the suggestion that accused Mukesh is falsely implicated in the present case.
26. PW3 Preeti is aged about 12 years appeared in the witness box. First preliminary inquiry was conducted, she was found that she can depose voluntary. But because of tender age oath was not administered. She deposed that on 08.10.03, she alongwith her sister Prosecutrix 'P', who was studying in 11th class were going to the school. At about 7.35 a.m. they reached near the school gate, and at about 7.45 am when one Maruti Car White Colour came and lifted her sister Prosecutrix P. The accused Manoj and Jitender lifted her sister and put her in the car forcibly. They told the driver to move the car towards Kanjhawla Road. She asked the driver to stop the car but they taken away. She further deposed that driver is also present in the court. She further deposed that she put her bag in the school and immediately reach at the house and informed her mother and her mother informed to the police. The police reached at her house and :26: recorded her statement Ex.PW3/A. In the cross examination by Shri R.S. Malik, learned counsel for the accused Jitender, she deposed that it is a large village as she usually people keep coming and going on the road where incident took place. She admits that about 1000/1200 girls are studying in the school. She admits that there are many houses near the school. It took ten minutes to reach to school from her house. They used to reach the house after attending the school at around 1.30 p.m. She admits that there was one Devi Mandir and Baba Ghantadev Mandir situated near the school. She admits that the car in which her sister was kidnapped had came from back side and stopped suddenly. Her sister was forced to sit in the car. She denied the suggestion that she was not able see the face of the driver of the car as it was happened suddenly. She admits that she was not able to note down the number of the car in which her sister was kidnapped. She admits that she can read and write a little in English. She admits that incident of kidnapping took place outside the gate of the school where one Chowkidar was present near the gate. But he did not come for help when :27: they raise alarm. No student from school come for help. She denied that the suggestion that she was not accompanied her sister at the time of incident. She kept her bag after the incident but the class teacher was not present. She did not told anyone in the school regarding kidnapping of her sister. She denied the suggestion that her sister was not with her at the time of incident, that is why she did not disclose anything regarding the kidnapping of her sister.
27. She further deposed that her sister reached home after 20-25 minutes of her reaching home from the school. Her mother or grandmother or herself did not ask her sister Prosecutrix P as to from where she was coming and she did not disclose. She admits that the police was present when her sister came back in the house. Police had recorded her statement in the school in the presence of chowkidar, teacher and Head Master. Chowkidar was not made to sign any statement. She admits that a private counsel was engaged by her parents. She denied that she had concealed that the lawyer prepared the statement giving before the :28: police. She denied that she had given statement under Section 164 Cr.P.C at the instance of private counsel. She denied the suggestion that her sister Prosecutrix P often used to absent from the school. She denied that she had not witnessed the incident and she is a tutored witness. She denied that nothing happened on 08.10.03 at about 7.45 a.m. in her presence. She denied the suggestion that outside the court she was shown to accused Jitender and ask her to identify him in the court. She denied that for the first time she had seen the accused in the court today. Learned counsel for the accused Mukesh Shri R.K. Tushir, Advocate and accused Manoj adopted the cross examination conducted by Shri R.S. Malik, counsel for the accused Jitender.
28. Now analyzing the testimonies of these two vital witnesses. The prosecution is established that PW1 Prosecutrix P and PW3 Preeti both were going to the school at about 7.45 a.m. on 8.10.2003. They further established that a Maruti Car suddenly came in which all the three :29: accused persons were sitting. All the three accused persons identified by them. Accused Manoj is the neighbour. Two boys forcibly make PW1 Prosecutrix (P) to sit in the car and one boy was driving the car. Thereafter PW1 Prosecutrix was driven to Kanjhawala Road and taken to a Farm House at Bijwasan. PW1 also stated that the car bearing registration number DL-3CG-6086. PW1 further explained in the detailed cross examination the role played by the each accused, how she was forcibly kidnapped in the Maruti Van. She also explained that accused Manoj played the main role in the incident as he extended threat that he will disclose the incident to her in laws. The accused persons also taken the photographs forcibly. The photographs are proved on record by PW20 Sanjeev Kumar, Photographer Ex.PW20/5 to Ex.PW20/8 and that of negatives Ex.PW20/1 to Ex.PW20/4. PW1 (Prosecutrix P) further stated that her date of birth is 22.7.1988. It established that on the day of incident she was aged about 15 years and three months. PW14 Smt. Ashu, mother of the prosecutrix P also testified the date of birth of the prosecutrix as 22.7.1988 and the same was registered :30: with the Corporation was proved by the mother of the Prosecutrix and same is marked as Mark PW14/A, the date of birth certificate of the prosecutrix. Prosecution also examined PW23 Shri Tejpal, Vice Principal of the School, who proved the record of the school, showing the date of birth of the prosecutrix is 22.7.1988. Hence on the basis of PW1 (Prosecutrix P), PW14 Smt. Asha and PW23 Shri Tejpal, prosecution established beyond reasonable doubt that date of birth of the prosecutrix is 22.7.1988 and on the day of incident i.e. on 08.10.03 she was minor and aged about 15 years and 3 months.
