Delhi District Court
State vs . 1. Ram Udagar on 1 August, 2015
1
FIR No. 164/11
PS - Alipur
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 64/13
Unique ID No. : 02404R0225842011
State Vs. 1. Ram Udagar
S/o Siya Ram @ Siya
R/o PS - Bahari,
Darbhanga, Bihar.
Also at :
Dharam Pal Ka Makan,
Shiv Mandir, Alipur,
Delhi.
2. Smt. Sukhia
S/o Ram Udagar
R/o Village Simda,
PS - Bahari Darbhanga,
Bihar.
Also at :
Dharam Pal Ka Makan,
Shiv Mandir, Alipur,
Delhi.
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2
FIR No. 164/11
PS - Alipur
3. Tej Narain @ Narain
S/o Anirudh Yadav
R/o Village Barhai,
PO - Eikha, Shiv Nagar,
PS - Birol,
District - Darbhanga, Bihar.
FIR No. : 164/11
Police Station : Alipur
Under Sections : 376(2)(f)/363/365/34 IPC
Date of committal to session Court : 07/01/2012
Date on which judgment reserved : 08/07/2015
Date on which judgment announced : 01/08/2015
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 13/05/2011, complainant Umesh S/o Shri Jai Lal R/o Nepal Singh Ka Makaan Bada Shiv Mandir, Alipur, Delhi came to the Police Station and got lodged the missing report regarding his 2 of 128 3 FIR No. 164/11 PS - Alipur daughter/prosecutrix (name withheld) which is to the effect that, he does the labour work. His daughter/prosecutrix (name withheld being a case u/s 376 IPC), age nine years, colour shallow (sanwla), height 3 feet, face oval/longish (lambutra), wearing red suit salwar, wearing chappals in her feet (Pairon Mei Chappal), who on 09/05/2011 at about 8:00 a.m. in the morning had gone outside the house for playing and has not returned so far and he had been searching her till now by his own means. He suspects that some unknown person by inducing her has enticed away his daughter. His daughter to be traced out. Statement has been heard and is correct. On the basis of the statement of the complainant finding that offence u/s 363 IPC appeared to have been committed, the case was got registered. PCR was informed. Investigation of the case was handed over to ASI Rishi Pal. ASI Rishi Pal sent the WT message to all SSP India and also sent her photo to NCRB and Akashvani and searched for her at the Bus Stand, Railway Station, red light area and made inquiries from the suspected persons but her no clue could be found. On 25/05/2011, on receipt of information regarding the prosecutrix and IO ASI Rishi Prakash being out of station, SI Neeraj Kumar recovered the prosecutrix from the custody of Ram Udagar and his wife Smt. Sukhia.
3 of 128 4 FIR No. 164/11 PS - Alipur Prosecutrix was sent for medical examination at SRHC Hospital and her medical examination was got conducted. During this, W/SI Santosh Kumari reached at the Hospital and carried out the further investigation. The sealed pullindas handed over by the Doctor after the medical examination of the prosecutrix were taken into Police possession and were deposited in the Malkhana. After returning to the Police Station, inquiries were made from the prosecutrix and after finding sufficient evidence against Smt. Sukhia and Ram Udagar they were arrested in the case. Both were medically examined at SRHC Hospital. The sealed exhibits handed over by the Doctor after the medical examination of accused Ram Udagar were taken into Police possession and were deposited in Malkhana. Disclosure statements of accused Ram Udagar and Smt. Sukhia were recorded. Statements of the witnesses were recorded. On 26/05/2011, statement of the prosecutrix was got recorded u/s 164 Cr.P.C. In the disclosure statements of Ram Udagar and Smt. Sukhia as well as in the statement u/s 164 Cr.P.C. of the prosecutrix, the involvement of another accused Narain @ Tej Narain was revealed, who was searched for and was found absent from his house. NBW was obtained against accused Narain @ Tej Narain and after appropriate 4 of 128 5 FIR No. 164/11 PS - Alipur proceedings, supplementary chargesheet will be filed against him. The sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan for the offences u/s 363/365/376(2)(f)/34 IPC was prepared against accused Ram Udagar and Smt. Sukhia and was sent to the Court for trial.
2. During the course of further investigation, accused Tej Narain @ Narain was arrested and a supplementary challan for the offences u/s 363/365/376(2)(f)/34 IPC was prepared against him and was sent to the court for trial.
3. Since the offence u/s 376(2)(f) IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the challan against accused Ram Udagar and Smt. Sukhia as well as the supplementary challan against accused Tej Narain @ Narain were committed to the Court of Session under section 209 Cr.P.C.
5 of 128 6 FIR No. 164/11 PS - Alipur
4. Upon committal of the case, the Court of session and after hearing on charge prima facie a case u/s 363/365/34 IPC against accused Ram Udagar and Smt. Sukhia; a case u/s 366 r/w Section 109 IPC against accused Ram Udagar, Smt. Sukhia and Tej Narain @ Narain, a case u/s 376 (2)(f) IPC against accused Tej Narain @ Narain; a case u/s 376 (2)(f) r/w Section 109 IPC against accused Smt. Sukhia and a case u/s 376 (2)(f) against accused Ram Udagar was made out. The charge was framed accordingly which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
5. In support of its case in fact prosecution has produced and examined 17 witnesses, as two witnesses namely HC Umed Singh and the prosecutrix have been examined as PW4 and two witnesses namely HC Devender Singh and Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL, Rohini, Delhi have been examined as PW5 : PW1 Dr. Narendra Pratap, CMO, Satyawadi Raja Harish Chander Hospital, Narela, Delhi, PW2 Dr. Hema, Incharge O & Gynae, 6 of 128 7 FIR No. 164/11 PS - Alipur Satyawadi Raja Harish Chander Hospital, Delhi, PW3 W/HC Sumitra, PW4 Constable Umed Singh, PW4 - Prosecutrix (name withheld), PW5 Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL, Rohini, PW5 HC Devender Singh, PW6 ASI Rishi Pal, PW7 Sh. Manish Khurana, PW8 HC Jagat Singh, PW9 Sh. Umesh, PW10 Retd. SI K. S. Dogra, PW11 SI Neeraj Kumar, Learned MM, PW12 Constable Devender Singh, PW13 - Sh. Jogi Lakra, Principal, MCD, Primary School, Jind Pur, Delhi, PW14 - Constable Sumit and PW15 - W/SI Santosh Kumari.
6. In brief the witnessography of the prosecution witnesses is as under : PW1 Dr. Narendra Pratap, CMO, Satyawadi Raja Harish Chander Hospital, Narela, Delhi, who deposed that on 25/05/2011, he was working as CMO in the SRHC Hospital. On that day at about 11:30 a.m. one patient/prosecutrix (name withheld) was brought by Constable Roshani and he had preliminary examined her and found that there was no external wounds or injuries. Patient came walking and there was history of kidnapping few days before. After examination, she was 7 of 128 8 FIR No. 164/11 PS - Alipur referred to SR - Gynae for further examination as there was alleged history of sexual assault. Examination from (in the) encircled portion 'A' on MLC Ex. PW1/A was (is) in his hand and bears his signature at point 'B'. He had also examined Ram Udagar S/o Shiya Dhari brought by Constable Umed on 25/05/2011 at about 6:45 p.m. for medical examination with the alleged history of sexual act by the patient. On examination he did not find any sign of external injuries. The patient's blood samples, pubic hairs and undergarments were preserved and handed over to Police Constable Umed. He had also conducted his sexual character examination and he was of the opinion that it cannot be said that patient cannot perform sexual intercourse. His detailed MLC Report is Ex. PW1/B signed by him at point 'A'.
PW2 Dr. Hema, Incharge Obs. & Gynae, Satyawadi Raja Harish Chander Hospital, Delhi who deposed that she is deputed on behalf of Dr. Arti Garg by Superintendent SRHC Hospital. She is conversant with the handwriting and signature of Dr. Arti Garg as she has seen her writing and signing in official course of duties as she had worked with her in the Hospital. Dr. Arti Garg now had left the Hospital 8 of 128 9 FIR No. 164/11 PS - Alipur and her whereabouts are not known. As per the MLC of prosecutrix (name withheld) who was brought by Constable Roshani on 25/05/2011 and after preliminary examination she was referred to SR Gynae and Doctor Arti Garg as SR Gynae in the Hospital examined her. The patient alleged history was of sexual assault as such the medical examination in detailed is Ex. PW2/A which bears the handwriting and signature of Dr. Arti Garg at point 'A' (running into four pages). As per the MLC Ex. PW1/A the hymen of the patient was ruptured and there was no bleeding. 13 Samples of the patient was collected sealed and handed over to women SI Santosh Kumari and the details are mentioned in the MLC. She was also referred to Dentist and Radiologist for age determination. Examination from (in the) encircled portion 'C' on MLC Ex. PW1/A was (is) in hand (of Dr. Arti Garg) and bears signature of Dr. Arti Garg at point 'D'.
PW3 W/HC Sumitra is the Duty Officer, who deposed that on 13/05/2011, she was posted at PS - Alipur as DO (Duty Officer) from 8:00 a.m. to 4:00 p.m. On that day, Umesh S/o Jai Lal came to the Police Station regarding missing of his daughter / prosecutrix (name withheld) 9 of 128 10 FIR No. 164/11 PS - Alipur and on his statement, FIR u/s 363 IPC was got recorded from the Computer Operator. She has brought the original FIR registered and copy of FIR No. 164/11 is Ex. PW3/A signed by her at point 'A' and signed by Umesh at point 'B' (OSR). The investigation of case was then handed over to ASI Rishi Pal as per the verbal direction of SHO.
PW4 - Constable Umed Singh, who deposed that on 25/05/2011, he alongwith W/ASI Santosh Kumari went to the house of wanted accused Ram Udagar and visited the house of Dharam Pal at village Alipur where he was residing as tenant. The accused was available at his house and apprehended. After interrogation he was arrested vide arrest memo Ex. PW4/A which bears his signature at point 'A'. His personal search was conducted vide memo Ex. PW4/B signed by him at point 'A'. His disclosure statement was also recorded by IO same is Ex. PW4/C signed by him at point 'A'. He was got medically examined from SRHC Hospital, Narela and after medical examination, the concerned Doctor had given a sealed pullinda and same was handed over to W/SI Santosh Kumari, who took the same into possession vide memo Ex. PW4/D signed by him at point 'A'. Accused is present in 10 of 128 11 FIR No. 164/11 PS - Alipur Court (Correctly identified).
PW4 Prosecutrix is the victim who deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW4/A bearing my thumb impression at point 'A' she identified and proved her clothes, one lady shirt one salwar and one dupatta Ex. P1 (colly).
PW5 HC Devender Singh is the MHC(M), who deposed that on 25/05/2011, she was working as MHC(M) at PS Alipur. On that day, W/SI Santosh deposited three sealed pullindas sealed with the seal of SRHC Hospital, Narela Delhi alongwith sample seal and personal search of Smt. Sukhiya Devi in the Malkhana and he made entry in Register No. 19 at Serial No. 226. On 29/08/2011 W/SI Santosh again deposited two sealed pullindas sealed with the seal of SRHC Hospital, Narela Delhi alongwith sample seal and personal search of Tej Narain in the Malkhana and he made entry in Register No. 19 at Serial No. 371. On 23/08/2011 on the instructions of IO three sealed pullindas were handed over to Constable Brahm Dev for depositing it in FSL Rohini vide RC No. 93/21/11. After depositing the pullindas in the FSL, 11 of 128 12 FIR No. 164/11 PS - Alipur Constable Brahm Dev had deposited the acknowledgment receipt of the pullindas with him. On 08/11/2011 on the instructions of IO two sealed pullindas alongwith sample seal were handed over to Constable Jai Kumar for depositing it in FSL Rohini vide RC No. 110/21/11. After depositing the pullindas in the FSL, Constable Jai Kumar had deposited the acknowledgment receipt of the pullindas with him. He has also brought the Register No. 19 and 21, the copies of relevant entries of Register No. 19 is collectively Ex. PW5/A, copies of relevant entries of Register No. 21 are exhibited Ex. PW5/B & Ex. PW5/C and copies of the receipts are Ex. PW5/D & Ex. PW5/E (OSR). The sealed pullindas remained intact during his custody.
PW5 - Dr. Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL, Rohini, who proved the biological and serological reports Ex. PW5/A and Ex. PW5/B respectively bearing her signatures at point 'A'.
PW6 ASI Rishi Pal is the initial Investigating Officer (IO) of the case, who deposed that on 13/05/2011, he was posted as ASI in PS 12 of 128 13 FIR No. 164/11 PS - Alipur Alipur. On that day, after registration of the FIR, Duty Officer handed over to him the copy of FIR and investigation was marked to him. Complainant Umesh met him in the PS. He alongwith complainant Umesh reached near Shiv Mandir. He searched for the accused and prosecutrix (name withheld) but not found. He gave the wireless message and notices were given to the concerned authorities. Thereafter, investigation was handed over to Sub Inspector Neeraj.
PW7 Sh. Manish Khurana, Learned MM, who deposed that on 26/05/2011, he was posted as MM at Rohini Courts. On that day, an application (was) filed by W/SI Santosh Kumari, PS - Alipur for recording the statement (of the prosecutrix) u/s 164 Cr.P.C. (which) was marked to him by the concerned Court. He fixed the date for recording the statement u/s 164 Cr.P.C. for that day itself vide his endorsement Ex. PW7/A bearing his signature at point 'A'. He recorded the statement of the prosecutrix (name withheld), Aged - 09 years on Oath u/s 164 Cr.P.C. in the Court Chamber attached to his Court and the statement is Ex. PW4/A. The certificate given by him is Ex. PW7/B bearing his signatures at point 'A'. IO moved the application for supplying the copy 13 of 128 14 FIR No. 164/11 PS - Alipur and copy was supplied to him and thereafter the proceedings was ordered to be sent to the Court in sealed cover vide his endorsement Ex. PW7/C bearing his signatures at point 'A'.
