Delhi District Court
State vs . 1. Manoj on 17 September, 2014
1
FIR No. 416/09
PS - Narela
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 120/13
Unique ID No. : 02404R0080072010
State Vs. 1. Manoj
S/o Late Sh. Bharat Prasad Verma
R/o H. No. 337, Pocket - 8,
Sector - A5, Narela,
Delhi.
2. Raju Gupta
S/o Shri Kapil Dev Gupta
R/o House No. 381, Pocket - 8,
Sector - A5, Narela,
Delhi .
Permanent address :
Village & PO - Hatta,
District - Gorakh Pur, U.P.
3. Marjina @ Gudiya
W/o Sh. Mumtaj Tabiz
R/o H. No. 311, Pocket - 8,
1 of 156
2
FIR No. 416/09
PS - Narela
Sector A5, Narela, Delhi.
(JUVENILE)
FIR No. : 416/09
Police Station : Narela
Under Sections : 363/376/342/368/328/366/
366A/109/506/34 IPC
Date of committal to session Court : 26/04/2010
Date on which judgment reserved : 30/08/2014
Date on which judgment announced : 17/09/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 25/12/2009, complainant Mohd. Sabir S/o Sheikh Mehmood aged 38 years, R/o House No. 360, Pocket 8, Sector A 5, Narela, Delhi went to the Police Station Narela and got recorded his statement to SI Suresh Chand regarding taking/enticing away his daughter/prosecutrix (name withheld) by Manoj Kumar, which is to the effect that, he lives at the above address with his family and runs a stall 2 of 156 3 FIR No. 416/09 PS - Narela of eggs & juice on a rehri. His daughter/prosecutrix (named withheld being a case 376 IPC) studies in 9th Class in Pawar School, Narela, Delhi who on 22/12/2009 at 09:00 a.m., had gone for giving her examination and after her examination, she has not returned back to the house. His daughter/prosecutrix is aged about 14 years, whom he had been searching on his own till now, but she has not been found and he suspects that one boy named Manoj who lives in the neighbourhood on rent has enticed away his daughter/prosecutrix. Search for his daughter/ prosecutrix be made and legal action be taken against Manoj. (Mai Pata Uprokat Par Saparivaar Rehta Hoon Aur Ande Va Juice Ki Rehdi Lagata Hoon. Meri Ladki/prosecutrix (name withheld) Pawar School Narela, Delhi Mei Kaksha Nauvi Mei Padhti Hai, Jo Dinank 22/12/2009 Ko Subah Paper Dene Ke Liye Gai Thi, Jo Paper Dene Ke Baad Ladki Ghar Par Nahi Pahunchi, Meri Ladki Ki Umar Qareeb 14 Saal Hai, Jiski Mai Ab Tak Apne Taur Par Talaash Karta Raha Hoon, Jo Abhi Tak Nahi Mili, Mujhe Shaq Hai Ki Meri Ladki/prosecutrix (name withheld) Ko Manoj Naam Ka Ladka Jo Pados Mei Hi Kiraye Par Rehta Hai BehlaFusla Kar Kahin Le Gaya Hai, Meri Ladki Ki Talaash Karai Jave Va Manoj Ke Khilaaf Kanooni Karyavahi Ki Jave). The statement has been heard and 3 of 156 4 FIR No. 416/09 PS - Narela is correct. On the basis of the statement and from the circumstances finding that offence u/s 363 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Suresh Chand. During the course of investigation, SI Suresh Chand recorded the statements of the witnesses, made search for the prosecutrix and prepared the site plan. During the course of investigation on 26/12/2009, prosecutrix was produced by the complainant Sabir whose recovery memo was prepared and the statements of the witnesses were recorded, medical examination of the prosecutrix was got conducted at BJRM Hospital vide MLC No. 3887 and the sealed exhibits handed over by the Doctor after her medical examination were taken into Police possession. The sealed exhibits were deposited in the Malkhana. The prosecutrix was produced before the Court and order for sending her to Nirmal Chhaya was obtained. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded and the copy of the statement u/s 164 Cr.P.C. of the prosecutrix was obtained and thereupon, sections 376/109/342/366/368/366A/506/34 IPC were added in the case. On 28/12/2009, accused Raju Gupta S/o Kapil Dev Gupta R/o House No. 381, Pocket - 8, Sector - A5, Narela, Delhi after interrogation was 4 of 156 5 FIR No. 416/09 PS - Narela arrested and was produced before the Court and was sent to JC. The statements of the witnesses were recorded. During the course of investigation on 16/01/2010, accused Manoj S/o Late Bharat Prasad Verma R/o House No. 337, Pocket - 8, Sector A5, Narela, Delhi was arrested, his disclosure statement was recorded and his medical examination was got conducted from SRHC Hospital, Narela, vide MLC No. 63/10 and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession and were deposited in the Malkhana. Accused Manoj was produced in the Court and was sent to JC. The statements of the witnesses u/s 161 Cr.P.C. were recorded. Efforts were made to trace out accused Gudiya but nothing could be known about her. The sealed exhibits were sent to the FSL, Rohini.
Upon completion of the necessary further investigation challan for the offences u/s 363/376/342/368/328/366/366A/109/506/34 IPC was prepared against accused Manoj and Raju Gupta and was sent to the Court for trial.
5 of 156 6 FIR No. 416/09 PS - Narela
2. Since the offences u/s 376/366/366A/328 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C., the case against accused Manoj and Raju Gupta was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case against accused Manoj and Raju Gupta to the Court of Session, after hearing on charge prima facie a case u/s 120B IPC, u/s 342/328/363/366/376 (2)(g) IPC r/w section 120B IPC, section 506 r/w section 120B IPC was made out against accused Manoj and Raju Gupta. Charge was framed accordingly on 27/08/2010 against accused Manoj and Raju Gupta which was read over and explained to accused Manoj and Raju Gupta to which they pleaded not guilty and claimed trial.
4. During the course of further investigation, accused Marjina @ Gudiya was arrested and supplementary challan for the offences u/s 363/366/366A/376/342/368/328/109/506/34 IPC was prepared against her and after the compliance of the provisions of section 207 Cr.P.C., the case against accused Marjina @ Gudiya was committed to the Court of 6 of 156 7 FIR No. 416/09 PS - Narela Session u/s 209 Cr.P.C.
5. Upon committal of the case against accused Marjina @ Gudiya to the Court of session and after hearing on charge, prima facie a case under section 363/109 r/w section 120B IPC was made out against accused Marjina @ Gudiya. Charge was framed accordingly, which was read over and explained to accused Marjina @ Gudiya to which she pleaded not guilty and claimed trial.
6. It is to be mentioned that vide order dated 17/11/2012, accused Marjina @ Gudiya was declared a Juvenile and her case was separated and was sent to the Learned Juvenile Justice Board.
7. In support of its case prosecution has produced and examined 18 witnesses. PW1 - Prosecutrix (name withheld), PW2 Smt. Jaura Khatoon, PW3 - W/Constable Preeti, PW4 Mohd. Shabir, PW5 Ranbir, Record Clerk, S.R. Narela Zone MCD, Delhi, PW6 Dr. Mazahar Hussain, MO, SRHC Hospital, Narela, Delhi, PW7 Dr. R. S. Mishra, CMO, BJRM Hospital, Delhi, PW8 HC Arif Khan, PW9 HC 7 of 156 8 FIR No. 416/09 PS - Narela Parveen Kumar, PW10 Constable Dharamveer, PW11 Sh. Satish Kumar, Metropolitan Magistrate, PW12 Constable Vikas Dhama, PW13 Ms. Manisha Upadhyaya, Senior Scientific Officer, FSL, Rohini, Delhi, PW14 Dr. Sumitra, S.R. Gynae, BJRM Hospital, Delhi, PW15 Constable Rajesh, PW16 HC Suresh Kumar, PW17 HC Saheb Singh and PW18 SI Suresh.
8. In brief the witnessography of the prosecution witnesses is as under : PW1 Prosecutrix is the victim, who deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW1/A, bearing her signatures at point 'A'.
PW2 Smt. Jaura Khatoon, is the mother of the prosecutrix who deposed that on 22/12/2009, her daughter/prosecutrix (name withheld) had gone to the School for appearing in the examination in rickshaw. On that day, rickshaw puller which was hired by her returned to her house and told her that her daughter was not present in the School. She again directed rickshaw puller to go to the School as some of the 8 of 156 9 FIR No. 416/09 PS - Narela students come late and on this aspect, she got suspicious and she followed the rickshaw puller. Her daughter was abducted on 22/12/2009. On 25/12/2009 when she was present outside the Police Station for inquiry of her daughter at about 3:00 p.m. she found her daughter in the Police Station. On 26/12/2009 her daughter was produced before Doctor for medical examination and was produced before concerned Court for her statement but due to late, her statement could not be recorded and sent to Nirmal Chhaya and thereafter, on next day the statement of her daughter was recorded by the Magistrate and thereafter, the custody of her daughter was given to her.
PW3 W/Constable Preeti, who deposed that on 26/12/2009, she was posted at PS - Narela and joined investigation with IO SI Suresh Chand and reached at H. No. 360, Pocket - 8, Sector A5, Narela. Where she met with IO, Constable Vikas Dhama, prosecutrix, her father and her mother. They went to Raja Harish Chander Hospital for medical examination of the prosecutrix at about 1:40 p.m. but they were told that no lady Doctor was there. Thereafter, they went to BJRM Hospital where the prosecutrix was medically examined. After the medical 9 of 156 10 FIR No. 416/09 PS - Narela examination the Doctor handed her over 7/8 pullindas which were sealed with the seal of BJRM Hospital alongwith sample seal which she handed over to IO SI Suresh Chand who seized them vide memo Ex. PW3/A bearing her (PW3) signature at point 'A'. So long as the same remained in her custody, nobody tampered with them. The prosecutrix was produced in Room No. 102 at Rohini Courts and as per order of Learned MM she was sent to Nirmal Chhaya at Tihar Jail. IO had recorded her statement.
PW4 Mohd. Shabir, is the father of the prosecutrix who deposed that on 22/12/2009, his daughter who was studying in Sarvodya Kanya Vidyalaya had gone for giving her last examination but she has not turned up from the School after examination. The name of his daughter is prosecutrix (name withheld) whose age was around 14 years. They tried to search for his daughter as (of) their own but could not trace her. He raised suspicion over accused Manoj who was residing in their neighbourhood as previously a quarrel had taken place over the issue of water on a tap installed in the gali. He made a missing report with the Police officials which is Ex. PW4/A which bears his signatures at point 10 of 156 11 FIR No. 416/09 PS - Narela 'A'. After two days later, his daughter alongwith Pritam came to the Police Station on motor cycle and he was also present in the Police Station and she remained one day in the Police Station and on the next day she was got medically examined. Her statement was also got recorded by the IO under section 164 Cr.P.C. in the Court of concerned Learned MM. Thereafter, his daughter was released to him. The date of birth of his daughter is 05/07/1995 and he has got the birth certificate of his daughter/prosecutrix (name withheld) issued by the MCD of NCT of Delhi, the copy of the same is Ex. P1(original seen and returned).
On the leading questions put by Learned Addl. PP for the State, he deposed that it is correct that he has given the statement to the Police officials on 25/12/2009 and thereafter, FIR under section 363 IPC was recorded. On the next day i.e. 26/12/2009, he has not produced his daughter/prosecutrix (name withheld) in the Police Station but she was brought by Pritam in the Police Station in his presence. He had signed the recovery memo of the prosecutrix Ex. PW2/D at point 'A' but he is illiterate and he does not know what was written in that paper and he has signed at the instance of the Police officials.
11 of 156 12 FIR No. 416/09 PS - Narela PW5 Ranbir, Record Clerk, S.R. Narela Zone MCD, Delhi, who deposed that he has brought the birth certificate of prosecutrix (name withheld) D/o Mohd. Sabir and mother's name is Johra Khatoon which was registered in the record MCD, OLR 09126980 registered on 28/04/2009 mentioning her date of birth as 05/07/1999 (Be read as 05/07/1995, as reflected in Date of Birth Certificate Ex. P1). He has also brought the record and the copy of birth certificate already Ex. P1. From the year 2004, the registration of Birth and Death was done online on Computer.
PW6 Dr. Mazahar Hussain, MO, SRHC Hospital, Narela, Delhi, who deposed that he had examined accused Manoj S/o Sh. Bharat Prasad Verma brought by Constable Vikas Dhama on 16/01/2010. As per his examination, he found that there was nothing to suggest that the accused Manoj is unable to perform sexual intercourse. The MLC Ex. PW6/A which is signed by him at point 'A'.
PW7 Dr. R. S. Mishra, CMO, BJRM Hospital, Delhi, who deposed that on 26/12/2009 he examined prosecutrix (name withheld), 12 of 156 13 FIR No. 416/09 PS - Narela D/o Mohd. Sabir brought by Constable Preeti with alleged history of sexual harassment. After preliminary examination, he had referred the patient to the Senior Resident, Gynae for her internal examination. His examination on the MLC is at point 'A' and MLC is Ex. PW7/A signed by him at point 'B'.
PW8 HC Arif Khan, is the Duty Officer who deposed that on 25/12/2009, he was working as DO from 4:00 p.m. to 12:00 p.m. at Police Station - Narela. On that day, SI Suresh Chand has given him a rukka at about 5:45 p.m., on the basis of which he recorded FIR No. 416/09 u/s 363 IPC vide Kyami DD No. 28A. He has brought the FIR register and copy of same is Ex. PW8/A signed by him at point 'A' (OSR).
PW9 HC Parveen Kumar, who deposed that on 16/01/2010 he was posted at Police Station Narela. On that day, he was called by SI Suresh Chand at SRHC Hospital. Accused Manoj was got medically examined concerned Doctor had given two sealed pullindas sealed with the seal of 'SRHC Hospital' alongwith sample seal which was taken into 13 of 156 14 FIR No. 416/09 PS - Narela possession by SI Suresh Chand vide Ex. PW9/A signed by him (PW9) at Point 'A'. Further on 22/05/2010, he alongwith SI Suresh Chand and W/Constable Mamta went to the house of accused Marjeena @ Guriya situated at H. No. 392, Pocket 8, Sector A5, Narela for apprehending the accused Marjeena @ Guriya. She was available at home and after preliminary investigation by W/Constable Mamta she was arrested by SI Suresh Chand vide arrest memo Ex. PW9/B signed by him (PW9) at Point 'A'. Her personal search was also conducted by W/Constable Mamta and personal search memo was prepared and the same is Ex. PW9/C signed by him (PW9) at Point 'A'. He correctly identified accused Marjeena @ Gudia present in the Court.
PW10 Constable Dharamveer, who deposed that on 25/12/2009, he was posted at Police Station Narela. On that day, he was present at the Police Station. He was called by the Duty Officer who handed over to him a computerized copy of FIR and asal tehrir of this case for giving the same to SI Suresh Chand at the spot that is Pawar School, Narela. He (PW10) went there and handed over original tehrir and copy of FIR to the IO at the spot. On 28/12/2009, he was with SI 14 of 156 15 FIR No. 416/09 PS - Narela Suresh Chand in the investigation of this case. When they were present at Sector A5, Pocket 8, Narela, complainant Shabir met them who stated to the IO that wanted accused Raju Gupta was present in his house and, if raided, he can be apprehended. They all went towards the house of Raju Gupta and at the instance of complainant Shabir a person named Raju standing in the gali was apprehended. He was arrested after preliminary investigation. Arrest memo was prepared. Same is Ex. PW10/A signed by him at Point 'A'. His personal search was also conducted vide memo Ex. PW10/B signed by him at Point 'A'. The information about his arrest was given to the mother of accused Raju. He was got medically examined from SRCH (SRHC) Hospital and they all returned to the Police Station. He correctly identified accused Raju Gupta present in the Court.
PW11 Sh. Satish Kumar, Metropolitan Magistrate, who deposed that on 27/12/2009 an application for recording the statement of victim/prosecutrix (name withheld) under section 164 Cr.P.C. was assigned to him as he was Duty Magistrate in Rohini Courts. The victim was produced before him and she was identified by IO SI Suresh. After 15 of 156 16 FIR No. 416/09 PS - Narela asking some preliminary questions about her age and after ascertaining her voluntariness of giving the statement, he recorded her statement. Her statement is Ex. PW1/A signed by him at point 'B'. He has also appended a certificate regarding voluntarily and without any pressure or coercion statement given by victim same is signed by him at point 'C'. Thereafter, he has allowed to give the photocopy of the statement to the IO on his application vide order at point 'A' on the application Ex. PW11/A (also Ex. PW18/D in the evidence of PW18 - SI Suresh), thereafter, Ahlmad was directed to send the copy in the sealed envelope to the concerned Court of Learned ACMM and signed by him at point 'D'.