29. PW3 Preeti is the eyewitness of the kidnapping of her sister, prosecutrix P. She also deposed when appeared in the witness box specifically narrated how incident took place as discussed herein above. She identified accused Manoj and Jitender lifted her sister. The car was driven by the 3 rd accused person. Her statement is further corroborated by DD No.11A, Ex.PW5/A, on which basis police started investigation. In the cross examination PW1 & PW2 both :31: remained coherent, cogent and corroborates each others testimony. The prosecution further established that the incident of kidnapping took place as prosecutrix PW1 P proved her statement recorded by PW17 Sh. G.S. Saini, learned ADJ, under Section 164 Cr.P.C. Ex.PW1/B. PW17 specifically deposed and explained that the application for recording of statement under Section 164 Cr.P.C. made on 09.10.2003 and he adjourned the recording of the statement on 14.10.2003. He recorded statement of PW1 (Prosecutrix P) as well as PW3 Preeti. His examination established that he recorded the voluntary statement and issued a certificate as well.
30. The incident of forcible kidnapping and removing the prosecutrix P is further corroborated by the prosecution on the basis of testimony of PW15 Rakesh Rana. He testified that his Farm House is situated at E-25, Bijwasan Village and nobody is deputed to look after the said Farm House. The gate of the Farm House usually locked and the keys lying near the gate in the bushes. If it is known then outsider can :32: open it. His friends Virender Gerewal and Yoginder Rana used to visit there with his permission. Accused Manoj used to come in the Farm House 3-4 times with his maternal uncle. He knew about the keys. In the cross examination he deposed that on the day of incident he was not present at the Farm House. Lastly he had seen the accused Manoj at the Farm House about 2-3 months back. He had never seen accused Manoj visiting the Farm House alone. PW15 Rakesh Rana established that accused was the visitor to the Farm House and he has knowledge about where are the keys was kept. This is a fact that prosecutrix P was kidnapped and taken to the Farm House belonging to the PW15 Rakesh Rana by the accused accused persons. The plea of accused persons regarding the testimony of PW4 holds no water. He is the owner of the Maruti Car bearing Number DL-3CG-6085. He proved the Supurdginama. In the cross examination he stated that he never parted with the possession of his car on 7.10.2003 and on 08.10.2003. However, during the cross examination of PW1 (Prosecutrix P) no suggestion or question were put to the effect that she did not noted the number of :33: the Maruti Van in which prosecutrix P was kidnapped i.e. DL- 3CG-6086. PW4 Om Prakash during his chief examination did not explain about possession on 08.10.2003. PW19 HC Ramesh Chand is another witness of seizure of the Maruti Van of PW4 Om Prakash. During the cross examination no question or suggestion put that the Maruti Van was not apprehended by them on 08.10.2003. But it was not in possession of PW4 Om Prakash. Similarly, PW21 ASI also not put any question or suggestion that on 8.10.03 the Maruti Car was in the possession of PW4 Om Prakash.
31. Another point raised by the counsel for the accused persons that the prosecutrix has already seen the accused persons in the Police Station, therefore, a formality of TIP was done by the police. The accused Manoj Kumar was the neighbourer of the prosecutrix P. Accused Jitender and Mukesh were the two accused persons not known prior to the incident. Therefore, they were subjected to the TIP proceedings. The TIP proceedings is proved by PW22 Ms. Archana Sinha, learned MM. The Investigation Agency has :34: taken the permission, although the accused persons were arrested in the evening on the day of incident. All these persons were recognized by prosecutrix/P at the time of incident, that is why they refused to join the TIP proceedings. PW1/Prosecutrix and PW3 Preeti also identified them in the court when they appeared in the witness box. Therefore, the identity of both the accused persons Jitender and Mukesh established by the prosecution. The another controversy raised by counsel for the accused Jitender @ Pradhan in the written submission, however, in the cross examination by the learned counsel Shri R.S. Malik no suggestion or question were put that the person namely Pradhan is not the accused Jitender. There is no question or suggestion in this regard. A suggestion put to PW1/Prosecutrix but she denied specifically that a person namely Pradhan is not present in the court. Both PW1 and PW3 specifically identified the accused persons Jitender @ Pradhan, Manoj and Mukesh.