PW8 HC Jagat Singh, who deposed that on 09/06/2011, he was posted as Head Constable at PS Alipur. On that day, on the instructions of IO, he alongwith Constable Bram Dev had left the PS for Village Barhai Laptolia, Distt. Darbhanga, Bihar vide DD No. 59B. They reached in PS Birol and after taking the local Police, they reached in the village and searched accused Narain but accused Narain was not found at his house and his father told that his son Narain is missing. On local inquiry, they came to know that some days before accused Narain had come in the village with a young girl. No public person came forward to give statement. Thereafter, they came back to Delhi on 17/06/2011 vide DD No. 34A.
PW9 Sh. Umesh is the father of the prosecutrix, who deposed that prosecutrix (name withheld) is his daughter and at present she is around ten years of age. On 09/05/2011 at about 8:00 a.m. she had 14 of 128 15 FIR No. 164/11 PS - Alipur gone outside the house for playing but she did not return. He searched his daughter but she was not found. Thereafter, he reported the matter to the Police on 13/05/2011 and FIR was lodged. The copy of FIR is already exhibited as Ex. PW3/A. His daughter/prosecutrix (name withheld) used to play at the house of accused Ram Udagar and Sukhiya, present in the Court. He is illiterate. After about fifteen days his daughter/prosecutrix (name withheld) was recovered from the house of Ram Udagar and recovery memo Ex. PW9/A, bearing his signature at point 'A' was prepared in this regard. On inquiry his daughter told that Ram Udagar had committed rape upon her and she was sent to Bihar by Sukhiya alongwith Narain and he had also committed rape upon her. His daughter/prosecutrix (name withheld) was taken to Hospital where she was medically examined. Police had arrested accused Ram Udagar and Sukhiya. Accused Tej Narain used to visit in the house of Sukhiya and Ram Udagar. Accused Tej Narain was also apprehended by Police later on and his daughter/prosecutrix (name withheld) had identified accused Tej Narain. Accused Tej Narain is present in the Court.
PW10 Retd. SI K. S. Dogra is also the Investigating 15 of 128 16 FIR No. 164/11 PS - Alipur Officer (IO) of the case, who deposed that on 23/07/2011, he was posted as Sub Inspector in PS Alipur. On that day, case file was marked to him. He had perused the file and found that investigation is already completed qua accused Ram Udagar and Smt. Sukhiya. The other accused Tej Narain was absconding. He prepared the chargesheet against accused Ram Udagar and Smt. Sukhiya and filed in the Court.
PW11 SI Neeraj Kumar is also the Investigating Officer (IO) of the case, who deposed that on 25/05/2011, he was posted as Sub Inspector in PS Alipur. On that day, case file was marked to him and investigation was handed over to him as ASI Rishi Pal was on leave. On that day, complainant Umesh came in the Police Station and told that his daughter/prosecutrix (name withheld) can be found at the house of Ram Udagar who has just came from Bihar. Thereafter, he alongwith Lady Constable Rashmi and complainant Umesh reached at near Bada Shiv Mandir, Alipur and reached at the house of Ram Udagar there, prosecutrix (name withheld), the daughter of complainant Umesh was found at the house of Ram Udagar. Complainant identified his daughter. Accused Ram Udagar and his wife Sukhiya were also found present at 16 of 128 17 FIR No. 164/11 PS - Alipur their house. Prosecutrix was taken into possession vide memo Ex. PW9/A, bearing his signature at point 'B'. Accused Ram Udagar and Smt. Sukhiya alongwith prosecutrix (name withheld) were brought to Police Station. Inquiry was made from prosecutrix (name withheld) and she told that rape has been committed upon her. He informed to the SHO. Both accused were left with Duty Officer. He took prosecutrix (name withheld) alongwith Lady Constable Rashmi and complainant at SRHC Hospital. Prosecutrix (name withheld) was medically examined and in the mean time W/SI Santosh reached there. Further investigation was handed over to W/SI Santosh. After medical examination of prosecutrix (name withheld), Doctor handed over the sealed pullindas containing the exhibits and the same were seized vide memo Ex. PW11/A, bearing his signature at point 'A'. Thereafter, they came back to Police Station. Accused Ram Udagar and Sukhiya present in the Court.
PW12 Constable Devender Singh, who deposed that on 30/08/2011, he was posted as Constable in PS - Alipur. On that day, he alongwith Constable Jagjeet remained in the investigation with SI 17 of 128 18 FIR No. 164/11 PS - Alipur Santosh. Accused Narayan @ Tej Narayan, present in the Court was taken out from the Police Lockup and thereafter he pointed out the house of Dharam Pal near Shiv Mandir in Village Alipur and told that in this room Sukhiya alongwith her husband Ram Udagar and children were living as tenant and he took away prosecutrix (name withheld) to Bihar with the consent of Sukhiya and her husband Ram Udagar. The pointing out memo was prepared and the same is Ex. PW12/A, bearing his signature at point 'A'.
PW13 Sh. Jogi Lakra, Principal, MCD, Primary School, Jind Pur, Delhi, who deposed that he has brought the summoned record. As per their record, one child/prosecutrix (name withheld) D/o Umesh and Smt. Manju was admitted in their School on 27/07/2007 vide admission No. 2232 in class 1st. As per their record, her date of birth is 01/04/2002. She was admitted in their School on the basis of 'Shapath Patra' (Affidavit) executed by the father of the child. The copy of the Admission Register is Ex. PW13/A, copy of the 'Shapath Patra' is Ex. PW13/B and copy of admission form is Ex. PW13/C (OSR).
18 of 128 19 FIR No. 164/11 PS - Alipur PW14 - Constable Sumit, who deposed that on 29/08/2011, he was posted as Constable in PS Alipur. On that day, he along with IO SI Santosh Kumari were present in the Police Station and a Secret Informer came in the Police Station and informed to IO that accused Narayan @ Tej Narayan who is absconder in the present case and wanted in the present case is sitting at the tea stall near gate of new Anaaj Mandi, Narela and if raided he can be apprehended. On this information, he alongwith IO and Secret Informer reached near railway crossing new Anaaj Mandi in a private vehicle and in the meantime, complainant alongwith his daughter/prosecutrix (name withheld) met them there. IO asked four/five public persons to join the raiding party but none agreed and went away without telling their names and addresses. Thereafter, they reached at tea stall, Anaaj Mandi and at the instance of Secret Informer, complainant and prosecutrix (name withheld) apprehended accused Narayan @ Tej Narayan, who is present in the Court (correctly identified). He was interrogated and arrested vide arrest memo Ex. PW14/A bearing his signature at point 'A', his personal search was conducted vide memo Ex. PW14/B bearing his signature at point 'A'. He made disclosure statement Ex. PW14/C bearing his signature at point 'A'.
19 of 128 20 FIR No. 164/11 PS - Alipur Thereafter, accused was taken to SRHC Hospital for medical examination. He was medically examined and after medical examination Doctor handed over the sealed pullinda containing exhibits and the same was seized vide memo Ex. PW14/D bearing his signature at point 'A'. Thereafter, they came back to Police Station. Accused was sent to Police lockup and the case property was deposited in Malkhana.
PW15 - W/SI Santosh Kumari is the subsequent Investigating Officer (IO) of the case, who deposed that on 25/05/2011, she was posted as Sub Inspector in PS Alipur. On that day, investigation of the present case was handed over to her. She came to know that prosecutrix (name withheld) has been recovered and SI Neeraj alongwith W/Constable Rashmi and her parents had taken her in SRHC Hospital for medical examination. She reached at SRHC Hospital where she met SI Neeraj alongwith prosecutrix and her parents. After medical examination, Doctor handed over the sealed pullinda containing exhibits of the prosecutrix and the same were seized vide memo Ex. PW11/A, bearing her signature at point 'B'. Thereafter, they came back in the Police Station and there accused Ram Udagar and Sukhiya Devi were 20 of 128 21 FIR No. 164/11 PS - Alipur found present in the DO Room. SI Neeraj handed over to her all the investigation papers. She recorded statement of SI Neeraj. She interrogated accused Ram Udagar and Sukhiya and arrested them vide arrest memo Ex. PW4/A and Ex. PW15/A respectively, bearing her signature at point 'B', their personal search were conducted vide memo Ex. PW4/B and Ex. PW15/B, bearing her signature at point 'B'. Disclosure statement of accused Ram Udagar Ex. PW4/C and disclosure statement of accused Sukhiya Ex. PW15/C were recorded, bearing her signature at point 'B'. Accused Ram Udagar and Sukhiya were medically examined and after medical examination of accused Ram Udagar, Constable Umed handed over to her the sealed pullinda containing exhibits and same were seized vide memo Ex. PW4/D, bearing her signature at point 'B'. She recorded the statement of witnesses. On 26/05/2011, accused Ram Udagar and Sukhiya produced in the Court and were sent to JC. She also moved an application Ex. PW15/D, bearing her signature at point 'A' for recording statement of prosecutrix (name withheld) u/s 164 Cr.P.C. and her statement was got recorded. She obtained the copy of the statement vide her application Ex. PW15/E, bearing her signature at point 'A'. She searched for accused Tej Narain 21 of 128 22 FIR No. 164/11 PS - Alipur but not found. On 23/08/2011, the exhibits were sent to FSL. After completing the investigation against accused Ram Udagar and Sukhiya, the challan was prepared and filed in the Court. On 29/08/2011, she received the secret information that the accused Narain @ Tej Narain, wanted in the present case is present near the Tea Stall, near the Gate of New Anaj Mandi, Narela and if raided he can be apprehended and thereafter, she alongwith Constable Sumit and Secret Informer reached near railway crossing New Anaj Mandi in a private vehicle and in the meanwhile, complainant along with her daughter/prosecutrix (name withheld) met them there. She asked 4/5 public persons to join the investigation but none agreed and went away without telling their names and addresses. Thereafter, they reached at Tea Stall, near New Anaj Mandi and at the instance of complainant they apprehended accused Narain @ Tej Narain. He was interrogated and arrested vide arrest memo Ex. PW14/A, his personal search was conducted vide memo Ex. PW14/B, he made disclosure statement Ex. PW14/C, all bears her signature at point 'B'. Accused was taken to SRHC Hospital for medical examination and after medical examination Doctor handed over the sealed exhibits which were seized vide memo Ex. PW14/D, bearing her 22 of 128 23 FIR No. 164/11 PS - Alipur signature at point 'A'. Case property was deposited in the Malkhana. On 08/11/2011 the exhibits were sent to FSL. She recorded the statement of witnesses and after completing the investigation, supplementary challan was prepared against Narain @ Tej Narain and filed in the Court. All the three accused are present in the Court (correctly identified).
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. It is to be mentioned that on 12/08/2013, Learned Counsel for accused Tej Narain @ Narain had admitted the medical examination of accused Tej Narain @ Narain vide MLC Ex. PX1 and had stated that he has 'no objection' if the concerned Doctor is not examined in the Court as witness.
8. Statements of accused Ram Udagar, Sukhiya and Tej Narain @ Narain were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Accused Ram Udagar and Sukhiya did not opt to lead any defence evidence. However, accused Tej Narain @ Narain 23 of 128 24 FIR No. 164/11 PS - Alipur opted to lead defence evidence and in his defence examined one witness namely Sh. Anirudh Yadav, his father.
DW1 - Sh. Anirudh Yadav is the father of accused Tej Narain @ Narain, who deposed that he is the father of accused Tej Narain @ Narain. He is an agriculturist. His son Tej Narain @ Narain always remained at home and never went out of Bihar State. He is married and is having one child. Family of his son Tej Narain @ Narain lives with his family. He knows accused Ram Udagar and his wife Sukhiya as they were living in his neighbourhood in Bihar. Sukhiya came to him and demanded Rs. 50,000/ for the marriage of her son. He did not pay the said amount to Sukhiya on which Sukhiya threatened him that she will implicate his son Tej Narain @ Narain in a false case. When the Police official from PS Alipur came to his house in Bihar then he came to know about the involvement of his son Tej Narain @ Narain in this case. He accompanied by Sh. Ram Shankar Yadav produced his son Tej Narain @ Narain before the Police of PS - Alipur.
The testimony of the defence witness shall be dealt with in detail during the course of appreciation of evidence.
24 of 128 25 FIR No. 164/11 PS - Alipur
9. Learned Counsel for accused Tej Narain @ Narain submitted that prosecutrix was produced before Medical Officer of SRHC Hospital, Narela on 25/05/2011 for her medical. She was referred to dentist and radiologist for age determination and the MLC is Ex. PW1/A but the prosecution did not produce the dentist and radiology report/result before the Court. The prosecution has hidden/concealed the age determination report because prosecutrix was above 16 years at the time of incident. Learned Counsel further submitted that prosecution has failed to produce the birth certificate of the MCD from of the office of birth and death registration because the prosecutrix was above 16 years of age at the time of incident. Learned Counsel further submitted that the prosecution produced PW13 Sh. Jogi Lakra Principal of MCD School, he also did not produce the MCD, Municipal Birth Certificate before the Court. Learned Counsel further submitted that the prosecutrix did not raise any alarm or protest against him when she was accompanied with the accused Tej Narain @ Narain. The prosecutrix did not raise any alarm during her stay at village of Bihar or any other place. Learned Counsel further submitted that as per the medical examination 25 of 128 26 FIR No. 164/11 PS - Alipur report, no injury found on the body and any part of the body of the prosecutrix. Learned Counsel further submitted that PW4 prosecutrix did not disclose the name of accused Tej Narain @ Narain or that she was raped by accused Tej Narain @ Narain in her statement under section 164 Cr.P.C. Ex. PW4/A dated 26/04/2011. Learned Counsel further submitted that PW4 prosecutrix improved her statement before the Court. Learned Counsel submitted that PW4 prosecutrix in her statement before the court has deposed that, "Accused Tej Narain had committed rape with me in the village in Bihar in the day as well as in the night. Accused Tej Narain had committed rape upon me for three days". Learned Counsel submitted that such facts are not mentioned in her statement under section 164 Cr.P.C. Ex. PW4/A. Learned Counsel further submitted that PW4 prosecutrix in her crossexamination has stated that "Tej Narain used to take meat from the shop of my father. It is correct that for this reason, I was knowing accused Tej Narain". Learned Counsel submitted that whereas PW4 prosecutrix in her statement u/s. 164 Cr.P.C. has stated that "Sukhia sent me with some person". Learned Counsel further submitted that there is a delay of four days in lodging of the FIR and the delay has not been explained by the 26 of 128 27 FIR No. 164/11 PS - Alipur prosecution. Learned Counsel further submitted that accused Tej Narain @ Narain did not take the prosecutrix at village in Bihar. He further submitted that prosecutrix was recovered from the possession of accused Sukhia. He further submitted that IO did not collect the evidence from the village of Bihar. IO did not collect evidence of transport used for going to Bihar and of coming back from Bihar. IO did not himself visit the place of crime/rape or where the prosecutrix stayed in Bihar. Learned Counsel further submitted that prosecutrix was in Delhi at the time of incident and she never went out of Delhi or Bihar or any place. Prosecutrix never went to Bihar with accused Tej Narain @ Narain. Learned Counsel further submitted that IO did not prepare the site plan at the instance of the victim of the crime place in village of Bihar or at the instance of accused Tej Narain. Learned Counsel referred to a case and is reported as 'State Vs. Sushil Kumar', 2014 (6) ADR 588.