PW12 Constable Vikas Dhama, who deposed that on 26/12/2009, he was posted at Police Station Narela as Constable. On that day, he joined the investigation of this case with SI Suresh Chand and they went to Sector - A5, Pocket 8, Narela at the house of Mohd. Shabir where he produced his daughter/prosecutrix (name withheld). The recovery memo was also prepared by SI Suresh Chand at his house when prosecutrix (name withheld) was produced by Shabir. Memo in 16 of 156 17 FIR No. 416/09 PS - Narela this respect is already Ex. PW4/B signed by him (PW12) at point 'B'. A Lady Constable was also called by the IO from the Police Station and statement of prosecutrix (name withheld) was recorded by the IO. Thereafter, prosecutrix was sent alongwith Lady Constable Preeti who came at the spot from Police Station for medical examination to SRHC Hospital but no Lady Doctor was available then she was taken to BJRM Hospital. After medical examination, Women Constable Preeti took the pullindas from the concerned Doctor and handed over to IO SI Suresh Chand who took the same into possession vide memo already exhibited as Ex. PW3/A which bears his signatures at point 'B'. The prosecutrix was then produced in the Court and as per order of the Learned concerned MM, Rohini, she was sent to Nirmal Chaya. Again on 16/01/2010, he joined the investigation of this case with SI Suresh Chand and went to Pocket - 8, A5, Narela, where complainant Shabir met them and alongwith him they went to main gali Pocket - 8, Sector A5, Narela where a person was coming from front side of the gali and at the instance of Shabir he was apprehended and on interrogation his name revealed as Manoj and he was arrested vide arrest memo Ex. PW12/B signed by him at point 'A'. His personal search was conducted vide 17 of 156 18 FIR No. 416/09 PS - Narela memo Ex. PW12/C signed by him at point 'A'. Thereafter, HC Parveen was called at the spot and on his arrival accused Manoj was sent to SRHC Hospital for his medical examination and after medical examination, the concerned Doctor had given two sealed pullindas and a sample seal sealed with the seal of SRHC Hospital, and the same was taken into possession vide memo already exhibited as Ex. PW9/A signed by him at point 'A'. Thereafter, accused Manoj was produced in the Court then they all returned to the Police Station and IO had recorded his statement. Disclosure statement of accused Manoj was also recorded at the spot same is Ex. PW12/D signed by him at point 'A'. He correctly identified accused Manoj present in the Court.
PW13 Ms. Manisha Upadhyaya, Senior Scientific Officer, FSL, Rohini, Delhi, who proved the biological and the serological reports Ex. PW13/A, Ex. PW13/B respectively and signed by her at points 'A'.
PW14 Dr. Sumitra, S. R. Gynae, BJRM Hospital, Delhi, who deposed that on 26/12/2009, at about 3:50 p.m. one 18 of 156 19 FIR No. 416/09 PS - Narela patient/prosecutrix (name withheld) D/o Shabir was brought to the Hospital by Constable Preeti in the Casualty Ward and after preliminary examination she was referred to SR Gynae for internal examination as she was with the alleged history of sexual assault. She was working in the Hospital as SR Gynae and therefore, she examined the patient/prosecutrix (name withheld). On examination the patient was conscious oriented with the time, place and person. On local examination of breast no fresh external injuries on her both breast. Menstrual history LMP (Last Mensuration Period) was 25/12/2009. On perinium examination bleeding plus as patient is menstruating. On per vaginal examination, introitous admitted two finger easily. Hymen torn out. The patient was sent for bone XRay for age determination. Her examination is from 'C' to 'C1' on MLC Ex. PW7/A signed by her at point 'A'. Patient was accompanied by her mother and her approval was taken in writing before examination internally. Approval is at point 'E' on MLC Ex. PW7/A signed by her mother Johra Khatoon at point 'F'.
PW15 Constable Rajesh, who deposed that on 12/03/2010, he was posted at PS Narela. On that day as per the order of IO SI 19 of 156 20 FIR No. 416/09 PS - Narela Suresh Chand, he took three sealed parcels and two sample seals from MHC(M) vide RC No. 43/21/10 and deposited the same in FSL Rohini in intact condition. FSL officials also gave the acknowledgment of the pullindas and the same was deposited with MHC(M) after returning to PS. As long as pullindas remained with him same were not tampered with. One sample was sealed with the seal of BJRMH Jahangir Puri, Delhi and other two samples were sealed with the seal of SRHC Hospital, Narela, Delhi. His statement was also recorded by IO.
PW16 HC Suresh Kumar, is the MHC(M) who deposed that on 26/12/2009, he was posted as MHC(M) at PS Narela. On that day, SI Suresh Chand had deposited seventeen sealed pullindas alongwith sample seal in the Malkhana. He made entry at serial no. 372 of register No. 19. He has brought register no. 19, the copy of relevant entry is Ex. PW16/A (OSR). The sealed pullindas remained intact during his custody. On 16/01/2010, SI Suresh Chand had also deposited two sealed pullindas sealed with the seal of SRHC alongwith sample seal in the Malkhana. He made entry at Serial No. 19. The copy of the relevant entry of register No. 19 is Ex. PW16/B (OSR). On 12/03/2010 on the 20 of 156 21 FIR No. 416/09 PS - Narela instructions of the IO, 19 sealed pullindas were handed over to Constable Rajesh for depositing in FSL, Rohini vide RC No. 43/21/10. After depositing the pullindas, he had deposited the acknowledgment receipt in the Malkhana. He has brought the copy of the register No. 21 also. The copy of the relevant entry is Ex. PW16/C (also Ex. PW17/A in the evidence of PW17 - HC Saheb Singh) and the copy of the acknowledgment receipt is Ex. PW16/D (OSR) (also Ex. PW17/B in the evidence of PW17 HC Saheb Singh). The sealed pullinda remained intact during his custody.
PW17 HC Saheb Singh, is the MHC(M) who deposed that on 12/03/2010, he was posted as MHC(M) at PS Narela. On that day, on the instructions of SI Suresh Chand, he had sent nineteen sealed pullindas alongwith sample seal through Constable Rajesh in the FSL vide RC No. 43/21/10. After depositing the pullindas in FSL, Constable Rajesh had deposited the acknowledgment receipt with him. He has brought register No. 21, the copy of relevant entry is Ex. PW17/A (also Ex. PW16/C in the evidence of PW16 - HC Suresh Kumar) and copy of acknowledgment receipt is Ex. PW17/B (OSR) (also Ex. PW16/D in 21 of 156 22 FIR No. 416/09 PS - Narela the evidence of PW16 - HC Suresh Kumar).
PW18 SI Suresh is the Investigating Officer (IO) who deposed that on 25/12/2009, he was posted as SI PS Narela. On that day, complainant Mohd. Sabeer came in the Police Station, he recorded his statement which is already Ex. PW4/A and attested his signatures at point 'A' bearing his signatures at point 'A'. He prepared rukka Ex. PW18/A bearing his signatures at point 'A'. Rukka was handed over to Duty Officer for registration of the FIR. Thereafter, he alongwith Constable Mukesh and complainant Mohd. Sabeer reached at the spot i.e. H. No. 360, Pocket 8, Sector A5, Narela and he made enquiry from Smt. Jaura Khatoon the mother of the prosecutrix. Thereafter, he alongwith the complainant and Constable Mukesh reached at Pawar School, Narela and there he prepared the site plan at the instance of the complainant. The site plan is Ex. PW18/B bearing his signatures at point 'A'. They came at the house of Mohd. Sabeer. Constable Dharambir handed over to him the copy of the FIR and the original rukka. He searched for the accused and prosecutrix but not found. He recorded the statement of the witnesses and came back to the Police Station. On 22 of 156 23 FIR No. 416/09 PS - Narela 26/12/2009, he alongwith Constable Vikas Dhama reached at the house of the complainant where they met Mohd. Sabeer and he told that his daughter had come at the house. He called the Lady Constable. Lady Constable Preeti came there. Mohd. Sabeer produced the prosecutrix (name withheld). The recovery memo was prepared in this regard which is already Ex. PW4/B bearing his signatures at point 'C'. Thereafter, the prosecutrix was taken to SRHC Hospital alongwith her mother but no Lady Doctor was available there so she was taken to BJRM Hospital for medical examination. She was medically examined and doctor handed over the pullindas containing the exhibit which were seized vide memo already Ex. PW3/A bearing his signatures at point 'C'. Thereafter, they reached in Rohini Court and prosecutrix was produced in the Court. He moved an application Ex. PW18/C bearing his signature at point 'A' for recording of statement of prosecutrix (name withheld) u/s 164 Cr.P.C. The application was adjourned for 27/12/2009. Prosecutrix was sent to Nirmal Chhaya. On 27/12/2009 prosecutrix (name withheld) was produced in the Court and her statement was recorded u/s 164 Cr.P.C. Thereafter, he moved an application Ex. PW18/D bearing his signature at point 'A' for obtaining the copy of the statement and he obtained the 23 of 156 24 FIR No. 416/09 PS - Narela copy. Prosecutrix was handed over to her parents. On 28/12/2009, he alongwith Constable Dharambir reached at the house of the complainant and complainant Sabeer was joined in the investigation. He told that accused Raju Gupta is present at his house, if raided he can be apprehended. Thereafter, they proceeded to the house of Raju Gupta and accused Raju Gupta was apprehended at the instance of complainant from outside his house. He was interrogated and arrested vide memo already Ex. PW10/A, his personal search was conducted vide memo Ex. PW10/B both bearing his signatures at point 'B'. Accused Raju Gupta was taken to SRHC Hospital where he was medically examined and thereafter, they came back to Police Station and accused was sent to Police lockup. On 29/12/2009 accused Raju Gupta was produced in the Court and sent to J.C. On 16/01/2010, he alongwith Constable Vikas Dhama had gone to Pocket 8, Sector A5, Narela for the investigation of the present case where they met with the complainant Mohd. Sabeer. Thereafter, they reached in the main gali of Pocket 8, Sector A5, Narela and there at the instance of complainant apprehended accused Manoj he was interrogated and arrested vide arrest memo already Ex. PW12/B, his personal search was conducted vide memo Ex. PW12/C 24 of 156 25 FIR No. 416/09 PS - Narela bearing his signature at point 'X'. He (accused Manoj) made disclosure statement Ex. PW12/D bearing his signatures at point 'X'. HC Praveen was called at the spot. Accused Manoj was taken into SRHC Hospital for medical examination he was medically examined and after medical examination Doctor handed over two sealed pullindas alongwith sample seal which were seized vide memo Ex. PW9/A bearing his signatures at point 'X'. Accused was sent to Police lockup. On 17/01/2010 accused Manoj was produced in the Court and sent to JC. On 12/03/2010 the exhibits were sent to FSL through Constable Mukesh vide RC No. 43/21/10. He recorded the statement of witnesses. After completing the investigation, challan was prepared against the accused Raju Gupta and Manoj. Accused Marjina @ Gudia (juvenile) was later on arrested and her supplementary chargesheet was filed. Later on the FSL result was collected and filed in the Court. Accused Manoj and Raju Gupta are present in the Court.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
25 of 156 26 FIR No. 416/09 PS - Narela
9. At the cost of repetition, it is to be mentioned that vide order dated 17/11/2012, accused Marjina @ Gudiya was declared a Juvenile and her case was separated and was sent to the Learned Juvenile Justice Board.
10. Statements of accused Manoj and Raju Gupta were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Both the accused opted to lead defence evidence and in their defence examined one witness namely DW1 - Ms. Husan Ara @ Munni D/o Abdul Manaan R/o House No. 346, Pocket - 8, Sector - A5, Narela, Delhi.
DW1 - Ms. Husan Ara @ Munni, has deposed that prosecutrix (name withheld) was residing in the same gali where she (DW1) was residing. Their houses were situated opposite to each other. They were friend and she knows her from the childhood. She alongwith prosecutrix (name withheld) were studying in Class IX in Sarvodya Kanya Vidyalya. She (prosecutrix) was in love with Manoj Bhai and everybody in the gali knows about it. Even her parents were also 26 of 156 27 FIR No. 416/09 PS - Narela knowing about it. Once the parents of prosecutrix (name withheld) had given beatings to Manoj Bhai and due to this he remained admitted in Raja Harish Chand Hospital for about one month and during this period contact between two were not possible. After coming from the Hospital, Manoj Bhai remained at house on cot. Prosecutrix (name withheld) used to write letters for Manoj, sometimes by the name of Anjali and sometimes by the name of prosecutrix (name withheld) and she used to give letters to her (DW1) which she used to give Manoj. On 22/12/2009, there was last paper of 2nd term. After giving the paper she (DW1) alongwith prosecutrix (name withheld) and 2/3 other friends came down on the ground floor of their School. She saw that she (prosecutrix) was going with 2/3 other friends from the back gate. She (DW1) inquired from her (prosecutrix) as to where she is going. She (prosecutrix) told her that she (prosecutrix) will tell later on. In the evening, the younger sister of prosecutrix (name withheld) came to her (DW1) for calling her. She went to the house of prosecutrix (name withheld) and the mother of prosecutrix (name withheld) inquired from her (DW1) about prosecutrix (name withheld). She (DW1) told her (mother of the prosecutrix) that she is not aware about her (prosecutrix) and questioned the mother of 27 of 156 28 FIR No. 416/09 PS - Narela prosecutrix (name withheld) whether she (prosecutrix) had not turned up? Mother of prosecutrix (name withheld) threatened her (DW1) to disclose about the whereabouts of prosecutrix (name withheld) otherwise she will report the matter to the Police. She (mother of prosecutrix) had also threatened her (DW1) that she will implicate the Pradhan of the locality and also implicate her (DW1) mother but she (DW1) show (showed) her ignorance. Thereafter, she (DW1) came back to her home. After some time she (DW1) came to know that their colony Pradhan has been apprehended by the Police. She (DW1) came to know that Manoj is also missing from the night of 22/12/2009.
The testimony of the defence witness shall be dealt with in detail during the course of appreciation of evidence.
11. Learned Counsel for accused Manoj submitted that there is delay of three days in registration of the FIR. The father of the prosecutrix Mohd. Sabir and his family members did not report the matter to the Local Police on the date of incident i.e. 22/12/2009, and the matter was reported to the Police by the father of the prosecutrix only on 28 of 156 29 FIR No. 416/09 PS - Narela 25/12/2009. Learned Counsel further submitted that there is no evidence to establish the charge that the prosecutrix had been kidnapped by the accused on 22/12/2009, when she had gone to appear in her examination. The place/room where the prosecutrix was charged to be kept has not been identified either by the prosecutrix or has come into investigation by the IO of the case and it is nowhere on record as to who was the landlord of the premises and no witness was made to corroborate the prosecution story on the point of kidnapping of the prosecutrix. It demolishes the charge of kidnapping of the prosecutrix by the accused person. Learned Counsel further submitted that as per the statement of the prosecutrix, during her kidnapping and confinement for three days by the accused Manoj she was only once raped by the accused Manoj and later on she never had any forcible sexual act with the accused Manoj. Prosecutrix further stated that they (accused persons) did not put any physical pressure upon her. Learned Counsel further submitted that as per the medical report no external injuries were observed on the private parts of the prosecutrix. Learned Counsel further submitted that it is to be noted that the medical examination has been conducted by the Doctor same day after the production of the prosecutrix to the IO. Learned 29 of 156 30 FIR No. 416/09 PS - Narela Counsel further submitted that no investigation was made by the IO to confirm the offence of rape by conducting extensive and intensive enquiries of the place where the rape was alleged to have been committed. Learned Counsel further submitted that the case of the prosecutrix is that she had love affairs with the accused Manoj and she did not want any action against him which she had given in writing to the Police (not exhibited). Learned Counsel further submitted that it is implied that the family members of the prosecutrix due to difference of religions, concocted the story of the prosecutrix being minor (aged about 14 years) and implicated the accused in this false case. Learned Counsel further submitted that for the proof of age of the prosecutrix MCD Certificate was given to the Police and the same was obtained after the alleged incident. Despite the opinion of the Doctor for the bone age no such examination was conducted by the IO and no School certificate of the prosecutrix was taken by the IO to establish the actual age of the prosecutrix. Learned Counsel further submitted that the arrest memo of the accused Manoj Ex. PW12/B states that the accused was arrested on 16/01/2010, at 12:55 p.m. by the IO and the information of his arrest was given to his mother namely Smt. Sheela Devi. The Ex. PW12/B was 30 of 156 31 FIR No. 416/09 PS - Narela witnessed by Mohd. Sabir, father of the prosecutrix. This arrest of the accused reveals that it is nothing but a sham arrest by the father of the prosecutrix through the IO. There is no reason to explain why the accused was arrested after 20 days of the FIR specially when he was always available at his residence and in the area and it is not the case of the IO that the accused was hiding or evading his arrest. Learned Counsel further submitted that the FSL Report Ex. PW13/B clearly states that no definite and conclusive opinion could be formed by the experts after having analysed the samples of blood of the prosecutrix, therefore, no reliance can be placed on it. Learned Counsel further submitted that the site plan Ex. PW18/B prepared by the IO at the instance of the father of the prosecutrix does not show the actual and factual position from where the prosecutrix was taken because no adjoining shops, building and constructions have been shown in the site plan. Learned Counsel further submitted that no site plan has been prepared at the instance of the prosecutrix as to where she was kept confined for three days and was raped by the accused. This infirmity hits at the very root of the case. Learned Counsel further submitted that the IO during the entire investigation has not made any public witness either at the place of 31 of 156 32 FIR No. 416/09 PS - Narela kidnapping or at the place of confinement and rape or during the other proceedings of arrest, recovery etc. entire investigation has been done by the IO with single witness i.e. father of the prosecutrix and none else. The other witnesses who were even named in the investigation i.e. Pritam, Meena, Sabnam, Chunna and Badal were not investigated by the IO and even Prem Chand, Rickshaw puller was not investigated on the point that whether the prosecutrix had really hired the rickshaw for coming and going to School on that day. Learned Counsel further submitted that there are contradictions in the prosecution story. The prosecutrix in her statement u/s 161 Cr.P.C. stated to the IO that when she came out of her School she immediately saw her friend Guria who asked her to go with her and after having just walked ten steps she saw that Raju and Manoj were standing with a Bike and her friend Guria asked her to sit with them on the Bike and go to her home while the prosecutrix in her statement u/s 164 Cr.P.C. stated that when she came out of the School she saw her friend Guria standing with accused Raju and Manoj with a Bike and she forcibly put her on the bike between them and she was made unconscious with some substance in the handkerchief of the accused and was taken to some place while the prosecutrix in the 32 of 156 33 FIR No. 416/09 PS - Narela Court stated that she was having headache and got unconscious and was also aware of the entire happenings during the period. Learned Counsel further submitted that the prosecutrix stated that she was taken to Police Station by Pritam and Chunna and she saw the (sister of) accused Manoj standing at the gate of the Police Station who gave beatings to her with threat of not reporting the matter to the Police against him. The mother of the prosecutrix states that she was left to her house. The IO states that when he was called to the residence of the prosecutrix by her father she was produced by her father to the IO and IO recorded her statement and asked the Lady Constable (PW3) to reach there and she reached after sometime and took the prosecutrix for medical examination. Learned Counsel further submitted that accused Manoj was pressurised by the father of the prosecutrix to change his religion and become Muslim and this meeting was held on 2425/12/2009 at the house of the accused Manoj and it also proved that the prosecutrix was very much available at her residence and story of kidnapping is framed when the accused refused to convert him. Learned Counsel further submitted that the personal search memo (Ex. 12/C) of the accused Manoj also reveals that accused was lifted from his residence and thereafter arrested in this case 33 of 156 34 FIR No. 416/09 PS - Narela because nothing has been recovered in this case because nothing has been recovered from the personal search of the accused. Learned Counsel further submitted that the prosecutrix herself stated that she was not aware of bad intention of the accused persons that is why she did not raise her voice when she was going on bike of the accused. She again states that she was unconscious that is why she did nothing. She further states that she was having headache and did nothing and she lastly states that no physical pressure was put upon her by the accused persons. Learned Counsel further submitted that the alleged story of the prosecution is false and accused Manoj has been falsely implicated in this case and the prosecution has failed to prove its case beyond reasonable doubt against accused Manoj and prayed for the acquittal of the accused Manoj on all the charges levelled against him.
12. Learned Counsel for accused Raju Gupta submitted that nothing has been recovered from accused Raju Gupta and no such place, the room where the prosecutrix claimed to have been raped by accused Manoj has been identified by the prosecutrix. Learned Counsel further submitted that accused Raju Gupta is not connected with the alleged 34 of 156 35 FIR No. 416/09 PS - Narela offence and there is no evidence collected by the Police against him and the prosecution has failed to prove its case beyond reasonable doubt. Learned Counsel further submitted that prosecution has examined PW1
- prosecutrix, PW2 - Smt. Jaura Khatoon, mother of the prosecutrix and PW4 - Mohd. Shabbir, father of the prosecutrix and they have not corroborated the prosecution story or the Police officials including the IO which shows that the case has been drafted after sitting in the Police Station and accused Raju Gupta has been fixed in this case. Learned Counsel further submitted that PW4 - Mohd. Shabbir, who is the father of the prosecutrix made a complaint in writing regarding missing of his daughter in PS - Narela, Delhi on 25/12/2009 where he specifically mentioned that the name of the suspect is Manoj and further stated in Ex. PW4/A that his daughter has studied in Pawar School, Narela, Delhi in 9th Class. Thereafter, IO registered the FIR on 25/12/2009 on the basis of Ex. PW4/A and prepared a site plan which is Ex. PW18/B of Pawar School. He further submitted that while PW4 - Mohd. Shabbir in the Court has deposed that, "On 22/12/2009, my daughter, who was studying in Sarvodaya Kanya Vidhalaya had gone for giving her last examination", which creates a big doubt in the prosecution story regarding the first 35 of 156 36 FIR No. 416/09 PS - Narela place of occurrence, where the prosecutrix was alleged to be raped, that is why no such witnesses were made in this case of the School, no such motorcycle was recovered in the possession of the accused persons, even no such room was identified by the prosecutrix, hence, the alleged story of gang rape is false. Learned Counsel further submitted that PW14 - Dr. Sumitra, SR, Gynae, BJRM Hospital, Delhi has deposed that the patient was sent for Bone XRay for age determination but the IO had not taken an initiative to done the Bone XRay of prosecutrix, to determine the actual age of the prosecutrix at the time of alleged offence and in the crossexamination of PW18 - SI Suresh has stated that, "No Bone XRay for age determination of the prosecutrix was got conducted." It clearly shows that the Police officials manipulated this thing regarding the age of the prosecutrix. Learned Counsel further submitted that the date of birth certificate given by PW4 Mohd. Shabbir to the Police Ex. P1, is registered in the same year of FIR i.e. 28/04/2009 and the FIR registered on 25/12/2009 with planning as the accused Manoj and PW1 - prosecutrix fall in love since long time and they want to marry each other. In the crossexamination, PW4 - Mohd Shabbir has admitted that, "I am living in Narela for the last 10 years and the certificate was issued 36 of 156 37 FIR No. 416/09 PS - Narela by officials of MCD,. Narela, Delhi". It clearly shows that PW4 - Mohd. Shabbir and the prosecutrix were living in Narela, Delhi for the last 10 years and the registration of the date of birth of the prosecutrix in MCD, Narela, Delhi is intentionally and deliberately registered in the same year when the present case could be registered. Learned Counsel further submitted that PW1 - prosecutrix and PW4 - Mohd. Shabbir have stated in their examinationinchief that, "Pritam and Chunna took me to Police Station and at the gate of the Police Station, the sister of Manoj gave me beatings and threatened me to depose in favour of Manoj and make the statement that I myself had gone with accused Manoj with my consent. I remained in the Police Station for one night." PW4 - Mohd. Shabbir stated that, "After two days later, my daughter alongwith Pritam came to the Police Station on motorcycle and I was also present in the Police Station and she remained one day in the Police Station and on the next day, she was medically examined". But no Police officials stated this theory that the prosecutrix came in the Police Station with other two persons and no such persons were made witness in this case by the Police officials. PW18 - SI Suresh in his examinationinchief has stated that, "On 26/12/2009, I alongwith Constable Vikas Dhama reached at the 37 of 156 38 FIR No. 416/09 PS - Narela house of the complainant where we met Mohd. Shabbir and he told that his daughter had come at the house." In his crossexamination, PW18 - SI Suresh denied the suggestions that, "It is wrong to suggest that the prosecutrix of, own her, had come to the Police Station on 24/12/2009. It is wrong to suggest that any Panchayat was held on 24/12/2009 and on 25/12/2009, at the Police Station and in the said Panchayat, Raju Gupta, being the Pradhan of the colony was also present or that after the Panchayat was disbursed, finding Raju Gupta alone at the Police Station, he was falsely implicated in this case". Learned Counsel further submitted that defence witness DW1 - Hussan Aara @ Munni has been examined which supports the case of the accused and in her cross examination by the Learned Addl. PP for the State, she has stated, "when prosecutrix (name withheld) used to give the letter to me for handing over the same to Manoj, I had not told about this fact to the mother and father of Manoj. Vol. Parents of prosecutrix (name withheld) were knowing about this. I did not refuse to prosecutrix (name withheld) for handing over her letter to Manoj as she was my friend". Learned Counsel further submitted that the alleged story of the prosecution is false and accused Raju Gupta has been falsely implicated in this case and 38 of 156 39 FIR No. 416/09 PS - Narela the prosecution has failed to prove its case beyond reasonable doubt against accused Raju Gupta and prayed for the acquittal of the accused Raju Gupta on all the charges levelled against him. Learned Counsel referred to a case and is reported as 'State Vs. Hasim' 2014 (2) LRC 258 (Del).
13. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
14. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State, Sh. G. P. Singh, Learned Counsel for accused Manoj and Sh. Rajesh Parashar, Learned Counsel for accused Raju Gupta and have also carefully perused the entire record.
15. The charge for the offences punishable u/s 120B IPC, u/s 39 of 156 40 FIR No. 416/09 PS - Narela 342/328/363/366/376(2)(g) IPC r/w section 120B IPC and section 506 IPC r/w section 120B IPC against accused Manoj and Raju Gupta is that on 22/12/2009 at about 11:30 a.m. at outside the Pawar School, Narela, within the jurisdiction of PS - Narela, both the said accused alongwith coaccused Gudiya (since declared juvenile) in furtherance of their common intention agreed to kidnap prosecutrix (name withheld) D/o Mohd. Sajid Khan, aged - 14 years for forcing and seducing her to illicit intercourse and that on the abovesaid date, time and place within the jurisdiction of PS - Narela, both of them alongwith coaccused Gudiya (since declared juvenile) in furtherance of their common intention in pursuance of abovesaid criminal conspiracy kidnapped the prosecutrix (name withheld) D/o Mohd. Sajid Khan aged 14 years without her consent and out of the lawful guardianship of her parents after giving poisonous substance and wrongfully confined and accused Manoj committed rape upon prosecutrix and that on the abovesaid date, time and place both the said accused alongwith coaccused Gudiya (since declared juvenile) in furtherance of their abovesaid criminal conspiracy threatened the prosecutrix with dire consequences if she disclose the above facts to anyone.
40 of 156 41 FIR No. 416/09 PS - Narela
16. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
17. PW1 - prosecutrix during her crossexamination has specifically deposed that "My date of birth is 05/07/1995."
PW4 - Mohd. Shabir, father of the prosecutrix during his examinationinchief has deposed that the date of birth of his daughter/prosecutrix is 05/07/1995 and he had got the Birth Certificate of his daughter/prosecutrix issued by the MCD of Delhi, the copy of the same is Ex. P1.
During his crossexamination PW4 - Mohd. Sabir has deposed that : 41 of 156 42 FIR No. 416/09 PS - Narela "My daughter/prosecutrix was studying in 9th Class at the time of incident. I am having six daughters and one son. The prosecutrix is my eldest daughter aged 14 years and her name is prosecutrix (name withheld). Name of my other daughters are Shistra Banno aged about 10 years, Khusboo aged about 09 years, my son Altaf aged about 08 years and other younger children. My youngest child is aged about two years. I do not know the year of my marriage. My eldest daughter was born in 1995 I do not remember after how much time of my marriage she was born."
During his crossexamination, PW4 - Mohd. Sabir negated the suggestion that Ex. P1 was procured after the incident on 28/04/2009.
PW5 Ranbir, Record Clerk, S.R. Narela Zone MCD, Delhi has deposed that he has brought the birth certificate of prosecutrix (name withheld) D/o Mohd. Sabir and mother's name is Johra Khatoon which was registered in the record MCD, OLR 09126980 registered on 28/04/2009 mentioning her date of birth as 05/07/1999 (Be read as 05/07/1995, as reflected in Date of Birth Certificate Ex. P1). He has also brought the record and the copy of birth certificate already Ex. P1. From the year 2004, the registration of Birth and Death was done online on Computer.
42 of 156 43 FIR No. 416/09 PS - Narela There is nothing in crossexamination of PW1 - prosecutrix, PW4 - Mohd. Sabir and PW5 - Ranbir, so as to impeach their creditworthiness. Nor any evidence to the contrary has been produced or proved on record on behalf of the accused.
In the circumstances, it stands proved on the record that the date of birth of PW1 - prosecutrix is 05/07/1995.
As the date of alleged incident is 22/12/2009 and the date of birth of prosecutrix is 05/07/1995, on simple arithmetical calculation, the age of prosecutrix comes to 14 years, 05 months and 17 days as on the date of incident on 22/12/2009.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 14 years, 05 months and 17 days as on the date of alleged incident on 22/12/2009.
18. Learned Counsel for accused submitted that for the proof of 43 of 156 44 FIR No. 416/09 PS - Narela age of the prosecutrix MCD Certificate was given to the Police and the same was obtained after the alleged incident. Despite the opinion of the Doctor for the bone age no such examination was conducted by the IO and no School certificate of the prosecutrix was taken by the IO to establish the actual age of the prosecutrix.
I have carefully perused and analysed the evidence on record.
The evidence with regard to the age of the prosecutrix has been reproduced, discussed and analysed hereinabove under the heading, "Age of the Prosecutrix", and at the cost of repetition, it stands established on the record that PW1 - prosecutrix was aged 14 years, 05 months and 17 days as on the date of alleged incident on 22/12/2009.
So far as the plea raised by the Learned Counsel for the accused that the MCD Certificate of the age proof of the prosecutrix was obtained after the alleged incident is concerned, it is found to have no substance in view of the testimony of PW5 Ranbir, RecordClerk, SR, Narela Zone, MCD, Delhi as discussed hereinabove, who has specifically deposed that, he has brought the birth certificate of 44 of 156 45 FIR No. 416/09 PS - Narela prosecutrix (name withheld) D/o Mohd. Sabir and mother's name is Johra Khatoon which was registered in the record MCD, OLR 09126980 registered on 28/04/2009 mentioning her date of birth as 05/07/1999 (Be read as 05/07/1995, as reflected in Date of Birth Certificate Ex. P1). He has also brought the record and the copy of birth certificate already Ex. P1. From the year 2004, the registration of Birth and Death was done online on Computer.
From the testimony of PW5 - Ranbir, it is clearly indicated that the date of birth of PW1 prosecutrix was registered in the MCD Office on 28/04/2009 which is undisputably, much prior to the alleged date of incident on 22/12/2009, in the circumstances, it does not indicate in any manner that the MCD certificate as the age proof of the prosecutrix was obtained after the alleged incident.
Moreover, the theory floated by the Learned Counsel for the accused that, "MCD Certificate as proof of age of the prosecutrix (Ex. P1) was obtained after the alleged incident" has not at all been made probable much established by any cogent evidence. PW4 - Mohd.
45 of 156 46 FIR No. 416/09 PS - Narela Shabir, father of the prosecutrix during his crossexamination has categorically negated the suggestion that Ex. P1 was procured after the incident on 28/04/2009.
As regards the plea that despite the opinion of the Doctor for the bone age, no such examination was conducted by the IO is concerned, PW18 - SI Suresh IO during his crossexamination has specifically deposed that, "No bone XRay for age determination of the prosecutrix was conducted". He negated the suggestion that no bone X Ray for age determination of the prosecutrix was got conducted as prosecutrix was major.
As regards the plea that no School Certificate of the prosecutrix was taken by the IO to established the age of the prosecutrix is concerned, it is evident from the record that during the cross examination of PW18 - SI Suresh, none of the said accused voiced their concerns or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For 46 of 156 47 FIR No. 416/09 PS - Narela failure to do so, accused are to blame themselves and none else.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In case "Jarnail Singh Vs. State of Haryana", 2013 VII AD (S.C.) 313 in para 20, the Hon'ble Supreme Court has held that, it would be just and appropriate to apply Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
In the instant case, since the date of birth certificate given by the Corporation or a Municipality Authority of PW1 - prosecutrix as provided under Rule 12 (3)(a)(iii) is available, therefore, the same is adopted as the highest rated first available basis in terms of the scheme of options under clause (a) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
47 of 156 48 FIR No. 416/09 PS - Narela In the circumstances, for failure to get conduct bone XRay for age determination of the prosecutrix by the IO, does not falsify the case of the prosecution witnesses which is otherwise proved on record by clear, cogent and convincing evidence.
It is pertinent to reproduce para 20 of Jarnail Singh's case (Supra) of the Hon'ble Supreme Court which reads as under : "On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to hereinabove reads as under : "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the 48 of 156 49 FIR No. 416/09 PS - Narela observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating 49 of 156 50 FIR No. 416/09 PS - Narela the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, 50 of 156 51 FIR No. 416/09 PS - Narela in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
19. PW7 Dr. R. S. Mishra, CMO, BJRM Hospital, Delhi has 51 of 156 52 FIR No. 416/09 PS - Narela deposed that on 26/12/2009 he examined prosecutrix (name withheld), D/o Mohd. Sabir brought by Constable Preeti with alleged history of sexual harassment. After preliminary examination, he had referred the patient to the Senior Resident, Gynae for her internal examination. His examination on the MLC is at point 'A' and MLC is Ex. PW7/A signed by him at point 'B'.
During his crossexamination, PW7 - Dr. R. S. Mishra has deposed that : "It is correct that when the patient was brought to you (be read as 'me') she was not suffering any external physical injury."
PW14 Dr. Sumitra, S. R. Gynae, BJRM Hospital, Delhi has deposed that on 26/12/2009, at about 3:50 p.m. one patient/prosecutrix (name withheld) D/o Shabir was brought to the Hospital by Constable Preeti in the Casualty Ward and after preliminary examination she was referred to SR Gynae for internal examination as she was with the alleged history of sexual assault. She was working in the Hospital as SR Gynae and therefore, she examined the patient/prosecutrix (name withheld). On examination the patient was conscious oriented with the time, place and person. On local examination of breast no fresh external 52 of 156 53 FIR No. 416/09 PS - Narela injuries on her both breast. Menstrual history LMP (Last Mensuration Period) was 25/12/2009. On perinium examination bleeding plus as patient is menstruating. On per vaginal examination, introitous admitted two finger easily. Hymen torn out. The patient was sent for bone XRay for age determination. Her examination is from 'C' to 'C1' on MLC Ex. PW7/A signed by her at point 'A'. Patient was accompanied by her mother and her approval was taken in writing before examination internally. Approval is at point 'E' on MLC Ex. PW7/A signed by her mother Johra Khatoon at point 'F'.
Despite grant of opportunity, PW14 Dr. Sumitra was not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical examination at point 'A' on the MLC Ex. PW7/A and the gynaecological examination from point 'C' to 'C1' on the MLC Ex. PW7/A of PW1 - prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED MANOJ
20. PW6 Dr. Mazahar Hussain, MO, SRHC Hospital, Narela, 53 of 156 54 FIR No. 416/09 PS - Narela Delhi has deposed that he had examined accused Manoj S/o Sh. Bharat Prasad Verma brought by Constable Vikas Dhama on 16/01/2010. As per his examination, he found that there was nothing to suggest that the accused Manoj is unable to perform sexual intercourse. The MLC Ex. PW6/A which is signed by him at point 'A'.
During his crossexamination, PW6 - Dr. Mazahar Hussain has deposed that the patient was brought on 16/01/2010 and the MLC Ex. PW6/A is in his hand.
There is nothing in the crossexamination of PW6 Dr. Mazahar Hussain so as to impeach his creditworthiness.
In view of above and in the circumstances, it stands proved on the record that accused Manoj was capable for performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
21. PW13 Ms. Manisha Upadhyaya, Senior Scientific Officer, FSL, Rohini, Delhi has proved the biological and the serological reports Ex. PW13/A, Ex. PW13/B respectively and signed by her at points 'A'.
54 of 156 55 FIR No. 416/09 PS - Narela As per biological report Ex. PW13/A the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '1'.
Exhibit '1' : One dirty brassiere. Parcel '2' : One sealed envelope sealed with the seal of
"BJRMH J.PURI DELHI" containing exhibit '2'. Exhibit '2' : Cotton wool swab on a stick kept in a tube alongwith plastic bottle of fluid described as 'Body fluid collection' marked as step 4.
Parcel '3' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '3a' and '3b'. Exhibit '3a' : Dark brown foul smelling liquid kept in a tube described as 'oxalate blood' marked as Step '15' alongwith syringe.
Exhibit '3b' : Dirty brownish liquid kept in a plastic container described as urine marked as step 15 alongwith syringe.
Parcel '4' : One sealed envelope sealed with the seal of 55 of 156 56 FIR No. 416/09 PS - Narela "BJRMH J.PURI DELHI" containing exhibit '4'. Exhibit '4' : Few strands of hair described as matted pubic hair marked as step '8' kept in a paper.
Parcel '5' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '5'. Exhibit '5' : One empty paper described as Debri collection marked as step '4' kept unexamined as Nothing was found in it.
Parcel '6' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '6a' and '6b'. Exhibit '6a' : Cotton wool swab on a stick kept in a tube described as oral swab marked as step '13'.
Exhibits '6b1' : Two microslides having faint whitish smear described & '6b2' as oral swab marked as step '13', kept in a plastic case.
Parcel '7' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '7'. Exhibit '7' : Dark brown foul smelling liquid kept in two separate tubes alongwith syringe described as 'Blood collection of victim marked as step '14'.
Parcel '8' : One sealed envelope sealed with the seal of 56 of 156 57 FIR No. 416/09 PS - Narela "BJRMH J.PURI DELHI" containing exhibit '8a' and '8b'. Exhibit '8a' : Dirty cotton wool swab on a stick kept in a tube described as Rectal examination marked as step '12'. Exhibits '8b1' : Two microslides having faint whitish smear described & '8b2' as Rectal examination marked as step '12', kept in a plastic case.
Parcel '9' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '9'. Exhibit '9' : Few strands of hair alongwith comb kept in a paper described as combing of pubic hair marked as step '6'.
Parcel '10' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '10'. Exhibit '10' : Few nail clippings kept in a paper alongwith nail cutter described as 'Nail scrapping' marked as step '4' Parcel '11' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '11'. Exhibit '11' : Dirty yellowish liquid kept in a syringe alongwith small rubber pipe described as 'Washing from Vagina' marked as step '11'.
57 of 156 58 FIR No. 416/09 PS - Narela Parcel '12' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '12'. Exhibit '12' : Cotton wool swab on a stick described as Breast swab marked as '5'.
Parcel '13' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '13'. Exhibit '13' : Cotton wool swab on a stick alongwith tube of fluid described as culture marked as step '10'.
Parcel '14' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '14'. Exhibit '14' : A bunch of hair kept in a paper described as clipping of pubic hair marked as step '7' alongwith scissor. Parcel '15' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '15'. Exhibit '15' : Dirty cotton wool swab on a stick kept in a tube described as 'Cervical mucous Collection (c) marked as step '9'.
Parcel '16' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '16'. Exhibit '16' : Cotton wool swab on a stick kept in a paper described 58 of 156 59 FIR No. 416/09 PS - Narela as in between fingers marked as step '4'.
Parcel '17' : One sealed envelope sealed with the seal of "BJRMH J.PURI DELHI" containing exhibit '17'. Exhibit '17' : One forcep kept in a paper described as debri collection marked as step '4' kept unexamined as nothing was found in it.
Parcel '18' : One sealed envelope sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '18'. Exhibit '18' : Dark brown foul smelling liquid kept in a tube described as 'Blood sample'.
Parcel '19' : One sealed envelope sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '19'. Exhibit '19' : Few strands of hair kept in a bottle described as 'Pubic hair'.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '3a', '7' and '18'.
2. Semen could not be detected on exhibits '1', '2', '3b', '4', '6a', '6b1', '6b2', '8a', '8b1', '8b2', '9', '10', '11', '12', '13', '14', '15', '16' and '19'.
3. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'FSL MU DELHI'.
59 of 156 60 FIR No. 416/09 PS - Narela The serological report Ex. PW13/B reads as under: Exhibits Species of origin ABO Grouping/Remarks '3a' Blood sample Sample blood putrefied hence no opinion '7' Blood sample Sample blood putrefied hence no opinion '18' Blood sample Sample blood putrefied hence no opinion As per the biological report Ex. PW13/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 to 17 belong to the prosecutrix which were seized vide seizure memo Ex. PW3/A dated 26/12/2009 and Parcel Nos. 18 & 19 belong to accused Manoj which were seized vide seizure memo Ex. PW9/A dated 16/01/2010.
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '3a' (Oxalate Blood of the prosecutrix), on exhibit '7' (Blood collection of the prosecutrix) and on exhibit '18' (Blood 60 of 156 61 FIR No. 416/09 PS - Narela sample of accused Manoj) and semen could not be detected on exhibit '1' (Brassiere of the prosecutrix), exhibit '2' (Body fluid collection of the prosecutrix), exhibit '3b' (Urine sample of the prosecutrix), exhibit '4' (Matter pubic hair of the prosecutrix), exhibit '6a' (Oral swab of the prosecutrix), exhibit '6b1' (Oral swab of the prosecutrix), exhibit '6b2' (Oral swab of the prosecutrix), exhibit '8a' (Rectal examination of the prosecutrix), exhibit '8b1' (Rectal examination of the prosecutrix), exhibit '8b2' (Rectal examination of the prosecutrix), exhibit '9' (Combing of pubic hair of the prosecutrix), exhibit '10' (Nail scrapping of the prosecutrix), exhibit '11' (Washing from vagina of the prosecutrix), exhibit '12' (Breast swab of the prosecutrix), exhibit '13' (Culture of the prosecutrix), exhibit '14' (Clipping of pubic hair alongwith scissor of the prosecutrix), exhibit '15' (Cervical mucous collection (c) of the prosecutrix), exhibit '16' (In between fingers of the prosecutrix) and exhibit '19' (Pubic hair of the accused Manoj). As per the serological report Ex. PW13/B, no opinion could be given on the blood samples exhibit '3a' (Blood Sample of the prosecutrix), exhibit '7' (Blood Sample of the prosecutrix), & exhibit '18' (Blood Sample of accused Manoj) as the blood samples were putrefied.
61 of 156 62 FIR No. 416/09 PS - Narela It is also to be noticed that the period of alleged incident is from 22/12/2009 to 26/12/2009 when the recovery of the prosecutrix was made vide recovery memo Ex. PW4/B dated 26/12/2009 and the medical and the gynaecological examination of the prosecutrix was conducted vide MLC Ex. PW7/A on 26/12/2009 and the sealed exhibits of the prosecutrix were seized vide seizure memo Ex. PW3/A dated 26/12/2009. During the said interregnum, it cannot be ruled out that prosecutrix must have taken the bath, changed her clothes and must have answered the call of nature a number of times and for the said reasons it appears that the semen could not be detected on exhibit '1', '2', '3b', '4', '6a', '6b1', '6b2', '8a', '8b1', '8b2', '9', '10', '11', '12', '13', '14', '15', '16' and '19', as detailed hereinabove of the prosecutrix.
22. Learned Counsel for accused submitted that the FSL Report Ex. PW13/B clearly states that no definite and conclusive opinion could be formed by the experts after having analysed the samples of blood of 62 of 156 63 FIR No. 416/09 PS - Narela the prosecutrix, therefore, no reliance can be placed on it.
I have carefully perused and analysed the evidence on record.
The biological and serological evidence, vide reports Ex. PW13/A and Ex. PW13/B has been reproduced, discussed and analysed hereinabove. In the circumstances, no further discussion is called for on the plea so raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Now let the testimonies of PW1 - Prosecutrix, PW2 - Jaura Khatoon, mother of the prosecutrix and PW4 - Mohd. Shabir, father of the prosecutrix be perused and analysed.
PW1 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 22/12/2009 at about 11:30 a.m. I was waiting at the gate of my school for a rickshaw for the purpose to return my house as on that 63 of 156 64 FIR No. 416/09 PS - Narela day I had appeared in my examination of class 9th. In the meantime, accused Guria who was residing in the same vicinity where I was residing came and signaled me to come near her. On her signal I went to near her as I thought that she would inquire for her sister. She asked me as for what purpose I am waiting. I replied that I am waiting for a rickshaw. She insisted me to drop me at my house but I inclined (declined) and replied her that I would only go in a rickshaw. Despite my refusal she forcibly hold my hand and put me on sit on a bike on which accused Manoj and Raju Gupta were riding. Accused Manoj and Raju Gupta, present in the Court today. Accused Raju inhaled some substance in front of my nose with a handkerchief after that I become some unconscious and I feel headache. When I regained consciousness I found myself in a room where accused Manoj and Raju were present. When I asked Manoj as to why I was brought there and when I cried accused Manoj threatened to kill my father and brother. I was given beatings. Accused Manoj committed rape upon me against my will. As far as I remember, accused Manoj was driving the motorcycle and Raju Gupta was pillion rider and I was keep on sit in between Manoj and Raju. I was confined for a period of three days in a room and I cannot tell the place where I was confined. After three days accused Manoj Gupta left the room. Thereafter, three four women namely Guriya present in the Court today, Meena, Shabnam and the mother of accused alongwith two other persons namely Pritam and Chunna came there and forcibly wrote from me that I myself with my consent had gone with accused Manoj. Thereafter, Pritam and Chunna took me to the Police Station and at the gate of Police Station the sister of Manoj gave me beatings and threatened me to depose in favour of accused Manoj and make the statement that I myself had gone with accused Manoj with my consent. I remained in the Police Station for one night. Police officials interrogated 64 of 156 65 FIR No. 416/09 PS - Narela me and I stated before the Police as I had stated today. Thereafter, Police officials got medically examined me from BJRM Hospital. I also made my statement before Magistrate under Section 164 Cr.P.C. Ex. PW1/A bearing my signatures at point 'A'."
From the aforesaid narration of PW1 - prosecutrix, it is clear that on 22/12/2009 at about 11:30 a.m. she was waiting at the gate of her school for a rickshaw for the purpose to return her house as on that day she had appeared in her examination of class 9th. In the meantime, accused Guria who was residing in the same vicinity where she (prosecutrix) was residing came and signaled her (prosecutrix) to come near her. On her signal she (prosecutrix) went near her as she (prosecutrix) thought that she (Guria) would inquire for her sister. She (Guria) asked her (prosecutrix) as for what purpose she (prosecutrix) is waiting. Prosecutrix replied that she is waiting for a rickshaw. Guria insisted her to drop her at her house but she declined and replied her (Guria) that she (prosecutrix) would only go in a rickshaw. Despite her (prosecutrix) refusal she (Guria) forcibly hold her hand and put her on sit on a bike on which accused Manoj and Raju Gupta were riding. Accused Manoj and Raju Gupta, present in the Court. Accused Raju inhaled 65 of 156 66 FIR No. 416/09 PS - Narela some substance in front of her (prosecutrix) nose with a handkerchief after that she became some unconscious and she felt headache. When she regained consciousness she found herself in a room where accused Manoj and Raju were present. When she asked Manoj as to why she was brought there and when she cried accused Manoj threatened to kill her father and brother. She was given beatings. Accused Manoj committed rape upon her against her will. As far as she remember, accused Manoj was driving the motorcycle and Raju Gupta was pillion rider and she was keep on sit in between Manoj and Raju. She was confined for a period of three days in a room and she could not tell the place where she was confined. After three days accused Manoj Gupta left the room. Thereafter, three four women namely Guriya present in the Court, Meena, Shabnam and the mother of accused alongwith two other persons namely Pritam and Chunna came there and forcibly wrote from her that she herself with her consent had gone with accused Manoj. Thereafter, Pritam and Chunna took her to the Police Station and at the gate of Police Station the sister of Manoj gave her beatings and threatened her to depose in favour of accused Manoj and make the statement that she herself had gone with accused Manoj with her consent. She remained in 66 of 156 67 FIR No. 416/09 PS - Narela the Police Station for one night. Police officials interrogated her and she stated before the Police as she had stated in the Court during her examination. Thereafter, Police officials got medically examined her from BJRM Hospital. She also made her statement before Magistrate under Section 164 Cr.P.C. Ex. PW1/A bearing her signatures at points 'A'."
PW1 - Prosecutrix during her crossexamination has negated the suggestions that father of Manoj used to give her tuition at her house or that when she sat on the motorcycle she was fully conscious or that she alongwith Manoj went outside many times or that she is deposing falsely or that her father had quarreled with husband of Magina (Marjina @ Gudiya) or that Magina (Marjina @ Gudiya) was not present at the spot at that time or that she was having love affair with accused Manoj or that she herself took the assistance of Magina (Marjina @ Gudiya) or that she is deposing falsely at the instance of her parents or that she was called by the accused Manoj nor the accused Gudiya.
Inspite of incisive crossexamination of PW1 - Prosecutrix, 67 of 156 68 FIR No. 416/09 PS - Narela nothing material has been brought out so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW1 - prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence as well as the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement Ex. PW1/A recorded u/s 164 Cr.P.C. bearing her signatures at points 'A'.
The testimony of PW1 - Prosecutrix is also found to be corroborated by PW2 - Jaura Khatoon, mother of the prosecutrix 68 of 156 69 FIR No. 416/09 PS - Narela and PW4 - Mohd. Shabir, father of the prosecutrix to whom prosecutrix disclosed the facts relating to the crime shortly after the incident, at the first available opportunity, being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW2 - Jaura Khatoon in her examinationinchief has deposed that : "On 22/12/2009, my daughter/prosecutrix (name withheld) had gone to the School for appearing in the examination in rickshaw. On that day, rickshaw puller which was hired by me returned to my house and told me that my daughter was not present in the School. I again directed rickshaw puller to go to the School as some of the students come late and on this aspect, I got suspicious and I followed the rickshaw puller. My daughter was abducted on 22/12/2009. On 25/12/2009 when I was present outside the Police Station for inquiry of my daughter at about 3:00 p.m. I found my daughter in the Police Station. On 26/12/2009 my daughter was produced before Doctor for medical examination and was produced before concerned Court for her statement but due to late, her statement could not be recorded and sent to Nirmal Chhaya and thereafter, on next day the statement of my daughter was recorded by the Magistrate and thereafter, the custody of my daughter was given to me."
From the aforesaid narration of PW2 - Jaura Khatoon, it is 69 of 156 70 FIR No. 416/09 PS - Narela clear that on 22/12/2009, her daughter/prosecutrix (name withheld) had gone to the School for appearing in the examination in rickshaw. On that day, rickshaw puller which was hired by her (PW2) returned to her house and told her that her daughter was not present in the School. She again directed rickshaw puller to go to the School as some of the students come late and on this aspect, she got suspicious and she followed the rickshaw puller. Her daughter was abducted on 22/12/2009. On 25/12/2009 when she was present outside the Police Station for inquiry of her daughter at about 3:00 p.m., she found her daughter in the Police Station. On 26/12/2009 her daughter was produced before Doctor for medical examination and was produced before concerned Court for her statement but due to late, her statement could not be recorded and she was sent to Nirmal Chhaya and thereafter, on next day the statement of her daughter was recorded by the Magistrate and thereafter, the custody of her daughter was given to her.
During her crossexamination PW2 - Jaura Khatoon has negated the suggestions that she quarreled with Manoj or that due to quarrel with Manoj and his mother, she (PW2) got the accused Manoj 70 of 156 71 FIR No. 416/09 PS - Narela falsely implicated in this case or that Raju Gupta was falsely implicated in the present case as he was self styled leader in the locality or that she had given beatings to accused Manoj or that her daughter and Manoj were seen by the locality people together.
PW4 - Mohd. Shabir in his examinationinchief has deposed that : "On 22/12/2009, my daughter who was studying in Sarvodya Kanhya (Kanya) Vidyalaya had gone for giving her last examination but she has not turned up from the school after examination. The name of my daughter is prosecutrix (name withheld) whose age was around 14 years. We tried to search for my daughter as our own but could not trace her. I raised suspicion over accused Manoj who was residing in our neighbourhood as previously a quarrel had taken place over the issue of water on a tap installed in the gali. I made a missing report with the police officials which is Ex. PW4/A which bears my signatures at point 'A'. After two days later, my daughter alongwith Pritam came to the police station on motor cycle and I was also present in the police station and she remained one day in the police station and on the next day she was got medically examined. Her statement was also got recorded by the IO under section 164 Cr.P.C. in the Court of concerned Learned MM. Thereafter, my daughter was released to me. The date of birth of my daughter is 05/07/1995 and I have got the birth certificate of my daughter/prosecutrix (name withheld) issued by the MCD of NCT of Delhi, the copy of the same is Ex. P1 (original seen and 71 of 156 72 FIR No. 416/09 PS - Narela returned)."
On leading questions put by the Learned Addl. PP for the State, the witness deposed that : "It is correct that I have given the statement to the police officials on 25/12/2009 and thereafter, FIR under section 363 IPC was recorded.
On the next day i.e 26/12/2009, I have not produced my daughter/prosecutrix (name withheld) in the police station but she has brought by Pritam in the police station in my presence. I have signed the recovery memo of the prosecutrix Ex.PW2/D at point A but I am illiterate and I do not know what was written in that paper and I have signed at the instance of the police officials."
From the aforesaid narration of PW4 - Mohd. Shabir, it is clear that the on 22/12/2009, his daughter who was studying in Sarvodya Kanya Vidyalaya had gone for giving her last examination but she has not turned up from the school after examination. The name of his daughter is prosecutrix (name withheld) whose age was around 14 years. they tried to search for his daughter as (of) their own but could not trace her. He raised suspicion over accused Manoj who was residing in their neighbourhood as previously a quarrel had taken place over the issue of 72 of 156 73 FIR No. 416/09 PS - Narela water on a tap installed in the gali. He made a missing report with the police officials which is Ex. PW4/A which bears his signatures at point 'A'. After two days later, his daughter alongwith Pritam came to the police station on motor cycle and he (PW4) was also present in the police station and she remained one day in the police station and on the next day she was got medically examined. Her statement was also got recorded by the IO under section 164 Cr.P.C. in the Court of concerned Learned MM. Thereafter, his daughter was released to him. The date of birth of his daughter is 05/07/1995 and he had got the birth certificate of his daughter/prosecutrix (name withheld) issued by the MCD of NCT of Delhi, the copy of the same is Ex. P1.
During his crossexamination PW4 - Mohd. Shabir has negated the suggestions that his daughter/prosecutrix (name withheld) nick name in the house is Anjali or that there was an affair between his daughter and Manoj or that his neighbourers also helped in searching out his daughter or that he had a quarrel with accused Guriya after his daughter was taken by the accused or that his neighbour Pritam had searched his daughter Vol. His daughter herself came back to the Police 73 of 156 74 FIR No. 416/09 PS - Narela Station alongwith Pritam or that they had also quarreled with Raju Gupta accused prior to the incident or that accused Raju Gupta and Guriya have no role in kidnapping of his daughter and he has falsely implicated them due to rival terms or that Ex. P1 was procured after the incident on 28/04/2009 or that Manoj used to come to their house or that he (PW4) used to insist him (accused Manoj) to convert his Dharam or that any Panchyat was ever held at the house of Raju Gupta for conversion of religion of Manoj or that since accused Manoj refused to convert his religion hence he has been falsely implicated in this case or that there was an affair between prosecutrix and accused Manoj or that she (prosecutrix) wrote a number of love letters to the accused (Manoj) or that accused (Manoj) is innocent and has been falsely implicated in this case or that he (PW4) deliberately not identifying the hand writing of his daughter.
There is nothing in the crossexamination of PW2 - Jaura Khatoon and PW4 - Mohd. Shabir so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying 74 of 156 75 FIR No. 416/09 PS - Narela the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII (S.C.)1] their testimonies are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
24. While analysing the testimonies of PW1 Prosecutrix, PW2
- Jaura Khatoon, her mother and PW4 - Mohd. Shabir, her father as discussed hereinabove inspite of incisive crossexamination of PW1 Prosecutrix, PW2 - Jaura Khatoon and PW4 - Mohd. Shabir nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions by the defence to PW1 Prosecutrix that father of Manoj used to give her tuition at her house or that when she sat on the motorcycle she was fully conscious or that she alongwith Manoj went outside many times or that she is deposing falsely or that her father had quarreled with husband of Magina (Marjina @ Gudiya) or that Magina (Marjina @ Gudiya) was not present at the spot at that time or that she was having love affair with accused Manoj or that she herself took the assistance of Magina (Marjina 75 of 156 76 FIR No. 416/09 PS - Narela @ Gudiya) or that she is deposing falsely at the instance of her parents or that she was called by the accused Manoj nor the accused Gudiya the suggestions to PW2 - Jaura Khatoon that she quarreled with Manoj or that due to quarrel with Manoj and his mother, she (PW2) got the accused Manoj falsely implicated in this case or that Raju Gupta was falsely implicated in the present case as he was self styled leader in the locality or that she had given beatings to accused Manoj or that her daughter and Manoj were seen by the locality people together and the suggestions to PW4 - Mohd. Shabir that his daughter/prosecutrix (name withheld) nick name in the house is Anjali or that there was an affair between his daughter and Manoj or that his neighbourers also helped in searching out his daughter or that he had a quarrel with accused Guriya after his daughter was taken by the accused or that his neighbour Pritam had searched his daughter Vol. His daughter herself came back to the Police Station alongwith Pritam or that they had also quarreled with Raju Gupta accused prior to the incident or that accused Raju Gupta and Guriya have no role in kidnapping of his daughter and he has falsely implicated them due to rival terms or that Ex. P1 was procured after the incident on 28/04/2009 or that Manoj used to come to 76 of 156 77 FIR No. 416/09 PS - Narela their house or that he (PW4) used to insist him (accused Manoj) to convert his Dharam or that any Panchyat was ever held at the house of Raju Gupta for conversion of religion of Manoj or that since accused Manoj refused to convert his religion hence he has been falsely implicated in this case or that there was an affair between prosecutrix and accused Manoj or that she (prosecutrix) wrote a number of love letters to the accused (Manoj) or that accused (Manoj) is innocent and has been falsely implicated in this case or that he (PW4) deliberately not identifying the hand writing of his daughter, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.
However, a futile attempt has been made by the accused to save their skins from the clutches of law by way of examination of a defence witness namely DW1 - Husan Ara @ Munni.
DW1 - Husan Ara @ Munni in her examinationinchief 77 of 156 78 FIR No. 416/09 PS - Narela had deposed that : "Prosecutrix (name withheld) was residing in the same gali where she (DW1) was residing. Their house were situated opposite to each other. They were friend and she know her from the childhood. She alongwith prosecutrix (name withheld) were studying in Class IX in Sarvodya Kanya Vidyalya. She prosecutrix (name withheld) was in love with Manoj Bhai and everybody in the gali knows about it. Even her parents were also knowing about it. Once the parents of prosecutrix (name withheld) had given beatings to Manoj Bhai and due to this he remained admitted in Raja Harish Chand Hospital for about one month and during this period contact between two were not possible. After coming from the Hospital, Manoj Bhai remained at house on cot. Prosecutrix (name withheld) used to write letters for Manoj, sometimes by the name of Anjali and sometimes by the name of prosecutrix (name withheld) and she used to give letters to her (DW1) which she used to give Manoj.
On 22/12/2009, there was last paper of 2nd term. After giving the paper she (DW1) alongwith prosecutrix (name withheld) and 2/3 other friends came down on the ground floor of their School. She saw that she prosecutrix (name withheld) was going with 2/3 other friends from the back gate. She (DW1) inquired from her as to where she is going. She told her that she prosecutrix (name withheld) will tell later on. In the evening, the younger sister of prosecutrix (name withheld) came to her (DW1) for calling her. She went to the house of prosecutrix (name withheld) and the mother of prosecutrix (name withheld) inquired from her (DW1) about prosecutrix (name withheld). She told her that she is not aware about her and questioned the mother of prosecutrix (name withheld) whether she had not turned up? Mother of 78 of 156 79 FIR No. 416/09 PS - Narela prosecutrix (name withheld) threatened her (DW1) to disclose about the whereabouts of prosecutrix (name withheld) otherwise she will report the matter to the Police. She had also threatened her that she will implicate the Pradhan of the locality and also implicate her (DW1) mother but she (DW1) show (showed) her ignorance. Thereafter, she came back to her home. After some time she came to know that their colony Pradhan has been apprehended by the Police. She came to know that Manoj is also missing from the night of 22/12/2009."
During her crossexamination DW1 - Husan Ara @ Munni has deposed that she knows accused Manoj since her childhood. His father was giving her tuitions. The house of Manoj is at a distance of about 5/10 distance walking from her house.
On careful perusal and analysis of the testimony of DW1 Husan Ara @ Munni, it is found that she is a well known of accused Manoj and during her examinationinchief she has floated a theory that, "On 22/12/2009, there was last paper of 2nd term. After giving the paper she (DW1) alongwith prosecutrix (name withheld) and 2/3 other friends came down on the ground floor of their School. She saw that she prosecutrix (name withheld) was going with 2/3 other 79 of 156 80 FIR No. 416/09 PS - Narela friends from the back gate. She (DW1) inquired from her as to where she is going. She told her that she prosecutrix (name withheld) will tell later on" but the said theory so propounded has not at all being made probable, much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded by DW1 - Husan Ara @ Munni was put either to PW1 - prosecutrix or to PW2 - Jaura Khatoon, mother of the prosecutrix or to PW4 - Mohd. Shabir, father of the prosecutrix during their incisive and lengthy cross examination. Nor even a single word regarding the said theory so propounded by DW1 - Husan Ara @ Munni was uttered by the accused during their statements recorded u/s 313 Cr.P.C. In the circumstances, the said theory, so floated, is merely an afterthought and falls flat on the ground.
During her crossexamination by the Learned Addl. PP for the State, DW1 - Husan Ara @ Munni has deposed that she knows accused Manoj since her childhood. His father was giving her tuitions. The house of Manoj is at a distance of about 5/10 distance walking from her house. However, during the later part of her crossexamination, 80 of 156 81 FIR No. 416/09 PS - Narela DW1 Ms. Husan Ara @ Munni has taken a complete Uturn and has deposed that she knows Manoj since she was in 9th Class. Manoj was not studying in her School in which she was studying, she knows Manoj through prosecutrix (name withheld).
It is also to be noticed that DW1 Ms. Husan Ara @ Munni during her crossexamination by the Learned Addl. PP for the State has deposed that : "On 22/12/2009 while I was returning to my house from the school, I had not told to the parents of prosecutrix (name withheld) about prosecutrix (name withheld) not coming with me from the school and I had seen her going with Gayatri, Savita and Sarita."
DW1 Ms. Husan Ara @ Munni during her later part of crossexamination has deposed that : "Q. You have deposed in your examinationinchief that mother of prosecutrix (name withheld) threatened you to disclose the whereabouts of prosecutrix (name withheld) otherwise she will report the matter to the police and will implicate the Pradhan of the locality and also implicate your mother. Did you tell these facts to your mother and the Pradhan of the locality ?
A. My mother was accompanying me when such threat was given by mother of prosecutrix (name withheld) and she (my mother) has heard the same. I had not told about the said fact to the 81 of 156 82 FIR No. 416/09 PS - Narela Pradhan of the locality."
"Q. I put it to you that mother of prosecutrix (name withheld) had told you that if you would not disclose about the whereabouts of prosecutrix (name withheld) then she (mother of prosecutrix (name withheld)) will report the matter to the police ?
A. It is correct."
From the aforesaid narration of DW1 Ms. Husan Ara @ Munni, when on 22/12/2009, she was knowing the whereabouts of prosecutrix (name withheld) and that she had seen her (prosecutrix) going with Gayatri, Savita and Sarita, it is not explained by her (DW1) as to why she did not disclose the same to the mother of the prosecutrix? What was the hurdle?, despite the fact that she (DW1) admitted it to be correct that mother of prosecutrix (name withheld) had told her that if she (DW1) would not disclose about the whereabouts of the prosecutrix then she (mother of prosecutrix) will report the matter to the Police.
In the circumstances, the testimony of DW1 - Husan Ara @ Munni does not inspire confidence and she is a procured witness.
82 of 156 83 FIR No. 416/09 PS - Narela
25. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : 83 of 156 84 FIR No. 416/09 PS - Narela "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of the medical examination at point 'A' on the MLC Ex. PW7/A, gynaecological examination from portion 'C' to 'C1' on MLC Ex. PW7/A of PW1 - prosecutrix, biological and serological evidence Ex. PW13/A and Ex. PW13/B, together with the MLC of accused Manoj Ex. PW6/A, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis or by partial penetration of the penis, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the 84 of 156 85 FIR No. 416/09 PS - Narela record, of the performance of the act of sexual intercourse by accused Manoj with PW1 - Prosecutrix against her will acting in furtherance of their common intention with accused Raju Gupta.
26. Learned Counsel for accused submitted that there is delay of three days in registration of the FIR. The father of the prosecutrix Mohd. Sabir and his family members did not report the matter to the Local Police on the date of incident i.e. 22/12/2009, and the matter was reported to the Police by the father of the prosecutrix only on 25/12/2009.
I have carefully perused and analysed the evidence on record.
PW4 - Mohd. Sabir, father of the prosecutrix during his examinationinchief has specifically deposed that : "On 22/12/2009, my daughter who was studying in Sarvodya Kanhya (Kanya) Vidyalaya had gone for giving her last examination but she has not turned up from the school after examination. The name of my daughter is prosecutrix (name withheld) whose age was around 14 years. We tried to search for my daughter as our own but could not trace her. I raised suspicion over accused Manoj 85 of 156 86 FIR No. 416/09 PS - Narela who was residing in our neighbourhood as previously a quarrel had taken place over the issue of water on a tap installed in the gali. I made a missing report with the police officials which is Ex. PW4/A which bears my signatures at point 'A'."
