Delhi District Court
Fir No. 651/05; State vs . Kanhaiya Page 1 Of 45 on 28 May, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 177/09
FIR No. 651/05
P.S. Mangolpuri
U/S: 376/392/411 IPC
STATE
Versus
KANHAIYA
s/o Sh. Nepal
r/o Jhuggi no. 5, CBlock,
Mangolpuri, Delhi
Date of Institution: 05122005
Date of arguments: 26052012
Date of judgement: 28052012
JUDGMENT
1. The case of the Prosecution, in brief, is that prosecutrix "M" was residing at F745, Mangolpuri, Delhi. On the intervening night of 28/29092005 prosecutrix "M" (name withheld) was sleeping on the ground floor and her son Vicky was sleeping on the first floor. At about 2 am, two boys aged about 18/19 years and 30 FIR No. 651/05; State Vs. Kanhaiya Page 1 of 45 years entered her room forcibly. The boy aged 18/19 years was of small stature and the boy aged about 30 years was of big stature. When the said two boys tried to grab the prosecutrix "M", she woke up and when she tried to raise noise, the boy of big stature tied her mouth with the chunni and the small stature boy tied her hands. The boy with big stature showed knife to her and threatened to kill her son sleeping on the first floor and also committed rape with prosecutrix "M" forcibly against her wish. Both the boys also took the gold ear tops, gold ring, and silver pajeb from the prosecutrix "M" forcibly by showing her knife. The boys took out Rs. 2,000/ from the purse of prosecutrix "M" and also took away CD Player lying in the room. Police was informed and DD no. 10B was registered. ASI Balwant Singh along with Ct. Anuj reached the spot. WHC Murti Devi also reached the spot and prosecutrix "M" was medically examined at BJRM Hospital. FIR was registered u/s 376/392/34 IPC. On 05102005, DD no. 76B was recorded regarding arrest of accused Kanhaiya @ Chochu in case FIR no. 1543/05 u/s 412 IPC, PS Sultanpuri. Accused Kanhaiya @ Chochu was arrested in this case also. On 07102005, accused Kanhaiya s/o Nepal was arrested at the instance of secret informer and on his instance one polythene bag was recovered from his house which was containing FIR No. 651/05; State Vs. Kanhaiya Page 2 of 45 looted goods i.e. pajeb, tops, knife used in the crime and the clothes worn at the time of crime. Accused Kanhaiya s/o Nepal was identified by the prosecutrix "M" in judicial TIP. Prosecutrix "M" identified the ear tops correctly and VCD player was also identified correctly by Vicky, son of prosecutrix "M". After completion of investigation chargesheet was filed in the court u/s 392/376/411/34 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 392/34 IPC was framed against both accused and separate charges u/s 397 IPC against accused Kanhaiya @ Chochu and u/s 397 IPC and 376 IPC against accused Kanhaiya s/o Nepal were also framed to which they pleaded not guilty and claimed trial. During trial, on the application of accused Kanhaiya s/o Vijay Pal, his case was transferred to JJ Board.
3. In order to prove its case, Prosecution has examined 28 witnesses. Statement of accused Kanhaiya s/o Nepal was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. He opted not to lead defence evidence.
4. I have heard Ld. Defence counsel and the Ld. APP for State and have perused the entire records.
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5. Ld. Defence counsel has argued that incident is dated 28/29052005 at about 2 am (night). The FIR was registered against unknown person. The accused Kanhaiya @ Chochu s/o Vijay Pal was arrested on 05102005 and upon the disclosure statement of said Kanhaiay @ Chochu, Kanhaiya s/o Nepal facing trial in this court was arrested on 07102005. TIP was conducted but accused refused to it since the accused was already shown in the PS. During arguments, the Ld. Counsel for accused referred the testimony of Prosecutrix who examined herself as PW1. During crossexamination, PW1 deposed that zero watt bulb was on in her room at the time of incident. The Ld. Counsel for accused contended that if zero watt bulb was on in the room at the time of incident, then how the prosecutrix could see faces of the accused in such a dim light, therefore, identification of the accused is doubtful. According to the testimony of PW3 Dr. Shankar Gupta, there was no mark of injury as per MLC Ex. PW3/B. At the time of TIP of case property conducted by PW4 Ld. ARC, PW1 failed to identify the silver pajebs. The accused was arrested on 07102005. Case property was shown in the PS and TIP of case property was conducted on 08112005. Therefore, there is no purpose of such TIP.
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6. Whereas the Ld. APP for State has argued that the accused committed the offence as charged. The accused tied the chunni of Prosecutrix on her mouth and also tied her hands and legs and started beating her telling if she raised any voice, her son sleeping on the first floor would be killed. The accused committed rape upon her. The accused snatched her gold articles with the knife. The accused also took away Rs. 2,000/ from her purse, silver pajeb and CD Player. The Prosecutrix was immediately taken to hospital. Police took into possession her broken bangles. Prosecutrix was medically examined. The undergarments, blood sample and vaginal swab were taken by the doctor. CFSL evidence also corroborate to it. The scientific evidence is not false whereas witness can lie. Prosecutrix identified the case property in TIP of case property. So far as TIP of the accused is concerned, the Ld. APP for State has relied upon the judgement reported in the case of Kalam @ Abdul Kalam (Md.) Vs. State of Rajasthan 2008 IV AD (SC) 453.