Learned Counsel submitted that prosecution has failed to prove its case against accused Tej Narain @ Narain and prayed for the acquittal of accused Tej Narain @ Narain on all the charges levelled against him.
27 of 128 28 FIR No. 164/11 PS - Alipur
10. Learned Counsel for the accused Ram Udagar and Sukhiya submitted that as per the FIR the date of incident is 09/05/2011 and the FIR bearing No. 164/11 was registered on 13/05/2011 and the delay in the registration of the FIR clearly shows the manipulation and malafide intention in the incident by the complainant. Learned Counsel further submitted that the accused were arrested with so much delay on 25/05/2011 while the accused were residing just nearby the rented house of the complainant. Learned Counsel further submitted that accused were arrested with so delay and during this period the police officials released the real culprit and falsely implicated the accused Ram Udagar and Sukhiya. Learned Counsel for further submitted that the complainant is having school going children and knows each and everything regarding their safety from the tenants and he also could not verify his tenants which also shows the malafide intention of the complainant. Learned Counsel further submitted that PW1 Dr. Narender Pratap in his examinationinchief has stated that there was no external wounds or injuries on the body of the prosecutrix. PW4 Prosecutrix in her crossexamination has stated that, "it is correct that I had slapped one teacher in the school and due to this reason my name 28 of 128 29 FIR No. 164/11 PS - Alipur was stuck of from the roll of the school boy saying that I am mad. It is correct that I had told to accused Sukhiya that I am having a step mother who used to give beating to me. It is correct that Sukhiya used to save me from beating by my step mother. It is correct that I had stated to Sukhiya that my father had brought my mother after eloping her with him (Bhaga Kar Le Aye). It is correct that during that period my mother and father did not inquired (inquire) about me. It is correct that some times Ram Udagar and Sukhiya had saved me from the beating of my parents and due to this reason, quarrel used to take place between my parents and Ram Udagar. It is correct that my parents had warned Ram Udagar and Smt. Sukhiya that they will teach them a lesson because they used to save me from beatings." Learned Counsel submitted that PW4 Prosecutrix in her cross examination clearly shows the anti revengeful motive with Ram Udagar and with his wife Sukhiya. PW9 Umesh is the father of the prosecutrix who in his examinationinchief has stated that I searched my daughter but she was not found. Thereafter, I reported the matter to the police on 13/05/2011 and FIR was lodged. My daughter/prosecutrix used to play at the house of accused Ram Udagar and Sukhiya, present in the court today. I am illiterate. After about 29 of 128 30 FIR No. 164/11 PS - Alipur fifteen days my daughter Sudha/prosecutrix was recovered from the house of Ram Udagar. Learned Counsel further submitted that PW11 SI Neeraj Kumar in his crossexamination has stated that, "we reached near Bada Shiv Mandir within five minutes. Public persons gathered at the house of Ram Udagar when we reached at the house of Ram Udagar, I did not make inquiry from the public persons gathered there." Learned Counsel further submitted that there is no public witness in this case and the locality was thickly populated and a number of worker were working surrounding the place where alleged offence occurred. PW13 Sh. Jogi Lakra, Principal, MCD, Primary School has admitted in his examination in chief that she was admitted in our school on the basis of Shapath Patra (Affidavit) executed by the father of the child. That the FSL report is also contradictory in this case and the exhibits in the species of origin ABO group/remarks shows no reaction. Learned Counsel further submitted that the statement u/s 164 Cr.P.C. of victim was recorded which is totally manipulated, fabricated and after tutoring the victim by her parents with anti revenge motive due to castes. Learned Counsel submitted that prosecution has failed to prove its case against accused Ram Udagar and Sukhiya and prayed for the acquittal of accused Ram 30 of 128 31 FIR No. 164/11 PS - Alipur Udagar and Sukhiya on all the charges framed against them.
11. 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.
12. I have heard Ms. Kiran Bala, Learned Addl. PP for the State, Ms. Geeta Singh Chauhan, Learned Amicus Curiae for accused Ram Udagar and Smt. Sukhiya and Sh. Yashwant Yadav, Learned Counsel for the accused Tej Narain @ Narain and have also carefully perused the entire record.
13. The charge for the offences punishable u/s 363/365/34 IPC, u/s 366 r/w section 109 IPC, u/s 376(2)(f) IPC, u/s 376 (2)(f) r/w section 109 IPC and section 376(2)(f) IPC against accused Ram Udagar, Tej Narain @ Narain and Smt. Sukhiya is that on 09/05/2011 at about 8:00 31 of 128 32 FIR No. 164/11 PS - Alipur a.m., accused Ram Udagar and accused Smt. Sukhiya in furtherance of their common intention kidnapped the prosecutrix (name withheld) D/o Sh. Umesh, aged around 9 years playing in front of her house at Bara Shiv Mandir, Alipur, Delhi, within the jurisdiction of PS - Alipur, with the intention of secretly and wrongfully confining the prosecutrix and that on or before 09/05/2011 at time unknown accused Ram Udagar and accused Smt. Sukhiya in furtherance of their common intention after kidnapping the prosecutrix in the aforesaid manner, abetted the prosecutrix to go alongwith accused Tej Narain @ Narain at his house situated in their native village at Bihar knowing it to be likely that prosecutrix will be forced or seduced to illicit intercourse and that on or before 09/05/2011 at time unknown accused Tej Narain @ Narain after taking he prosecutrix in the aforesaid manner at his house situated in the native of accused Ram Udagar and accused Smt. Sukhiya, at Bihar, he committed rape on the prosecutrix forcefully and that after 09/05/2011 at time unknown accused Ram Udagar and accused Smt. Sukhiya brought prosecutrix back to their house from the house of accused Tej Narain @ Narain and at their house accused Smt. Sukhiya abetted the committal of rape on prosecutrix by her husband, accused Ram Udagar and that after 32 of 128 33 FIR No. 164/11 PS - Alipur 09/05/2011 at time unknown accused Ram Udagar and accused Smt. Sukhiya brought prosecutrix back to their house from the house of accused Tej Narain @ Narain, at their house accused Ram Udagar committed rape on prosecutrix forcefully.
14. 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
15. PW13 Sh. Jogi Lakra, Principal, MCD, Primary School, Jind Pur, Delhi has deposed that as per their record one child prosecutrix (name withheld) D/o Umesh and Smt. Manju was admitted in their School on 27/07/2007 vide admission no. 2232 in class 1st. As per their record her date of birth is 01/04/2002. She was admitted in their School on the basis of 'Shapath Patra' (Affidavit) executed by the father of the child. The copy of the Admission Register is Ex. PW13/A, copy of the 33 of 128 34 FIR No. 164/11 PS - Alipur 'Shapath Patra' is Ex. PW13/B and copy of admission form is Ex. PW13/C (OSR).
There is nothing in the crossexamination of PW13 Sh. Jogi Lakra so as to impeach his creditworthiness.
Nor any evidence to the contrary has been produced or proved on behalf of the accused.
In the circumstances, it stands established on the record that the date of birth of prosecutrix was 01/04/2002.
As the date of alleged incident is 09/05/2011 and the date of birth of prosecutrix is 01/04/2002, on simple arithmetical calculation, the age of prosecutrix comes to 09 years, 01 month and 08 days as on the date of incident on 09/05/2011.
The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and 34 of 128 35 FIR No. 164/11 PS - Alipur the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
In view of above and in the circumstances, it stands established on record that PW4 prosecutrix was aged 09 years, 01 month and 08 days as on the date of alleged incident on 09/05/2011. MEDICAL EVIDENCE OF THE PROSECUTRIX
16. PW1 Dr. Narendra Pratap, CMO, Satyawadi Raja Harish Chander Hospital, Narela, Delhi has deposed that on 25/05/2011, he was working as CMO in the SRHC Hospital. On that day at about 11:30 a.m. 35 of 128 36 FIR No. 164/11 PS - Alipur one patient/prosecutrix (name withheld) was brought by Constable Roshani and he had preliminary examined her and found that there was no external wounds or injuries. Patient came walking and there was history of kidnapping few days before. After examination, she was referred to SR - Gynae for further examination as there was alleged history of sexual assault. Examination from (in the) encircled portion 'A' on MLC Ex. PW1/A was (is) in his hand and bears his signature at point 'B'.
PW2 Dr. Hema, Incharge Obs. & Gynae, Satyawadi Raja Harish Chander Hospital, Delhi has deposed that she is deputed on behalf of Dr. Arti Garg by Superintendent SRHC Hospital. She is conversant with the handwriting and signature of Dr. Arti Garg as she has seen her writing and signing in official course of duties as she had worked with her in the Hospital. Dr. Arti Garg now had left the Hospital and her whereabouts are not known. As per the MLC of prosecutrix (name withheld) who was brought by Constable Roshani on 25/05/2011 and after preliminary examination she was referred to SR Gynae and Doctor Arti Garg as SR Gynae in the Hospital examined her. The patient alleged history was of sexual assault as such the medical examination in 36 of 128 37 FIR No. 164/11 PS - Alipur detailed is Ex. PW2/A which bears the handwriting and signature of Dr. Arti Garg at point 'A' (running into four pages). As per the MLC Ex. PW1/A the hymen of the patient was ruptured and there was no bleeding. 13 Samples of the patient was collected sealed and handed over to women SI Santosh Kumari and the details are mentioned in the MLC. She was also referred to Dentist and Radiologist for age determination. Examination from (in the) encircled portion 'C' on MLC Ex. PW1/A was (is) in hand (of Dr. Arti Garg) and bears signature of Dr. Arti Garg at point 'D'.
Despite grant of opportunity, PW1 Dr. Narendra Pratap and PW2 Dr. Hema were not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical examination at encircled portion 'A' on the MLC Ex. PW1/A and the gynaecological examination at encircled portion 'C' on the MLC Ex. PW1/A of PW4 - prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED RAM UDAGAR
17. PW1 Dr. Narendra Pratap, CMO, Satyawadi Raja Harish 37 of 128 38 FIR No. 164/11 PS - Alipur Chander Hospital, Narela, Delhi has deposed that he had also examined Ram Udagar S/o Shiya Dhari brought by Constable Umed on 25/05/2011 at about 6:45 p.m. for medical examination with the alleged history of sexual act by the patient. On examination he did not find any sign of external injuries. The patient's blood samples, pubic hairs and undergarments were preserved and handed over to Police Constable Umed. He had also conducted his sexual character examination and he was of the opinion that it cannot be said that patient cannot perform sexual intercourse. His detailed MLC Report is Ex. PW1/B signed by him at point 'A'.
Despite grant of opportunity, PW1 Dr. Narendra Pratap was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Ram Udagar was capable of performing sexual intercourse.
VIRILITY OF THE ACCUSED TEJ NARAIN @ NARAIN
18. It is to be mentioned that on 12/08/2013, Learned 38 of 128 39 FIR No. 164/11 PS - Alipur Counsel for accused Tej Narain @ Narain had admitted the medical examination of accused Tej Narain @ Narain vide MLC Ex. PX1 and had stated that he has 'no objection' if the concerned Doctor is not examined in the Court as witness.
Perusal of the MLC Ex. PX1 of accused Tej Narain @ Narain indicates that the Doctor has opined that nothing found suggestive that person examined is incapable of performing sexual intercourse.
In view of above and in the circumstances it stands proved on the record that accused Tej Narain @ Narain was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE QUA ACCUSED RAM UDAGAR
19. PW5 - Dr. Manisha Upadhyaya, Senior Scientific Officer (Biology), FSL, Rohini has proved the biological and serological reports Ex. PW5/A and Ex. PW5/B respectively bearing her signatures at point 'A'.
39 of 128 40 FIR No. 164/11 PS - Alipur As per biological report No. FSL2011/B4727, dated 28/09/2011, Ex. PW5/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 cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '1a', '1b' and '1c'.
Exhibit '1a' : One dirty lady's shirt. Exhibit '1b' : One dirty salwar. Exhibit '1c' : One dirty dupatta. Parcel '2' : One sealed cardboard box sealed with the seal
of "SRHC HOSPITAL NARELA DELHI" containing exhibits '2a', '2b', '2c', 2d, 2e, 2f, 2g, 2h, 2i, 2j, 2k, 2l, 2m, 2n, 2o, 2p and 2q each kept in an envelope.
Exhibit '2a' : Cotton wool swab on a stick marked as 'Step 5 Breast swab' Exhibit '2b' : One empty paper alongwith comb marked as 'Step 6 combing of Pubic hair'. Kept unexamined as nothing was found in it.
Exhibit '2c' : One empty paper alongwith scissor marked as 'Step 7 Clipping of Pubic hair'. Kept unexamined as nothing was found in it.
Exhibit '2d1' : Cotton wool swab on a stick marked as 'Step 9 40 of 128 41 FIR No. 164/11 PS - Alipur Vaginal secretion [V]'.