On a leading question put by the Learned Addl. PP for the State, the witness deposed that : "It is correct that I have given the statement to the police officials on 25/12/2009 and thereafter, FIR under section 363 IPC was recorded....."
From the aforesaid narration of PW4 - Mohd. Sabir, it is clearly indicated that on 22/12/2009, when his daughter/prosecutrix, who was studying in School and had gone for giving her last examination and did not turn up from the School after examination and he tried to search for her of his own but could not trace her, thereafter, he on 25/12/2009 made a missing report with the Police Ex. PW4/A bearing his signature at point 'A'.
The sight cannot be lost of the fact that there are several factors which weigh in the mind of the family members of the 86 of 156 87 FIR No. 416/09 PS - Narela prosecutrix before coming to the Police Station to lodge a complaint and that PW4 - Mohd. Sabir, being the father of the prosecutrix, finding his daughter missing since 22/12/2009, firstly of his own had made efforts to search for her and when he could not trace her, then in the compelled circumstances he reported the matter to the Police on 25/12/2009 vide Ex. PW4/A. During his crossexamination conducted on behalf of accused Manoj, PW4 - Mohd. Sabir has specifically deposed that : "We searched our daughter firstly at the School, other person's houses known to us at Pocket - 11."
There is nothing in the crossexamination of PW4 - Mohd. Sabir so as to impeach his creditworthiness.
In the circumstances, the delay in reporting the matter to the Police sufficiently and satisfactorily stands explained.
Delay in lodging of FIR is a normal phenomenon especially in cases like rape or outraging the modesty of a women, the aggrieved or the injured person or her relations will naturally think twice before 87 of 156 88 FIR No. 416/09 PS - Narela giving a complaint to the police (Ref. Mohd. Habib Vs. State (Delhi Administration) 1989 CRLJ 137 (Delhi).
The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather 88 of 156 89 FIR No. 416/09 PS - Narela than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less 89 of 156 90 FIR No. 416/09 PS - Narela before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
90 of 156 91 FIR No. 416/09 PS - Narela In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for accused submitted that there is no evidence to establish the charge that the prosecutrix had been kidnapped by the accused on 22/12/2009, when she had gone to appear in her examination. The place/room where the prosecutrix was charged to be kept has not been identified either by the prosecutrix or has come into investigation by the IO of the case and it is nowhere on record as to who was the landlord of the premises and no witness was made to corroborate the prosecution story on the point of kidnapping of the prosecutrix. It demolishes the charge of kidnapping of the prosecutrix by the accused person.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, detailed and analysed hereinbefore. At the cost of repetition, the 91 of 156 92 FIR No. 416/09 PS - Narela testimony of PW1 - prosecutrix has been found to the clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
At the cost of repetition, PW1 - prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "On 22/12/2009 at about 11:30 a.m. I was waiting at the gate of my school for a rickshaw for the purpose to return my house as on that th day I had appeared in my examination of class 9 . In the meantime, accused Guria who was residing in the same vicinity where I was residing came and signaled me to come near her. On her signal I went to near her as I thought that she would inquire for her sister. She asked me as for what purpose I am waiting. I replied that I am waiting for a rickshaw. She insisted me to drop me at my house but I inclined (declined) and replied her that I would only go in a rickshaw. Despite my refusal she forcibly hold my hand and put me on sit on a bike on which accused Manoj and Raju Gupta were riding. Accused Manoj and Raju Gupta, present in the Court today. Accused Raju inhaled some substance in front of my nose with a handkerchief after that I become some unconscious and I feel headache. When I regained consciousness I found myself in a room where accused Manoj and Raju were present. When I asked Manoj as to why I was brought there and when I cried accused Manoj threatened to kill my father and brother. I was given 92 of 156 93 FIR No. 416/09 PS - Narela beatings. Accused Manoj committed rape upon me against my will. As far as I remember, accused Manoj was driving the motorcycle and Raju Gupta was pillion rider and I was keep on sit in between Manoj and Raju. I was confined for a period of three days in a room and I cannot tell the place where I was confined."
(Underlined by me) On analysing the entire testimony of PW1 - prosecutrix, it transpires that she has described the scenario implicating the accused Manoj, Raju Gupta and Marjina @ Gudiya (Juvenile) to be the authors of the crime, of kidnapping and of the committal of the sexual assault upon her by accused Manoj, acting in furtherance of their common intention with accused Raju Gupta. Accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching cross examination. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact.
So far as the plea raised by the Learned Counsel for the accused that room/place of occurrence has not been identified by the prosecutrix, is concerned, it is evident from the record that during the crossexamination of PW1 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension on the aspect regarding which 93 of 156 94 FIR No. 416/09 PS - Narela plea has been raised.
However, PW1 - prosecutrix in her examinationinchief, has candidly deposed that she cannot tell the place where she was confined.
The relevant part of examinationinchief of PW1 - prosecutrix is reproduced and reads as under : "I was confined for a period of three days in a room and I cannot tell the place where I was confined."
Moreover, the sight cannot be lost of the fact that PW1 - prosecutrix who was under the total dominance, control, threat and intimidation of the accused, when was overtaken by the events, one is left wandering as to how, in such adverse circumstances, she could be expected to have anticipated the occurrence having an element of surprise and as to how her mental faculties could be expected to be attuned to absorb the details regarding the particulars of the place of incident. She was not taken by the accused for a survey of the locality where the place of occurrence was situated.
94 of 156 95 FIR No. 416/09 PS - Narela The fact as to which place PW1 - prosecutrix was confined must be within the especial knowledge of the accused. Prosecution has discharge its initial burden of proving that PW1 - prosecutrix, after her kidnapping was confined in a room for three days. Accused were under an obligation to explain as to where, at which place, PW1 - prosecutrix was confined for three days. Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
As regards the plea that nothing has come into the investigation by the IO, as to the place where she (prosecutrix) was confined, nor as to who was the landlord of the premises, is concerned, it is evident from the record that during the crossexamination of PW18 - SI Suresh Kumar, IO none of the said accused voiced their concerns or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, 95 of 156 96 FIR No. 416/09 PS - Narela accused are to blame themselves and none else.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for accused submitted that as per the statement of the prosecutrix, during her kidnapping and confinement for three days by the accused Manoj she was only once raped by the accused Manoj and later on she never had any forcible sexual act with the accused Manoj.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for accused 96 of 156 97 FIR No. 416/09 PS - Narela Manoj as to what benefit they intend to reap by raising the said plea. Nor it is made clear by the Learned Counsel for the accused as to what they intends to convey from the said plea so raised. Do they intend to convey that committal of rape/sexual assault only once upon the prosecutrix does not constitute an offence. If it is so, it is not tenable under the law.
The testimony of PW1 - prosecutrix has been reproduced, detailed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
At the cost of repetition, PW1 - prosecutrix, in her examinationinchief has specifically deposed that : "On 22/12/2009 at about 11:30 a.m. I was waiting at the gate of my school for a rickshaw for the purpose to return my house as on that day I had appeared in my examination of class 9th. In the meantime, accused Guria who was residing in the same vicinity where I was residing came and signaled me to come near her. On her signal I went to 97 of 156 98 FIR No. 416/09 PS - Narela near her as I thought that she would inquire for her sister. She asked me as for what purpose I am waiting. I replied that I am waiting for a rickshaw. She insisted me to drop me at my house but I inclined (declined) and replied her that I would only go in a rickshaw. Despite my refusal she forcibly hold my hand and put me on sit on a bike on which accused Manoj and Raju Gupta were riding. Accused Manoj and Raju Gupta, present in the Court today. Accused Raju inhaled some substance in front of my nose with a handkerchief after that I become some unconscious and I feel headache. When I regained consciousness I found myself in a room where accused Manoj and Raju were present. When I asked Manoj as to why I was brought there and when I cried accused Manoj threatened to kill my father and brother. I was given beatings. Accused Manoj committed rape upon me against my will. As far as I remember, accused Manoj was driving the motorcycle and Raju Gupta was pillion rider and I was keep on sit in between Manoj and Raju. I was confined for a period of three days in a room and I cannot tell the place where I was confined. After three days accused Manoj Gupta left the room....."
(Underlined by me) There is nothing in the crossexamination of PW1 - prosecutrix so as to impeach her creditworthiness. In the witness box, she has withstood the rigors of crossexamination without being shaken.
At the cost of repetition, on analysing the entire testimony of 98 of 156 99 FIR No. 416/09 PS - Narela PW1 - prosecutrix, it transpires that she has described the scenario implicating the accused Manoj, Raju Gupta and Marjina @ Gudiya (Juvenile) to be the authors of the crime, of kidnapping and of the committal of the sexual assault upon her by accused Manoj, acting in furtherance of their common intention with accused Raju Gupta. Accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for accused submitted that as per the medical report no external injuries were observed on the private parts of the prosecutrix. Learned Counsel further submitted that it is to be noted that the medical examination has been conducted by the Doctor same day after the production of the prosecutrix to the IO.
99 of 156 100 FIR No. 416/09 PS - Narela I have carefully perused and analysed the evidence on record.
The medical/gynaecological examination of the prosecutrix has been discussed and analysed hereinbefore.
PW7 Dr. R. S. Mishra has proved the medical examination of the prosecutrix at point 'A' on the MLC Ex. PW7/A. There is nothing in his crossexamination so as to impeach his creditworthiness.
PW14 Dr. Sumitra, has proved the gynaecological examination of the prosecutrix from point 'C' to 'C1' on the MLC Ex. PW7/A. Despite grant of opportunity PW14 Dr. Sumitra was not crossexamined on behalf of the accused.
As regards nonfinding of any external injury on the private parts of the prosecutrix is concerned, the absence of any injury does not falsify the case of prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing 100 of 156 101 FIR No. 416/09 PS - Narela of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
101 of 156 102 FIR No. 416/09 PS - Narela In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel for accused submitted that no investigation was made by the IO to confirm the offence of rape by conducting extensive and intensive enquiries of the place where the rape was alleged to have been committed.
I have carefully perused and analysed the evidence on record.
As regards the plea that no investigation was made by the IO to confirm the offence of rape by conducting extensive and intensive enquiries of the place where the rape was alleged to have been 102 of 156 103 FIR No. 416/09 PS - Narela committed, is concerned, it is evident from the record that during the crossexamination of PW18 - Sh. Suresh, IO, none of the said accused, voiced their concerns or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused are to blame themselves and none else.
The testimony of PW18 - SI Suresh IO has been detailed hereinbefore.
Moreover, the perusal and analysis of the testimony of PW18 - SI Suresh, IO, indicates that he has given a graphic description of the steps taken by him during the course of investigation. Inspite of his incisive crossexamination, nothing material has been brought out so as to impeach his creditworthiness. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate them in the case.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of 103 of 156 104 FIR No. 416/09 PS - Narela fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for accused submitted that the case of the prosecutrix is that she had love affairs with the accused Manoj and she did not want any action against him which she had given in writing to the Police (not exhibited). Learned Counsel further submitted that it is implied that the family members of the prosecutrix due to difference of religions, concocted the story of the prosecutrix being minor (aged about 14 years) and implicated the accused in this false case.
I have carefully perused and analysed the evidence on record.
With due respect, it appears that Learned Counsel for the accused have either misread or not read the evidence on the record before raising such plea.
104 of 156 105 FIR No. 416/09 PS - Narela PW1 - prosecutrix during her crossexamination has specifically deposed that : "It is wrong to suggest that I was having love affair with accused Manoj."
PW4 - Mohd. Sabir during his crossexamination on behalf of accused Manoj has categorically deposed that : "It is wrong to suggest that there was an affair between prosecutrix and accused Manoj. It is wrong to suggest that she wrote a number of love letters to the accused."
"It is wrong to suggest that I deliberately and not identifying the handwriting of my daughter."
PW4 - Mohd. Sabir during his crossexamination on behalf of accused Raju Gupta has specifically deposed that : "It is wrong to suggest that there was an affair between my daughter and Manoj. I do not know if my daughter has written my (any) love letters to him. I cannot tell whether Mark 'X1' and 'X2' (in two pieces) were written by my daughter to Manoj."
105 of 156 106 FIR No. 416/09 PS - Narela The theory propounded by the Learned Counsel for accused Manoj that, "prosecutrix was having love affair with accused Manoj", has not at all been made probable, much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded by the Learned Counsel for the accused was put to PW2 Smt. Jaura Khatoon, mother of the prosecutrix during her incisive and lengthy crossexamination. Nor even a single word regarding the said theory so propounded by the Learned Counsel for the accused was uttered by accused Manoj during his statement recorded u/s 313 Cr.P.C.
Further, it is evident from the record that PW1 - prosecutrix was not crossexamined by the accused with regard to the alleged love letters Mark 'X1' and 'X2' allegedly written by her to accused Manoj. She was the only competent witness who would have fully capable of explaining correctly the factual situation. For such failure accused are to blame themselves and none else. Nor even a single word with regard to the alleged love letters Mark 'X1' and 'X2' allegedly written by PW1 - prosecutrix to accused Manoj has 106 of 156 107 FIR No. 416/09 PS - Narela been uttered by accused Manoj during his statement recorded u/s 313 Cr.P.C.
Moreover, the alleged love letters Mark 'X1' and 'X2' allegedly written by PW1 prosecutrix to accused Manoj were not even put to the defence witness DW1 - Ms. Husan Ara @ Munni during the course of her evidence by the Learned Counsel for the accused and the reasons for the same must be within the knowledge of the accused.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
32. Learned Counsel for accused submitted that the arrest memo of the accused Manoj Ex. PW12/B states that the accused was arrested on 16/01/2010, at 12:55 p.m. by the IO and the information of his arrest was given to his mother namely Smt. Sheela Devi. The Ex. PW12/B was witnessed by Mohd. Sabir, father of the prosecutrix. This arrest of the accused reveals that it is nothing but a sham arrest by the 107 of 156 108 FIR No. 416/09 PS - Narela father of the prosecutrix through the IO. There is no reason to explain why the accused was arrested after 20 days of the FIR specially when he was always available at his residence and in the area and it is not the case of the IO that the accused was hiding or evading his arrest.
I have carefully perused and analysed the evidence on record.
PW18 - SI Suresh IO during his examinationinchief has specifically deposed that : "On 16/01/2010 I alongwith Constable Vikas Dhama at (had) gone to Pocket 8, Sector A5, Narela for the investigation of the present case where we met with the complainant Mohd. Sabeer. Thereafter, we reached in the main gali of Pocket 8, Sector A5, Narela and there at the instance of complainant apprehended accused Manoj he was interrogated and arrested vide arrest memo already Ex. PW12/B, his personal search was conducted vide memo Ex. PW12/C bearing my signatures at point 'X'. He made disclosure statement is Ex. PW12/D bearing my signatures at point 'X'. HC Praveen was called at the spot. Accused Manoj was taken into SRHC Hospital for medical examination he was medically examined and after medical examination doctor handed over two seal pullinda alongwith sample seal which were seized vide memo Ex. PW9/A bearing my signatures at point 'X'. Accused was sent to Police lockup. On 17/01/2010 accused Manoj was produced in the court and sent to JC."
108 of 156 109 FIR No. 416/09 PS - Narela During his crossexamination on behalf of accused Manoj, PW18 - SI Suresh has deposed that : "On 16/01/2010 I alongwith Constable Vikas had reached at Pocket 8, Sector A5, Narela at about 11:30 a.m. No enquiry regarding the house of accused Manoj were not made (from) any public persons and Mohd. Sabeer was (had) accompanied him. We did not go to the house of accused Manoj. No statement of any family member of accused Manoj was recorded nor they were interrogated. No signature either of the family member of accused Manoj or that of any other public persons were obtained on the documents on the time of arrest of accused Manoj. It is wrong to suggest that accused Manoj was arrested at the time when he was standing among the other persons who had (were) to (at) the Police Station."
The testimony of PW18 - SI Suresh IO has also been corroborated by PW12 - Constable Vikas Dhama.
During his examinationinchief PW12 - Constable Vikas Dhama has specifically deposed that : "Again on 16/01/2010, I joined the investigation of this case with SI Suresh Chand and went to Pocket - 8, A5, Narela, where complainant Shabir met us and alongwith him we went to mail gali Pocket - 8, Sector - A5, Narela where a person was coming from front 109 of 156 110 FIR No. 416/09 PS - Narela side of the gali and at the instance of Shabir he was apprehended and on interrogation his name revealed as Manoj and he was arrested vide arrest memo Ex. PW12/B signed by me at point 'A'. His personal search was conducted vide memo Ex. PW12/C signed by me at point 'A'. thereafter, HC Parveen was called at the spot and on his arrival accused Manoj was sent to SRHC Hospital for his medical examination and after medical examination, the concerned Doctor has given two sealed pullindas and a sample seal sealed with the seal of SRHC Hospital, and the same was taken into possession vide memo already exhibited as Ex. PW9/A signed by me at point 'A'. Thereafter, accused Manoj was produced in the Court then we all returned to the Police Station and IO has recorded my statement. Disclosure statement of accused Manoj was also recorded at the spot same is Ex. PW12/D signed by me at point 'A'."
During his crossexamination, PW12 - Constable Vikas Dhama has deposed that : "Accused Manoj was arrested at about 12:55 p.m. Again said Manoj was arrested on 16/01/2010 at 12:55 p.m. It is wrong to suggest that no pocket or sector exists from where the Manoj is stated to have been arrested as deposed.
Q. Who were the Police officials with you on 16/01/2010 when you had gone to the house of Mohd. Shabir?
Ans. On 16/01/2010 we had gone to the house of Mohd. Shabir. On that day in search of accused Manoj we had gone to Sector A5, Pocket - 8, Narela and there at the main Road, Mohd. Shabir met us."
110 of 156 111 FIR No. 416/09 PS - Narela On careful perusal and analysis the testimonies of PW18 - SI Suresh IO and PW12 - Constable Vikas Dhama, are found to be clear, cogent, convincing and of the description of the facets of the investigation which PW12 - Constable Vikas Dhama joined and of the steps taken by PW18 - SI Suresh, IO, during the course of investigation. Inspite of their incisive crossexamination, nothing material has been brought out on the record so as to impeach their creditworthiness. There is nothing in their statements to suggest that they had any animus against the accused Manoj to falsely implicate him in the case.
As regards the plea raised by the Learned Counsel for accused Manoj that no reason has been explained why accused Manoj was arrested after 20 days of the FIR when he was always available at his residence and in the area and was not hiding or evading his arrest, is concerned, it is evident from the record that on the said aspect, PW18 - SI Suresh has not been crossexamined by the Learned Counsel for the accused. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
111 of 156 112 FIR No. 416/09 PS - Narela Moreover, the plea raised by the Learned Counsel for the accused Manoj that accused Manoj was always available at his residence and in the area and was not hiding or evading his arrest, is not even substantiated by his own defence witness DW1 - Ms. Husan Ara @ Munni, who during her examinationinchief has specifically deposed that : "I came to know that Manoj is also missing from the night of 22/12/2009."
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
33. Learned Counsel for accused submitted that the site plan 112 of 156 113 FIR No. 416/09 PS - Narela Ex. PW18/B prepared by the IO at the instance of the father of the prosecutrix does not show the actual and factual position from where the prosecutrix was taken because no adjoining shops, building and constructions have been shown in the site plan.
I have carefully perused and analysed the evidence on record.
PW18 - SI Suresh IO in his examinationinchief has deposed that, ".....I prepared the site plan at the instance of the complainant. The site plan is Ex. PW18/B bearing my signature at point 'A'".
During his crossexamination, PW18 - SI Suresh IO has deposed that, "Site plan Ex. PW18/B was prepared at the instance of Mohd. Sabir. It is correct that the site plan Ex. PW18/B does not bear the signature of Mohd. Sabir."
From the aforesaid narration of PW18 - SI Suresh, it is clearly indicated that site plan Ex. PW18/B was prepared by IO, PW18 -
113 of 156 114 FIR No. 416/09 PS - Narela SI Suresh, at the instance of Mohd. Sabir (PW4), father of the prosecutrix. Mere not bearing the signature of PW4 - Mohd. Sabir on the site plan Ex. PW18/B, does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
So far as the plea raised by the Learned Counsel for the accused that the site plan Ex. PW18/B does not show the actual and factual position from where the prosecutrix was taken because no adjoining shops, building and constructions have been shown in the site plan, is concerned, PW18 - SI Suresh IO during his cross examination recorded on behalf of accused Raju Gupta has specifically deposed that "The shops and hotel are not there on the two side of the School, of which the site plan was prepared".
Moreover, the theory, floated by the Learned Counsel for the accused that, "the site plan Ex. PW18/B does not show the actual and factual position from where the prosecutrix was taken because no adjoining shops, building and constructions have been shown in 114 of 156 115 FIR No. 416/09 PS - Narela the site plan have been shown in the site plan", has not at all been made probable much established by any cogent evidence.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
34. Learned Counsel for accused submitted that no site plan has been prepared at the instance of the prosecutrix as to where she was kept confined for three days and was raped by the accused. This infirmity hits at the very root of the case.
I have carefully perused and analysed the evidence on record.
Although, the related plea raised by the Learned Counsel for the accused that room/place of occurrence has not been identified by the prosecutrix has been analysed and discussed here inbefore, yet in the interest of justice, I shall deal with the plea so raised by the Learned Counsel for the accused.
The testimony of PW1 - prosecutrix has been reproduced, 115 of 156 116 FIR No. 416/09 PS - Narela detailed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to the clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case. The version of PW1 - prosecutrix on the core spectrum of crime has remained intact.
On careful perusal and analysis of the testimony of PW18 - SI Suresh, IO, it indicates that he has given a graphic description of the steps taken by him during the course of investigation.
As regards the plea raised by the Learned Counsel for the accused that no site plan has been prepared at the instance of the prosecutrix as to where she was kept confined for three days and was raped by the accused, is concerned, it is evident from the record that during the crossexamination of PW18 - Sh. Suresh, IO, none of the said accused, voiced their concerns or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused are to blame themselves and 116 of 156 117 FIR No. 416/09 PS - Narela none else. In such a situation the accused cannot be heard saying that since no site plan of the place of incident, where the prosecutrix was confined and raped has been proved by the prosecution, therefore, adverse inference should be drawn against the prosecution.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
35. Learned Counsel for accused submitted that the IO during the entire investigation has not made any public witness either at the place of kidnapping or at the place of confinement and rape or during the other proceedings of arrest, recovery etc. entire investigation has been done by the IO with single witness i.e. father of the prosecutrix and none else. The other witnesses who were even named in the investigation i.e. 117 of 156 118 FIR No. 416/09 PS - Narela Pritam, Meena, Sabnam, Chunna and Badal were not investigated by the IO and even Prem Chand, Rickshaw puller was not investigated on the point that whether the prosecutrix had really hired the rickshaw for coming and going to School on that day.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, the perusal and analysis of the testimony of PW18 - SI Suresh, IO indicates that he has given a graphic description of the steps taken by him during the course of investigation. Inspite of his incisive crossexamination, nothing material has been brought out so as to impeach his creditworthiness. In the entire incisive and lengthy crossexamination of PW18 - SI Suresh, IO, no suggestion was put to him regarding nonjoining of public witnesses despite their availability.
Nonjoining of the public witness does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent 118 of 156 119 FIR No. 416/09 PS - Narela and convincing evidence.
It is a matter of common experience that the public persons do not come forward to assist the Police in the investigation.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy. (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).
Moreover, the prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it. Though, the neighbourhood may be replete with other residents also.
119 of 156 120 FIR No. 416/09 PS - Narela So far as the plea raised by the Learned Counsel for the accused that the IO during the entire investigation has not made any public witness either at the place of kidnapping or at the place of confinement and rape or during the other proceedings of arrest, recovery etc. entire investigation has been done by the IO with single witness i.e. father of the prosecutrix and none else and that the other witnesses who were even named in the investigation i.e. Pritam, Meena, Sabnam, Chunna and Badal were not investigated by the IO and even Prem Chand, Rickshaw puller was not investigated on the point that whether the prosecutrix had really hired the rickshaw for coming and going to School on that day, is concerned, it is evident from the record that during the crossexamination of PW18 - SI Suresh Kumar, none of the said accused voiced their concerns or raised any apprehension regarding the conducting of the entire investigation with one witness namely PW4 - Mohd. Sabir, father of the prosecutrix or that the other witnesses namely Pritam, Meena, Sabnam, Chunna, Badal and Prem Chand were not investigated. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. In such a 120 of 156 121 FIR No. 416/09 PS - Narela situation, the accused cannot be heard saying that since the most material witnesses were withheld by the prosecution, therefore, adverse inference should be drawn against the prosecution.
In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.', (1979) 4 SCC 345, 'State of U.P. Vs. Anil Singh', AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar', 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
It is well settled in law that nonexamination of the material witness is not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be (Ref. State of H.P. Vs. Gian Chand, (2001) 6 SCC 71).
121 of 156 122 FIR No. 416/09 PS - Narela In case Takhaji Hiraji Vs Thakore Kubersing Chamansing, 2001 IV AD (S.C.) 393, the Hon'ble Supreme Court has held that : ".....If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of other witnesses."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
36. Learned Counsel for accused submitted that there are contradictions in the prosecution story. The prosecutrix in her statement u/s 161 Cr.P.C. stated to the IO that when she came out of her School she immediately saw her friend Guria who asked her to go with her and after having just walked ten steps she saw that Raju and Manoj were standing with a Bike and her friend Guria asked her to sit with them on the Bike and go to her home while the prosecutrix in her statement u/s 164 Cr.P.C. stated that when she came out of the School she saw her friend Guria 122 of 156 123 FIR No. 416/09 PS - Narela standing with accused Raju and Manoj with a Bike and she forcibly put her on the bike between them and she was made unconscious with some substance in the handkerchief of the accused and was taken to some place while the prosecutrix in the Court stated that she was having headache and got unconscious and was also aware of the entire happenings during the period.
I have carefully perused and analysed the evidence on record.
With due respect, it appears that Learned Counsel for the accused have either misread or not read the evidence of PW1 - prosecutrix as a whole.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
The testimony of PW1 - prosecutrix has been reproduced, detailed and analysed hereinbefore. At the cost of repetition, the 123 of 156 124 FIR No. 416/09 PS - Narela testimony of PW1 - prosecutrix has been found to the clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
At the cost of repetition, on analysing the entire testimony of PW1 - prosecutrix, it transpires that she has described the scenario implicating the accused Manoj, Raju Gupta and Marjina @ Gudia (Juvenile) to be the authors of the crime, of kidnapping and of the committal of the sexual assault upon her by accused Manoj, acting in furtherance of their common intention with accused Raju Gupta. The accused have failed to elicit any material or relevant discrepancies or inconsistencies, despite her searching crossexamination.
So far as the plea raised by the Learned Counsel for the accused that, "the prosecutrix in her statement u/s 161 Cr.P.C. stated to the IO that when she came out of her School she immediately saw her friend Guria who asked her to go with her and after having just walked ten steps she saw that Raju and Manoj were standing with a Bike and her 124 of 156 125 FIR No. 416/09 PS - Narela friend Guria asked her to sit with them on the Bike and go to her home while the prosecutrix in her statement u/s 164 Cr.P.C. stated that when she came out of the School she saw her friend Guria standing with accused Raju and Manoj with a Bike and she forcibly put her on the bike between them and she was made unconscious with some substance in the handkerchief of the accused and was taken to some place while the prosecutrix in the Court stated that she was having headache and got unconscious and was also aware of the entire happenings during the period", is concerned, on careful perusal and analysis of the testimony of PW1 - prosecutrix, it is found that the witness has neither made any improvement nor deposed any facts which were not stated in the statements u/s 161 Cr.P.C. and u/s 164 Cr.P.C., Ex. PW1/A. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact. Further, if in the estimation of Learned Counsel for the accused, PW1 - prosecutrix had made any improvement in her examinationin chief and had deposed any facts which were not stated in the statements u/s 161 Cr.P.C. and u/s 164 Cr.P.C. Ex. PW1/A, then why she was not confronted/contradicted with the statements u/s 161 Cr.P.C. and u/s 164 Cr.P.C. Ex. PW1/A in the manner as provided u/s 145 of the Indian 125 of 156 126 FIR No. 416/09 PS - Narela Evidence Act, 1872. The reasons for the same must be known to the Learned Counsel for the accused. Section 145 of the Indian Evidence Act, 1872 provides for crossexamination as to previous statements in writing.
It reads as under : "145. Crossexamination as to previous statements in writing. A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. The power of observation, retention and reproduction differs with individuals.
126 of 156 127 FIR No. 416/09 PS - Narela In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
The Hon'ble Supreme Court of India in case 'Leela Ram 127 of 156 128 FIR No. 416/09 PS - Narela Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details;
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
It is a settled principle of law that every improvement or 128 of 156 129 FIR No. 416/09 PS - Narela variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the 129 of 156 130 FIR No. 416/09 PS - Narela occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
37. Learned Counsel for accused submitted that the prosecutrix stated that she was taken to Police Station by Pritam and Chunna and she saw the (sister of) accused Manoj standing at the gate of the Police Station who gave beatings to her with threat of not reporting the matter to the Police against him. The mother of the prosecutrix states that she was left to her house. The IO states that when he was called to the residence of the prosecutrix by her father she was produced by her father to the IO and IO recorded her statement and asked the Lady Constable (PW3) to reach there and she reached after sometime and took the 130 of 156 131 FIR No. 416/09 PS - Narela prosecutrix for medical examination.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix in her examinationinchief has specifically deposed that : "...I was confined for a period of three days in a room and I cannot tell the place where I was confined. After three days accused Manoj Gupta left the room. Thereafter, three four women namely Guriya present in the Court today, Meena, Shabnam and the mother of accused alongwith two other persons namely Pritam and Chunna came there and forcibly wrote from me that I myself with my consent had gone with accused Manoj. Thereafter, Pritam and Chunna took me to the Police Station and at the gate of Police Station the sister of Manoj gave me beatings and threatened me to depose in favour of accused Manoj and make the statement that I myself had gone with accused Manoj with my consent. I remained in the Police Station for one night."
PW2 - Smt. Jaura Khatoon, mother of the prosecutrix, in her examinationinchief has deposed that : "On 25/12/2009 when I was present outside the Police Station for inquiry of my daughter at about 3:00 p.m. I found my daughter in the Police Station. On 26/12/2009 my daughter was produced before Doctor for medical examination and was produced 131 of 156 132 FIR No. 416/09 PS - Narela before concerned Court for her statement but due to late, her statement could not be recorded and sent to Nirmal Chhaya and thereafter, on next day the statement of my daughter was recorded by the Magistrate and thereafter, the custody of my daughter was given to me."
During her crossexamination, PW2 - Smt. Jaura Khatoon has deposed that : "I am illiterate."
PW4 - Mohd. Sabir, father of the prosecutrix in his examinationinchief has deposed that : "After two days later, my daughter alongwith Pritam came to the police station on motor cycle and I was also present in the police station and she remained one day in the police station and on the next day she was got medically examined. Her statement was also got recorded by the IO under section 164 Cr.P.C. in the Court of concerned Learned MM. Thereafter, my daughter was released to me."
During his crossexamination, PW4 - Mohd. Sabir has deposed that : "I do not remember the exact date and time when I visited the Police Station but I visited a number of times."
132 of 156 133 FIR No. 416/09 PS - Narela On careful perusal and analysis of the testimonies of PW1 - prosecutrix, PW2 - Jaura Khatoon, her mother and PW4 - Mohd. Sabir, her father, it is clearly indicated that PW1 - prosecutrix has deposed the facts which she observed, experienced and the rigours she had undergone. PW2 - Jaura Khatoon, an illiterate lady, as well as her husband PW4 - Mohd. Sabir have deposed the facts which they experienced, observed, perceived and inferred as per their understanding.
PW18 - SI Suresh, IO during his examinationinchief has deposed that on 26/12/2009, he alongwith Constable Vikas Dhama reached at the house of the complainant where they met Mohd. Sabeer and he told that his daughter had come at the house. He called the Lady Constable. Lady Constable Preeti came there. Mohd. Sabeer produced the prosecutrix (name withheld). The recovery memo was prepared in this regard which is already Ex. PW4/B bearing his signatures at point 'C'.
I have carefully perused and analysed the testimony of PW18 - SI Suresh and the same is found to be clear, cogent and a 133 of 156 134 FIR No. 416/09 PS - Narela graphic details of the steps which he took during the course of investigation. It is evident from the record that during the incisive cross examination of PW18 - SI Suresh, he was not confronted with the facts deposed by PW1 - prosecutrix, PW2 - Jaura Khatoon and PW4 Mohd. Sabir regarding which the plea has been raised by the Learned Counsel for the accused. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused are to blame themselves and none else.
Moreover, the said discrepancies do not reflect upon the substantive evidence and the probative value of the statement of PW1 - prosecutrix made on material and relevant aspects. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor do they dislodge the substratum of the prosecution case and despite their existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on record bears out the case of the prosecution. The version on PW1 - prosecutrix on the core spectrum of crime has remained intact. Moreover, a witness cannot be expected to possess a photographic memory and to recall the 134 of 156 135 FIR No. 416/09 PS - Narela details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. The power of observation, retention and reproduction differs with individuals. [Ref. A Shankar's case (Supra), Mehmood's case (Supra) and Bharwada Bhoginbhai Hirjibhai's case (Supra)].
At the cost of repetition, it is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that 135 of 156 136 FIR No. 416/09 PS - Narela the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
136 of 156 137 FIR No. 416/09 PS - Narela
38. Learned Counsel for accused submitted that accused Manoj was pressurised by the father of the prosecutrix to change his religion and become Muslim and this meeting was held on 2425/12/2009 at the house of the accused Manoj and it also proved that the prosecutrix was very much available at her residence and story of kidnapping is framed when the accused refused to convert him.
I have carefully perused and analysed the evidence on record.
The testimony of PW4 Mohd. Sabir has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW4 - Mohd. Sabir has been found to be clear, natural, cogent, inspiring confidence and having a ring of truth. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate them in the case.
During his crossexamination, PW4 - Mohd. Sabir has negated the suggestions that Manoj used to come to their house or that he (PW4) used to insist him to convert his Dharam or that any Panchayat 137 of 156 138 FIR No. 416/09 PS - Narela was ever held at the house of Raju Gupta for conversion of religion of Manoj or that since accused Manoj refused to convert his religion, hence, he (Manoj) has been falsely implicated in this case.
The said theories, so propounded by accused Manoj by way of suggestions put to PW4 - Mohd. Sabir, which have been negated by him (PW4 - Mohd Sabir) have not at all been made probable much established by any cogent evidence. Therefore, falls flat on the ground.
As discussed hereinbefore, it is also to be noticed that another set of theories for the false implication of accused Manoj and Raju Gupta had also been propounded by the accused, by way of suggestions put to PW2 - Smt. Jaura Khatoon during her cross examination which she negated that, "Accused Manoj has been falsely implicated by her (PW2 - Jaura Khatoon) due to quarrel with Manoj and his mother" and that, "Raju Gupta was falsely implicated in the present case as he was selfstyled leader in the locality".
138 of 156 139 FIR No. 416/09 PS - Narela It is pertinent to reproduced the relevant part of cross examination of PW2 - Jaura Khatoon which reads as under : "It is wrong to suggest that due to quarreled (quarrel) with Manoj and his mother, I got the accused Manoj falsely implicated in this case. It is wrong to suggest that Raju Gupta was falsely implicated in the present case as he was self styled leader in the locality."
Even the said theories, so propounded by the accused during the crossexamination of PW2 - Jaura Khatoon as reproduced hereinabove, have also not at all been made probable much established by any cogent evidence, therefore, falls flat to the ground. It appears that the accused Manoj and Raju Gupta, in order to save their skins from the clutches of law, have embarked upon propounding every possible baseless and unfounded theories.
As regards the plea that, accused Manoj was pressurised by the father of the prosecutrix to change his religion and become Muslim and this meeting was held on 2425/12/2009 at the house of the accused 139 of 156 140 FIR No. 416/09 PS - Narela Manoj, is concerned, the said facts contained in the plea so raised were not put to PW4 - Mohd. Sabir during his entire incisive cross examination except to the fact that it was suggested to PW4 - Mohd. Sabir that Manoj used to come to their house or that he used to insist him (Manoj) to convert his Dharam or that any Panchayat was ever held at the house of Raju Gupta for conversion of religion of Manoj or that since accused Manoj refused to convert his religion, hence,he has been falsely implicated in this case, which had been negated by the said witness. The theory, regarding the meeting held on 2425/12/2009 at the house of the accused Manoj has not at all been made probable much established by any cogent evidence. In the circumstances, the theory propounded by the Learned Counsel for the accused that, "it also proved that the prosecutrix was very much available at her residence and story of kidnapping is framed when the accused refused to convert him (himself)", falls flat on the ground being baseless.
Moreover, it is also to be noticed that during the cross examination of PW18 - SI Suresh IO, a complete UTurn has been 140 of 156 141 FIR No. 416/09 PS - Narela taken by the Learned Counsel for the accused regarding the Panchayat held on 24/12/2009 and 25/12/2009 at the house of accused Manoj and what has been suggested to PW18 - SI Suresh IO is that the Panchayat was held on 24/12/2009 and 25/12/2009 at the Police Station which he negated. The relevant part of the cross examination of PW18 - SI Suresh IO reads as under : "It is wrong to suggest that any panchayat was held on 24/12/2009 and 25/12/2009 at the Police Station and in the said panchayat Raju Gupta being the Pradhan of the colony was also present or that after the panchayat was disbursed, finding Raj Gupta along (alone) at the Police Station he was falsely implicated in this case. It is wrong to suggest that I am deposing falsely."
(Underlined by me) In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
39. Learned Counsel for accused submitted that the personal search memo (Ex. 12/C) of the accused Manoj also reveals that accused was lifted from his residence and thereafter arrested in this case because nothing has been recovered in this case because nothing has been 141 of 156 142 FIR No. 416/09 PS - Narela recovered from the personal search of the accused.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea.
At the cost of repetition, PW18 - SI Suresh IO during his examinationinchief has specifically deposed that : "On 16/01/2010 I alongwith Constable Vikas Dhama at (had) gone to Pocket 8, Sector A5, Narela for the investigation of the present case where we met with the complainant Mohd. Sabeer. Thereafter, we reached in the main gali of Pocket 8, Sector A5, Narela and there at the instance of complainant apprehended accused Manoj he was interrogated and arrested vide arrest memo already Ex. PW12/B, his personal search was conducted vide memo Ex. PW12/C bearing my signatures at point 'X'. He made disclosure statement is Ex. PW12/D bearing my signatures at point 'X'. HC Praveen was called at the spot. Accused Manoj was taken into SRHC Hospital for medical examination he was medically examined and after medical examination doctor handed over two seal pullinda alongwith sample seal which were seized vide memo Ex. PW9/A bearing my signatures at point 'X'. Accused was sent to Police lockup. On 17/01/2010 accused Manoj was produced in the court and sent to JC."
142 of 156 143 FIR No. 416/09 PS - Narela There is nothing in the crossexamination of PW18 - SI Suresh IO, so as to impeach his creditworthiness.
It is also to be noticed that in the plea so raised by the Learned Counsel for the accused, it is submitted that the accused Manoj was lifted from his residence while during the cross examination of PW18 - SI Suresh IO, it was suggested to him by the Learned Counsel for the accused that accused Manoj was arrested at the time when he was standing among the other persons who were at the Police Station.
The relevant part of crossexamination of PW18 - SI Suresh IO conducted on behalf of accused Manoj reads as under : "It is wrong to suggest that accused Manoj was arrested at the time when he was standing among the other persons who had (were) to (at) the Police Station."
Moreover, the plea raised by the Learned Counsel for the accused that accused Manoj was lifted from his residence and thereafter 143 of 156 144 FIR No. 416/09 PS - Narela arrested in this case, is not even substantiated by his own defence witness DW1 - Ms. Husan Ara @ Munni who during her examinationinchief has specifically deposed that, "I came to know that Manoj is also missing from the night of 22/12/2009."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
40. Learned Counsel for accused submitted that the prosecutrix herself stated that she was not aware of bad intention of the accused persons that is why she did not raise her voice when she was going on bike of the accused. She again states that she was unconscious that is why she did nothing. She further states that she was having headache and did nothing and she lastly states that no physical pressure was put upon her by the accused persons.
I have carefully perused and analysed the evidence on record.
At the cost of repetition, it is a settled principle that 144 of 156 145 FIR No. 416/09 PS - Narela statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
The testimony of PW1 - prosecutrix has been reproduced, detailed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to the clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case. The version of PW1 - prosecutrix on the core spectrum of crime has remained intact.
At the cost of repetition, PW1 - prosecutrix in her examinationinchief has deposed that : "On 22/12/2009 at about 11:30 a.m. I was waiting at the gate of my school for a rickshaw for the purpose to return my house as on that day I had appeared in my examination of class 9th. In the meantime, accused Guria who was residing in the same vicinity where I was residing came and signaled me to come near her. On her signal I went to near her as I thought that she would inquire for her sister. She asked me as for what purpose I am waiting. I replied that I am waiting for a 145 of 156 146 FIR No. 416/09 PS - Narela rickshaw. She insisted me to drop me at my house but I inclined (declined) and replied her that I would only go in a rickshaw. Despite my refusal she forcibly hold my hand and put me on sit on a bike on which accused Manoj and Raju Gupta were riding. Accused Manoj and Raju Gupta, present in the Court today. Accused Raju inhaled some substance in front of my nose with a handkerchief after that I become some unconscious and I feel headache. When I regained consciousness I found myself in a room where accused Manoj and Raju were present. When I asked Manoj as to why I was brought there and when I cried accused Manoj threatened to kill my father and brother. I was given beatings. Accused Manoj committed rape upon me against my will. As far as I remember, accused Manoj was driving the motorcycle and Raju Gupta was pillion rider and I was keep on sit in between Manoj and Raju. I was confined for a period of three days in a room and I cannot tell the place where I was confined..."
(Underlined by me) During her crossexamination, on behalf of accused Manoj and Raju, PW1 - prosecutrix has specifically deposed that : "Guriya made me sit on the motorcycle as I was not in a position to raise any voice as some handkerchief was kept on my mouth."
During her crossexamination, on behalf of accused Guriya @ Marjina (Juvenile), PW1 - prosecutrix has specifically deposed 146 of 156 147 FIR No. 416/09 PS - Narela that : "I did not shout as I was not aware with the bad intention of the accused."
On analysing the entire testimony of PW1 - prosecutrix, it is clearly indicated that when she was made to sit on the motorcycle between accused Manoj and Raju Gupta, by accused Guriya @ Marjina (Juvenile) and immediate thereafter, accused Raju Gupta inhaled her some substance in front of her nose with a handkerchief after that she became some unconscious and felt headache, one is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to raise hue and cry and to become aware with the bad intention of the accused.
As regards the plea raised by the Learned Counsel for the accused that PW1 - prosecutrix stated that the accused did not exert any physical pressure upon her is concerned, Learned Counsel for the accused appears to have torn out of context the said part of testimony of PW1 - prosecutrix, ignoring its proper reference as to what PW1 - prosecutrix has specifically deposed during her crossexamination 147 of 156 148 FIR No. 416/09 PS - Narela conducted on behalf of accused Guriya @ Marjina (Juvenile).
PW1 - prosecutrix during her crossexamination on behalf of accused Guriya @ Marjina (Juvenile) has specifically deposed which is reproduced and reads as under : "I cannot tell how much time I took to reach the gate of my school from my class room. There were some other girls students in side the gate. I did not go voluntarily and it was only when I was called by the accused then I had gone. Accused Manoj and Raju Gupta were standing at a distance of about 20 steps away from the School. The accused did not exert any physical pressure upon me."
Even if in the estimation of Learned Counsel for the accused any further clarification was needed by them, it is evident from the record that during the crossexamination of PW1 - prosecutrix, it has not been got clarified from her, by the Learned Counsel for the accused, as to in what manner and when, the accused did not exert any physical pressure upon her whether at the time of her kidnapping on the motorcycle or at the time of committal of the sexual assault upon her or at the time of her confinement for three days in a room. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused are to blame 148 of 156 149 FIR No. 416/09 PS - Narela themselves and none else. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
41. Learned Counsel for accused submitted that PW4 - Mohd. Shabbir, who is the father of the prosecutrix made a complaint in writing regarding missing of his daughter in PS - Narela, Delhi on 25/12/2009 where he specifically mentioned that the name of the suspect is Manoj and further stated in Ex. PW4/A that his daughter has studied in Pawar School, Narela, Delhi in 9th Class. Thereafter, IO registered the FIR on 25/12/2009 on the basis of Ex. PW4/A and prepared a site plan which is 149 of 156 150 FIR No. 416/09 PS - Narela Ex. PW18/B of Pawar School. He further submitted that while PW4 - Mohd. Shabbir in the Court has deposed that, "On 22/12/2009, my daughter, who was studying in Sarvodaya Kanya Vidhalaya had gone for giving her last examination", which creates a big doubt in the prosecution story and no such motorcycle was recovered in the possession of the accused persons.
I have carefully perused and analysed the evidence on record.
The testimony of PW4 - Mohd. Shabir has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW4 - Mohd. Sabir has been found to be clear, cogent, natural, convincing and having a ring of truth. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate them in the case.
As regards the plea raised by the Learned Counsel for the accused that in the site plan Ex. PW18/B, the Pawar School has been shown, while PW4 Mohd. Sabir in his examinationinchief has 150 of 156 151 FIR No. 416/09 PS - Narela deposed that on 22/12/2009, his daughter who was studying in Sarvodaya Kanya Vidhalaya had gone for giving her last examination but in the complaint lodged by PW4 - Mohd. Sabir, Ex. PW4/A, he has mentioned that his daughter was studying in Pawar School, Narela, in 9th Class, is concerned, it is evident from the record that on the said variation on the name of the School, PW4 Mohd. Sabir was not confronted with during his crossexamination. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused are to blame themselves and none else.
On the plea raised by the Learned Counsel for the accused regarding the variation on the name of the School of PW1 - prosecutrix, it is also evident from the record that during the incisive and lengthy crossexamination of PW1 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension regarding the name of the School in which she was studying or taking her examination. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused are to blame themselves and none else.
151 of 156 152 FIR No. 416/09 PS - Narela At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
As regards the plea that no motorcycle was recovered from the possession of the accused persons is concerned, it is evident from record that during the crossexamination of PW18 - SI Suresh IO, none of the said accused voiced their concerns or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused are to blame themselves and none else.
The fact regarding the whereabouts of the motorcycle must be within the especial knowledge of the accused. Prosecution has discharged its initial burden of proving that PW1 - prosecutrix was kidnapped on a motorcycle by the accused and after her kidnapping was 152 of 156 153 FIR No. 416/09 PS - Narela confined in a room for three days. Accused were under an obligation to explain the same. Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
42. Learned Counsel for accused referred to a case and is reported as 'State Vs. Hasim' 2014 (2) LRC 258 (Del).
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same is wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials 153 of 156 154 FIR No. 416/09 PS - Narela would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
43. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 22/12/2009 at about 11:30 a.m. at outside the Pawar School, Narela, Delhi accused Manoj and Raju Gupta alongwith accused Marjina @ Gudiya (juvenile) in furtherance of their common intention agreed to kidnap PW1 prosecutrix (name withheld), aged about - 14 years (To be exact 14 years 05 months and 17 days) for forcing and seducing her to illicit intercourse and that both the accused Manoj and Raju Gupta alongwith accused Marjina @ Gudiya (juvenile) in furtherance of their common intention and in pursuance of said criminal conspiracy kidnapped the prosecutrix without her consent and out of the lawful guardianship of her parents by forcibly making her (prosecutrix) sit between accused Manoj, the driver and accused Raju Gupta, the pillion rider on a motorcycle, on which accused Manoj and accused Raju Gupta 154 of 156 155 FIR No. 416/09 PS - Narela were riding, by forcibly holding her (prosecutrix) hand by accused Marjina @ Gudiya (juvenile) despite her (prosecutrix) refusal. Accused Raju Gupta inhaled her some substance in front of her nose with a handkerchief after that she became some unconscious and felt headache and they (accused Manoj and Raju Gupta) took her to a room and when she regained consciousness she found herself in a room where accused Manoj and Raju Gupta were present and when she asked accused Manoj as to why she was brought there and when she cried, accused Manoj threatened to kill her father and brother and she was given beatings and she was wrongfully confined in that room for a period of three days by them. In that room, accused Manoj, acting in furtherance of their common intention with accused Raju Gupta, committed rape upon her against her will and after three days accused Manoj left that room.
I accordingly hold accused Manoj and Raju Gupta guilty for the offences punishable u/s 120B IPC, u/s 363/366/328/342/376(2)(g) IPC r/w Section 120B IPC and Section 506 IPC r/w Section 120B IPC and convict them thereunder.
44. In view of above discussion, I am of the considered opinion 155 of 156 156 FIR No. 416/09 PS - Narela that as far as the involvement of the accused Manoj and Raju Gupta in the commission of the offences u/s 120B IPC, u/s 363/366/328/342/376(2)(g) IPC r/w Section 120B IPC and Section 506 IPC r/w Section 120B IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Manoj and Raju Gupta beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Manoj and Raju Gupta guilty for the offences punishable u/s 120B IPC, u/s 363/366/328/342/376(2)(g) IPC r/w Section 120B IPC and Section 506 IPC r/w Section 120B IPC and convict them thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 17th Day of September, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 156 of 156