7. Let us firstly discuss the legal position u/s 392/397/376/34 IPC. Section 392 IPC specifies the punishment which can be inflicted in case of simple robbery. The arrest of the culprits in such cases is often delayed on account of the inherent FIR No. 651/05; State Vs. Kanhaiya Page 5 of 45 difficulties which the Prosecution naturally faces in such cases. Section 394 IPC speaks of two distinct classes of personsthose who actually caused hurt and those who do not but are jointly concerned in the commission of the offence of robbery. The guilty act of one is imputed to all who are joint with him provided the act is done in committing the offence of robbery. The provisions of section 397 IPC do not create any new substantive offence as such but merely serve as complementary to sections 392 and 395 IPC by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in section 34.
8. The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for "Sexual offences", which encompass Sections 375, 376, 376A, 376B, 376C and 376D IPC. "Rape" is defined in Section 375 IPC. Section 375 and 376 IPC have been substantially FIR No. 651/05; State Vs. Kanhaiya Page 6 of 45 changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act i.e. 376A, 376B, 376C and 376D IPC. The fast sweeping changes introduced reflect the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is "the ravishment of a woman, without her consent, by force, fear and fraud", or as "the carnal knowledge of a woman by force against her will".
Section 375 IPC defines the rape. It provides that a man is said to commit rape who has sexual intercourse with a woman under circumstances as described in section itself. Section 375 IPC reads as under:
375. Rape: A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First--Against her will.
Secondly--Without her consent.
Thirdly--With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly--With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or FIR No. 651/05; State Vs. Kanhaiya Page 7 of 45 intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly--Without or without her consent, when she is under sixteen years of age.
Explanation--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception--Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
9. Similarly, in the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jain 1990 (1) SCC 550, the court held that a prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence....... What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to FIR No. 651/05; State Vs. Kanhaiya Page 8 of 45 Section 114 which requires it to look for corroboration........... If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted."
10. In view of the above said legal position and arguments of the Ld. Defence counsel & the Ld. APP for the State as well as the judgement relied upon by the Ld. APP for State, let us secondly examine the evidence led in this case as to whether the accused committed the offence as charged or whether he has been falsely implicated in this case. The Prosecution to prove its case has examined the Prosecutrix "M" as PW1 who has supported the case of the prosecution. PW1 deposed that in the intervening night of 28/29092005 at 2 am, she was filling water from a tap outside her house. Her son was sleeping on the first floor of her house which consisted one room at the ground floor and one room at the first floor. Thereafter, she came inside her room and slept on a cot. After some time, she felt that someone was pressing her mouth. PW1 further deposed that she had forgotten to bolt the door of her FIR No. 651/05; State Vs. Kanhaiya Page 9 of 45 room from inside. Two accused persons (correctly identified) were inside her room. Accused Kanhaiya s/o Nepal tied her chunni on her mouth and another accused Kanhaiya, the smaller one in height, tied her legs. Both accused had also tied her hands. Accused started beating her saying that if she raised alarm, her son sleeping on the first floor would be killed by them. Thereafter, both the accused persons snatched the ear rings from her ears with the knife. Blood started oozing from her ears and she cried in pain. Accused Kanhaiya s/o Nepal untied clothes of PW1 and committed rape upon her by showing knife. Besides her golden ear rings (tops), the accused persons also took away Rs. 2,000/ from her purse, her silver pajeb, golden finger ring and CD player. PW1 untied herself and immediately came out and started shouting. Her son also came downstairs on hearing her voice and her neighbours Kamal Singh and Jaipal also came there and police was informed by Jaipal. Police came and recorded her statement Ex. PW1/A. Police took into possession her broken bangles. PW1 had also handed over two bangles as sample which were sealed by the police. Thereafter, police took her to hospital and she was medically examined. Her undergarments, blood sample and vaginal swab were taken by the doctor. After 20/25 days, PW1 was called in FIR No. 651/05; State Vs. Kanhaiya Page 10 of 45 Tihar Jail for identification of accused persons where she identified accused Kanhaiya s/o Nepal. Later on, SI Azad Singh came to her house and she handed over original bill of CD player MarkA which was taken into possession by vide seizure memo Ex. PW1/B. PW1 further deposed that in the month of November, she identified her ear rings (tops) in Tis Hazari court. PW1 identified the case property i.e. VCD player as Ex. P1 which was robbed by the accused persons on which VCD Video Clarion was mentioned; peticot of majanta colour (pink) as Ex. P2 which she was wearing at that time; broken pieces of red colour bangles as Ex. P3 which were broken at the time of incident and same were found on the charpai; two red colour bangles as Ex. P4 which were worn by her at the time of incident and given to police; two pajebs and one pair of ear rings as Ex. P5 and P6 as belonging to her. PW1 also identified the TIP proceedings of accused Kanhaiya s/o Nepal as Ex. PW1/C and TIP proceedings of case property as Ex. PW1/D.
11. PW2 Vicky deposed that on 29092005, he was sleeping at first floor of H. No. F745, Mangolpuri, Delhi and his mother prosecutrix "M" was sleeping in a room on the ground floor. At about 2:45 am, he heard a noise of his mother. He came downstairs and saw that his mother was running outside the house FIR No. 651/05; State Vs. Kanhaiya Page 11 of 45 in a gali. He followed his mother. In the meanwhile, his neighbours namely Jaipal @ Pinki and Kamal came there. His mother disclosed the whole incident to PW2 in the presence of Jaipal and Kamal. Jaipal Singh made a call to police at 100 number and police came there and got his mother medically examined. After medical examination of his mother, police came at his house and broken bangles of his mother were taken into possession by the police. Mother of PW2 also handed over sample bangles to the police. Police recorded his statement. PW2 identified his signature on the TIP proceedings Ex. PW1/D and case property i.e. VCD player make Clarion as Ex. P1 which was robbed by the accused persons; broken pieces of red colour bangles as Ex. P3 as belonging to his mother which were worn by his mother at the time of incident; two red colour bangles as Ex. P4 as belonging to his mother; two gold tops with black threads Ex. P5 and two silver pajebs as Ex. P6 as the same which his mother was wearing at the time of incident.