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32. On the basis of above observations and discussion, prosecution proved beyond reasonable doubts that prosecutrix P (PW1), who was minor, aged about 15 years & 3 months on the day of incident was kidnapped by all the three accused persons in furtherance of their common intention in a Maruti Van bearing registration number DL- 3CG-6086 in order to commit illicit sexual intercourse at Farm House at E-25, Bijwasan Village, belonging to PW15 Rakesh Rana. Therefore, prosecution proved the charges for offence punishable under Section 363/366/34 IPC against all the three accused persons.
33. CHARGE U/S. 376 IPC & 109/376 IPC:- The star witness of the prosecution is PW1/Prosecutrix P. The testimony of Prosecutrix P has been discussed in detail herein above, but for the sake of brevity the relevant portion of testimony is reproduced. She deposed that accused Manoj took her to a room in the Farm House. He bolted the room from inside, the other two accused persons present in the court kept standing outside. Accused Manoj asked her to :36: remove her clothes but she refused. Accused Manoj threatened her that he will call her in laws and her relationship will be broken. She further deposed that accused Manoj removed her clothes forcibly and thereafter put her on the bed which was lying in the room and forcibly committed rape upon her. Thereafter accused Pradhan had forcibly clicked her photographs. Accused Manoj clicked her photographs. Accused Manoj threatened her in case she discloses this incident then her photograph would be shown on her wedding day to her in laws. Accused Manoj also told to accused Pradhan that in case he wants to get involve in the same act then he should wait for his turn. Thereafter she was dropped at the gate of the school. In the cross examination she denied that she had gone with accused of her own freewill and consent. She explained that she was virgin before the present incident and it was her first sexual encounter. Accused Manoj committed rape upon her and due to this she has experienced lot of pain on her private parts. But cannot tell whether there was bleeding or not from her private parts. She had not received any injuries on her :37: private part. The rape was committed on the bed in the Farm House. Accused Manoj also gave her fist and leg blows. But she did not received any injuries. She denied the suggestion that no such incident had taken place. Learned counsel for the accused adopted the cross examination by Sh. R.S. Malik, learned counsel for the accused Jitender, however, counsel Shri R.S. Nadal after adopting also used to examine the prosecutrix. In this examination she deposed that on the day of incident she was not engaged or married. The bed on which she was raped was made of wood. No other person was present in the Farm House except the present accused persons. She denied that she was more than 18 years of age. There is a specific suggestion that the photographs Ex.PW20/5 to Ex.PW20/8 were taken prior to the incident. Learned counsel for the accused Mukesh, Shri R.K. Tushir has adopted the above cross examination and also conducted further cross examination. PW1/Prosecutrix P denied that accused used to visit her house. She denied that no driver was there in the name of Mukesh.
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34. The close scrutiny of testimony of PW1/ Prosecutrix P established that the main act of rape committed by accused Manoj. She explained how she was subjected to rape by the accused Manoj. In the cross examination she remained coherent, cogent and denied the suggestion and reiterated and established the circumstances that she was raped by accused Manoj. Co-accused Jitender @Ajeet @ Pradhan and Mukesh with the main accused Manoj has been established beyond reasonable doubts. Accused Mukesh was driving the Maruti Car in which the prosecutix was kidnapped. Accused Jitender @ Ajeet @ Pradhan assisted accused Manoj to forcible kidnapping of the prosecutrix. Thereafter at the Farm House both the accused persons remained outside of the room where prosecutrix was raped by the accused Manoj. Thereafter accused Jitender @ Ajeet @ Pradhan forcibly taken the photographs of the prosecutrix with the accused Manoj. The photographs Ex.PW20/5 to Ex.PW20/8 clearly shows the condition of the prosecutrix, especially in the Ex.PW20/7, show how accused Manoj is kissing the prosecutrix. She further explained that these :39: photographs are the weapon of threat to break her future wedding alliance. The fact proved beyond reasonable doubt on the basis of testimony of PW1/Prosecutrix P and PW3 Preeti that accused Jitender @ Ajeet @ Pradhan and accused Mukesh intentionally aids and committed illegal omissions alongwith the co-accused and also instigate accused Manoj, who committed rape upon the prosecutrix p (PW1).
35. Prosecution further corroborates these facts on the basis of MLC of the prosecutrix Ex.PW2/A. The testimony of PW2 Dr. Shalu Gupta remained unrebutted despite opportunity of cross examination. PW6 Dr. Balbir Singh proved the MLC of accused Jitender @ Ajeet @ Pradhan Ex.PW6/B and that of accused Mukesh Ex.PW6/C. Another doctor PW 13 Dr.Parvinder Singh proved the MLC of accused Manoj Ex.PW13/A in which on the basis of medical examination, he found capable of doing sexual intercourse.
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36. Now coming to the aspect of the investigation carried out by the police officials. PW19 HC Ramesh Chand initially on receiving the DD No.11A alongwith ASI Puran Singh went to the Sarvodaya Kanya Vidyalaya, Rani Khera, Delhi where recorded statement of PW3 Preeti, younger sister of the prosecutrix P, Ex.PW3/A and made endorsement Ex.Pw13/A for registration of FIR. PW18 ASI Puran Singh proved the fact that he prepared rukka Ex.PW18/A. He also proved site plan Ex.PW18/B. Thereafter they went to the house of the prosecutrix on the knowledge that she has returned back to her house. Thereafter PW21 ASI Asha joined the investigation. PW21 ASI Asha proved the fact that they had gone to Ghevra Road and at about 5.30/6.00 pm one Maruti Car bearing umber DL-3CG-6085 came and when it was stopped the accused persons were in the car. Accused Mukesh was at driving seat, on inquiry they disclosed their names as Manoj, Jitender and Mukesh. PW21 ASI Asha proved the arrest of all the three accused persons alongwith PW18 ASI PuramSingh, she proved the arrest memo Ex.PW18/C to Ex.PW18/E and that of personal search memos Ex.PW18/H, :41: Ex.PW18/H, Ex.PW18/G and Ex.PW18/F. She further proved the disclosure statement of accused persons Ex.PW18/I to Ex.PW18/K, also proved the seizure of car Ex.PW19/C. She further proved the seizure of one Camera Yashika recovered in the car which was seized in pullanda and sealed and seized vide memo Ex.PW19/A. Thereafter accused persons were medically got examined.
37. PW21 further deposed that she took the accused persons on the next day to the Rana Farm House, Bijwasan and prepared pointing out memo Ex.PW18/C. She also prepared pointing out memo of accused Mukesh and Jitender where they were standing at the time of incident vide pointing out memo Ex.PW21/A. He proved the recording of statement of prosecutrix under Section 164 Cr.P.C. He further proved the TIP proceedings of the accused persons. In addition to it prosecution examined PW22 Ms. Archana Sinha, learned MM, who proved the TIP proceedings of accused Mukesh Ex.PW22/B and that of accused Jitender @ Ajeet @ Pradhan Ex.PW22/C. :42:
38. The defence witness DW1 Randhir Singh testified that a quarrel took place between family of accused Manoj and family of Kehar Singh taken some photographs. The family members of girl threatened to involve in some case. In the cross examination he has not shown those photographs. The accused Manoj was having the photographs of the prosecutrix with him. The prosecutrix was not engaged with the quarrel took place. DW2 Desh Ram testified that prosecutrix does not bear good moral character. The testimony of DW1 and DW2 established that accused Manoj has taken the photographs of the prosecutrix. These witnesses corroborates the prosecution story in respect of the facts as the photographs proved by PW20 Sanjeev Kumar, Photographer and developed the photographs of the prosecutrix with accused Manoj.
39. On the basis of above observations and discussions the prosecution established the charge against the accused Manoj for offence punishable under Section 376 IPC and against accused Jitender @ Ajeet @ Pradhan and Mukesh for offence punishable under Section 109/376/34 IPC.
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40. Hence, accused Manoj, Jitender @ Ajeet @ Pradhan and Mukesh are convicted for offence punishable under Section 363/366/34 IPC. Accused Manoj is further convicted for offence punishable under Section 376 IPC. Accused Jitender @ Ajeet @ Pradhan and Mukesh further convicted for offence punishable under Section 109/376/34 IPC. Ordered accordingly.
(SANJAY KUMAR) ADDITIONAL SESSIONS JUDGE-01 ROHINI COURTS: DELHI.
Announced in the open court today i.e.19.02.2010.
:44: THE COURT OF SHRI SANJAY KUMAR, ADDITIONAL SESSIONS JUDGE -01, DISTRICT NORTH WEST, ROOM NO. 308, ROHINI COURTS, DELHI.
SC No.192/08.
FIR No.244/03.
PS : KANJHAWALA.
U/S. -366A/363/367/376/34 IPC.
STATE VERSUS
1. MANOJ S/O. SH. JEEVAN R/O. VILLAGE-RANI KHERA DELHI.
2. JITENDER @ AJEET @ PRADHAN S/O. SHRI KRISHAN R/O. VILLAGE-MUNDKA, DELHI.
3. MUKESH S/O. SHRI OM PRAKASH R/O. VILLAGE-HIRANKUDNA, DELHI.
Date of Institution : 26.03.2004.
Date on which received in this court : 22.11.2008.
Arguments heard On : 11.02.2010. Order Announced On : 19.02.2010. Order on sentence on : 22.02.2010. SHRI P.K. VERMA, APP FOR THE STATE.
SHRI VIKRAM BERWAL, ADVOCATE FOR THE ACCUSED MANOJ.
SHRI VIKRAM PANWAR, ADVOCATE FOR THE ACCUSED JITENDER.
SHRI YOGESH DAGAR, ADVOCATE FOR THE ACCUSED MUKESH.
:45: ORDER ON SENTENCE
1. Learned Counsel Shri Vikram Berwal, for accused Manoj has submitted that the accused/convict was 19 years old on the day of commission of offence. He has already been suffered incarnation in Jail for about six years. Convict has no previous involvement or conviction in any offence he belongs to poor family. His father is a Government Servant. These are the special circumstances and court may take lenient view and he may be released on the conviction he has already undergone.
2. Shri Vikram Panwar, learned counsel for the accused Jitender submits that convict/accused is the only son of his family he has aged parents, who are very poor and farmer, to look after. There is no previous involvement in any criminal case. He was aged about 21 years at the time of incident. His role is only of abetment, as he is not the main accused. A lenient view may kindly be taken to reform the convict/accused.
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3. Shri Yogesh Daggar learned counsel for the convict Mukesh submits that the submits that convict/accused is the only son of his family he has aged parents to look after. There is no previous involvement in any criminal case. He is the only bread earner of his family and his parents are dependent upon him. He was aged about 19 years at the time of incident. His role is only abetment. A lenient view may kindly be taken to reform the convict/accused.
5. I have heard Shri P.K. Verma, learned APP for the accused and Shri Vikram Berwal, Shri Vikram Panwar and Shri Yogesh Dagarr, learned counsels for the convicts/accused persons and perused the record.
6. The convicts are involved in a heinous crime. The Prosecutrix P who was minor on the day of offence was kidnapped and thereafter she was subjected to rape by the convict/accused Manoj. Convicts Jitender and Mukesh have abated and remained associated throughout the commission :47: of offence. Prosecutrix P was aged around 15 years 3months. The offences were committed at the juncture of life of the prosecutrix P when was was going to engaged. She not only suffered bodily injuries of the offence and not only prick her virginity but also her soul. It is a scar, which remain with her through her life in her mind, heart and soul.
7. Hence, in these special circumstances I award sentence to convict/accused Manoj for offence punishable under Section 376 IPC to undergo 7(Seven) years Rigorous Imprisonment with fine of Rs.25,000/-, in default of payment of fine SI for one (1) year. For offence punishable under Section 363 IPC undergo Seven (7) years RI with fine of Rs.10,000/-, in default of payment of fine SI for one (1) year. For offence punishable under Section 366 IPC, undergo seven (7) years RI with fine of Rs.10,000/-, in default of payment of fine SI for one (1) year.
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8. I award the sentence to Convict/accused Jitender for offence punishable under Section 363 IPC to undergo Seven (7) years RI with fine of Rs.10,000/-, in default of payment of fine SI for one (1) year. For offence punishable under Section 366 IPC to undergo Seven (7) years RI with fine of Rs.10,000/-, in default of payment of fine SI for one (1) year. For offence punishable under Section 109/376 IPC convict to undergo Four (4) years RI with fine of Rs.15,000/-, in default of payment of fine SI for six(6) months.
9. I award the sentence to Convict/accused Mukesh for offence punishable under Section 363 IPC to undergo Seven (7) years RI with fine of Rs.10,000/-, in default of payment of fine SI for one (1) year. For offence punishable under Section 366 IPC to undergo Seven (7) years RI with fine of Rs.10,000/-, in default of payment of fine SI for one (1) year. For offence punishable under Section 109/376 IPC convict to undergo Four (4) years RI with fine of Rs.15,000/-, in default of payment of fine SI for six(6) months.
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10. All the sentences shall run concurrently. Copy of judgment and order on sentence be given to the accused persons free of cost, today itself. Benefit of Section 428 Cr.P.C. be given to the convicts/accused persons. Sessions file be consigned to record room.
(SANJAY KUMAR) ADDITIONAL SESSIONS JUDGE-01 ROHINI COURTS: DELHI.
Announced in the open court today i.e.22.02.2010.