Exhibit '2d2a' : Two microslides having faint whitish smear & '2d2b' kept in a plastic case marked as 'Step 9 Vaginal secretion [V]'.
Exhibit '2e' : Fluid/liquid kept in a Syringe alongwith rubber pipe marked as 'Step 11 washing from Vagina'. Exhibit '2f1' : Cotton wool swab on a stick kept in a tube marked as 'Step 12 Rectal examination' Exhibit '2f2a' : Two microslides having faint whitish smear & '2f2b' kept in a plastic case marked as 'Step 12 Rectal examination'.
Exhibit '2g1' : Dark brown foul smelling liquid kept in a tube marked as 'Step 14 Blood collection of Victim clot activator'.
Exhibit '2g2' : Dark brown foul smelling liquid kept in a tube marked as 'Step 14 Blood collection of Victim K3 EDTA'.
Exhibit '2h1' : Dark brown foul smelling liquid kept in a tube marked as 'Step 15 Urine and Oxalate Blood vial'.
Exhibit '2h2' : Dirty blackish brownish liquid kept in a plastic container marked as 'Step 15 Urine and Oxalate Blood vial'.
Exhibit '2i1' : Cotton wool swab on a stick marked as 'Step 13 Oral swab'.
Exhibit '2i2a' : Two microslides having faint whitish smear & '2i2b' kept in a plastic case marked as 'Step 13 Oral swab'.
41 of 128 42 FIR No. 164/11 PS - Alipur Exhibit '2j' : Few clippings of nail marked as 'Step 4 Nail scrapping'.
Exhibit '2k' : Cotton wool swab on a stick marked as 'Step 4 Inbetween fingers' wrapped in a paper'.
Exhibit '2l' : One empty paper alongwith forcep marked as 'Step 4 Debri collection'. Kept unexamined as nothing was found in it.
Exhibit '2m' : Cotton wool swab on a stick kept in a tube marked as 'Step 4 Body fluid collection'.
Exhibit '2n' : One empty paper marked as 'Step 4 Debri collection'. Kept unexamined as nothing was found in it.
Exhibit '2o' : One empty paper marked as 'Step 8 Matter pubic hair. Kept unexamined as nothing was found in it.
Exhibit '2p' : Cotton wool swab on a stick kept in a tube marked as 'Step 9 Cervical Mucus Collection [C].
Exhibit '2q' : Wet dirty cotton wool swab on a stick alongwith a fluid marked as 'Step 10 Culture'. Parcel '3' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '3a', '3b' and '3c'.
Exhibit '3a' : Dark brown foul smelling liquid kept in two separate tubes described as 'Blood sample'. Exhibit '3b' : Few strands of hair kept in bottle described as 42 of 128 43 FIR No. 164/11 PS - Alipur 'Pubic hair'.
Exhibit '3c' : One dirty nikker described as 'Undergarment'.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '2g1', '2g2', '2h1' and '3a'.
2. Blood could not be detected on exhibits '1a', '1b', '1c', '2a', '2d1', '2e', '2f1', '2h2', '2i1', '2j', '2k', '2m', '2p', '2q', '3b' and '3c'.
3. Human semen was detected on exhibit '1a', '1b' and '3c'.
4. Semen could not be detected on exhibits '1c', '2a', '2d1', '2d2a', '2d2b', '2e', '2f1', '2f2a', '2f2b', '2h2', '2i1', '2i2a', '2i2b', '2j', '2k', '2m', '2p', '2q' and '3b'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'FSL MU DELHI'.
The serological report No. FSL2011/B4727, dated 28/09/2011, Ex. PW5/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood stains: '2g1' Blood sample Sample blood putrefied hence no opinion '2g2' Blood sample Sample blood putrefied hence no opinion '2h1' Blood sample Sample blood putrefied hence no opinion 43 of 128 44 FIR No. 164/11 PS - Alipur '3a' Blood sample Sample blood putrefied hence no opinion Semen stains: No reaction '1a' Lady's shirt '1b' Salwar No reaction '3c' Nikker No reaction As per the biological report Ex. PW5/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel Nos. 1 & 2 belong to the prosecutrix which were seized vide seizure memo Ex. PW11/A, dated 25/05/2011. Parcel No. 3 belongs to accused Ram Udagar which was seized vide seizure memo Ex. PW4/D, dated 25/05/2011.
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '2g1' (Blood collection of the victim/prosecutrix, clot activator), exhibit '2g2' (Blood collection of the victim/prosecutrix, K3 EDTA), exhibit '2h1' (Urine and Oxalate Blood vial of the prosecutrix) and exhibit '3a' (Blood sample of accused Ram Udagar); blood could not 44 of 128 45 FIR No. 164/11 PS - Alipur be detected on exhibit '1a' (lady's shirt of the prosecutrix), exhibit '1b' (salwar of the prosecutrix), exhibit '1c' (dupatta of the prosecutrix), exhibit '2a' (Breast swab of the prosecutrix), exhibit '2d1' (Vaginal secretion [V] of the prosecutrix), exhibit '2e' (washing from Vagina of the prosecutrix), exhibit '2f1' (Rectal examination of the prosecutrix), exhibit '2h2' (Urine and Oxalate Blood vial of the prosecutrix), exhibit '2i1' (Oral swab of the prosecutrix), exhibit '2j' (Nail scrapping of the prosecutrix), exhibit '2k' (Inbetween fingers of the prosecutrix), exhibit '2m' (Body fluid collection of the prosecutrix), exhibit '2p' (Cervical Mucus Collection [C] of the prosecutrix), exhibit '2q' (Culture of the prosecutrix), exhibit '3b' (Pubic hair of accused Ram Udagar) and exhibit '3c' (Undergarment of accused Ram Udagar); Human semen was detected on exhibit '1a' (lady's shirt of the prosecutrix), exhibit '1b' (salwar of the prosecutrix) and exhibit '3c' (Undergarment of accused Ram Udagar) and semen could not be detected on exhibit '1c' (dupatta of the prosecutrix), exhibit '2a' (Breast swab of the prosecutrix), exhibit '2d1' (Vaginal secretion [V] of the prosecutrix), exhibit '2d2a' (Vaginal secretion [V] of the prosecutrix), exhibit '2d2b' (Vaginal secretion [V] of the prosecutrix), exhibit '2e' (washing 45 of 128 46 FIR No. 164/11 PS - Alipur from Vagina of the prosecutrix), exhibit '2f1' (Rectal examination of the prosecutrix), exhibit '2f2a' (Rectal examination of the prosecutrix), exhibit '2f2b' (Rectal examination of the prosecutrix), exhibit '2h2' (Urine and Oxalate Blood vial of the prosecutrix), exhibit '2i1' (Oral swab of the prosecutrix), exhibit '2i2a' (Oral swab of the prosecutrix), exhibit '2i2b' (Oral swab of the prosecutrix), exhibit '2j' (Nail scrapping of the prosecutrix), exhibit '2k' (Inbetween fingers of the prosecutrix), exhibit '2m' (Body fluid collection of the prosecutrix), exhibit '2p' (Cervical Mucus Collection [C] of the prosecutrix), exhibit '2q' (Culture of the prosecutrix) and exhibit '3b' (Pubic hair of accused Ram Udagar). As per the serological report Ex. PW5/B 'Sample was putrefied hence no opinion' could be given on the exhibit '2g1' (Blood Sample of the prosecutrix), exhibit '2g2' (Blood Sample of the prosecutrix), exhibit '2h1' (Blood Sample of the prosecutrix) and exhibit '3a' (Blood Sample of accused Ram Udagar). Exhibits '1a', '1b' and '3c' gave 'No Reaction' on ABO Grouping.
As per the biological report Ex. PW5/A, prosecution has discharged its initial burden of proving the presence of Human semen 46 of 128 47 FIR No. 164/11 PS - Alipur on exhibit '1a' (lady's shirt of the prosecutrix seized vide seizure memo Ex. PW11/A, dated 25/05/2011), exhibit '1b' (salwar of the prosecutrix seized vide seizure memo Ex. PW11/A, dated 25/05/2011) and exhibit '3c' (Undergarment of the Ram Udagar seized vide seizure memo Ex. PW4/D, dated 25/05/2011). Accused Ram Udagar was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1a', '1b' & and '3c' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused Ram Udagar and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
BIOLOGICAL AND SEROLOGICAL EVIDENCE QUA ACCUSED TEJ NARAIN @ NARAIN
20. It is to be mentioned that on 30/05/2015, Learned Addl. PP tendered FSL Report No. FSL2011/B6689, dated 27/12/2011 Ex. PX (Colly) in evidence to which the Learned Defence Counsel had 'no 47 of 128 48 FIR No. 164/11 PS - Alipur objection'.
As per biological report No. FSL2011/B6689, Ex. PX (Colly.) the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '1'. Exhibit '1' : Dark brown foul smelling liquid kept in tube described as 'Blood sample'.
Parcel '2' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '2'. Exhibit '2' : Bunch of hair described as 'Pubic hair' kept in a bottle.
RESULT OF ANALYSIS
1. Blood was detected on exhibit '1'.
2. Blood could not be detected on exhibit '2'.
3. Semen could not be detected on exhibit '2'.
4. Report of serological analysis in original is attached herewith.
48 of 128 49 FIR No. 164/11 PS - Alipur NOTE : Remnants of the exhibits have been sealed with the seal of 'FSL MU DELHI'.
The serological report No. FSL2011/B6689, Ex. PX (Colly.) reads as under: Exhibits Species of origin ABO Grouping/Remarks '1' Blood sample Sample blood putrefied hence no opinion As per the biological report Ex. PX (Colly.), with regard to the description of the articles contained in the parcels, it is noticed that Parcel Nos. 1 & 2 belong to accused Tej Narain @ Narain which were seized vide seizure memo Ex. PW14/D, dated 29/08/2011.
On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1' (Blood Sample of accused Tej Narain @ Narain); blood could not be detected on exhibit '2' (Pubic hair of accused Tej Narain @ Narain) and semen could not be detected on exhibit '2' (Pubic hair of accused Tej Narain @ Narain). As per the serological report Ex. PX 49 of 128 50 FIR No. 164/11 PS - Alipur (Colly.) 'Sample blood was putrefied hence no opinion' could be given on the exhibit '1' (Blood Sample of accused Tej Narain @ Narain).
It is also to be noticed that the period of alleged incident is from 09/05/2011 to 25/05/2011 when the recovery of the prosecutrix was allegedly made from the custody/house of accused Ram Udagar and Smt. Sukhia vide recovery memo Ex. PW9/A, dated 25/05/2011. Accused Tej Narain @ Narain was arrested on 29/08/2011 and the medical examination of accused Tej Narain @ Narain was conducted on 29/08/2011 vide MLC Ex. PX1 and the exhibits '1' and '2' of accused Tej Narain @ Narain were seized on 29/08/2011 vide seizure memo Ex. PW14/D dated 29/08/2011, during this period of incident from (09/05/2011 to 25/05/2011) till 29/08/2011, it cannot be ruled out that accused Tej Narain @ Narain must have taken bath a number of times and must have answered the call of nature a number of times and must have urinated a number of times and this not being a case of recent sexual intercourse activity and for the said reasons it appears that blood could not be detected on exhibit '2' (Pubic hair of accused Tej Narain @ Narain) and semen could not be detected on exhibit '2' (Pubic hair of accused Tej Narain @ Narain).
50 of 128 51 FIR No. 164/11 PS - Alipur LAW RELATING TO THE EVIDENCE OF CHILD WITNESS
21. In case Amrit Sharma @ Amit Vs. State, 2012 IX AD (DELHI) 149 (DB), the Hon'ble Delhi High Court in para 14 has held that : ".....Under Section 118 Evidence Act, no specific age has been prescribed and a child of any age can be a competent witness. Under Section 119 Evidence Act, even a deaf and dumb can be a competent witness. There is no fixed age on which a child must have arrived in order to be competent as a witness. Competency is determined at the time the child testifies rather than at the time the incident occurred."
Section 118 of the Indian Evidence Act, 1872 provides who may testify.
It reads as under :
118. Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation. A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to 51 of 128 52 FIR No. 164/11 PS - Alipur him and giving rational answers to them.
In case Bindu Vs. State (NCT) of Delhi 2009 VIII AD (DELHI), the Hon'ble Delhi High Court has held as under : "As per the provisions of Section 118 of the Evidence Act all the persons are competent to testify, unless the Court consider that by reason of tender years they are incapable of understanding the questions put to them and of giving rational answers but then it is for the Judge to satisfy himself as regards fulfillment of the requirement of the said provision. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness cannot be rejected per se, but the Court as a rule of prudence is required to consider such evidence with close scrutiny and if it is convinced about the quality thereto and the reliability of the child witness can record conviction based on his testimony. If after careful scrutiny of child witness's statement the Court comes to the conclusion that there is impressed of truth in it. There is no reason as to why the Court should not accept the evidence of child witness."
In State of U.P. Vs. Krishna Master and others 2010 VIII AD (S.C.) 401 = AIR 2010 SC 3071 = (2010) 12 SCC 324, the Hon'ble Supreme Court held : "There is no principle of law known to this Court that it is 52 of 128 53 FIR No. 164/11 PS - Alipur inconceivable that a child of tender age would not be able to recapitulate the facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."
In "Nivrutti Pandurang Kokate Vs. State of Maharashtra" AIR 2008 SC 1460, the Hon'ble Supreme Court dealing with the child witness has observed as under : (SCC pp. 56768, para
10) "10. ... 7. ... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and the said judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the 53 of 128 54 FIR No. 164/11 PS - Alipur records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of makebelieve. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness"
In "State of H.P. Vs. Suresh Kumar @ DC" 2010 I AD (S.C.) 573 = (2009) 8 SCALE 628, the prosecutrix was 56 years old. The accused therein was resident of the same village. The observations of the Hon'ble Supreme Court in paragraphs 12 & 13 are relevant to note : "12. There is another vital submission made by the respondentaccused which is required to be dealt with at this stage. It was submitted that both the child witnesses, namely, PW3 and PW4, the prosecutrix and her sister respectively, should not and could not have been believed due to the following two reasons. Firstly, both PW3 as well as PW4 was child at the time of commission of the said offence and secondly, they were tutored by their parents and Police.
13. We have considered the said submission, but we find the same to be unacceptable. The depositions of these two witnesses, i.e. PW3 & PW4 with regard to the occurrence of such incidence are firm and convincing. We find no reason as to why a child of her age i.e.
54 of 128 55 FIR No. 164/11 PS - Alipur prosecutrix would get an innocent person named for an offence which was undisputable committed on her. It is settled position of law that the conviction for offence under Section 376 on the sole testimony of a rape victim if the evidence of the prosecutrix is found to be credible and convincing." This Court observed as follows in the case 'State of Rajasthan Vs. MANU/SC/0416/2002 : Om Prakash 2002 CriLJ2951' :
13. The conviction for offence under Section 376 IPC can be based on the sole testimony of a rape victim is a wellsettled proposition. In 'State of Punjab Vs. Gurmit Singh', MANU/SC/0138/1997, referring to 'State of Maharashtra Vs. Chandraprakash Kewalchand Jain', MANU/SC/0122/1990, this Court held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice.
It has also been observed in the said decision by Dr. Justice A. S. Anand (as His Lordship then was), speaking for the Court that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim, in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury."
55 of 128 56 FIR No. 164/11 PS - Alipur
22. Now let the testimony of PW4 prosecutrix be perused and analysed.
The statement of PW4 - prosecutrix was recorded after putting a number of preliminary questions to her and after being satisfied about her competency and keeping in view her tender age, oath was not administered to her.
PW4 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I know accused Ram Udagar and Sukhia as they were residing near our house. I used to go to their house for playing. I also know the accused Tej Narain as he used to come at the house of Sukhia Aunty. I can identify the said accused persons, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Ram Udagar, Tej Narain and Smt. Sukhia and identified them correctly.
Sometime I also used to sleep in the house of Sukhia and Ram Udagar in the night. Much time age (ago), exact date, month and year I do not remember, accused Ram Udagar had committed rape upon me many times at their house in the nights. Sukhia Aunty had sent me in a village in Bihar with accused Tej Narain. Accused Tej Narain had committed rape with me in the village in Bihar in the day time as well as in the night time. Accused Tej Narain had committed rape upon me for 56 of 128 57 FIR No. 164/11 PS - Alipur three days. Accused Sukhia and Ram Udagar came in the village in Bihar. Accused Ram Udagar took me in the field and he also committed rape upon me there. Accused Ram Udagar had threatened me not to disclose this fact to anybody. When I narrated all these facts to Sukhia Aunty, she also threatened me not to disclose this fact to anybody. Sukhiya Aunty told me that Police and my parents are searching me in Delhi. Thereafter, Sukhia and Ram Udagar brought me to Delhi. Police came at the house of Ram Udagar and Sukhiya and Police took me, Ram Udagar and Sukhiya to the PS. Police made inquiries from me. I was taken to Hospital where I was medically examined. My statement was also recorded before the Judge.
At this stage, on (one) sealed envelope, sealed with the seal of 'MK' is opened and from it, proceedings and the statement u/s 164 Cr.P.C. of the prosecutrix (name withheld) recorded by Sh. Manish Khurana, Learned MM is taken out. Attention of the prosecutrix is drawn towards the statement u/s 164 Cr.P.C. and is read over to the witness and she affirmed it as correct having being made to the Judge. The statement is Ex. PW4/A, bearing my thumb impression at point 'A'.
My wearing clothes were taken into possession in the Hospital.
At this stage, MHC(M) has produced a sealed pullinda, sealed with the seal of FSL. Same is opened which is found containing one lady shirt, one salwar and one dupatta. Witness identifies the same as correctly which were taken into possession in the hospital . The same are collectively exhibited as Ex. P1."
From the aforesaid narration of PW4 - prosecutrix, it is 57 of 128 58 FIR No. 164/11 PS - Alipur clear that she knows accused Ram Udagar and Sukhia as they were residing near their house. She used to go to their house for playing. She also knows the accused Tej Narain as he used to come at the house of Sukhia Aunty and she correctly identified all the accused persons Ram Udagar, Tej Narain and Smt. Sukhia present in the Court. Sometime she also used to sleep in the house of Sukhia and Ram Udagar in the night. Much time age (ago), exact date, month and year she does not remember, accused Ram Udagar had committed rape upon her many times at their house in the nights. Accused Sukhia had sent her in a village in Bihar with accused Tej Narain. Accused Tej Narain had committed rape with her in the village in Bihar in the day time as well as in the night time. Accused Tej Narain had committed rape upon her for three days. Accused Sukhia and Ram Udagar came in the village in Bihar. Accused Ram Udagar took her in the field and he also committed rape upon her there. Accused Ram Udagar had threatened her not to disclose this fact to anybody. When she narrated all these facts to accused Sukhia, she also threatened her not to disclose this fact to anybody. Accused Sukhiya told her that Police and her parents are searching her in Delhi. Thereafter, Sukhia and Ram Udagar brought her to Delhi. Police came 58 of 128 59 FIR No. 164/11 PS - Alipur at the house of Ram Udagar and Sukhiya and Police took her, Ram Udagar and Sukhiya to the PS. Police made inquiries from her. She was taken to Hospital where she was medically examined. Her statement was also recorded before the Judge which is Ex. PW4/A, bearing her thumb impression at point 'A'. Her wearing clothes were taken into possession in the Hospital. She also identified her clothes, one lady shirt, one salwar and one dupatta which were taken into possession in the Hospital as Ex. P1 (colly.).
PW4 - Prosecutrix during her crossexamination has negated the suggestions that accused Ram Udagar used to insist her not to sleep in their house or that she had asked Ram Udagar and Sukhiya to accompany them in marriage in Bihar or that while playing, she used to reach to the shop of her father at Palla or that the adult passers by had ever scolded her or that she had voluntarily gone with Tej Narain or that she was being taken away by Tej Narain without holding her hand or that she had been tutored by her parents and by the Police to make a false statement or that her parents have falsely implicated Ram Udagar and Sukhiya for keeping her by them or that accused Ram Udagar and 59 of 128 60 FIR No. 164/11 PS - Alipur Sukhiya have been falsely implicated in this case or that she is deposing falsely or that accused Tej Narain had not forcibly taken her to his village or that no wrong act was committed upon her by accused Tej Narain or that she had been tutored to depose in the Court or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW4 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
The testimony of PW4 - Prosecutrix is also found to be corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
60 of 128 61 FIR No. 164/11 PS - Alipur The testimony of PW4 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW4/A. The testimony of PW4 - Prosecutrix is also found to be corroborated by PW9 - Sh. Umesh, her father, to whom prosecutrix had 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.
PW9 - Umesh, father of the prosecutrix in his examinationinchief has deposed which is reproduced and reads as under : "Prosecutrix (name withheld) is my daughter and at present she is around ten years of age. On 09/05/2011 at about 8:00 a.m. she had gone outside the house of (for) playing but she did not return. He searched his daughter but she was not found. Thereafter, he reported the matter to the police on 13/05/2011 and FIR was lodged. The copy of FIR is already exhibited as Ex. PW3/A. My daughter/prosecutrix (name withheld) used to play at the house of accused Ram Udagar and Sukhiya, present in the Court today. I am illiterate. After about fifteen days my 61 of 128 62 FIR No. 164/11 PS - Alipur daughter/prosecutrix (name withheld) was recovered from the house of Ram Udagar and recovery memo Ex. PW9/A, bearing my signature at point 'A' was prepared in this regard. On inquiry my daughter told that Ram Udagar had committed rape upon her and she was sent to Bihar by Sukhiya alongwith Narain and he had also committed rape upon her. My daughter/prosecutrix (name withheld) was taken to Hospital where she was medically examined. Police had arrested accused Ram Udagar and Sukhiya. Accused Tej Narain used to visit in the house of Sukhiya and Ram Udagar. Accused Tej Narain was also apprehended by Police later on and my daughter/prosecutrix (name withheld) had identified accused Tej Narain. Accused Tej Narain is present in the Court today."
From the aforesaid narration of PW9 Umesh it is clear that the prosecutrix is his daughter and at present she is around ten years of age. On 09/05/2011 at about 8:00 a.m. she had gone outside the house of (for) playing but she did not return. He searched his daughter but she was not found. Thereafter, he reported the matter to the police on 13/05/2011 and FIR was lodged. The copy of FIR is already exhibited as Ex. PW3/A. His daughter/prosecutrix used to play at the house of accused Ram Udagar and Sukhiya, present in the Court. He is illiterate. After about fifteen days his daughter/prosecutrix was recovered from the house of Ram Udagar and recovery memo Ex. PW9/A, bearing his signature at point 'A' was prepared in this regard. On inquiry his 62 of 128 63 FIR No. 164/11 PS - Alipur daughter told that Ram Udagar had committed rape upon her and she was sent to Bihar by Sukhiya alongwith Narain and he had also committed rape upon her. His daughter Sudha was taken to hospital where she was medically examined. Police had arrested accused Ram Udagar and Sukhiya. Accused Tej Narain used to visit in the house of Sukhiya and Ram Udagar. Accused Tej Narain was also apprehended by Police later on and his daughter/prosecutrix had identified accused Tej Narain. Accused Tej Narain is present in the Court.
During his crossexamination PW9 - Umesh has negated the suggestions that accused Ram Udagar used to purchase meat from his shop or that he (PW9) was disturbed by her bad habit of disobedience of his daughter/prosecutrix or that he is deposing falsely.
Inspite of incisive crossexamination of PW9 - Sh. Umesh, father of the prosecutrix, nothing material has been brought out so as to impeach his creditworthiness. He has withstood the rigors of cross examination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ 63 of 128 64 FIR No. 164/11 PS - Alipur Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII (S.C.)1] the testimony of PW9 - Umesh is found to be natural, clear, reliable, 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. He has deposed regarding the facts as to what he observed, experienced and perceived.
23. While analysing the testimonies of PW4 - Prosecutrix and PW9 - Sh. Umesh, her father as discussed hereinabove inspite of incisive crossexamination of PW4 - Prosecutrix and PW9 - Sh. Umesh, 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 accused Ram Udagar used to insist her not to sleep in their house or that she had asked Ram Udagar and Sukhiya to accompany them in marriage in Bihar or that while playing, she used to reach to the shop of her father at Palla or that the adult passers by had ever scolded her or that she had voluntarily gone with Tej Narain or that she was being taken away by Tej Narain without holding her hand or that she had been tutored by her parents and 64 of 128 65 FIR No. 164/11 PS - Alipur by the Police to make a false statement or that her parents have falsely implicated Ram Udagar and Sukhiya for keeping her by them or that accused Ram Udagar and Sukhiya have been falsely implicated in this case or that she is deposing falsely or that accused Tej Narain had not forcibly taken her to his village or that no wrong act was committed upon her by accused Tej Narain or that she had been tutored to depose in the Court or that she is deposing falsely and the suggestions to PW9 - Sh. Umesh that accused Ram Udagar used to purchase meat from his shop or that he (PW9) was disturbed by her bad habit of disobedience of his daughter/prosecutrix or that he is deposing falsely, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.
However, a futile attempt has been made by the accused Tej Narain @ Narain to save his skin from the clutches of law by way of examination of defence witness namely DW1 - Sh. Anirudh Yadav, his father.
65 of 128 66 FIR No. 164/11 PS - Alipur During his examinationinchief DW1 - Sh. Anirudh Yadav, father of accused Tej Narain @ Narain has propounded a theory that "He knows accused Ram Udagar and his wife Sukhiya as they were living in his neighbourhood in Bihar. Sukhiya came to him and demanded Rs. 50,000/ for the marriage of her son. He did not pay the said amount to Sukhiya on which Sukhiya threatened him that she will implicate his son Tej Narain @ Narain in a false case." but the said theory so propounded has not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded was put either to PW4 - prosecutrix or to PW9 - Umesh, father of the prosecutrix during their entire incisive and lengthy crossexamination. Nor even a single word regarding the said theory so propounded by DW1 - Sh. Anirudh Yadav was uttered by accused Tej Narain @ Narain during his statement recorded u/s 313 Cr.P.C.
In the circumstances, the theory so propounded is merely an afterthought and is found to have no substance and falls 66 of 128 67 FIR No. 164/11 PS - Alipur flat on the ground. The testimony of DW1 - Sh. Anirudh Yadav does not inspire confidence and he is a procured witness.
24. 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 67 of 128 68 FIR No. 164/11 PS - Alipur one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW4 - Prosecutrix in the light of medical examination at encircled portion 'A' on the MLC Ex. PW1/A, gynaecological examination at encircled portion 'C' on the MLC Ex. PW1/A of the prosecutrix, biological and serological evidence Ex. PW5/A, Ex.PW5/B and Ex. PX (Colly.) together with the MLC of accused Ram Udagar Ex. PW1/B, MLC of accused Tej Narain @ Narain Ex. PX1 as discussed hereinbefore, the act of sexual intercourse 68 of 128 69 FIR No. 164/11 PS - Alipur activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Ram Udagar and accused Tej Narain @ Narain with PW4 - Prosecutrix without her consent.
NOW LET THE SUBMISSIONS/PLEAS RAISED BY THE LEARNED DEFENCE COUNSEL BE ANALYSED AND APPRECIATED
25. Learned Counsel for accused Tej Narain @ Narain submitted that prosecutrix was produced before Medical Officer of SRHC Hospital, Narela on 25/05/2011 for her medical. She was referred to dentist and radiologist for age determination and the MLC is Ex. PW1/A but the prosecution did not produce the dentist and radiology report/result before the Court. The prosecution has hidden/concealed the age determination report because prosecutrix was above 16 years at the 69 of 128 70 FIR No. 164/11 PS - Alipur time of incident. Learned Counsel further submitted that prosecution has failed to produce the birth certificate of the MCD from of the office of birth and death registration because the prosecutrix was above 16 years of age at the time of incident. Learned Counsel further submitted that the prosecution produced PW13 Sh. Jogi Lakra Principal of MCD School, he also did not produce the MCD, Municipal Birth Certificate before the Court.
I have carefully perused and analysed the evidence on record.
The age of the prosecutrix has been discussed hereinbefore under the heading "AGE OF THE PROSECUTRIX" and at the cost of repetition, it stands established on record that PW4 prosecutrix was aged 09 years, 01 month and 08 days as on the date of alleged incident on 09/05/2011.
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 70 of 128 71 FIR No. 164/11 PS - Alipur and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
In the instant case, since the date of birth certificate from the School (Other than a Play School), first attended by PW4 - prosecutrix, as provided under Rule 12 (3)(a)(ii) 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.
So far as the plea raised by the Learned Counsel for the accused Tej Narain @ Narain that, "the prosecution does not produce the Dentist and the Radiology Report and that the prosecution has failed to produce the Birth Certificate of the MCD from the Office of Birth and Death Registration", is concerned, it is evident from the record that during the crossexamination of PW15 - W/SI Santosh Kumari IO, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining 71 of 128 72 FIR No. 164/11 PS - Alipur correctly the factual situation. For such failure, accused is to blame himself and none else.
Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
So far as the plea raised by the Learned Counsel for the accused Tej Narain @ Narain that, "the prosecution produced PW13 Sh. Jogi Lakra Principal of MCD School, he also did not produce the MCD, Municipal Birth Certificate before the Court", is concerned, it is not made clear by the Learned Counsel for the accused as to what he intends to convey from the plea so raised. Moreover, the testimony of PW13 - Sh. Jogi Lakra has been reproduced, discussed and analysed hereinbefore and there is nothing in his crossexamination so as to impeach his creditworthiness. The said PW has deposed regarding the facts relating to the date of birth of the prosecutrix as 01/04/2002 as per 72 of 128 73 FIR No. 164/11 PS - Alipur the School record. At the cost of repetition, PW13 - Sh. Jogi Lakra in his examinationinchief has specifically deposed that as per their record, date of birth of the prosecutrix is 01/04/2002 and she was admitted in their School on 27/07/2007 vide Admission No. 2232 in Class Ist on the basis of 'Shapath Patra' (Affidavit) executed by her father and proved the copy of the Admission Register as Ex. PW13/A, copy of the 'Shapath Patra' as Ex. PW13/B and copy of admission form as Ex. PW13/C (OSR). No evidence to the contrary has been produced or proved on the record on behalf of the accused.
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 73 of 128 74 FIR No. 164/11 PS - Alipur the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the 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 74 of 128 75 FIR No. 164/11 PS - Alipur the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a 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 75 of 128 76 FIR No. 164/11 PS - Alipur hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other 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."
76 of 128 77 FIR No. 164/11 PS - Alipur In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused Tej Narain @ Narain submitted that the prosecutrix did not raise any alarm or protest against him when she was accompanied with the accused Tej Narain @ Narain. The prosecutrix did not raise any alarm during her stay at village of Bihar or any other place.
I have carefully perused and analysed the evidence on record.
The testimony of PW4 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW4 - 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, PW4 - prosecutrix in her 77 of 128 78 FIR No. 164/11 PS - Alipur examinationinchief has specifically deposed which is reproduced and reads as under : Sometime I also used to sleep in the house of Sukhia and Ram Udagar in the night. Much time age (ago), exact date, month and year I do not remember, accused Ram Udagar had committed rape upon me many times at their house in the nights. Sukhia Aunty had sent me in a village in Bihar with accused Tej Narain. Accused Tej Narain had committed rape with me in the village in Bihar in the day time as well as in the night time. Accused Tej Narain had committed rape upon me for three days. Accused Sukhia and Ram Udagar came in the village in Bihar. Accused Ram Udagar took me in the field and he also committed rape upon me there. Accused Ram Udagar had threatened me not to disclose this fact to anybody. When I narrated all these facts to Sukhia Aunty, she also threatened me not to disclose this fact to anybody.
(Underlined by me) So far as the plea raised by the Learned Counsel for accused TejNarain @ Narain that, "the prosecutrix did not raise any alarm or protest against him when she was accompanied with the accused Tej Narain @ Narain. The prosecutrix did not raise any alarm during her stay at village of Bihar or any other place", is concerned, it is evident from the record that during the crossexamination of PW4 - prosecutrix none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised.
78 of 128 79 FIR No. 164/11 PS - Alipur She was the only competent witness who would have been fully capable of explaining correctly the factual situation.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
Nonraising of any alarm or protest by the prosecutrix does not ipso facto falsify the case of the prosecution which is otherwise proved on the record by clear, cogent and convincing evidence.
The sight cannot be lost of the fact that PW4 - prosecutrix, a minor girl aged about 9 years, who was under the total dominance, control, threat and intimidation of the accused, when was overtaken by the events, one is left wondering as to how it is expected that she would gather the courage in such adverse circumstances to raise hue and cry.
79 of 128 80 FIR No. 164/11 PS - Alipur In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for accused Tej Narain @ Narain submitted that as per the medical examination report, no injury found on the body and any part of the body of the prosecutrix.
Learned Counsel for accused Ram Udagar and Sukhiya submitted that PW1 Dr. Narender Pratap in his examinationinchief has stated that there was no external wounds or injuries on the body of the prosecutrix.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel that, "as per the medical examination report, no injury found on the body and any part of the body of the prosecutrix", is concerned, absence of any injury on the body of the prosecutrix does not falsify the case of the 80 of 128 81 FIR No. 164/11 PS - Alipur prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda 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. 81 of 128 82 FIR No. 164/11 PS - Alipur State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for accused Tej Narain @ Narain submitted that PW4 prosecutrix did not disclose the name of accused Tej Narain @ Narain or that she was raped by accused Tej Narain @ Narain in her statement under section 164 Cr.P.C. Ex. PW4/A dated 26/04/2011.
82 of 128 83 FIR No. 164/11 PS - Alipur I have carefully perused and analysed the evidence on record.
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.
So far as the plea that, "PW4 prosecutrix did not disclose the name of accused Tej Narain @ Narain or that she was raped by accused Tej Narain @ Narain in her statement under section 164 Cr.P.C. Ex. PW4/A dated 26/04/2011", is concerned, it is evident from the record that during the crossexamination of PW4 - prosecutrix, the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
At the cost of repetition, recently in case 'Mahavir Singh 83 of 128 84 FIR No. 164/11 PS - Alipur Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for accused Tej Narain @ Narain submitted that PW4 prosecutrix improved her statement before the Court. Learned Counsel submitted that PW4 prosecutrix in her statement before the court has deposed that, "Accused Tej Narain had committed rape with me in the village in Bihar in the day as well as in the night. Accused Tej Narain had committed rape upon me for three days". Learned Counsel submitted that such facts are not mentioned in her statement under section 164 Cr.P.C. Ex. PW4/A. Learned Counsel further submitted that PW4 prosecutrix in her crossexamination has stated that " Tej Narain used to take meat from the shop of my father. It is correct that for this reason, I was knowing Tej Narain". Learned 84 of 128 85 FIR No. 164/11 PS - Alipur Counsel submitted that whereas PW4 prosecutrix in her statement u/s. 164 Cr.P.C. has stated that "Sukhia sent me with some person".
I have carefully perused and analysed the evidence on record.
The testimony of PW4 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW4 - 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, PW4 prosecutrix has deposed in her examinationinchief which is reproduced and reads as under : "I know accused Ram Udagar and Sukhia as they were residing near our house. I used to go to their house for playing. I also know the accused Tej Narain as he used to come at the house of Sukhia Aunty. I can identify the said accused persons, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Ram Udagar, Tej Narain and 85 of 128 86 FIR No. 164/11 PS - Alipur Smt. Sukhia and identified them correctly.
Sometime I also used to sleep in the house of Sukhia and Ram Udagar in the night. Much time age (ago), exact date, month and year I do not remember, accused Ram Udagar had committed rape upon me many times at their house in the nights. Sukhia Aunty had sent me in a village in Bihar with accused Tej Narain. Accused Tej Narain had committed rape with me in the village in Bihar in the day time as well as in the night time. Accused Tej Narain had committed rape upon me for three days. Accused Sukhia and Ram Udagar came in the village in Bihar. Accused Ram Udagar took me in the field and he also committed rape upon me there. Accused Ram Udagar had threatened me not to disclose this fact to anybody. When I narrated all these facts to Sukhia Aunty, she also threatened me not to disclose this fact to anybody. Sukhiya Aunty told me that Police and my parents are searching me in Delhi. Thereafter, Sukhia and Ram Udagar brought me to Delhi. Police came at the house of Ram Udagar and Sukhiya and Police took me, Ram Udagar and Sukhiya to the PS. Police made inquiries from me. I was taken to Hospital where I was medically examined. My statement was also recorded before the Judge.
At this stage, on (one) sealed envelope, sealed with the seal of 'MK' is opened and from it, proceedings and the statement u/s 164 Cr.P.C. of the prosecutrix (name withheld) recorded by Sh. Manish Khurana, Learned MM is taken out. Attention of the prosecutrix is drawn towards the statement u/s 164 Cr.P.C. And is read over to the witness and she affirmed it as correct having being made to the Judge. The statement is Ex. PW4/A, bearing my thumb impression at point 'A'.
My wearing clothes were taken into possession in the Hospital.
At this stage, MHC(M) has produced a sealed pullinda, 86 of 128 87 FIR No. 164/11 PS - Alipur sealed with the seal of FSL. Same is opened which is found containing one lady shirt, one salwar and one dupatta. Witness identifies the same as correctly which were taken into possession in the hospital . The same are collectively exhibited as Ex. P1."
On analysing the entire testimony of the PW4 prosecutrix it transpires that she has described the scenario implicating the accused to be authors of the crime, of her kidnapping, secret and wrongful confinement by accused Ram Udagar and Smt. Sukhiya, of abetment of accused Tej Narain @ Narain by Smt. Sukhiya in furtherance of their common intention with accused Ram Udagar knowing it to be likely that prosecutrix will be forced or seduced to illicit intercourse, of her criminal intimidation by accused Smt. Sukhiya and Ram Udagar and of the committal of the sexual assault upon her (prosecutrix) by accused Ram Udagar and Tej Narain @ Narain. Accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. In fact, so called contradictions are the 'clarifications' or 'elaboration' of the facts in response to the 87 of 128 88 FIR No. 164/11 PS - Alipur questions put to her. The core facts about the committal of the crime by the accused have remained intact.
So far as the plea raised by the Learned Counsel for the accused Tej Narain @ Narain that, PW4 - prosecutrix in her examinationinchief has stated that, "Accused Tej Narain had committed rape with me in the village in Bihar in the day as well as in the night. Accused Tej Narain had committed rape upon me for three days"
whereas such facts are not mentioned in her statement under section 164 Cr.P.C. Ex. PW4/A and that PW4 prosecutrix in her crossexamination has stated that "Tej Narain used to take meat from the shop of my father. It is correct that for this reason, I was knowing Tej Narain Narain", whereas PW4 prosecutrix in her statement u/s 164 Cr.P.C. has stated that "Sukhia sent me with some person", is concerned, it is evident from the record that during the crossexamination of PW4 - prosecutrix, the said accused did not voice his concern or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame
88 of 128 89 FIR No. 164/11 PS - Alipur himself and none else.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel for accused Tej Narain @ Narain submitted that there is a delay of four days in lodging of the FIR and the delay has not been explained by the prosecution.
Learned Counsel for the accused Ram Udagar and Sukhiya submitted that as per the FIR the date of incident is 09/05/2011 and the FIR bearing No. 164/11 was registered on 13/05/2011 and the delay in the 89 of 128 90 FIR No. 164/11 PS - Alipur registration of the FIR clearly shows the manipulation and malafide intention in the incident by the complainant.
I have carefully perused and analysed the evidence on record.
PW9 - Sh. Umesh, father of the prosecutrix in his examinationinchief has specifically deposed that : "Prosecutrix (name withheld) is my daughter and at present she is around ten years of age. On 09/05/2011 at about 8:00 a.m. she had gone outside the house of (for) playing but she did not return. He searched his daughter but she was not found. Thereafter, he reported the matter to the police on 13/05/2011 and FIR was lodged. The copy of FIR is already exhibited as Ex. PW3/A. My daughter/prosecutrix (name withheld) used to play at the house of accused Ram Udagar and Sukhiya, present in the Court today. I am illiterate. After about fifteen days my daughter/prosecutrix (name withheld) was recovered from the house of Ram Udagar and recovery memo Ex. PW9/A, bearing my signature at point 'A'....."
During his crossexamination PW9 - Umesh has specifically deposed that : "I have searched prosecutrix (name withheld) all the area of neighbourhood . I had also visited the house of Ram Udagar to search 90 of 128 91 FIR No. 164/11 PS - Alipur prosecutrix (name withheld) on the next day in the morning. I had also visited the house of Ram Udagar on that day in the night also. When I visited the house of Ram Udagar only Sukhiya and her children were present but prosecutrix (name withheld) was not present there. I have also searched my daughter at the house of my relatives in Delhi. I had gone to my relatives in Delhi after three days of missing of my daughter."
Inspite of incisive crossexamination of PW9 - Umesh, nothing material has been brought out so as to impeach his creditworthiness.
From the aforesaid narration of PW9 - Umesh, father of the prosecutrix, it is clearly indicated that on 09/05/2011 at about 8:00 a.m., she (prosecutrix) had gone outside the house for playing but she did not return. He searched his daughter but she was not found. She had searched her all the area of neighbourhood. He had also searched prosecutrix (name withheld) all the area of neighbourhood. He had also visited the house of Ram Udagar to search prosecutrix (name withheld) on the next day in the morning. He had also visited the house of Ram Udagar on that day in the night 91 of 128 92 FIR No. 164/11 PS - Alipur also. When he visited the house of Ram Udagar only Sukhiya and her children were present but prosecutrix (name withheld) was not present there. He had also searched his daughter at the house of his relatives in Delhi. He had gone to his relatives in Delhi after three days of missing of his daughter. In the circumstances, the delay of four days in reporting the matter to the Police on 13/05/2011 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 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 92 of 128 93 FIR No. 164/11 PS - Alipur to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh Vs. Prem Singh AIR 2009 SC 1010).
In State Vs. Gurmeet Singh, IV (1996) CCR 134 (SC), the Hon'ble Supreme Court, inter alia observed as under : "The Courts cannot overlook the fact that in sexual offence delay in the lodging of the FIR can be due to variety of the prosecutrix or her family members to go to the Police and complaint about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodge."
In Gian Chand Vs. State, II (2001) SLT 740, the Hon'ble Supreme Court has observed as under : "That mere delay in filing FIR is no ground to doubt the case of the prosecution and not believing the testimony given by the prosecutrix in the Court. It was held that delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on that ground."
Normally a woman would not falsely implicate for the 93 of 128 94 FIR No. 164/11 PS - Alipur offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience 94 of 128 95 FIR No. 164/11 PS - Alipur for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held "20. This Court can take judicial notice of the fact that 95 of 128 96 FIR No. 164/11 PS - Alipur 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 circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for accused Tej Narain @ Narain submitted that accused Tej Narain @ Narain did not take the prosecutrix at village in Bihar. He further submitted that prosecutrix was recovered from the possession of accused Sukhia. He further submitted that IO did not collect the evidence from the village of Bihar. IO did not collect evidence of transport used for going to Bihar and of coming back from Bihar. IO did not himself visit the place of crime/rape or where the prosecutrix stayed in Bihar. Learned Counsel further submitted that prosecutrix was in Delhi at the time of incident and she never went out of Delhi or Bihar or any place. Prosecutrix never went to Bihar with accused Tej Narain @ Narain. Learned Counsel further submitted that IO did not prepare the site plan at the instance of the victim of the crime place in village of Bihar or at the instance of accused Tej Narain.
96 of 128 97 FIR No. 164/11 PS - Alipur I have carefully perused and analysed the evidence on record.
With due respect, it appears that Learned Counsel for accused Tej Narain @ Narain has either misread the evidence or has not read the evidence on record.
The factum of taking of PW4 - prosecutrix by accused Tej Narain @ Narain with him to his village in Bihar has not disputed by the said accused as is indicated from the cross examination of PW4 - prosecutrix which is reproduced and reads as under : "It is wrong to suggest that I had voluntarily gone with Tej Narain. I had not told anyone on the way when I was taken away by Tej Narain. It is wrong to suggest that I was being taken away by Tej Narain without holding my hand. There was no friend of mine in the village where I had been taken by Tej Narain. The houses were situated at a distance in the said village. In the said village I had told one Aunty that I have been brought by Tej Narain but I do not know the name of that Aunty."
"It is wrong to suggest that accused Tej Narain had not forcibly taken me to his village."
97 of 128 98 FIR No. 164/11 PS - Alipur " It is correct that Ram Udgar and Sukhiya Aunty had gone to the village where I had been taken away by Tej Narain from Delhi."
(Underlined by me) So far as the plea raised by the Learned Counsel for the accused that, "Accused Tej Narain @ Narain did not take the prosecutrix at village in Bihar." and that "Prosecutrix never went to Bihar with accused Tej Narain @ Narain", is concerned, it is found to have no substance in view of the specific and categorical testimony of PW4 - prosecutrix as reproduced, discussed and analysed hereinabove. Moreover, the Theories propounded by the Learned Counsel for accused Tej Narain @ Narain that, "Accused Tej Narain @ Narain did not take the prosecutrix at village in Bihar." and that "Prosecutrix never went to Bihar with accused Tej Narain @ Narain" are concerned, the same have not at all been made probable much established by any cogent evidence. In the circumstances, the said theories so propounded are found to have no substance and falls flat on the ground.
98 of 128 99 FIR No. 164/11 PS - Alipur At the cost of repetition, a futile attempt has been made by the accused Tej Narain @ Narain to save his skin from the clutches of law by way of examination of defence witness namely DW1 - Sh. Anirudh Yadav, his father.
During his examinationinchief DW1 - Sh. Anirudh Yadav, father of accused Tej Narain @ Narain has propounded a theory that "He knows accused Ram Udagar and his wife Sukhiya as they were living in his neighbourhood in Bihar. Sukhiya came to him and demanded Rs. 50,000/ for the marriage of her son. He did not pay the said amount to Sukhiya on which Sukhiya threatened him that she will implicate his son Tej Narain @ Narain in a false case." but the said theory so propounded has not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded was put either to PW4 - prosecutrix or to PW9 - Umesh, father of the prosecutrix during their entire incisive and lengthy crossexamination. Nor even a single word regarding the said theory so propounded by DW1 - Sh. Anirudh Yadav 99 of 128 100 FIR No. 164/11 PS - Alipur was uttered by accused Tej Narain @ Narain during his statement recorded u/s 313 Cr.P.C.
In the circumstances, the theory so propounded is merely an afterthought and is found to have no substance and falls flat on the ground. The testimony of DW1 - Sh. Anirudh Yadav does not inspire confidence and he is a procured witness.
So far as the plea raised by the Learned Counsel for the accused Tej Narain @ Narain that, "prosecutrix was recovered from the possession of accused Sukhia", is concerned, it is not made clear by the Learned Counsel as to what he intends to convey from the plea so raised especially when the said fact already stands established on the record in view of the categorical and specific evidence of PW9 - Umesh, father of the prosecutrix and PW11 - SI Neeraj Kumar.
So far as the plea raised by the Learned Counsel for the accused Tej Narain @ Narain that, "IO did not collect the evidence from the village of Bihar; IO did not collect evidence of transport used for 100 of 128 101 FIR No. 164/11 PS - Alipur going to Bihar and of coming back from Bihar; IO did not himself visit the place of crime/rape or where the prosecutrix stayed in Bihar; IO did not prepare the site plan at the instance of the victim of the crime place in village of Bihar or at the instance of accused Tej Narain.", is concerned, it is evident from the record that during the cross examination of PW15 - W/SI Santosh Kumari, IO none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
101 of 128 102 FIR No. 164/11 PS - Alipur Moreover, the said lapses or discrepancies in the investigation regarding which the plea has been raised, do not reflect upon the substantive evidence and the probative value of the statement of PW4 - 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.
So far as the plea raised by the Learned Counsel for the accused Tej Narain @ Narain that, "prosecutrix was in Delhi at the time of incident and she never went out of Delhi or Bihar or any place, is concerned, it is found to have no substance in view of the specific and categorical testimony of PW4 - prosecutrix as reproduced, discussed and analysed hereinbefore. Moreover, the said Theory so propounded by the Learned Counsel for accused Tej Narain @ Narain that, "Prosecutrix was in Delhi at the time of incident and she never went out of Delhi or Bihar or any place." has not at all been made probable much established 102 of 128 103 FIR No. 164/11 PS - Alipur by any cogent evidence. Nor any suggestion regarding the said theory so propounded was put to PW4 - prosecutrix during her entire incisive and lengthy crossexamination. Nor any suggestion regarding the said theory so propounded was put to PW9 - Umesh, father of the prosecutrix during his entire incisive and lengthy crossexamination. Nor even a single word regarding the said theory so propounded was uttered by accused Tej Narain @ Narain during his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theory so propounded is merely an afterthought and is found to have no substance and falls flat on the ground.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
32. Learned Counsel for accused Ram Udagar and Sukhiya submitted that the accused were arrested with so much delay on 25/05/2011 while the accused were residing just nearby the rented house of the complainant. Learned Counsel further submitted that accused were arrested with so delay and during this period the police officials 103 of 128 104 FIR No. 164/11 PS - Alipur released the real culprit and falsely implicated the accused Ram Udagar and Sukhiya.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, "the accused were arrested with so much delay on 25/05/2011 while the accused were residing just nearby the rented house of the complainant and that accused were arrested with so delay and during this period the police officials released the real culprit and falsely implicated to the accused Ram Udagar and Sukhiya", is concerned, it is found to have no substance in view of the evidence of PW11 - SI Neeraj Kumar and PW15 - W/SI Santosh Kumari IO.
PW11 - SI Neeraj Kumar during his examinationin chief has specifically deposed which is reproduced and reads as under : "On 25/05/2011 I was posted as Sub Inspector in PS Alipur. On that day case file was marked to me and investigation was handed over to me as ASI Rishi Pal was on leave. On that day 104 of 128 105 FIR No. 164/11 PS - Alipur complainant Umesh came in the Police Station and told that her daughter/prosecutrix (name withheld) can be found at the house of Ram Udagar who has just came from Bihar. Thereafter, I alongwith lady Constable Rashmi and complainant Umesh reached at near Bada Shiv Mandir, Alipur and reached at the house of Ram Udagar there. Prosecutrix (name withheld), the daughter of complainant Umesh was found at the house of Ram Udagar. Complainant identified his daughter. Accused Ram Udagar and his wife Sukhiya were also found present at their house. Prosecutrix was taken into possession vide memo Ex. PW9/A, bearing my signature at point 'B'. Accused Ram Udagar and Smt. Sukhiya alongwith prosecutrix (name withheld) were brought to Police Station. Inquiry was made from prosecutrix (name withheld) and she told that rape has been committed upon her. I informed to the SHO. Both accused were left with Duty Officer. I took prosecutrix (name withheld) alongwith lady Constable Rashmi and complainant at SRHC Hospital. Prosecutrix (name withheld) was medically examined and in the mean time W/SI Santosh reached there. Further investigation was handed over to W/SI Santosh. After medical examination of prosecutrix (name withheld), Doctor handed over the sealed pullindas containing the exhibits and the same were seized vide memo Ex. PW11/A, bearing my signature at point 'A'. Thereafter, we came back to Police Station. Accused Ram Udagar and Sukhiya present in the Court today. "
PW15 - W/SI Santosh Kumari IO during her examinationinchief has specifically deposed which is reproduced and reads as under :
105 of 128 106 FIR No. 164/11 PS - Alipur "On 25/05/2011 I was posted as Sub Inspector in PS Alipur. On that day investigation of the present case was handed over to me. I came to know that prosecutrix (name withheld) has been recovered and SI Neeraj alongwith W/Constable Rashmi and her parents had taken her in SRHC Hospital for medical examination. I reached at SRHC Hospital where I met SI Neeraj alongwith prosecutrix and her parents. After medical examination, Doctor handed over the sealed pullinda containing exhibits of the prosecutrix and the same were seized vide memo Ex. PW11/A, bearing my signature at point 'B'. Thereafter, we came back in the Police Station and there accused Ram Udagar and Sukhiya Devi were found present in the DO Room. SI Neeraj handed over to me all the investigation papers. I recorded statement of SI Neeraj. I interrogated accused Ram Udagar and Sukhiya and arrested them vide arrest memo Ex. PW4/A and Ex. PW15/A respectively, bearing my signature at point 'B', their personal search were conducted vide memo Ex. PW4/B and Ex. PW15/B, bearing my signature at point 'B'."
There is nothing in the crossexamination of PW11 - SI Neeraj Kumar and PW15 - W/SI Santosh Kumari IO so as to impeach their creditworthiness. There is also nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case. They have deposed regarding the facts as to what they acted, observed, experienced and perceived during the course of investigation.
106 of 128 107 FIR No. 164/11 PS - Alipur So far as the theory propounded by the Learned Counsel for accused Ram Udagar and Sukhiya that, "accused were arrested with so delay and during this period the police officials released the real culprit and falsely implicated the accused Ram Udagar and Sukhiya.", is concerned, the same has not at all been made probable much established by any cogent evidence. Moreover, it is evident from the record that neither during the crossexamination of PW11 - SI Neeraj Kumar nor during the crossexamination of PW15 - W/SI Santosh Kumari IO, none of the said accused voiced their concerns or raised any apprehension on the aspect regarding which the said theory has been propounded. They were the only competent witnesses who would have been fully capable of explaining correctly the factual situation. For such failure, accused are to blame themselves and none else.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish 107 of 128 108 FIR No. 164/11 PS - Alipur explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
33. Learned Counsel for accused Ram Udagar and Sukhiya submitted that the complainant is having school going children and knows each and everything regarding their safety from the tenants and he also could not verify his tenants which also shows the malafide intention of the complainant.
I have carefully perused and analysed the evidence on record.
As far as the plea raised by the Learned Counsel for the accused that, "the complainant is having school going children and knows each and everything regarding their safety from the tenants and he also could not verify his tenants which also shows the malafide intention of the complainant", is concerned, it is evident from the record that 108 of 128 109 FIR No. 164/11 PS - Alipur during the crossexamination of PW9 - Shri Umesh, the complainant, father of the prosecutrix, 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.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
Moreover, the sight cannot be lost of the fact when PW4 prosecutrix, a minor girl aged about 9 years used to go to the house of accused Ram Udagar and Sukhiya, who were residing near to her house, for playing and sometimes she also used to sleep in the house of Sukhiya and Ram Udagar in the night and used to called accused 109 of 128 110 FIR No. 164/11 PS - Alipur Sukhiya as Sukhiya Aunty, when was overtaken by the events and was under the total dominance, control, threat and intimidation of the accused, one is left wondering as to how in such adverse circumstances, she could be expected to have anticipated the occurrence having an element of surprise.
At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW4 - prosecutrix which reads as under : " I know accused Ram Udagar and Sukhia as they were residing near our house. I used to go to their house for playing. I also know the accused Tej Narain as he used to come at the house of Sukhia Aunty. I can identify the said accused persons, if shown to me.
At this stage the wooden partition is removed. The witness pointed towards the accused Ram Udagar, Tej Narain and Smt. Sukhia and identified them correctly.
Sometime I also used to sleep in the house of Sukhia and Ram Udagar in the night. Much time age (ago), exact date, month and year I do not remember, accused Ram Udagar had committed rape upon me many times at their house in the nights. Sukhia Aunty had sent me in a village in Bihar with accused Tej Narain. Accused Tej Narain had committed rape with me in the village in Bihar in the day time as well as in the night time. Accused Tej Narain had committed rape upon me for 110 of 128 111 FIR No. 164/11 PS - Alipur three days. Accused Sukhia and Ram Udagar came in the village in Bihar. Accused Ram Udagar took me in the field and he also committed rape upon me there. Accused Ram Udagar had threatened me not to disclose this fact to anybody. When I narrated all these facts to Sukhia Aunty, she also threatened me not to disclose this fact to anybody. Sukhiya Aunty told me that Police and my parents are searching me in Delhi. Thereafter, Sukhia and Ram Udagar brought me to Delhi. Police came at the house of Ram Udagar and Sukhiya and Police took me, Ram Udagar and Sukhiya to the PS."
(Underlined by me) From the aforesaid narration, at the cost of repetition, it is clearly indicated that her (PW4 - Prosecutrix) testimony is natural, clear, cogent, convincing, trustworthy and inspires confidence and she is not a tutored witness. Her version on the core spectrum of the crime has remained intact.
At the cost of repetition, in State of U.P. Vs. Krishna Master and others 2010 VIII AD (S.C.) 401 = AIR 2010 SC 3071, (2010) 12 SCC 324, the Hon'ble Supreme Court held : "There is no principle of law known to this Court that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory witnessed by him long ago. A child of tender 111 of 128 112 FIR No. 164/11 PS - Alipur age is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
34. Learned Counsel for accused Ram Udagar and Sukhiya submitted that PW4 prosecutrix in her crossexamination has stated that, "it is correct that I had slapped one teacher in the school and due to this reason my name was stuck of from the roll of the school boy saying that I am mad. It is correct that I had told to accused Sukhiya that I am having a step mother who used to give beating to me. It is correct that Sukhiya used to save me from beating by my step mother. It is correct 112 of 128 113 FIR No. 164/11 PS - Alipur that I had stated to Sukhiya that my father had brought my mother after eloping her with him (Bhaga Kar Le Aye). It is correct that during that period my mother and father did not inquired (inquire) about me. It is correct that some times Ram Udagar and Sukhiya had saved me from the beating of my parents and due to this reason, quarrel used to take place between my parents and Ram Udagar. It is correct that my parents had warned Ram Udagar and Smt. Sukhiya that they will teach them a lesson because they used to save me from beatings." Learned Counsel submitted that PW4 prosecutrix in her cross examination clearly shows the anti revengeful motive with Ram Udagar and with his wife Sukhiya.
I have carefully perused and analysed the evidence on record.
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.
It is to be noticed that the Learned Counsel for the 113 of 128 114 FIR No. 164/11 PS - Alipur accused has avoided some portion of the part of the cross examination on the basis of which the said plea has been raised.
In the interest of justice, it is pertinent to reproduce the relevant part of crossexamination of PW4 prosecutrix which reads as under : "It is correct that I had slapped one teacher in the school and due to this reason my name was struck off from the roll of the school by saying that I am mad. It is incorrect to suggest that accused Ram Udagar used to insist me not to sleep in their house. I used to sleep at the house of Ram Udagar on the asking of accused Sukhia. It is correct that I had told to accused Sukhia that I am having a step mother who used to give beatings to me. It is correct that Sukhia used to save me from beatings by my step mother. Ram Udagar and Sukhia were residing at a distance of one house from our house. It is correct that I had stated to Sukhia that my father had brought my mother after eloping her with him. (Bhaga Kar Le Aye). Ram Udagar is having four children which consist of one son and three daughters. Ram Udagar used to work in a godown of the lifting of the rice bags (Bories). Sukhia used to do the work of cutting and sewing of the jute bags (Bori Silne Ka Kaam) at her house as well as outside. It also happened for some time that I used to stay continuously for three four days at the house of Ram Udagar. It is correct that during that period my mother and father did not inquired about me. It is correct that in order to avoid beatings, I did not use to return my house. Ram Udagar also used to give me some goods/ eating material which he brought for his children. Ram Udagar did not used to bring clothes for me. It is correct that some times Ram Udagar and Sukhia had saved me 114 of 128 115 FIR No. 164/11 PS - Alipur from the beatings of my parents and due to this reason, quarrel used to take place between my parents and Ram Udagar. It is correct that my parents had warned Ram Udagar and Smt. Sukhia that they will teach them a lesson because they used to save me from beatings."
So far as the plea raised by the Learned Counsel for the accused that, "the crossexamination of PW4 - prosecutrix clearly shows the anti revengeful motive with Ram Udagar and with his wife Sukhiya", is concerned, on careful perusal and analysis of the entire testimony of PW4 - prosecutrix, as reproduced,discussed and analysed hereinbefore, it is found to have no substance.
Moreover, it is also evident from the record that the Theory propounded by the Learned Counsel for accused Ram Udagar and Smt. Sukhia, "Regarding the anti revengeful motive with Ram Udagar and with his wife Sukhiya" was not put to PW9 - Shri Umesh, father of the prosecutrix during his entire incisive and lengthy 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 115 of 128 116 FIR No. 164/11 PS - Alipur none else.
PW9 - Sh. Umesh, father of the prosecutrix in his examinationinchief has specifically deposed that : "Prosecutrix (name withheld) is my daughter and at present she is around ten years of age. On 09/05/2011 at about 8:00 a.m. she had gone outside the house of (for) playing but she did not return. He searched his daughter but she was not found. Thereafter, he reported the matter to the police on 13/05/2011 and FIR was lodged. The copy of FIR is already exhibited as Ex. PW3/A. My daughter/prosecutrix (name withheld) used to play at the house of accused Ram Udagar and Sukhiya, present in the Court today. I am illiterate. After about fifteen days my daughter/prosecutrix (name withheld) was recovered from the house of Ram Udagar and recovery memo Ex. PW9/A, bearing my signature at point 'A'....."
Inspite of incisive crossexamination of PW9 - Sh. Umesh, father of the prosecutrix, nothing material has been brought out so as to impeach his creditworthiness. He has withstood the rigors of cross examination without being shaken. The testimony of PW9 - Umesh has been found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in his statement to suggest that he had 116 of 128 117 FIR No. 164/11 PS - Alipur any animus against the accused to falsely implicate them in the case. He has deposed regarding the facts as to what he observed, experienced and perceived.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
35. Learned Counsel for accused Ram Udagar and Sukhiya submitted that PW11 SI Neeraj Kumar in his crossexamination has stated that "we reached near Bada Shiv Mandir within five minutes. Public persons gathered at the house of Ram Udagar when we reached at the house of Ram Udagar, I did not make inquiry from the public persons 117 of 128 118 FIR No. 164/11 PS - Alipur gathered there." Learned Counsel further submitted that there is no public witness in this case and the locality was thickly populated and a number of worker were working surrounding the place where alleged offence occurred.
I have carefully perused and analysed the evidence on record.
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.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person 118 of 128 119 FIR No. 164/11 PS - Alipur as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. 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."
Nonjoining of the public witness does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a matter of common experience that public persons are reluctant to assist the Police in the investigation.
The testimony of PW11 - SI Neeraj Kumar has been reproduced, detailed, discussed and analysed hereinbefore. On careful perusal and analysis, the testimony of PW11 - SI Neeraj Kumar has been found to be clear, cogent and convincing and a detailed description of the steps taken by him during the course of investigation leading to the recovery of the prosecutrix. There is nothing in his crossexamination so as to impeach his creditworthiness. There is also nothing in his 119 of 128 120 FIR No. 164/11 PS - Alipur statement to suggest that he had any animus against the accused to falsely implicate them in the case. He has deposed regarding the facts as to what he acted, observed and experienced during the course of investigation.
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).
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."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
36. Learned Counsel for accused Ram Udagar and Sukhiya 120 of 128 121 FIR No. 164/11 PS - Alipur submitted that the statement u/s 164 Cr.P.C. of victim was recorded which is totally manipulated, fabricated and after tutoring the victim by her parents with anti revenge motive due to castes.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, "the statement u/s 164 Cr.P.C. of victim was recorded which is totally manipulated, fabricated and after tutoring the victim by her parents with anti revenge motive due to castes", is concerned, the same has not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded that, "the statement u/s 164 Cr.P.C. of victim was recorded which is totally manipulated, fabricated and after tutoring the victim by her parents with anti revenge motive due to castes" was put to PW4 prosecutrix during her entire incisive and lengthy crossexamination. Nor any suggestion regarding the said theory so propounded that, "the statement u/s 164 Cr.P.C. of victim was recorded which is totally manipulated, fabricated and after tutoring the victim by her parents with 121 of 128 122 FIR No. 164/11 PS - Alipur anti revenge motive due to castes" was put to PW9 - Umesh, father of the prosecutrix during his incisive and lengthy crossexamination. Nor even a single word regarding the said theory so propounded was uttered by accused Ram Udagar and Sukhiya during their statements recorded u/s 313 Cr.P.C.
In the circumstances, the theory so propounded is merely an afterthought and falls flat on the ground.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
37. Learned Counsel for accused Ram Udagar and Sukhiya submitted that the FSL report is also contradictory in this case and the exhibits in the species of origin ABO group/remarks shows no reaction.
I have carefully perused and analysed the evidence on record.
The Biological and Serological evidence Ex. PW5/A and Ex. PW5/B has been reproduced,discussed and analysed herein 122 of 128 123 FIR No. 164/11 PS - Alipur before.
So far as the plea raised by the Learned Counsel for accused Ram Udagar and Sukhiya that, "the FSL report is also contradictory in this case and the exhibits in the species of origin ABO group/remarks shows no reaction", is concerned, the same is found to have no substance in view of as to what has been discussed herein before under the heading "Biological and Serological Evidence", at the cost of repetition, as per the biological report Ex. PW5/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1a' (lady's shirt of the prosecutrix seized vide seizure memo Ex. PW11/A, dated 25/05/2011), exhibit '1b' (salwar of the prosecutrix seized vide seizure memo Ex. PW11/A, dated 25/05/2011) and exhibit '3c' (Undergarment of the Ram Udagar seized vide seizure memo Ex. PW4/D, dated 25/05/2011). Accused Ram Udagar was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1a', '1b' & and '3c' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C.
123 of 128 124 FIR No. 164/11 PS - Alipur statements of the accused Ram Udagar and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
38. Learned Counsel for the accused Tej Narain @ Narain referred to a case and is reported as 'State Vs. Sushil Kumar', 2014 (6) ADR 588.
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 would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal 124 of 128 125 FIR No. 164/11 PS - Alipur voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
39. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 09/05/2011 at about 8:00 a.m., accused Ram Udagar and accused Smt. Sukhiya in furtherance of their common intention kidnapped PW4 prosecutrix, aged around 09 years (to be exact 09 years, 01 month and 08 days) playing outside her house at Bada Shiv Mandir, Alipur, Delhi, with the intention of secretly and wrongfully confining the prosecutrix and after kidnapping the prosecutrix kept her at their house and that in the nights accused Ram Udagar committed rape upon her (PW4 - prosecutrix) many times at his house and that thereafter in furtherance of their common intention accused Smt. Sukhia abetted the accused Tej Narain @ Narain to take the prosecutrix with him at his house situated in their native village at Bihar knowing it to be likely that prosecutrix will be forced or seduced to illicit intercourse and that accused Tej Narain @ Narain after taking the prosecutrix at his house situated in the native village of accused Ram Udagar and accused Smt. Sukhiya, at Bihar, he 125 of 128 126 FIR No. 164/11 PS - Alipur forcibly committed rape upon the prosecutrix in the day time as well as in the night time, for three days and that thereafter accused Ram Udagar and accused Smt. Sukhiya came in the village in Bihar and brought prosecutrix back to their house in Bihar, from the house of accused Tej Narain @ Narain and thereafter accused Ram Udagar took her (prosecutrix) in the field and forcibly committed rape upon her and he also threatened her not to disclose about the incident of rape to anyone and when prosecutrix narrated all the facts of incident of rape upon her, to accused Smt. Sukhiya, she also threatened her not to disclose the same to anyone.
I accordingly hold accused Ram Udagar and Smt. Sukhiya guilty for the offences punishable u/s 363/365/34 IPC. Accused Ram Udagar, Smt. Sukhiya and Tej Narain @ Narain are hold guilty for the offence punishable u/s 366 r/w section 109 IPC. Accused Tej Narain @ Narain and Ram Udagar are also hold guilty for the offence punishable u/s 376 (2)(f) IPC. Accused Ram Udagar is also hold guilty for the offence punishable u/s 506 IPC. Accused Smt. Sukhiya is also hold guilty for the offence punishable u/s 506 IPC and convict them thereunder. However, accused Smt. Sukhiya is 126 of 128 127 FIR No. 164/11 PS - Alipur acquitted for the offence punishable u/s 376 (2)(f) r/w section 109 IPC.
40. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Ram Udagar and Smt. Sukhiya in the commission of the offences u/s 363/365/34 IPC and that of accused Ram Udagar, Smt. Sukhiya and Tej Narain @ Narain in the commission of the offence u/s 366 r/w section 109 IPC and that of accused Tej Narain @ Narain and Ram Udagar also in the commission of the offence u/s 376 (2)(f) IPC and that of accused Ram Udagar also in the commission of the offence u/s 506 IPC and that of accused Smt. Sukhiya also in the commission of the offence u/s 506 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 Ram Udagar, Smt. Sukhiya and Tej Narain @ Narain beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Ram Udagar and Smt. Sukhiya guilty for the offences punishable u/s 363/365/34 IPC. Accused Ram Udagar, Smt. Sukhiya and 127 of 128 128 FIR No. 164/11 PS - Alipur Tej Narain @ Narain are hold guilty for the offence punishable u/s 366 r/w section 109 IPC. Accused Tej Narain @ Narain and Ram Udagar are also hold guilty for the offence punishable u/s 376 (2)(f) IPC. Accused Ram Udagar is also hold guilty for the offence punishable u/s 506 IPC. Accused Smt. Sukhiya is also hold guilty for the offence punishable u/s 506 IPC and convict them thereunder. However, accused Smt. Sukhiya is acquitted for the offence punishable u/s 376 (2)(f) r/w section 109 IPC. Announced in the open Court (MAHESH CHANDER GUPTA) on 01st Day of August, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 128 of 128