12. PW3 Dr. Shankar Gupta, CMO SGM Hospital deposed that on 29092005, he medically examined prosecutrix "M", aged 40 years with alleged history of physical and sexual assault. He proved the MLC Ex. PW3/A and referred her to Gynae Department. PW3 also identified the writing and signatures of Dr. Minakshi from Gynae FIR No. 651/05; State Vs. Kanhaiya Page 12 of 45 Department on MLC Ex. PW3/B from portion X to X of prosecutrix "M". He deposed that there was no mark of injury on the body of Meenakshi ecto vagina swab was taken. Hymen was torn (old). High vaginal swab taken and sample were sent for forensic opinion. PW3 further identified the writing and signatures of Dr. Deepak from Ortho Department on MLC Ex. PW3/C from portion Y to Y of prosecutrix "M". PW3 deposed that Dr. Meenakshi and Dr. Deepak had left the services of hospital. PW4 Ms. Kaveri Baweja, ARC, Rohini deposed that on 07112005 she was working as MM and SI Joginder Singh moved an application Ex. PW4/A for TIP of case property which was fixed for 08112005. On 08112005, PW4 conducted the TIP of case property i.e. one pair of gold ear rings attached with black threads and one pair of silver pajebs and word "Harish" was written on the said pajeb. PW4 further deposed that witness prosecutrix "M" correctly identified the gold ear rings but failed to identify the silver pajebs. PW4 also deposed that IO also produced one VCD player make Clarion, model no. GHE106 having words digital DTS. Witness Vicky correctly identified the VCD player. PW4 proved the TIP proceedings as Ex. PW1/D. After TIP, copy of the TIP proceedings was allowed to be supplied to IO vide Ex. PW4/B. FIR No. 651/05; State Vs. Kanhaiya Page 13 of 45
13. PW5 Kamal could not recall the exact date, month and year, however he deposed that 2½ years back on the day of incident, he was sleeping in his house and at about 1:30/ 2 am, he heard some noise of prosecutrix "M". When he came outside, prosecutrix narrated the incident to him. Somebody informed the police and police removed prosecutrix "M" to hospital. PW6 Jaspal Singh also could not recall the exact date, month and year, however, he deposed that three years back, on the day of incident at about 2:45 am, he was sleeping in his house no. F732, Mangolpuri, Delhi. On hearing the noise of a lady, he got up and came in the gali and saw that complainant prosecutrix "M" and her son Vicky were raising alarm "chorchor". He further deposed that his neighbour Kamal Singh was also present there. He tried to search the accused persons who entered in the house of prosecutrix "M" but they could not be traced.
14. PW7 Ct. Anuj Kumar deposed that on 29092005, on receipt of DD no. 10B, he along with ASI Balwant Singh reached at the spot i.e. F745, Mangolpuri where prosecutrix "M" and her son Vicky met them. Prosecutrix "M" disclosed that she was raped. Woman Constable Murti Devi also reached at the spot. PW7 along with ASI, Ct. Murti Devi, Prosecutrix "M" and Vicky reached at SGM FIR No. 651/05; State Vs. Kanhaiya Page 14 of 45 hospital where Prosecutrix "M" was medically examined. After medical examination, they came back at the spot. ASI recorded statement of prosecutrix "M" as Ex. PW1/A and made his endorsement and got the FIR registered through PW7. After registration of FIR, PW7 came at the spot and handed over original rukka and carbon copy of FIR to WSI Sudesh who prepared site plan and tried to search accused persons but accused could not be traced. PW8 ASI Dharam Pal deposed that on 29092005, he was doing the job of DO from 1 am to 9 am and on that day he received rukka sent by ASI Balwant Singh through Ct. Anuj, on the basis of which he recorded FIR Ex. PW8/A (OSR). He made endorsement Ex. PW8/B on the rukka. Dr. Meenakshi, CMO, SGM Hospital was also examined as PW8 and she deposed that on 08102005, she medically examined Kanhaiya s/o Nepal, aged 21 years with alleged history of sexual assault. She proved the MLC Ex. PW8/A.
15. PW9 SI Mohinder Singh deposed that on 07102005, he was posted at PS Mangolpuri and on that day accused Kanhaiya @ Chochu s/o Vijay Pal (correctly identified) was produced from J/C. SI Joginder moved an application for interrogation and arrest of accused. After interrogation, accused Kanhaiya @ Chochu was arrested vide arrest memo Ex. PW9/A and personally searched vide FIR No. 651/05; State Vs. Kanhaiya Page 15 of 45 memo Ex. PW9/B. Accused Kanhaiya @ Chochu made a disclosure statement Ex. PW9/C. ASI Joginder Singh also moved an application for TIP of accused. HC Babu Lal was also examined as PW9 and he deposed that on 05102005, he was posted at Operation Cell, NW and he along with ASI Karan Singh, HC Attar Singh and Ct. Vijender Singh were on patrolling duty in the area of PS Sultanpuri in Govt. vehicle no. DL1CL4211. At about 4 pm, they were present at Jalebi Chowk, Sultanpuri and ASI Karan Singh received a secret information regarding presence of a person at the corner of Shani Bazar Road having a stolen VCD player and his intention to sell the VCD player. IO ASI Karan Singh apprised them about the information and requested 45 persons to join the proceedings but none agreed. ASI Karan Singh organized a raiding party with the help of HC Attar Singh, PW9 and secret informer. Ct. Vijender was left at Jalebi Chowk with Govt. vehicle. Thereafter, they proceeded towards corner of Shani Bazar. On the instance of secret informer, accused Kanhaiya @ Chochu (correctly identified) standing on the south side of Shani Bazar corner and having a VCD player was overpowered. ASI Karan Singh inquired from accused regarding the VCD player but he could not give satisfactory reply. Accused disclosed that he along with coaccused Kanhaiya s/o FIR No. 651/05; State Vs. Kanhaiya Page 16 of 45 Nepal Singh had entered in a house and committed rape of one lady. The son of the lady was sleeping on the first floor and they had robbed VCD player from that house. On checking VCD player, Vicky was mentioned on the bottom in red colour. VCD player was kept in pullanda and sealed with the seal of KS. PW9 further deposed that disclosure statement of Kanhaiya Lal, seizure memo of VCD player and pointing out memo of the place of occurrence i.e. H. No. F745, Mangolpuri, Delhi as Ex. PW14/C, PW14/D and PW14/A bear his signatures at point B which were kept in original case FIR no. 1543/05 u/s 412 IPC, PS Sultanpuri and produced by MHCR HC Chandra Shekhar (OSR). PW9 also identified the case property VCD player make Clarion as Ex. P1.
16. PW10 SI Azad Singh deposed that on 16102005, he along with SI Joginder Singh joined the investigation in case FIR no. 651/05 and they reached at H. No. F745, Mangolpuri where prosecutrix "M" handed over one receipt/ invoice regarding purchase of VCP player make Clarion, Rs. 3200/ dated 16072005 of Verma Electronics, F2, 141516, Mangolpuri as Mark A which was taken into possession vide seizure memo Ex. PW1/B. ASI Balwant Singh was also examined as PW10 and he deposed that on 29092005, he was posted at PS Mangolpuri and on receipt of DD no. 10B Ex. FIR No. 651/05; State Vs. Kanhaiya Page 17 of 45 PW10/A, he along with Ct. Anuj Kumar went at the spot at F745, Mangolpuri where prosecutrix "M" met him and gave her statement Ex. PW1/A. A lady HC was called from PS and complainant prosecutrix "M" was taken to SGM Hospital along with lady HC for medical examination. PW10 prepared the rukka Ex. PW10/B and got the FIR registered through Ct. Anuj Kumar. After medical examination, the doctor handed over four sealed pullandas bearing the seal of SGM Hospital and a sample seal. Vicky, son of prosecutrix "M" came at the hospital. Thereafter, PW10 along with Vicky and prosecutrix "M" came at the PS and further investigation was entrusted to SI Sudesh and PW10 handed over the pullandas to SI Sudesh. PW10 also identified the broken pieces of red colour bangles as Ex. P3 recovered from the cot and two red colour bangles as Ex. P4 (colly) which the complainant was wearing and were seized from her.
17. PW11 Ct. Murti Devi deposed that on 29092005, she was posted at PS Mangolpuri. At about 3:30 am at the instance of DO, she went at the spot at F745, Mangolpuri where ASI Balwant, Ct. Anuj, complainant prosecutrix "M" and her son Vicky met him. At the instructions of ASI Balwant Singh, she took prosecutrix "M" to SGM Hospital and got her medically examined. The doctor handed FIR No. 651/05; State Vs. Kanhaiya Page 18 of 45 over sealed pullandas to her which were handed over by her to ASI Balwant Singh. Thereafter, she along with complainant prosecutrix "M" and ASI Balwant came back at the spot at about 4 am. PW12 HC Attar Singh deposed that on 05.10.2005, he was posted at Operation Cell, North West and on that day, he along with ASI Karan Singh, HC Babu Ram and Constable Vijender were on checking duty of chain snatchers on government vehicle No. DL1C F4211 at Jalebi Chowk, Sultanpuri. At about 4.15 pm, a secret information was received by ASI regarding standing of a boy at the corner of Shani Bazar Road towards southern side having a stolen VCD player with intention to sell the same. ASI Karan Singh briefed them and requested 45 public persons to join the raiding party but they refused. ASI organized a raiding party and proceeded towards the corner of Shani Bazar. At the instance of the secret informer, accused Kanhaiya (transferred to JJ Board) having a VCD player was overpowered while he was standing at the south side of Shani Bazar corner. Accused Kanhaiya could not give any satisfactory reply regarding the VCD player. On enquiry, he disclosed that he and his coaccused whose name was also Kanhaiya, had stolen the VCD player from the house of a lady at Mangol Puri and had also committed rape on the lady. On the bottom of the VCD, Vicky was FIR No. 651/05; State Vs. Kanhaiya Page 19 of 45 written in red colour and Clarion VCD was printed on the VCD player. The VCD then was kept in a cloth pullanda and was sealed with the seal of KS. The sealed pullanda was seized vide seizure memo Mark A. Seal after use was handed over to PW12 and he was sent with Tehrir to PS Sultan Puri. After registration of the FIR he came back to spot and handed over the copy of FIR to SI Karan Singh. Accused Kanhaiya was arrested and brought at the PS Sultan Puri and case property was deposited in the Malkhana. The information of incident was sent to PS Mangol Puri. In response to leading questions put up by Ld. APP for State, PW12 deposed that Ct. Vijender was left in the government vehicle and he along with ASI Karan Singh, HC Babu Ram accompanied the secret informer. Accused Kanhaiya s/o Vijay Pal after his arrest in case FIR No. 1543/05 under Section 412 IPC, PS Sultanpuri gave the disclosure statement Mark B. Accused Kanhaiya son of Vijay Pal pointed out the place of occurrence i.e. H. No. F745, Mangol Puri, Delhi in muffled face at which the robbery was committed and rape was committed with a woman vide pointing out memo Mark C. PW12 further deposed that on 05102005, the seizure memo Ex. PW14/D of VCD player make Clarion recovered from accused Kanhaiya s/o Vijay Pal (facing trial before JJ Board) was prepared. Accused FIR No. 651/05; State Vs. Kanhaiya Page 20 of 45 Kanhaiya was interrogated by ASI Karan Singh and he recorded disclosure statement Ex. PW14/C. Accused took the police team to the place of theft i.e. H. No. F745, Mangolpuri, Delhi vide pointing out memo Ex. PW12/A (OSR). PW12 identified the VCD player make Clarion Ex. P1.
18. PW13 HC Mahinder deposed that on 05102005, he along with HC Satpal was working as MHC (M) at PS Sultanpuri and and he proved entry no. 9465 of register no. 19 and RC no. 552/21/05 as Ex. PW13/A and Ex. PW13/B respectively. On 20102005, the pullanda containing VCD player was transferred to the Malkhana of PS Mangolpuri through Ct. Manoj Kumar vide RC no. 552/21/05 Ex. PW13/B. PW14 SI Karan Singh deposed that on 05102005, he was posted in Operation Cell, NorthWest and on that day, he along with HC Attar Singh, HC Babu Ram and Ct. Vijender reached at Jalebi Chowk, Sultanpuri on Govt. vehicle no. DL1CF4211 and were on checking duty of chain snatchers. At about 4 pm, he received a secret information regarding standing of a boy at Shani Bazar road with a stolen VCD player with intention to sell the same. He requested 4 public persons to join the raiding party but they refused. After leaving the Govt. vehicle at the spot in the custody of Ct. Vijender, PW14 along with HC Attar Singh and FIR No. 651/05; State Vs. Kanhaiya Page 21 of 45 HC Babu Ram proceeded towards the corner of Shani Bazar Road. At the instance of secret informer, Kanhaya @ Chochu (transferred to JJ Board) having a VCD player in his possession and standing on the south side of Shani Bazar corner, was apprehended. Accused Kanhaya @ Chochu could not give any satisfactory reply about the VCD player. On further inquiry, accused disclosed that he along with coaccused Kanhaya had stolen the VCD player from the house of a lady at Mangolpuri after committing her rape. The VCD player was of make Clarion and on the bottom of the VCD player "Vicky" was written in red colour. The VCD player was kept in a cloth pullanda and was sealed with the seal of KS. The sealed pullanda was then seized vide memo mark A. Seal after use was handed over to HC Attar Singh. PW14 then prepared the rukka and got the FIR no. 1543/05 registered through HC Attar Singh. Accused Kanhaya @ Chochu was arrested in the said case. PW14 recorded the disclosure statement Mark B of Kanhaya @ Chochu in case FIR no. 1543/05. Accused Kanhaya @ Chochu then pointed out the place of occurrence at F745, Mangolpuri vide pointing out memo Mark C. Accused Kanhaya @ Chochu was then taken to PS and case property was deposited in Malkhana. The information was given to PS Mangolpuri. On 06102005, he handed over copy of FIR No. 651/05; State Vs. Kanhaiya Page 22 of 45 FIR no. 1543/05, pointing out memo, seizure memo, disclosure statement to SI Joginder Singh. He got accused Kanhaya @ Chochu discharged from case FIR no. 1543/05. PW14 further deposed that accused Kanhaiya s/o Vijay Pal was arrested by him in case FIR no. 1543/05 vide memo Ex. PW14/A and his personal search was conducted vide memo Ex. PW14/B. Accused was interrogated by him and he recorded disclosure statement Ex. PW14/C. The seizure memo Ex. PW14/D of VCD player was also prepared (originals of all the documents seen from police file brought by MHCR of PS Sultanpuri). He handed over photocopies of all the documents prepared by him concerning accused Kanhaiya s/o Vijay Pal to the IO of the case.
19. PW15 HC Virender Singh deposed that on 07.10.2005, he was posted as Ct. at PS Mangol Puri and on that day, he joined the investigation with SI Joginder Singh, ASI Krishan, HC Sushil and Constable Rajbir and went to CBlock at police picket Mangol Puri. IO SI Devender received a secret information that accused wanted in the present case namely Kanhaiya (correctly identified) would come from the side of railway station. A raiding party was formed on the receipt of said information and 34 public persons were asked to join the raiding party but none agreed. Thereafter, they went FIR No. 651/05; State Vs. Kanhaiya Page 23 of 45 towards railway station. When they reached near mother dairy booth, informer pointed out towards one boy and told IO that he was Kanhaiya. Accused was apprehended and interrogated in the present case. Accused took the police team to his residence i.e. jhuggi CBlock, Mangol Puri and produced a white colour polythene from the bed box of his house which was found containing one black colour pant and one half sleeves shirt of grey colour. One pair of gold tops, one pair of Pazeb and one buttondar knife were recovered from the said polythene. IO prepared sketch Ex. PW15/A of the buttondar knife. The total length of the knife was found to be 30.4 cms, length of the handle was 15 cms and sharp edge 14.4 cms. IO prepared a sealed pullanda of the knife and seized the same through seizure memo Exbt. PW15/B. Seal of JS was appended on the pullanda. A separate pullanda was prepared of pair of pazeb and gold tops and same was seized through seizure memo Exbt. PW15/C. A pullanda was also prepared of the clothes and the same was seized vide seizure memo Exbt. PW15/D. Both the pullandas were having the seal of JS. Thereafter, IO directed PW15 and HC Sushil to get the accused medically examined from SGM Hospital. After medical examination, accused was brought back to the spot and HC Sushil handed over a sealed pullanda to FIR No. 651/05; State Vs. Kanhaiya Page 24 of 45 the IO which was received from the hospital after medical examination of accused. IO seized the said pullanda vide seizure memo Exbt. PW15/E. Accused was arrested in the present case vide arrest memo Exbt. PW15/F. Accused took the police party to the place of occurrence at CBlock and pointing out memo Ex. PW15/G was prepared. Accused was brought to the PS and put in the lock up. Case property was deposited in the Malkhana. PW15 identified the case property i.e. buttondar knife Ex. P7 which was got recovered by the accused; black colour pant and one grey colour half sleeves shirt as Exbt. P8 (colly); and a pair of gold tops and one pair of silver pazeb as Exbt. P5 & P6.
20. PW16 HC Sushil Kumar deposed that on 07.10.2005, he was posted as HC at PS Mangol Puri and on that day he along with SI Joginder Singh, ASI Krishan Chander, Constable Virender and Constable Rajbir went to CBlock picket Mangol Puri. A secret informer came and informed SI Joginder that the accused wanted in the present case namely Kanhaiya would come from the side of Mangol Puri Railway Station and would go to his house. SI Joginder Singh requested 34 passers by to join the raiding party but they refused. Thereafter, on the way to railway station when they reached at mother dairy plant, informer pointed out towards a boy FIR No. 651/05; State Vs. Kanhaiya Page 25 of 45 saying that he was Kanhaiya. PW16 correctly identified the accused Kanhaiya in the court. Accused was apprehended and on interrogation, he confessed his guilt. Accused was arrested vide arrest memo Exbt. PW15/F. On interrogation, he gave a disclosure statement Exbt. PW16/A. Pursuant to his disclosure, accused Kanhaiya took them to his jhuggi at CBlock, Mangol Puri from where, he produced a polythene from the bed lying in his jhuggi. On checking the polythene, it was found containing a black colour pant and a shirt of half sleeves, one pair of tops, a pair of Pazeb and a buttondar knife. SI Joginder Singh prepared the sketch of the knife Exbt. PW15/A. On measurement, the total length of the knife was found to be 30.4 cms, length of the handle was 16 cms and that of blade 14.4 cms. The blade of the knife was made of iron and the handle was made of brass. The knife was then kept in a cloth pullanda and was sealed with the seal of JS and was seized vide memo Exbt. PW15/B. The recovered clothes were kept in a separate cloth pullanda and sealed with the seal of JS and seized vide memo Exbt. PW15/D. The tops and the pazeb were also kept in separate cloth pullanda and sealed with the seal of JS and seized vide memo Exbt. PW15/C. Accused then pointed out the place of occurrence at FBlock, Mangol Puri vide pointing out memo Exbt. FIR No. 651/05; State Vs. Kanhaiya Page 26 of 45 PW15/G. PW16 and Constable Virender took the accused to SGM Hospital for medical examination. After medical examination, the doctor handed over the blood sample bearing the seal of SGM Hospital and a sample seal of SGM Hospital which were handed over by PW16 to SI Joginder who seized the same vide memo Exbt. PW15/E. Case property was deposited the Malkhana. PW16 identified the case property i.e. buttondar knife as Exbt. P7; black colour pant and a half sleeves grey colour shirt as Exbt. P8 (collectively); and a pair of tops and a pair of pazeb as Exbt. P5 and P6. In response to leading question put up by the Ld. APP for State, PW16 admitted that the accused was muffled face at the time when he pointed out the place of occurrence.
21. PW17 Ct. Rajbir Singh deposed that on 07102005, he was posted as Ct. at PS Mangolpuri and on that day, he joined investigation of the present case with ASI Krishan Chander, Ct. Narender and HC Sushil Kumar. When they reached at CBlock picket, informer met IO and informed that one person namely Kanhaiya, wanted in present case, would visit Mangolpuri Railway Station, ahead of Safal Dairy. Thereafter, IO requested some passersby to join the raiding party but they refused. At around 10:30 pm, they reached Safal Dairy, Industrial Area, PhI, FIR No. 651/05; State Vs. Kanhaiya Page 27 of 45 Mangolpuri. Accused Kanhaiya (correctly identified) was seen coming from the side of Railway Station. At the instance of Informer, he was apprehended and interrogated. During interrogation, accused confessed regarding his involvement in the present case. Accused was arrested in the present case and his personal search memo was also prepared. Thereafter, accused took the police party to his jhuggi no. 5, CBlock, Mangolpuri, Delhi. Accused got recovered one white colour polythene from the bed of his house and it was found containing black colour pant, one shirt, one buttondar knife, one pair of gold tops, one pair of silver pajeb. IO prepared sketch of the knife. Total length of knife was 30.4 cms; blade was 14.4 cms; and handle was 16 cms. IO prepared a sealed pullanda of the said knife and appended seal of JS. Separate pullanda was prepared of jewellery articles and the pant and half sleeves blue colour shirt which were got recovered by the accused, were kept in the same polythene and same was also converted into a sealed pullanda with the seal of JS. The pair of tops was tied with black colour thread in the kunda. Accused was brought to the PS and put in the lock up and case property was deposited in the Malkhana. PW17 identified the case property i.e. buttondar knife as Ex. P7; one black colour pant and one checkdar half sleeve shirt as FIR No. 651/05; State Vs. Kanhaiya Page 28 of 45 Ex P8 collectively; and one pair of silver pajeb, one pair of gold tops tied with black threat as Ex. P5 and P6 which were got recovered by the accused from his jhuggi.
22. PW18 SI Krishan Chander deposed that on 07102005, he was posted as ASI at PS Mangolpuri and joined investigation of the present case with SI Joginder Singh, HC Sushil Kumar, Ct. Rajbir, and Ct. Virender. The police team went into investigation at Safal Dairy at Industrial Area, Mangolpuri. SI received a secret information that a boy namely Kanhaiya (correctly identified) who was involved in the present case, would come at Railway Station, Mangolpuri. SI briefed the raiding party members about the secret information. IO requested 3--4 passersby to join the raiding party but none agreed and went away. At around 10:30 pm, the police team reached at some distance from Railway Station where informer pointed out towards accused who was coming from the side of Railway Station and he was apprehended. Accused was interrogated and arrested in the present case vide arrest memo already Ex. PW15/F. His personal search memo was also prepared vide Ex. PW18/A. Accused was provided handkerchief by the IO to cover his face. Accused made disclosure statement vide Ex. PW16/A. During interrogation, accused told that robbed articles FIR No. 651/05; State Vs. Kanhaiya Page 29 of 45 were lying at his house. Accused took the police team to his jhuggi in CBlock, Mangolpuri from where he got recovered one polythene from the bed box which was found containing one buttondar knife, one black colour pant, one checkdar shirt with the base of white, one pair of gold tops and one pair of silver pajeb. IO prepared sketch Ex. PW15/A of the said knife. The knife was measured. The total length of the knife was 30.4 cms; blade was 14.4 cms and handle was 16 cms. IO prepared a pullanda of the knife and appended seal of JS. Two separate pullandas of jewellery articles and clothes were prepared which were also sealed with the seal of JS and seized vide seizure memos Ex. PW15/C and PW15/D. Thereafter, accused took the police team to the place of incident i.e. FBlock and pointed out the place of incident vide pointing out memo Ex. PW15/G. Thereafter, HC Sushil and Ct. Rajbir were deputed for medical examination of accused. The remaining members of raiding team returned back to PS. The blood sample of accused which was handed over by the doctor after his medical examination, was handed over to the IO by HC Sushil which was taken into possession vide seizure memo Ex. PW15/E. Thereafter, all the pullandas were deposited in the Malkhana. PW18 identified the case property i.e. one buttondar knife Ex. P7; one black colour FIR No. 651/05; State Vs. Kanhaiya Page 30 of 45 pant and one checkdar shirt Ex. P8 collectively and one pair of silver pajeb, one pair of gold tops Ex. P5 and P6 as got recovered by the accused.
23. PW19 Ms. Archana Sinha, ADJ (Central04), Tis Hazari Courts, Delhi deposed that on 07.10.2005, she was posted as MM in court No. 2 at Tihar Court Complex. On that day, an application of IO for the TIP of accused Kanhaiya s/o Vijay Pal was marked to her. On 10102005, another application was filed by the IO for conducting the TIP of accused Kanhaiya s/o Nepal and both applications were fixed for 15.10.2005 for TIP. On 15.10.2005, accused Kanhaiya s/o Vijay Pal was produced from the custody of Jail No. 5 who refused to join the TIP proceedings despite caution given to him regarding adverse inference. She recorded TIP proceedings Exbt. PW19/A in this regard. On the next day, accused Kanhaiya s/o Nepal was produced from the custody of Jail No. 3 and participated in the TIP proceedings Ex. PW1/C. As per proceedings, running into two pages, accused Kanhaiya was identified by witness prosecutrix "M". On completion of the TIP proceedings, on the application of IO, copy of the TIP proceedings was allowed as per rules vide her order dated 15.10.2005 on the application Exbt. PW19/B. PW20 Ct. Manoj Sharma deposed that FIR No. 651/05; State Vs. Kanhaiya Page 31 of 45 on 20.10.2005, he was posted at PS Mangol Puri and on that day he joined the investigation of the present case with SI Joginder Singh. He was deputed by the IO to PS Sultan Puri to bring the case property of FIR No. 1543/05 under Section 412 IPC from the Malkhana of PS Sultanpuri. PW20 collected one sealed pullanda from HC Mahender vide RC No. 552/21/05 and brought the same to PS Mangol Puri. PW20 handed over the same to HC Durgesh, who was working as MHCM in the Malkhana. PW21 HC Durgesh Kumar, MHCM, PS Mangolpuri proved the entry no. 6011, 6028, 6061 of register no. 19 as Ex. PW21/A to PW21/C (OSR). He further deposed that on 27.10.2005, six sealed pullandas and two sample seal were sent to FSL Rohini through Constable Naresh vide RC No. 504/21/05. On 08.11.2005, SI Joginder took one sealed pullanda with the seal of JS from the Malkhana for conducting the TIP of the case property. After TIP proceedings, he brought the pullanda with the seal of KB and deposited the same in the Malkhana. On 08.11.2005, SI Joginder also took one other sealed pullanda from the Malkhana for the TIP containing VCD player. After TIP proceedings he deposited the sealed pullanda with the seal of KB. On 04.07.2006, six sealed pullandas and one FSL report were deposited in the Malkhana by SI Surjeet Kumar. The result was FIR No. 651/05; State Vs. Kanhaiya Page 32 of 45 handed over to IO SI Joginder Singh.
24. PW22 Ct. Naresh Kumar deposed that on 27102005, he was posted as Ct. at PS Mangolpuri. On that day, he took six sealed pullandas and three sample seals from the Malkhana of PS Mangolpuri and deposited the same at FSL Rohini vide RC no. 504/21/05. PW23 Inspector Joginder Singh deposed that on 04102005, he was posted as SI at PS Mangolpuri and further investigation was entrusted to him. On 05102005, he received DD no. 76B regarding arrest of one person by the name Kanhaiya @ Chochu in case FIR no. 1543/05 of PS Sultanpuri and his disclosure about the present case and production in the concerned court. On 06102005, he collected photocopy of documents of case FIR no. 1543/05 from ASI Karan Singh of Operations Cell, NorthWest. PW23 moved an application for issuance of Production Warrants of accused Kanhaiya. On 07102005, accused Kanhaiya @ Chochu was produced from jail in court in muffled face. SI Mahender of PS Mangolpuri, who was already present in court premises in some other case, was joined in the investigation by him in the present case. Accused Kanhaiya was interrogated with the permission of the court. PW23 recorded his disclosure statement Ex. PW9/C and moved an application for TIP of accused. Accused was sent to J/C. FIR No. 651/05; State Vs. Kanhaiya Page 33 of 45 On 07102005, PW23 along with ASI Krishan, HC Sushil, Ct. Rajbir, and Ct. Virender went for investigation in the area of PS Mangolpuri in search of other accused also known as Kanhaiya s/o Nepal. When they were present at CBlock Picket, PW23 received a secret information that the boy wanted in the present case would come from the Railway Station, Mangolpuri. Accused Kanhaiya (correctly identified) was seen coming from the side of Railway Station and apprehended at the instance of informer near Safal Dairy. He was interrogated by PW23 and arrested in the present case vide arrest memo Ex. PW15/F and his personal search memo Ex. PW18/A was also prepared. Accused was put in muffled face. PW23 recorded his disclosure statement Ex. PW16/A.
25. PW23 further deposed that thereafter, accused took the police team to his jhuggi no. C5, Mangolpuri, Delhi and produced one while colour polythene from the box of bed which was found containing one pair of gold tops with black colour thread, one pair of silver pajeb, one pantshirt of accused and one buttondar knife. The accused disclosed that said jewellery articles were robbed by him with his associate Kanhaiya @ Chochu in the present case from H. NO. F745, Mangolpuri, Delhi. PW23 prepared sketch Ex. PW15/A of the knife and prepared a sealed pullanda of the same and FIR No. 651/05; State Vs. Kanhaiya Page 34 of 45 appended seal of JS on the same. He also prepared two separate sealed pullandas of jewellery articles and clothes of accused and both the sealed pullandas were also sealed with the seal of JS. The seizure memos Ex. Ex. PW15/C, PW15/D and PW15/B of separate pullandas were also prepared. Accused was got medically examined and thereafter doctor handed over a sealed pullanda containing blood sample of accused and one sample seal and same were seized through seizure memo Ex. PW15/E. Thereafter, accused was put in the Lockup and case property was deposited in the Malkhana. 08102005, accused was produced in the court and he moved an application for TIP of accused. The date of TIP of both the accused was fixed for 15102005 by the court and they were produced for their TIP at Tihar jail no. 1. Accused Kanhaiya @ Chochu refused to participate in the TIP proceedings whereas accused Kanhaiya s/o Nepal (correctly identified) was correctly identified by the witness prosecutrix "M" (complainant) in the TIP. He recorded supplementary statement of complainant. On 16102005, PW23 collected cash memo Mark A of VCD player from complainant vide seizure memo Ex. PW1/B. On 20102005, VCD Player was brought from Malkhana of PS Sultanpuri through Ct. Manoj and same was deposited in the Malkhana of PS Mangolpuri. FIR No. 651/05; State Vs. Kanhaiya Page 35 of 45 On 27102005, Ct. Naresh was deputed for deposit of sealed pullanda at FSL Rohini. On 07112005, PW23 moved an application for conducting TIP of case property before the concerned court which was got conducted on 08112005. Complainant prosecutrix "M" correctly identified her pair of tops and Vicky correctly identified VCD player. PW23 collected copy of TIP proceedings. On 16112005, PW23 went to the shop of Rakesh Kumar in FBlock, Mangolpuri for verification of receipt of VCD player and recorded his statement. On 26112006, FSL result was filed in the court. PW23 identified the case property i.e. one black colour pant and one checkdar half sleeve shirt as Ex. P8 (colly) which accused got recovered from his house; one buttondar knife as Ex. P7 which was got recovered by the accused from his house; one pair of tops with black thread and one pair of pajeb as Ex. P5 and P6 which were got recovered by the accused from his house.
26. PW24 Rakesh Kumar deposed that he was running an electronic shop by the name of Verma Electronics at F2/1415,16, opposite BBlock Bus stand, Mangolpuri, Delhi. On 16072005, one VCD player make Clarion was sold to prosecutrix "M" r/o F745, Mangolpuri, Delhi against Bill no. 244 for a sum of Rs. 3200/ including Vat charges. The police officials came to his shop for FIR No. 651/05; State Vs. Kanhaiya Page 36 of 45 verification and he told the police that the said Bill Ex. PW24/A was issued by him. PW25 Ct. Pradhan Singh deposed that on 05102005, he was posted at PS Mangol Puri and working as DD Writer from 5 pm to 1 am night. At about 8:05 pm, ASI Karan Singh telephonically gave the information regarding disclosure statement made by accused Kanhaiya s/o Vijay Pal arrested in case FIR no. 1543/05 dated 05102005 u/s 412 IPC, PS Sultanpuri whereby disclosing his involvement in case FIR no. 651/05 u/s 376/392/34 IPC PS Mangolpuri. PW25 recorded DD no. 76B Ex. PW25/A (OSR)
27. PW26 Inspector Sudesh deposed that in the year 2005, he was posted as SI and looking after rape cases of SubDivision Sultanpuri. On 29092005, as per directions of Senior Officers, at about 5:50 am, he reached at Ground Floor, H. NO. F745, Mangolpuri, