Delhi District Court
State vs . Ache Lal on 9 November, 2012
1 FIR No. 210/2009
PS Sultanpuri
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
SESSIONS CASE NO. : 225/09
Unique ID No. : 02404R0249722009
STATE VS. ACHE LAL
S/O SH. HARI NARAIN
R/O I91, KRISHAN VIHAR, DELHI.
FIR No. : 210/2009
Police Station : Sultanpuri
Under Sections : U/S 376/506 IPC
Date of committal to session Court: 09.09.2009
Date on which judgment reserved: 03.11.2012
Date of which judgment announced: 09.11.2012
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2 FIR No. 210/2009
PS Sultanpuri
JUDGMENT :
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 09.06.2009 on receipt of DD No. 39A 10.02 PM (Ext. PW12/A) by SI Ashok Kumar he alongwith ASI Dhirendra, Ct. Vijender reached at I91, Krishan Vihar, Sultanpuri where Smt. Savita Sharma W/o Ache Lal met who was told by SI Ashok Kumar about the DD entry and, thereafter, SI Ashok Kumar alongwith her and the staff reached at Police Chowki Shanti Nagar, where prosecutrix (name of the prosecutrix withheld being a case u/s 376 IPC) was found present. SI Ashok Kumar alongwith her and the staff reached at the Police Station where the prosecutrix produced a written complaint which is to the effect, that she studies in 12th Class and resides in H.No. I91, Krishan Vihar, her father commits wrong act (galat kam) with her and used to abuse her like her mother and used to say if she will disclose to anyone he would kill her and used to say that he will get her sit at kotha and nothing will happen if she will complain to the police. He will offer liquor to police persons then police will also do nothing with him. He will also get wrong act done with her from the police persons and he always used to torture her that if she will tell anything 2 of 71 3 FIR No. 210/2009 PS Sultanpuri to her mother she (her mother) will die and used to say to her (prosecutrix) go and stand naked on the road she will get lot of money. He used to abuse in filthy relational (Maa ki Bahan ki) abuses. Whenever he used to go anywhere he used to eve teased the ladies and the girls. About 11/2 months back in such matter of eve teasing he had been beaten up. A few days before her mother and her brother had gone to Aligarh to take money and for two days they remained there as there was some delay in getting the money and on the first night he compelled her to do 'all this' (yeh sab kuch karne ke) but she somehow refused him and she said to him if he did anything then she will raise an alarm. Then on the next day when she was in sleep he took off her cloths and did forcible act with her and she could not do anything. In her house a big knife is kept. He used to threaten her that he will kill her. She apprehends danger to her life from him.
A few days back her maternal grandmother (nani) had come to her house to stay. In those days only she could sleep properly with security in her house as she used to sleep with her maternal grandmother (nani) in the upper room (upar wala kamra). A few days before he abused her in a filthy language and said to her, 'go and stand on the road, she will get lot of money, let you go to kotha (ja kothe pai chali ja), he will sell her to pimps (sali tuje barwo ko bech donga)'. In the night of 07.06.2009 at the sleep time he used 3 of 71 4 FIR No. 210/2009 PS Sultanpuri to insist that he will sleep only in the inside room. In her house two packets of condoms were kept. She had told all this things to her mother and he asked her 'why she has told all this to her mother, had there been any other girl she would have died by this time. She should have not told anything to her mother. Now if you will tell to your mother but there is nothing like this (aisa kuch bhi nahi hai)'. Because mammy keep on asking everything from her in the night. He told her (prosecutrix) that 'she has become mature and all this things are not of to be told. She (prosecutrix) must also desiring for doing all this'. For the last two to two and a half years he had been doing all such activities (harkatai) with her. She wishes that strict action be taken against him.
Thereafter, SI Ashok Kumar alongwith the prosecutrix, her mother Savita Sharma, L/Ct. Usha, ASI Dharmendra and Ct. Vijender reached at Sanjay Gandhi Hospital where she (prosecutrix) was medically examined vide MLC No. 7141/09 and on her MLC doctor had endorsed "H/O Sexual Assault by her father since 11/2 Years". The exhibits given by the doctor after the medical examination of the prosecutrix were taken into the police possession by the IO. IO prepared the rukka and sent it through Ct. Vijender for the registration of the case. After registration of the case took up the investigation himself.
4 of 71 5 FIR No. 210/2009 PS Sultanpuri During the course of investigation IO SI Ashok Kumar apprehended accused Ache Lal at the instance of prosecutrix. He was interrogated and was arrested and his disclosure statement was recorded. Accused Ache Lal was got medically examined at SGM Hospital vide MLC No. 7054/09 and after his medical examination the exhibits handed over by the doctor were taken into the police possession. Accused Ache Lal was produced in the court and was sent to the JC. The statement of the prosecutrix u/s 164 Cr.P.C was got recorded and the prosecutrix was sent to Nirmal Chhaya. Exhibits were sent to the FSL.
Upon completion of necessary further investigation challan was prepared for the offences u/s 376/506 IPC against accused Ache Lal 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.
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3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 376/506(II) IPC was made out against accused Ache Lal . Charge was framed accordingly which was read over and explained to accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 20 witnesses. PW1 The prosecutrix, PW2 Dr. Mahipal Singh, CMO, Sanjay Gandhi Memorial Hospital, Delhi, PW3 Dr. Ish Kumar Midha, CMO, Sanjay Gandhi Memorial Hospital, Delhi, PW4 Sh. Gulshan, PW5 Shri Davinder Rajan, Asstt. Legal Cell, CBSE, Patpart Ganj, Delhi, PW6 Smt. Savita Sharma, PW7 SI Ashok Kumar, PW8 SI Dhirender, PW9 Ct. Vijender, PW10 L/Ct. Usha, PW11 HC Rajesh Kumar, PW12 ASI Ranbir Singh, PW13 Ct. Raj Kumar, PW14 Ct. Sikander, PW15 HC Pira Ram, PW16 Ct. Gaurav, PW17 Ct. Vikrant, PW18 Dr. Manoj Dhingra, MOIC SGM Hospital, Delhi, PW19 Sh. Sukhvir Singh Malhotra, P.O Labour Court, Karkardooma Courts, Delhi and PW20 SI Ved Prakash.
5. In brief the witnessography of the prosecution witnesses is as under : 6 of 71 7 FIR No. 210/2009 PS Sultanpuri PW1 The prosecutrix, is the victim girl who deposed regarding the incident and proved her complaint made to the police Ext. PW1/A, her statement recorded U/s 164 Cr. PC Ext. PW1/B, the arrest memo of accused Ext. PW1/C, his personal search memo Ext. PW1/D and his disclosure statement Ext. PW1/E. PW2 Dr. Mahipal Singh, CMO, Sanjay Gandhi Memorial Hospital, Delhi who deposed that on 10.06.2009 he medically examined prosecutrix and referred her to obst. and gynae department for expert opinion. He proved the MLC of the prosecutrix Ext. PW2/A. He further deposed that her vaginal swab, pereanal smear, pubic hair and blood sample were sealed and handed over to the IO.
PW3 Dr. Ish Kumar Midha, CMO, Sanjay Gandhi Memorial Hospital, Delhi who deposed that on 10.06.2009 he examined the patient Ache Lal and after examination there was nothing to suggest that the patient not capable to perform sexual activities and proved the MLC of accused Ache Lal Ext. PW3/A signed by him at PointA. He further deposed that his pubic hair, blood sample, penile swab and underwear were sealed and handed 7 of 71 8 FIR No. 210/2009 PS Sultanpuri over to the IO.
PW4 Sh. Gulshan S/o Late Sh. Rattan Lal, SubRegistrar, Birth & Death, Rohini Cell, Delhi who produced the original birth certificate of prosecutrix and deposed that as per record the date of birth of prosecutrix is 15.08.1993 and he also proved the copy of the same Ext. PW4/A signed by Sh. Raman Yadav at PointA who was working as SubRegistrar at that time.
PW5 Sh. Davinder Rajan, Asstt. Legal Cell, CBSE, Patpart Ganj, Delhi who produced the list of candidates (LOC) appeared in 2008 in the secondary examination and proved the attested copy of LOC showing the roll number of the prosecutrix Ext. PW5/A and the copy of the register Ext. PW5/B. PW6 Smt. Savita Sharma is the mother of the prosecutrix and the wife of the accused. She was turned hostile and was crossexamined by the Ld. Addl. PP for the State and during the crossexamination admitted it to be correct that the seizure memo Ext. PW6/A bears her thumb impression at Point 'A'.
8 of 71 9 FIR No. 210/2009 PS Sultanpuri PW7 SI Ashok Kumar is the investigating officer (IO) of the case) who deposed that on 09.6.2009 he was posted at PS Sultanpuri and DD No. 39A marked PW7/A was handed over to him for investigation of the case and proved his endorsement on it Ext. PW7/A and deposed on the investigational aspects and proved seizure memo of certain exhibits which he received from the doctor Ext. PW6/A, arrest memo of accused Ache Lal Ext. PW1/C, his personal search memo Ext. PW1/D, seizure memo of four sealed pullandas and one sample seal sealed with the seal of SGM Hospital handed over to him by concerned doctor after medical examination of accused Ext. PW7/C, seizure memo Ext. PW8/A of the 10th class certificate and MCD birth certificate Ext. PX & Ext. PW4/A respectively and proved FSL result Ext. PY & Ext. PY1 and DD No. 28PP Ext. PW7/B. PW8 SI Dhirender who joined the investigation with SI Ashok Kumar (PW7) on 09.06.2009 and deposed on the investigational aspects and proved the written complaint of prosecutrix Ext. PW1/A, endorsement made by IO/SI Ashok on it Ext. PW7/A, seizure memo of four sealed pullandas and one sample seal given by the concerned doctor to the IO Ext. PW6/A signed by him at PointB, arrest memo of accused Ache Lal Ext. PW1/C, his 9 of 71 10 FIR No. 210/2009 PS Sultanpuri personal search memo Ext. PW1/D and seizure memo Ext. PW8/A of the photocopy of 10th Certificate Ext. PX and MCD Birth certificate Ext. PW4/A of the prosecutrix.
PW9 Ct. Vijender who joined the investigation with SI Ashok Kumar (PW7) on 09.06.2009 and deposed on the investigational aspects and proved the written complaint of prosecutrix Ext. PW1/A, endorsement made by IO/SI Ashok on it Ext. PW7/A. He also got the case registered and after registration of the case came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. He also proved the seizure memo of four sealed pullandas and one sample seal given by the concerned doctor to the IO Ext. PW6/A signed by him at PointC, arrest memo of accused Ache Lal Ext. PW1/C and his personal search memo Ext. PW1/D. PW10 L/Ct. Usha who joined the investigation with SI Ashok Kumar (PW7) on 10.06.2009 and took the prosecutrix to SGM Hospital for medical examination. After medical examination concerned doctor had given her four sealed pullandas and a sample seal, sealed with the seal of SGMH Govt. of NCT of Delhi which she handed over to the IO and proved 10 of 71 11 FIR No. 210/2009 PS Sultanpuri the seizure memo of the same Ext. PW6/A signed by her at PointC. PW11 HC Rajesh Kumar is the Duty Officer who proved the computerized copy of the FIR Ext. PW11/A signed by him at PointA. He also made endorsement vide kyami DD No. 7A regarding registration of FIR at PointX on the rukka Ext. PW7/A signed by him at PointY. PW12 ASI Ranbir Singh is the Duty Officer at PS Sultanpuri who produced the DD Register and proved the copy of DD No. 39A dated 09.06.2009 at 10.02 PM Ext. PW12/A (previously Marked PW7/A).
PW13 Ct. Raj Kumar is the DD Writer at PP Shanti Nagar, PS Keshavapuram who produced the DD Register and proved the copy of DD No. 28 dated 09.6.2009 Ext. PW7/D. PW14 Ct. Sikander who deposed that on 09.06.2009 he was posted as Constable at PP Shanti Nagar, PS Keshavpuram and on that day he joined the investigation of this case with HC Pira Ram (PW15) and deposed on the investigational aspects.
11 of 71 12 FIR No. 210/2009 PS Sultanpuri PW15 HC Pira Ram who deposed that on 09.06.2009 he was posted as HC at PP Shanti Nagar, PS Keshavpuram and on that day he was on emergency duty and on receiving DD No. 28 (Ext. PW7/D) at PP Shanti Nagar, he alongwith Ct. Sikander (PW14) went to the spot i.e Ganesh Pura, Tri Nagar Main Road, Near Axis Bank where prosecutrix and PCR officials met them and deposed on the investigational aspects.
PW16 Ct. Gaurav who deposed that on 25.06.2009 he took eight sealed pullandas and a sample seal from the MHC(M) and deposited the same with the FSL Rohini vide Road Certificate No. 16/21/09. FSL officials had also given him an acknowledgment which he deposited with the MHC(M) after returning at PS. PW17 Ct. Vikrant who deposed that on 10.06.2009 he alongwith SI Ashok Kumar took accused Ache Lal to SGM Hospital for his medical examination. After his medical examination the concerned medical officer had given four pullandas and one sample seal sealed with the seal of 'SGMH' Govt. of NCT of Delhi to him and the same was handed over to the IO which were taken into police possession vide seizure memo Ext. PW7/C 12 of 71 13 FIR No. 210/2009 PS Sultanpuri signed by him at PointB. PW18 Dr. Manoj Dhingra, MOIC, SGM Hospital, who proved the endorsement of Dr. Shweta Rajput, Senior Gynae from PointC to C on MLC Ext. PW2/A signed by her at PointD, who had gynaecologically examined the prosecutrix.
PW19 Sh. Sukhvir Singh Malhotra, P.O. Labour Court, Karkardooma Courts, Delhi, who recorded the statement of the prosecutrix u/s 164 Cr.P.C and proved the statement u/s 164 Cr.P.C Ext. PW1/B signed by him at Point X1, X2 & X3. He deposed that he also appended a certificate for recording the statement of the prosecutrix truly and as per her exact version which is signed by him at Point X4. He allowed the supply of the copy of the statement U/s 164 Cr. PC to the IO on his application vide his order signed by him at Point X5 on the application filed by the IO. He kept the original statement in the envelope and sent to the office of ACMM in sealed condition.
PW20 SI Ved Prkash who deposed that on 09.06.2009 he was posted as Incharge of PP Shanti Nagar PS Keshavpuram and on that day a 13 of 71 14 FIR No. 210/2009 PS Sultanpuri PCR call was received which was recorded vide DD No. 28 Ext. PW7/D and this DD was entrusted to HC Pira Ram (PW15) and further deposed that he informed the said facts to PS Sultanpuri vide DD No. 39A Ext. PW12/A. The testimonies of the material prosecution witnesses shall be dealt with in detail during the course of the appreciation of the evidence.
5. Statement of accused Ache Lal was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. He opted to lead defence evidence and in his defence examined two witnesses namely DW1 Smt. Savita and DW2 Sh. Deepak Sharma.
DW1 Smt. Savita is the mother of the prosecutrix and is the wife of the accused who deposed that her daughter/prosecutrix was not an obedient child. One boy named Sonu used to chase her daughter/prosecutrix. When she used to complaint (complain) her conduct to her father/accused, who used to beat her. Once local police had visited the house of Sonu. At one time, her husband Ache Lal was called by accused Sonu saying that his mother is calling him as she wanted to know the budget of the house which she wants to built as he (Ache Lal) had also constructed the house in the 14 of 71 15 FIR No. 210/2009 PS Sultanpuri recent past. Her husband accused Ache Lal went to the house of Sonu, there he was badly beaten up with fists and leg blows saying that it is he (Ache Lal) who had sent the police to his (Sonu) house, but her husband kept on saying that he did not sent (send) any police to his (Sonu) house. Sonu and his brother then quarreled with other neighbours Neeraj and Dheeraj S/o Jai Prakash and beated them up who did not tolerate and lodged the complaint in the police against Sonu and his brother. Sonu had also demanded Rs. 20,000/ from her husband accused Ache Lal but he did not pay to Sonu as his previous conduct regarding making the repayment was not good as previously her husband Ache Lal had given Rs. 1000/ to elder brother of Sonu but he did not repay it back and he repaid the amount of Rs. 1,000/ only when the present case was registered against her husband accused Ache Lal and when her daughter was brought back to their house from Hari Nagar. For the disobediency of her daughter, it was told her that they do not want to send her for school for studying but she revolted saying that she will go to school. Her daughter used to talk to Sonu on mobile and was not listening to them for not talking to Sonu on mobile. She also told a lie that the mobile phone is of some of her friend. She (DW1 Smt. Savita) also went to the school of her daughter/prosecutrix and on being asked by the Principal of the school from her (prosecutrix) as to whom the mobile phone belonged to 15 of 71 16 FIR No. 210/2009 PS Sultanpuri which her daughter said that she has purchased it from her savings. The mobile phone was containing obscene messages. Her daughter was totally under the influence of Sonu and used to remain absent during the day time and the night time from house and on being questioned about her absence, she used to become violent and revolted. Once a lock was put from outside to a room which was having another entry from inside and what her daughter used to do that she used to open the bolt of the room from outside and used to put the bolt from the inside entry so that no one can come from inside and was thus allowing Sonu to come to the room. Once a lock was put from outside of the room which was told by Sonu to her daughter to break it with the hammer and it was thereby broken by her daughter. Call was made at 100 number and police came and there they put the lock on the room from outside. Her daughter used to quarrel and beat with them and was totally disobedience. She had seen the name of Sonu got tattooed by her daughter, the prosecutrix on her clavical region (breast region). When her daughter was caught talking on mobile phone with Sonu, her mobile was seized, then also she slashed the forearm of her hand with a blade. Once a love letter written by her daughter and thrown towards the roof of Sonu was seized by them. One classmate named Himanshu of her daughter also used to visit the house of Sonu. Whenever her daughter used to take the exams she never told 16 of 71 17 FIR No. 210/2009 PS Sultanpuri about it and used to go after keeping her clothes or uniform in the bag. She used to remain absent from the house on the pretext that she is studying with her classmate at her house. She (DW1 Smt. Savita) had cordial relation with her husband Ache Lal. Her husband Ache Lal occasionally given (gave) slap to her but was not regularly beaten (beating) her. Her husband used to treat prosecutrix just like his son and he never harassed her. Her daughter/prosecutrix implicated her husband in this case at the instance of Sonu. Her husband was working in defence force and generally used to remain on duty outside the house. Her daughter/prosecutrix used to sleep with her and she never slept with her father. Accused Ache Lal never asked her daughter/prosecutrix to sleep with him. Her daughter/prosecutrix never complained about the behaviour of her father to her. Whenever she used to visit outside prosecutrix also accompanied her. Once prosecutrix went outside on the pretext of false plea and when she came back to the house, on asking by her husband Ache Lal and when objected to of her going outside in such manner, her daughter once gave blow to her husband by a big spoon (karchi) and also once gave blow by water rod.
DW2 Deepak Sharma is the younger brother of the prosecutrix and is the son of the accused who deposed that his father Ache Lal is retired 17 of 71 18 FIR No. 210/2009 PS Sultanpuri army personnel. His father used to reside at the place where he was posted. He used to sleep with his father and his mother used to sleep with his sister. Nothing has happened with his sister. His father used to beat her whenever she was not going to the school or misbehaved with his father.
The testimonies of the defence witnesses shall be dealt with in detail during the course of the appreciation of the evidence.
6. Ld. counsel for accused submitted that he is innocent and has been falsely implicated in the case by the complainant PW1 Prosecutrix by misusing the process of law and by misguiding the police officials. Ld. counsel for accused further submitted that PW1 Prosecutrix, who is the star witness of the prosecution, is in the shadow of suspicion regarding her natural and trustworthy deposition. Bare perusal of her version reveals that her version is motivated due to some of her vested interests, where the accused was a main hurdle in meeting those designs. Her version does not look natural considering the fact that the complainant used to reside with whole family including her brother and her mother and when she was undergoing such a trauma, no one could know anything till the complainant made her complaint. Ld. counsel for accused further submitted that the fact 18 of 71 19 FIR No. 210/2009 PS Sultanpuri narrated by PW1 are without the reference of any date, on which any act was committed on her, she did not disclose when her mother went to Aligarh. Therefore, allegations are not specific but vague in nature. Ld. counsel for accused further submitted that scrutiny of statements given by the PW1 at different occasion reveals that in FIR and as well as in her statement U/s 164 Cr. PC she talks about the incident when her mother went to Aligarh but in deposition before court she kept mum regarding this incident but gave some new facts which did not find mention either in her complaint or in her statement recorded by Ld. Metropolitan Magistrate U/s 164 Cr. PC. Ld. counsel for accused further submitted that during her examination in the court PW1 states that they all four family members used to sleep on one double bed and argued how is it possible to do any wrong act in the presence of mother and brother of the prosecutrix while sleeping on the same bed. Ld. counsel for accused further submitted that prosecutrix is educated girl of city and has better understanding of things, then why she did not even whisper about any wrong act held with her for 2 ½ years? Ld. counsel for accused further submitted that during cross examination PW1 has said that " I verbally told neighbours regarding quarrel and cherda chadi by accused to me. I told about it to the police officials also. It is correct that my complaint Ex. PW1/A bear my signatures at point A. It is correct that 19 of 71 20 FIR No. 210/2009 PS Sultanpuri the said factum is not mentioned in my statement. I do not remember the names of those neighbours." Ld. counsel for accused further submitted that in her cross examination on 09.9.2010 she stated that no boy in the name of Prince reside in her neighbourhood and further said that she has no friendship with boy of any such name but later on 20.11.2010 she accepted knowing Prince and Sonu which suggest that her testimony is not credible and needs close scrutiny. This suggests that she is not telling true facts before the court and is hiding some important facts for her vested interests. Ld. counsel for accused further submitted that surprisingly on 09.9.2010 in her cross examination she admitted that one letter Annexure 'D' Mark PW1/D1 is in her handwriting but she said that she did not write it. All this suggests that the prosecutrix is not narrating true version and hiding some important facts from the Court. Ld. counsel for accused further submitted that it is very important to note that the prosecutrix admitted in her cross examination on 20.11.2010 that she was beaten by Prince and Ravi, who is brother of my friend. Beating of teenage girl by two males is not a normal phenomenon. Furthermore no complaint in this regard has been made by the PW1. This all suggests that there is something wrong with the PW1 when neighbours thought of beating her publically. Ld. counsel for accused further submitted that it is further important to note that the prosecutrix admitted 20 of 71 21 FIR No. 210/2009 PS Sultanpuri that she used to keep mobile in school and it was objected by her Principal. This fact reveals her character and behaviour. Ld. counsel for accused further submitted that it is further important to note that narrations of the prosecutrix at different stages find mention of one big knife as tool for threatening but police did not recover this knife, which further falsify her story. Ld. counsel for accused further submitted that prosecutrix further deposed about some pornographic CDs but no such CD was recovered during the investigation. Ld. counsel for accused further submitted that it is very important to note that as per version of the prosecutrix that many of her relatives lives in Delhi and she has also disclosed some facts to them also and had narrated all facts to her mother who appeared in the court as PW6 but none has come to the rescue of the prosecutrix, nor to depose in her favour. Rather PW6 deposed in the favour of the accused and did not support the version of the prosecution. Ld. counsel for accused further submitted that rather PW6, Smt. Savita Sharma in her examination before the court raised finger on the character of the prosecutrix and said that as her husband used to scold and beat her when she did not obey her. She further said that her daughter never complained about sexual intercourse by the husband and said her daughter has framed her husband. This all falsify the story of prosecution and prosecutrix and suggest that prosecutrix was in some bad habits and 21 of 71 22 FIR No. 210/2009 PS Sultanpuri when after the retirement of her father she found hindrance in her deeds she framed her father to get rid of him this fact find corroboration from the reports of CWC where the prosecutrix was sent after the police report. Ld. counsel for accused further submitted that DW2 Deepak Sharma, brother of the prosecutrix further fasify the story of the prosecutrix, who specifically says that " I used to sleep with my father and my mother used to sleep with my sister. Nothing happened with my sister. My father used to beat her whenever she was not going to school or misbehaved with my father". His narration gives strength to the defence of the accused that he was falsely implicated in the present case as he was causing hinderence to the bad habits and free living of the prosecutrix. Ld. counsel for accused further submitted that all this bring clouds of suspicion on the testimony of the prosecutrix, moreover assertions of the PW1 are neither supported by the medical evidence nor by any other witness, more particularly by PW6, Smt. Savita Sharma. So in the absence of any corroborative evidence, it would not be safe to convict the accused for the offence alleged. Ld. counsel for accused further submitted that allegations against the accused are imaginary and based on conjectures and surmises only. Ld. counsel for accused further submitted that charges against the accused is highly doubtful and prosecution has failed to prove the guilt of the accused and prayed for acquittal of the 22 of 71 23 FIR No. 210/2009 PS Sultanpuri accused from the charges levelled against him.
7. While the Ld. Addl. PP for the state on the other hand submitted that prosecution has proved its case beyond reasonable doubt against the accused. The contradictions and the discrepancies as are pointed out are minor and not the material one's and do not effect the credibility of the witnesses.
8. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the accused and have also carefully perused the entire record.
9. The charge for the offences u/s 376/506 (II) IPC against accused Ache Lal is that prior to 10.06.2009 in the area of house no. I91, Krishan Nagar, Sultanpuri, Delhi he repeatedly and forcibly raped her daughter the prosecutrix, aged about 16 years continuously for about 2 & 21/2 years without her consent and also threatened to kill her in case she discloses about the incident of rape.
10. 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 23 of 71 24 FIR No. 210/2009 PS Sultanpuri 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:
11. PW7 SI Ashok Kumar has deposed that prosecutrix date of birth was also confirmed as the prosecutrix has given 10th class certificate and the MCD birth certificate which were taken into possession vide memo Ext. PW8/A signed by him at PointB and the certificates are Ext. PX & Ext. PW4/A respectively.
To the same effect has also been deposed by PW8 SI Dhirender. The perusal of the birth certificate Ext. PW4/A shows the date of the birth of the prosecutrix as 15.08.1993.
Prosecutrix was examined in the Court on 12.08.2011 with regard to her prayer for sending her to the After Care Home, Nirmal Chhaya, Delhi by the Ld. Predecessor Court wherein she has stated that she would be completing 18 years on 15.08.2011. Further prosecutrix was examined on 24 of 71 25 FIR No. 210/2009 PS Sultanpuri 18.08.2011 regarding her prayer for release her from After Care Home, Nirmal Chhaya, Delhi by the Ld. Predecessor Court where she has stated that she had attained the age of majority on 15.08.2011 and her date of birth as per record of Registrar Birth & Death is 15.08.1993. From above it is clearly indicated that the date of birth of the prosecutrix is 15.08.1993.
As the date of alleged incident is prior to 10.06.2009 and by taking it as 10.06.2009 and the date of the birth of the prosecutrix is 15.08.1993, on simple arithmetical calculation, the age of prosecutrix comes to 15 years, 9 months and 25 days as on 10.06.2009.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 15 years, 9 months and 25 days on the date of alleged incident on 10.06.2009.
MEDICAL EVIDENCE :
12. PW2 Dr. Mahipal Singh, CMO, Sanjay Gandhi Memorial Hospital, Delhi who deposed that on 10.06.2009 he medically examined prosecutrix and referred her to obst. and gynae department for expert 25 of 71 26 FIR No. 210/2009 PS Sultanpuri opinion. He proved the MLC of the prosecutrix Ext. PW2/A. He further deposed that her vaginal swab, pereanal smear, pubic hair and blood sample were sealed and handed over to the IO.
PW18 Dr. Manoj Dhingra, MOIC, SGM Hospital, who proved the endorsement of Dr. Shweta Rajput, S.R. Gynae from PointC to C on MLC Ext. PW2/A signed by her at PointD who had gynaecologically examined the prosecutrix.
The perusal of the gynaecological examination done by Dr. Shweta Rajput from PointC to C on MLC Ext. PW2/A indicates no mark of fresh injury/abrasion seen at the time of examination, hymen torn, vagina admitting two fingers.
VIRILITY OF ACCUSED ACHE LAL
13. PW3 Dr. Ish Kumar Midha, CMO, Sanjay Gandhi Memorial Hospital, Delhi who deposed that on 10.06.2009 he examined the patient Ache Lal and after examination there was nothing to suggest that the patient not capable to perform sexual activities and proved the MLC of accused 26 of 71 27 FIR No. 210/2009 PS Sultanpuri Ache Lal Ext. PW3/A signed by him at PointA. He further deposed that his pubic hair, blood sample, penile swab and underwear were sealed and handed over to the IO.
PW3 Dr. Ish Kumar Midha was not crossexamined despite grant of opportunity.
In the circumstances, it stands established on record that accused Ache Lal was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE:
14. PW7 SI Ashok Kumar has proved the FSL reports Ext. PY, Ext. PY1.
As per FSL report Ext. PY (Biology), the description of articles contained in parcel reads as under : 27 of 71 28 FIR No. 210/2009 PS Sultanpuri DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel'1' : One sealed envelope sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '1'.
Exhibit'1' : One microslide having very faint smear. Parcel'2' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '2', kept in a plastic tube. Exhibit'2' : Cotton wool swab on a wooden stick described as 'vaginal swab of prosecutrix'.
Parcel'3' : One sealed envelope sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '3'.
Exhibit'3' : A few strands of black hair described as 'Pubic hair of Prosecutrix'.
Parcel'4' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '4', kept in a test tube. Exhibit'4' : Dark brown foul smelling liquid described as 'Blood sample of prosecutrix'.
Parcel'5' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '5'.
28 of 71 29 FIR No. 210/2009 PS Sultanpuri Exhibit'5' : A few stands of black hair described as 'Pubic hair of accused'. Parcel'6' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '6' kept in a test tube. Exhibit'6' : Cotton wool swab on a plastic stick described as 'Penile swab of accused'.
Parcel'7' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '7'.
Exhibit'7' : One underwear described as 'Undergarments of accused'. Parcel'8' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '8' kept in a test tube. Exhibit'8' : Dark brown foul smelling liquid described as 'Blood sample of accused'.
The results of the analysis reads as under: RESULTS OF ANALYSIS 1 Human semen was detected on exhibit '7'.
29 of 71 30 FIR No. 210/2009 PS Sultanpuri 2 Semen could not be detected on exhibits '1', '2', '3', '5' & '6'. 3 Blood was detected on exhibit '4' & '8'.
4 XX XX XX XX As per FSL report Ext. PY1 (Serology), the result of analysis reads as under : Exhibits Species of origin ABO Grouping/ Remarks Blood Stains: '4' Blood sample Sample was putrefied hence no opinion. '8' Blood sample Sample was putrefied hence no opinion.
Semen Stains:
'7' Underwear No reaction
On careful perusal and analysis of the biological and serological reports on record as reproduced hereinabove, it clearly indicates semen could not be detected on exhibits '1', '2', '3' (of the prosecutrix), '5' & '6' (of the accused). Although human semen was detected on exhibit 30 of 71 31 FIR No. 210/2009 PS Sultanpuri '7' (undergarments of accused), but as per the serological analysis species of origin could not be detected and the 'ABO' Grouping also gave 'No reaction'.
On a conjoint reading of the medical evidence, the notings from Point 'C to C' of Dr. Shweta Rajput, S.R. Gynae proved by PW18 Dr. Manoj Dhingra, on the MLC Ext. PW2/A signed by Dr. Shweta Rajput, S.R. Gynae at Point D together with the MLC of accused Ache Lal Ext. PW2/A in the light of biological and serological evidence detailed hereinabove, it clearly rules out any recent sexual intercourse activity.
In the circumstances, it stands established on the record that no recent sexual intercourse activity has taken place in the instant case.
EVIDENCE OF PW1 PROSECUTRIX:
15. Before the evidence of the so called 'sterling witness' of the prosecution namely PW1 the prosecutrix, is taken for perusal and analysis, it is also to be noticed, as to what sort of the evidence of the 'sterling witness' should be as held by the Hon'ble Supreme Court in Para 15 of the case titled 31 of 71 32 FIR No. 210/2009 PS Sultanpuri Rai Sandeep @ Deepu And Ors. Vs. State of NCT of Delhi 2012 VII AD (S.C) 505 which reads as under :
16. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness should be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have corelation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently with the version of every other witness. It can even be stated that it would be akin to the test applied in the case of circumstantial evidence where there should not be any missing 32 of 71 33 FIR No. 210/2009 PS Sultanpuri link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
17. Now let the testimony of PW1 Prosecutrix be perused and analysed.
PW1 Prosecutrix in her examinationinchief has deposed which is reproduced and reads as under: "About three years ago my father was working in Indian Army and his posting was at Haldwani, Nanital and I alongwith my mother and my younger brother used to live with him there only. My father is a habitual drunkard and sometimes he also used to take liquor since the morning itself. There at Haldwani when my mother used to work in the kitchen etc., he used to ask me to sit beside him and at that time he used to kiss my lips, put his 33 of 71 34 FIR No. 210/2009 PS Sultanpuri hands over my breasts. My mother used to remain sick and my father used to give her medicines. He also used to give me some medicines after mixing the said medicine in milk. When we used to go to sleep, he used to ask that he and myself would be in one blanket and my younger brother and my mother would be in other blanket on the same bed. On my raising objection to it, he used to beat all of us after putting clothes in our mouth and after raising the volume of the T.V. My mother used to keep mum due to the fear of the beatings given by my father to all of us. When after this quarrel and beatings which some times continued till 03.00 a.m. (night), still the accused would ask me to sleep with him and I had to sleep with him as there was no other option. After sleeping of my mother, he used to ask me to fetch a glass of water and thereafter, he used to remove his pants and underwear and used to show his penis to me and used to ask me to hold the same in my hands. In such circumstances, whenever I tried to tell about the same to my mother by waking her up, the accused would beat me and my mother also and it was his routine. Sometimes, during sleep with him I would realise that my father, the accused present in the court had been striping me of my clothes on which I would shout and raise noise, but he would give me beatings again and my younger brother would used to tell me not to raise noise and asked me to keep quite and let my father do whatever he wanted to do with me. Even my mother used ask me to keep mum by saying that, "kha to inhin ka rahi hai". My father used to tell me that whenever he does all these things with my mother, she never raises any alarm, why I raise an alarm. In the absence of my mother he used to show me pornographics movies on the T.V. With the help of CDs and used to tell me that you will have to do all such things with your husband 34 of 71 35 FIR No. 210/2009 PS Sultanpuri and such movies would enhance your knowledge. One day my mami, masi and her daughter had visited us Haldwani and my cousin asked me to sleep with her but the accused raised objection to it and started beating me for the same which lasted till 04.00 a.m. in the early morning and he did not let me sleep with my cousin."
PW1 Prosecutrix has further deposed in her examinationin chief "There at the Haldwani once my mother had to visit her mother at her parental house village at Mathura and I asked my mother to take me with her, but accused did not permit me to accompany my mother and asked my mother to go with my brother Deepak. My mother left Haldwani alongwith Deepak and in that night my father forced me to take some medicines despite my strong resistance and when I woke up in the morning, I found my clothes in filthy condition (gandi condition) and I was bleeding from my vagina. My mother came back to Haldwani after two days and I narrated this incident to my mother and she told me that the problem is relating to menstrual period. Prior to the said incident my menstrual period had already started even before we had been residing with the accused at Haldwani. When this incident had occurred I had already had my menstrual period before that which had already finished and at the time of incident I had no menstrual period. I do not remember exactly as to how many days prior to incident my period had started but when the incident occurred my said menstrual period was already over many days prior. I told my neighbours about the activities of my father with me and they had also realised the same as he used to misbehave with me while moving on the road 35 of 71 36 FIR No. 210/2009 PS Sultanpuri also. During the aforesaid entire period as I have deposed my father had been working in his service and whenever it was his night duty, he would somehow manage to skip and would come home."
PW1 Prosecutrix has further deposed in her examinationin chief "Then he declared himself to be suffering with some mental illness and got admitted himself in one Nasha Mukti Kendra at Barely for about four months I lived peacefully and when my father came back from Barely he resigned form (from) his service and we all came to Delhi and started residing at I91, Krishna Vihar and there also he continued his abovesaid activities with me as now he was totally free and was not having any job and during the day time also he used to ask me to sit with him and to watch pornographic movies etc. Even sometimes if I was sleeping he used to make me wake up by pinching and used to show me his sexual activities with my mother. He used to fetch sleeping pills from one Pawan Medical Store and used to give me the same on the pretext that I would be relived various body aches though I would insist that the medicines would not give me any relief. Whenever I had pain in my legs, I used to ask my mother to massage my legs but he used to bring the oil or sometimes some balm and used to rub the same on my legs and while doing so he used to also go to the extent to rub the same on my breasts and my stomach. He used to ask me to change my clothes, i.e school dress etc. in his presence and he also used to ask to tell him about my menstrual periods so that he would be giving me some medicines to stop the periods and there will be no problem in his doing sexual intercourse with me which he was continuing from the day on which I had found clothes in filthy condition and blood was coming out from my 36 of 71 37 FIR No. 210/2009 PS Sultanpuri vagina and my mother had gone to her village at Mathura."
PW1 Prosecutrix has further deposed in her examinationin chief "Accused would also ask me to do the fingering myself in my vagina at Haldwani. During his sexual activities he would switch off all the lights and would also lock the house from inside and even would close the door of the room from inside. During his sexual activities the accused would strip me naked and would press my breasts and used to suck them and then would apply an oil in my vagina and first he inserted his finger into my vagina and while holding my both hands and pressing my both legs under him he had penetrated his penis into my vagina."
PW1 Prosecutrix has further deposed in her examinationin chief "When my said house of Krishna Vihar at Delhi was being renovated during that period we had shifted to a rented accommodation which was one room accommodation located in the same colony and I used to go for my computer classes. On one day when I had gone to my computer class and had just wished my instructor 'good evening', my father who came there following me and took me from there to said rental accommodation at that time my mother had gone to our house of Krishna Vihar to look after the 37 of 71 38 FIR No. 210/2009 PS Sultanpuri construction. At that time my father gave beatings to me and said that "you were shaking hands with your instructor. Woh kya tera khasam hai, tu randi hai and took out his penis and further said "you were shaking hands with your instructor and now shake my penis". There was a big knife at my house, and whenever I showed any resistance to his activities, he used to show me that knife saying that he would stab me and my other and then he would also commit suicide by cutting his vein."
PW1 Prosecutrix has further deposed in her examinationin chief "On one evening when it was raining, there was again a dispute between my father and me over the issue of sleeping with him, I went to the kitchen he also followed me there and I struck on his head with a 'karachi' and he started bleeding. Thereafter, he had mercilessly beaten me up and my mother sustain injuries on her ribs from a staircase due to which she was taken to the hospital."
PW1 Prosecutrix has further deposed in her examinationin chief "After renovation of our said house, we all shifted in our said house from the rented accommodation. One evening while he was having his dinner on the terrace and was asking me to bring sometime or the other number of times just to irritate me. As I had got tired by going number of 38 of 71 39 FIR No. 210/2009 PS Sultanpuri times from ground floor to second floor, I refused to follow his instructions, he gave beatings to me with an iron rod and told 'tujhe kothe pe bech dunga, tujhe bharwon ko bech doonga and further told, "tu road pe ja ke nangi khadi ho ja, tujhe bahot paise milenge". After hearing all this and facing this trauma for such a long period, I left my house the said night and went to house of my maternal uncle Kailash, which is situated at Krishna Vihar."
PW1 Prosecutrix has further deposed in her examinationin chief "At the house of my maternal uncle, Kailash, after two to three days, I came to know that my maternal grandmother (nani) had come to my house. As such on the request of my mother, I reached at my house and I disclosed only regarding teasing (chera chari) to my nani and did not disclose the incident of forcible rape by my father to my nani. My nani advised my father to sleep in other room."
PW1 Prosecutrix has further deposed in her examinationin chief "As there was Katha Puja at the house of my aunt (masi) Kusum at Tri Nagar and there my other relatives had also come including my Mamas and Mausas and there I disclosed the facts regarding teasing, incident of being forced to watch pornographic CDs and beatings given to me by my father, but I did not disclose the incident of rape to them. They all told me to 39 of 71 40 FIR No. 210/2009 PS Sultanpuri keep quite for some days and not to report the matter to the police and told me that they will advise my father and in case he repeats his such activities then to tell them and then they would decide what to do."
PW1 Prosecutrix has further deposed in her examinationin chief "After Katha Puja, I alongwith my mother, brother and Nani came back to my house as my father was already at my house as he had not gone to Tri Nagar. On that night my nani had slept with me. Next day she went to Tri Nagar and asked me to accompany her to her village, but I showed my inability due to my studies and exams."
PW1 Prosecutrix has further deposed in her examinationin chief "On 09.06.09, my mother had gone out of the house for some work and my father sent my brother out of the house for purchasing cement. Thereafter, when I was alone in the house, my father asked me that why I had told all the facts to my mother about having being raped by him number of times and then he also told me that whatever he did was with protection (by using condom) so that I could not have any problem in future. At that time my period were going on and he asked me that at present he could not perform sexual activities with me and asked me to masturbate him by my hand. On this I told him that I would inform the police and that I wanted 40 of 71 41 FIR No. 210/2009 PS Sultanpuri to go to the house of Kailash Mama. In the meanwhile my brother Deepak came there in the street and my father asked him to leave me at the house of Kailash Mama and I alongwith Deepak went to the house of Kailash Mama."
PW1 Prosecutrix has further deposed in her examinationin chief "There at the house of Kailash Mama I was in dilemma on the issue of reporting the same to the police or not as I was thinking that how my brother would continue with his studies and how we would manage our house and food and thereafter, I left the house of Kailash Mama and went to Tri Nagar and was roaming here and there and was also thinking that it would also create hindrance in my marriage. I did not go to the house of my mama or masi residing at Tri Nagar as I though they would not permit me to report the matter to the police and would ask me to keep quite. I went to a park and kept on sitting there for some time from there I thought that I should dial the number of woman helpline which I had read in low floor buses as such I went to one PCO and called up at the woman helpline number which was 1091 and told them about my location. After about ten minutes one PCR van came there and they took me to PP Shanti Nagar. They inquired me about the complete incident and thereafter they telephonically informed PS Sultanpuri, from there one police official namely Vijender alongwith my mother came to the PP Shanti Nagar and that police official Vijender took me and my mother to PS Sultanpuri and there we both were inquired by the police official and on my complaint the present FIR was registered. My complaint is Ext. PW1/A signed by me at PointA."
41 of 71 42 FIR No. 210/2009 PS Sultanpuri PW1 Prosecutrix also proved her statement u/s 164 Cr.P.C Ext. PW1/B. She has also deposed on the MLC Ext. PW2/A, her signatures are present at PointB where she has given her willingness for her gynaecological examination. She has also deposed that her father was arrested and his personal search was conducted vide memo Ext. PW1/C & Ext. PW1/D signed by her at PointA. The disclosure statement of accused Ache Lal is Ext. PW1/B bearing her signature at PointA. Vol. But this disclosure was not made by accused in her presence.
It is clear from the testimony of the PW1 Prosecutrix that both at Haldwani as well as at Delhi, she was living with her family members consisting of her brother Deepak Sharma (who has been examined as DW2), her mother Smt. Savita Sharma (who has been examined both as a prosecution witness as PW6 and as a defence witness as DW1) and her father (accused Ache Lal). It is also clear from the testimony of PW1 Prosecutrix that her father/accused Ache Lal was in Army Service when they lived at Haldwani and after his resigning from service they shifted to Delhi in May, 2008 (as per statement u/s 164 Cr.P.C Ext. PW1/B). It is clear from the testimony of PW1 Prosecutrix in Delhi she was studying in school in 12th class. It is to be noticed that from the testimony of PW1 Prosecutrix the 42 of 71 43 FIR No. 210/2009 PS Sultanpuri alleged incident pertains to two places i.e Haldwani (Nanital) and Delhi (House No. I91, Krishan Vihar, Sultanpuri, Delhi).
On careful perusal and analysis of the testimony of PW1 Prosecutrix vis a vis her complaint made to police dated 10.06.2009 Ext. PW1/A (on the basis of which FIR was registered) vis a vis her statement u/s 164 Cr.P.C Ext. PW1/B, it is found that she has gradually improved her statement substantially which go to the root of the matter starting from her complaint Ext. PW1/A, then her statement u/s 164 Cr.P.C and then her testimony in the Court. She has propounded three theories with different versions as per her convenience with the sole object to nail the accused, one way or the other way. As to what PW1 Prosecutrix has deposed regarding the incidents happened at Haldwani are totally missing in her complaint Ext. PW1/A, made to the police which led to registration of the FIR in the present case. Moreover, as to what PW1 Prosecutrix deposed in her testimony with regard to incidents at Haldwani are either at variance or improved version or missing as at to what she stated in her statement u/s 164 Cr.P.C Ext. PW1/B. As per PW1 Prosecutrix, she, her mother, her brother, her father used to sleep on the same bed. As per PW1 Prosecutrix, her father (accused Ache Lal) used to ask that he, and 43 of 71 44 FIR No. 210/2009 PS Sultanpuri prosecutrix would be in one blanket and her younger brother and her mother would be in other blanket. On her (PW1 Prosecutrix) raising objection, accused used to beat all of them after putting clothes in their mouth and raising the volume of the T.V. such facts are missing in statement u/s 164 Cr.P.C (Ext. PW1/B). What has been stated in it (statement u/s 164 Cr.P.C Ext. PW1/B) is that he (accused) used to insist for sleeping with prosecutrix but was objected to by her mother and for her (mother) raising such objection, accused used to beat her mother (wife of accused) by gagging her mouth (not gagging mouth of all of them) with clothes. The fact regarding raising of volume of TV is missing. Moreover, it does not appeal to reason that a father will insist for sleeping with her daughter instead of sleeping with his wife, when they all are sleeping on a single double bed.
The testimony of PW1 Prosecutrix is not corroborated on this aspect by her brother DW2 Deepak Sharma, who in his examinationinchief has specifically deposed that he used to sleep with his father and his mother used to sleep with her sister (PW1 Prosecutrix). Nor she is corroborated by her mother Smt. Savita Sharma (who has been examined as a prosecution witness as PW6 and as a defence witness as DW1). DW1 Smt. Savita Sharma in her examinationinchief recorded on 09.05.2012 has specifically deposed that 44 of 71 45 FIR No. 210/2009 PS Sultanpuri "My daughter (Geeta) used to sleep with me and she (Geeta) never slept with her father, accused Ache Lal never asked her daughter Geeta to sleep with him."
In the circumstances, the said part of the testimony of PW1 Prosecutrix does not inspire confidence.
As regard the part of testimony of PW1 Prosecutrix that after sleeping of her mother, he (accused) used to ask her to fetch a glass of water and thereafter he used to removed his pants and underwear and used to show his penis to her and used to ask her to hold the same in her hands, and whenever she tried to tell about the same to her mother by waking her up, the accused used to beat her (prosecutrix) and her mother also, is totally missing in her complaint Ext. PW1/A as well as in her statement u/s 164 Cr.P.C Ext. PW1/B. Nor she is corroborated by her mother PW6 Smt. Savita sharma (also examined as DW1) on this aspect.
In the circumstances, the said part of testimony of PW1 Prosecutrix does not inspire confidence.
45 of 71 46 FIR No. 210/2009 PS Sultanpuri As regards the part of testimony of PW1 Prosecutrix that sometimes during sleep with him (accused) she would realise that her father had been striping her of her clothes, on which she would shout and raise noise and his younger brother (DW2 Deepak Sharma) used to tell her not to raise noise and asked her to keep quite and let her father do whatever he wanted to do with her, is totally missing in her complaint Ext. PW1/A as well as in her statement u/s 164 Cr.P.C Ext. PW1/B. Nor she is corroborated by her brother DW2 Deepak Sharma, who in his examinationinchief has specifically deposed that "Nothing has happened with my sister. My father used to beat her whenever she was not going to the school or misbehaved with my father."
There is nothing in the crossexamination of DW2 Deepak Sharma so as to impeach his creditworthiness. Moreover, it does not appeal to the reason that a brother will ask his sister to surrender herself to the carnal desire of his father.
In the circumstances, the said part of the testimony of PW1 Prosecutrix does not inspire confidence and she is not a truthful witness.
46 of 71 47 FIR No. 210/2009 PS Sultanpuri As regards the part of testimony of PW1 Prosecutrix that her father used to tell her that whenever he does all these things with her mother, she (mother of prosecutrix) never raises any alarm. Why she (prosecutrix) raise an alarm. In the absence of her mother he (accused) used to show her pornographic movies on T.V with the help of CDs and used to tell her that she will have to do all such things with her (prosecutrix) husband and such movies would enhance her knowledge, is totally missing in her complaint Ext. PW1/A as well as in her statement u/s 164 Cr.P.C Ext. PW1/B. Nor any TV or pornographic CDs have been produced and proved on record.
In the circumstances, the said part of the testimony of PW1 Prosecutrix does not inspire confidence.
As regards the part of testimony of PW1 Prosecutrix that one day her nani, masi and her daughter had visited them Haldwani and her cousin asked her (prosecutrix) to sleep with her but the accused raised objection to it and started beating her (prosecutrix) for the same which lasted till 4.00 AM in the early morning and he (accused) did not let her (prosecutrix) sleep with her cousin, is totally missing in her complaint Ext.
47 of 71 48 FIR No. 210/2009 PS Sultanpuri PW1/A as well as in her statement u/s 164 Cr.P.C Ext. PW1/B. Nor her testimony is corroborated by any material on the record as neither her mami, nor her masi nor her cousin have been cited in the list of witnesses nor have been produced and examined by the prosecutrix, for the reasons best known to the prosecution.
In the circumstances, the said part of testimony of PW1 Prosecutrix does not inspire confidence.
As regards the part of testimony of PW1 Prosecutrix that there at the Haldwani once her mother had to visit her mother at her parental house village at Mathura and she asked her mother to take her with her, but accused did not permit her to accompany her mother and asked her mother to go with her brother Deepak. Her mother left Haldwani alongwith Deepak and in that night her father forced her to take some medicines despite her strong resistance and when she woke up in the morning, she found her clothes in filthy condition ( gandi condition) and she was bleeding from her vagina. Her mother came back to Haldwani after two days and she narrated this incident to her mother and she told her that the problem is relating to menstrual period. Prior to the said incident her menstrual period had already 48 of 71 49 FIR No. 210/2009 PS Sultanpuri started even before they had been residing with the accused at Haldwani. When this incident had occurred she had already had her menstrual period before that which had already finished and at the time of incident she had no menstrual period. She does not remember exactly as to how many days prior to incident her period had started but when the incident occurred her said menstrual period was already over many days prior. She told her neighbours about the activities of her father with her and they had also realised the same as he used to misbehave with her while moving on the road also, is totally missing in her complaint Ext. PW1/A as well as in her statement u/s 164 Cr.P.C. Nor her testimony has been corroborated either by her brother DW2 Deepak Sharma or by her mother PW6 Smt. Savita Sharma (who has also been examined as DW1).
No neighbours to whom PW1 Prosecutrix allegedly told about the activities of his father (accused) have been cited in the list of witnesses nor have been produced and examined by the prosecution.
In the circumstances, the said part of testimony of PW1 Prosecutrix does not inspire confidence.
49 of 71 50 FIR No. 210/2009 PS Sultanpuri As regards the part of testimony of PW1 Prosecutrix that at I91 Krishna Vihar, Delhi also he (accused) used to ask her to sit with him and to watch pornographic movies etc. is totally missing in her complaint Ext. PW1/A as well as in her statement u/s 164 Cr.P.C.
As to what has been stated by PW1 Prosecutrix in her statement u/s 164 Cr.P.C Ext. PW1/B, is that, her papa used to bring BF (Blue Film) CD and used to ask her to check the same, once she checked but later on she refused but her papa used to say that she should check the same and used to taunt that she must also be longing for the same. She told all this to her mummy on which quarrel took place and mummy broke all the CD and threw them away. Even the said part of statement of PW1 Prosecutrix is not corroborated by her mother PW6 Smt. Savita Sharma (who has also been examined as DW1).
In the circumstances, the said part of the testimony of PW1 Prosecutrix does not inspire confidence.
50 of 71 51 FIR No. 210/2009 PS Sultanpuri As regards the part of testimony of PW1 Prosecutrix that even sometimes, if she (prosecutrix) was sleeping he (accused) used to make her wake up by pinching and used to show her (prosecutrix) his sexual activities with her mother, is totally missing in her complaint Ext. PW1/A as well as in her statement u/s 164 Cr.P.C Ext. PW1/B. Nor her testimony is corroborated by her mother PW6 Smt. Savita Sharma (who has also been examined as DW1).
Moreover, it does not appeal to the reason that a father (accused) will show his sexual activities with her wife, to her daughter, can a father stoop so low, is unbelievable.
In the circumstances, the said part of PW1 Prosecutrix does not inspire confidence. She seems to had been living in an imaginery world and seems to have deposed on the basis of her imaginations having no iota of truth.
As regards the part of testimony of PW1 Prosecutrix that he (accused) used to fetch sleeping pills from one Pawan Medical Store and 51 of 71 52 FIR No. 210/2009 PS Sultanpuri used to give her the same on the pretext that she would be relieved various body aches though she would insist that the medicines would not give her any relief. Whenever she had pain in her legs, she used to ask her mother to massage her legs but he used to bring the oil or sometimes some balm and used to rub the same on her legs and while doing so he used to also go to the extent to rub the same on her breasts and her stomach. He used to ask her to change her clothes, i.e school dress etc. in his presence and he also used to ask to tell him about her menstrual periods so that he would be giving her some medicines to stop the periods and there will be no problem in his doing sexual intercourse with her which he was continuing from the day on which she had found clothes in filthy condition and blood was coming out from her vagina and her mother had gone to her village at Mathura. Accused would also ask her to do the fingering herself in her vagina at Haldwani. During his sexual activities he would switch off all the lights and would also lock the house from inside and even would close the door of the room from inside. During his sexual activities the accused would strip her naked and would press her breasts and used to such them and then would apply an oil in her vagina and first he inserted his finger into her vagina and while holding her both hands and pressing her both legs under him he had penetrated his penis into her vagina.
52 of 71 53 FIR No. 210/2009 PS Sultanpuri is totally missing in her complaint Ext. PW1/A as well as in her statement u/s 164 Cr.P.C Ext. PW1/B. Moreover, there is not a single line either in complaint Ext. PW1/A and statement u/s 164 Cr.P.C Ext. PW1/B that the mother of prosecutrix had ever gone to her village at Mathura. The testimony of PW1 Prosecutrix remained uncorroborated as she is not corroborated by her mother PW6 Smt. Savita Sharma (who has also been examined as DW1) who has not deposed a single word that she had ever gone to her parental home at Mathura from Haldwani, with his son Deepak (DW2). Nor the testimony of PW1 Prosecutrix is corroborated by her brother DW2 Deepak Sharma, that he accompanied her mother (PW6 Smt. Savita Sharma) to Mathura from Haldwani. Further none from Pawan Medical store from where accused allegedly used to fetch sleeping pills has been produced and examined by the prosecution.
In the circumstances the said part of testimony of PW1 Prosecutrix does not inspire confidence.
As regards the part of the testimony of PW1 Prosecutrix that 53 of 71 54 FIR No. 210/2009 PS Sultanpuri "On 09.06.09, my mother had gone out of the house for some work and my father sent my brother out of the house of purchasing cement. Thereafter, when I was alone in the house, my father asked me that why I had told all the facts to my mother about having being raped by him number of times and then he also told me that whatever he did was with protection (by using condom) so that I could not have any problem in future. At that time my period were going on and he asked me that at present eh could not perform sexual activities with me and asked me to masturbate him by my hand. On this I told him that I would inform the police and that I wanted to go to the house of Kailash Mama. In the meanwhile, my brother Deepak came there in the street and my father asked him to leave me at the house of Kailash Mama."
is totally missing in her complaint Ext. PW1/A as well as in her statement u/s 164 Cr.P.C. Her testimony is not corroborated by her brother DW2 Deepak Sharma. Nor her Kailash Mama has been cited in the list of witnesses nor has been produced and examined by the prosecution. Further it does not appeal to the reason that if he accused at all had asked the prosecutrix to masturbate him by his hand and on his (accused) being told by the prosecutrix that she would inform the police and she wanted to go to the house of Kailash Mama despite he (accused) being apprehensive of police action and defamation still would allow her (prosecutrix) to go to Kailash Mama house and would ask his son Deepak (DW2) to leave her at the house of Kailash Mama.
54 of 71 55 FIR No. 210/2009 PS Sultanpuri In the circumstances the said part of testimony of PW1 Prosecutrix does not inspire confidence.
At the cost of repetition PW1 Prosecutrix in her examination inchief has deposed which is reproduced and reads as under: "At the house of my maternal uncle, Kailash, after two to three days, I came to know that my maternal grandmother (nani) had come to my house. As such on the request of my mother, I reached at my house and I disclosed only regarding teasing (chera chari) to my nani and did not disclose the incident of forcible rape by my father to my nani. My nani advised my father to sleep in other room."
PW1 Prosecutrix has further deposed in her examinationin chief "As there was Katha Puja at the house of my aunt (masi) Kusum at Tri Nagar and there my other relatives had also come including my Mamas and Mausas and there I disclosed the facts regarding teasing, incident of being forced to watch pornographic CDs and beatings given to me by my father, but I did not disclose the incident of rape to them. They all told me to keep quite for some days and not to report the matter to the police and told me that they will advise my father and in case he repeats his such activities then to tell them and then they would decide what to do."
55 of 71 56 FIR No. 210/2009 PS Sultanpuri From the aforesaid narration of PW1 Prosecutrix, it is clearly indicated that at her house, she (PW1 Prosecutrix) disclosed only regarding teasing (chera chari) and did not disclose the incident of forcible rape by his father to her nani (maternal grandmother) when her maternal grandmother had come to her (prosecutrix) house. Further at the house of her aunt (masi) Kusum at Tri Nagar, where her other relatives has also come including her mamas and mausas, there she (PW1 Prosecutrix) disclosed the facts regarding teasing, incident of being forced to watch pornographic CDs and beatings given to her by her father and did not disclose the incident of rape to them.
Undisputably, neither the nani of prosecutrix nor her aunt (masi) Kusum nor any other relative nor her mamas and mausas have been cited in the list of witnesses nor have been produced and examined before whom PW1 Prosecutrix allegedly disclosed regarding teasing (chera chari) incident of being forced to watch pornographic CDs and beatings given to her father but did not disclose the incident of rape by her father to them.
56 of 71 57 FIR No. 210/2009 PS Sultanpuri In the circumstances, there is nothing on record to corroborate the said part of testimony of PW1 Prosecutrix. Why such relatives, who were the material witnesses and were easily available have neither been cited nor produced nor examined by the prosecution? No plausible explanation has been placed by prosecution in this regard. Further it has not been explained by the prosecution, as to why PW1 Prosecutrix did not disclose the incident of rape to her such relatives and allegedly disclosed only the facts regarding teasing, incident of being forced to watch pornographic CDs and beating given to her by her father (accused), when she was undergoing the trauma of alleged bad deeds (harkat) of her father (accused) for the last two and a half years.
In the circumstances, the said part of the testimony of PW1 Prosecutrix does not inspire confidence.
PW1 Prosecutrix in her crossexamination has deposed that "Prior to the present complaint I did not make any other complaint against my father. I verbally told neighbours regarding quarrel Cherda Chadi by accused to me. I told about it to the police officials also. It is correct that my complaint Ex. PW1/A bears my signature at pt A. It is 57 of 71 58 FIR No. 210/2009 PS Sultanpuri correct that the said factum is not mentioned in my statement. I do not remember the names of those neighbours. While we were not residing with the accused, he would come on vacation for a month or so but I cannot tell the frequency of his us. In Delhi my one masi and mama also reside. No boy in the name of Prince reside in my neighbourhood. I have no friendship with boy of any such name. It is wrong to suggest that due to Prince there were frequent quarrels in the house and my father adviced (advised) me to stay away from him. It is correct that one letter Annexure D which is my handwriting but I did not write it which is marked PW1/D1."
"On the left side of my house there is a vacant plot and on that side of said plot there is a house of one Panditian aunty. On the right side, there is a house of Santosh Aunty. Santosh aunty having two children namely Sonu and Monu and one married daughter which are their common names. I do not know if the father name of Sonu is prince. Earlier my relations with my neighbours were good but after quarrel in the house with my father none talked to me much. There was quarrel between my father, Sonu and Monu but I do not know the reason. In my presence my father did not call the police for arrest of Sonu and Monu. It is correct that Monu has been arrested in a rape case."
"I realized what my father had done to me when I was doing so at that time my mother was in Mathura in the end of May, 2009. Vol. My mother had told that she is going to Mathura but I do not know whether she had gone to Mathura or Aligarh. I did not apprise any body about this fact as I was waiting for my mother to come."
58 of 71 59 FIR No. 210/2009 PS Sultanpuri "I cannot tell when in end of May 2009 when my father committed rape upon me whether he was under the influence of liquor or not. Even I am not sure whether he was under the influence of liquor or not."
"It is wrong to suggest that I had told to my father that I was beaten by Prince and Ravi who is brother of my friend. Vol. My mother told about the beatings to my father. I had told to my mother that I was beaten by Prince and Ravi. Prince and Ravi gave me beatings as I was talking with the sister of Ravi and they do not want that I should talk with her. Somebody from the gathering had asked that I should not be beaten up at the road as it does not look nice. It is wrong to suggest that I was talking with Ravi and then Prince and Ravi both gave me beatings. It is wrong that if I had assured my father to help him out and coming out of him from jail. It is wrong to suggest that I have four mobile phone. It is wrong to suggest that I had been out of the house for 45 days without informing my mother. It is wrong to suggest that my mother put by mobile phone and informed the principal of the school in writing regarding the messages contained in it. It is correct that my principal had told me for not keeping the mobile in the school. It is wrong to suggest that if I had ever come back to the house at 2.30 in the night. It is wrong to suggest that I used to bring the stupyfied substance so that my father could mixed it in my milk. It is wrong to suggest that if I ever got the medicine exchanged. I used to sleep with my father on his asking and mother and my brother used to sleep in another blanket. When I used to ask my mother that I want to sleep with her and on this aspect generally quarrel took place up to 3 a.m and my father used to threat "Agar Yeh Soai Gi To Mere Saath Soaigi Nahi To Main Sone Nahi dunga" at Haldwani and Delhi. Except my mother I did not make any complaint to any one. I could not want to tell the same to my friends at Haldwani or in Delhi. I did not tell that my father used to put clothes in our mouth and deep to stand us. He never used to put clothes in our mouths together."
59 of 71 60 FIR No. 210/2009 PS Sultanpuri "My father used to threaten me to keep mum at the time of quarrel else he would commit suicide. It is wrong to suggest that letter mark A1 is written by me. Vol. The writing resembles to my writing. I do not know if my father had given Rs. 1,000/ to the brother of Prince. It is wrong to suggest that I had an affair with Prince for which my father used to object and hence to pressurize my father to give consent for my relationship with Prince, I have made a false complaint against my father regarding rape and has falsely implicated him in this case. It is wrong to suggest that I got the name of Prince Tatoo on my left breast. It is wrong to suggest that mark A1 was written by me. It is wrong to suggest that I am deposing falsely. I do not know as to when my mother snatched my mobile phone. It is wrong to suggest that Ravi and Prince had given me beatings at M2 K Rohini."
From the aforesaid part of crossexamination of PW1 Prosecutrix , it is clearly indicated that she has made a futile attempt to conceal the truth. In the beginning, PW1 Prosecutrix denies that no boy in the name of Prince reside in her neighbourhood. She has no friendship with boy of any such name but in the later part of crossexamination she deposed that she had told to her mother that she was beaten by Prince and Ravi. Prince and Ravi gave her beatings as she was talking with the sister of Ravi and they do not want that she (PW1 Prosecutrix) should talk to her. She negated the suggestion that due to Prince there were frequent quarrels in the house and her father advised her to stay away from him. She admitted it to 60 of 71 61 FIR No. 210/2009 PS Sultanpuri be correct that one letter Annexure 'D' Mark PW1/D1 is in her handwriting but she did not write it.
She deposed that on the left side of her house there is a vacant plot and on that side of said plot there is a house of one Panditian aunty. On the right side, there is a house of Santosh Aunty. Santosh aunty having two children namely Sonu and Monu and one married daughter which are their common names. She does not know if the father name of Sonu is prince. Earlier her relations with her neighbours were good but after quarrel in the house with her father none talked to her much. There was quarrel between her father, Sonu and Monu but she does not know the reason. In her presence her father had not called the police for arrest of Sonu and Monu. It is correct that Monu has been arrested in a rape case. She has admitted it to be correct that her Principal had told her for not keeping the mobile in the school.
From above, it clearly stands established on record that earlier the relations of PW1 Prosecutrix with her neighbours Sonu and Monu were good but after quarrel in the house of Sonu with her father none talked to her 61 of 71 62 FIR No. 210/2009 PS Sultanpuri much. There was quarrel between her father; Sonu and Monu and Monu has been arrested in a rape case. PW1 Prosecutrix was beaten by Prince and Ravi. It appears that because of her (PW1 Prosecutrix) worse relation with neighbours Sonu and Monu, and she being beaten up by Prince and Ravi, PW1 Prosecutrix was feeling insecure and being forbidden by her father/accused Ache Lal to keep/stay away from Prince and in order to secure their trust and friendship and to be in communication with them, she was keeping and taking mobile to her school, for which she was told by her Principal not for keeping the mobile in school. Sonu, Monu and Prince, in order to settle score with accused Ache Lal, father of PW1 Prosecutrix, used PW1 Prosecutrix as a pawn (mohra), to foist allegations against her father and she fell pray to them, which resulted in the filing of complaint by PW1 Prosecutrix Ext. PW1/A. It is also to be noticed that the defence put in the crossexamination of PW1 Prosecutrix is also, fortified by the testimony of DW1 Smt. Savita Sharma, who is the mother of the prosecutrix and is the wife of the accused, who in her examinationinchief (at the cost of repetition) has specifically deposed that her daughter/prosecutrix was not an obedient child. One boy named Sonu used to chase her daughter/prosecutrix. When she used to complaint (complain) her conduct to her father/accused, who used to beat her. Once local police had visited the house of Sonu. At 62 of 71 63 FIR No. 210/2009 PS Sultanpuri one time, her husband Ache Lal was called by accused Sonu saying that his mother is calling him as she wanted to know the budget of the house which she wants to built as he (Ache Lal) had also constructed the house in the recent past. Her husband accused Ache Lal went to the house of Sonu, there he was badly beaten up with fists and leg blows saying that it is he (Ache Lal) who had sent the police to his (Sonu) house, but her husband kept on saying that he did not sent (send) any police to his (Sonu) house. Sonu and his brother then quarreled with other neighbours Neeraj and Dheeraj S/o Jai Prakash and beated them up who did not tolerate and lodged the complaint in the police against Sonu and his brother. Sonu had also demanded Rs. 20,000/ from her husband accused Ache Lal but he did not pay to Sonu as his previous conduct regarding making the repayment was not good as previously her husband Ache Lal had given Rs. 1000/ to elder brother of Sonu but he did not repay it back and he repaid the amount of Rs. 1,000/ only when the present case was registered against her husband accused Ache Lal and when her daughter was brought back to their house from Hari Nagar. For the disobediency of her daughter, it was told her that they do not want to send her for school for studying but she revolted saying that she will go to school. Her daughter used to talk to Sonu on mobile and was not listening to them for not talking to Sonu on mobile. She also told a lie that the mobile 63 of 71 64 FIR No. 210/2009 PS Sultanpuri phone is of some of her friend. She (DW1 Smt. Savita) also went to the school of her daughter/prosecutrix and on being asked by the Principal of the school from her (prosecutrix) as to whom the mobile phone belonged to which her daughter said that she has purchased it from her savings. The mobile phone was containing obscene messages. Her daughter was totally under the influence of Sonu and used to remain absent during the day time and the night time from house and on being questioned about her absence, she used to become violent and revolted. Once a lock was put from outside to a room which was having another entry from inside and what her daughter used to do that she used to open the bolt of the room from outside and used to put the bolt from the inside entry so that no one can come from inside and was thus allowing Sonu to come to the room. Once a lock was put from outside of the room which was told by Sonu to her daughter to break it with the hammer and it was thereby broken by her daughter. Call was made at 100 number and police came and there they put the lock on the room from outside. Her daughter used to quarrel and beat with them and was totally disobedience. She had seen the name of Sonu got tattooed by her daughter, the prosecutrix on her clavical region (breast region). When her daughter was caught talking on mobile phone with Sonu, her mobile was seized, then also she slashed the forearm of her hand with a blade. Once a love letter 64 of 71 65 FIR No. 210/2009 PS Sultanpuri written by her daughter and thrown towards the roof of Sonu was seized by them. One classmate named Himanshu of her daughter also used to visit the house of Sonu. Whenever her daughter used to take the exams she never told about it and used to go after keeping her clothes or uniform in the bag. She used to remain absent from the house on the pretext that she is studying with her classmate at her house. She (DW1 Smt. Savita) had cordial relation with her husband Ache Lal. Her husband Ache Lal occasionally given (gave) slap to her but was not regularly beaten (beating) her. Her husband used to treat prosecutrix just like his son and he never harassed her. Her daughter/prosecutrix implicated her hsuband in this case at the instance of Sonu. Her husband was working in defence force and generally used to remain on duty outside the house. Her daughter/prosecutrix used to sleep with her and she never slept with her father. Accused Ache Lal never asked her daughter/prosecutrix to sleep with him. Her daughter/prosecutrix never complained about the behaviour of her father to her. Whenever she used to visit outside prosecutrix also accompanied her. Once prosecutrix went outside on the pretext of false plea and when she came back to the house, on asking by her husband Ache Lal and when objected to of her going outside in such manner, her daughter once gave blow to her husband by a big spoon (karchi) and also once gave blow by water rod.
65 of 71 66 FIR No. 210/2009 PS Sultanpuri There is nothing in her (DW1 Smt. Savita) crossexamination so as to impeach her creditworthiness. Inspite of incisive crossexamination nothing material has been brought out on the record so as to impeach her creditworthiness. Her testimony is natural, clear, cogent, trustworthy and inspires confidence. She has withstood the rigors of crossexamination. Her testimony is consistent throughout.
Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent of her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (vide Suresh N. Bhusare & Ors. Vs. State of Maharastra (1999) 1 SCC 220).
In Jai Krishna Mandal & Anr. Vs. State of Jharkhan, (2010) 14 SCC 534, the Hon'ble Supreme Court while dealing with the issue held:
"The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story 66 of 71 67 FIR No. 210/2009 PS Sultanpuri projected by the prosecutrix was so improbable that it could not be believed."
In Rajoo & Ors. Vs. State of Madhya Pradesh, Air 2009 SC 858, the Hon'ble Supreme Court held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The court however, further observed:
".......It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication...... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
In Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, the Hon'ble Supreme Court held has under:
67 of 71 68 FIR No. 210/2009 PS Sultanpuri "It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
18. No doubt, as to what has been held by the Hon'ble Supreme Court in Para5 of case titled, State of Himachal Pradesh Vs. Asha Ram AIR 2006 SC 381,
5. .................It is now wellsettled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness.
Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing 68 of 71 69 FIR No. 210/2009 PS Sultanpuri out an otherwise reliable prosecution case."
(underlined by me).
But in the instant case there are compelling reasons for seeking corroboration of the testimony of PW1 Prosecutrix as she has come forward with a version totally conflicting with what she stated in her complaint Ext. PW1/A and in her statement u/s 164 Cr.P.C Ext. PW1/B especially when she was the victim of the alleged onslaught on her by none else than her father that too against her wish.
There are material contradictions and substantial improvements which go to the root of the matter leave alone lack of corroboration in the evidence of the prosecutrix.
Undisputably, neither any neighbour of house of prosecutrix at Haldwani, to whom she told about the activities of her father nor her nani nor her masi nor her cousin, who visited the house of prosecutrix at Haldwani, nor her maternal grand mother, nor mamas, nor her mausas, to whom she disclosed the facts regarding teasing, incident of being forced to watch pornography CDs and beatings given to her by her father, have been cited in 69 of 71 70 FIR No. 210/2009 PS Sultanpuri the list of witnesses nor have been produced and examined by the prosecution.
Moreover, DW2 Deepak Sharma, brother of the prosecutrix as well as PW6 Smt. Savita Sharma (who has also been examined as DW1) mother of the prosecutrix have totally denied the sequence of events as alleged in the complaint Ext. PW1/A, in the statement u/s 164 Cr.P.C Ext. PW1/B and as narrated by PW1 Prosecutrix in her evidence.
In such circumstances, it will be highly dangerous to rely on such version of the prosecutrix in order to support the case of the prosecution, as the version of the PW1 Prosecutrix on the core spectrum of the crime failed to remain intact. Her testimony is found to blemished, unconvincing, untrustworthy and does not inspire confidence. She had an animus against the accused to falsely implicate him in this case.
19. In view of above discussion, I am of the considered opinion that as far as involvement of accused Ache Lal in the commission of the offences punishable u/s 376/506(II) IPC is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, 70 of 71 71 FIR No. 210/2009 PS Sultanpuri the prosecution has not been able to bring guilt home to the accused Ache Lal beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused. I, therefore, acquit accused Ache Lal for offences punishable u/s 376/506(II) IPC after giving him the benefit of doubt. Accused Ache Lal is running in JC. He be released forthwith, if not wanted in any other case. However, on his release accused Ache Lal shall appear in the court and shall execute a bailbond in the sum of Rs. 20,000/ under section 437A Cr.P.C.
Announced in the open Court today on 9th Day of month of November, 2012.
(MAHESH CHAND ER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
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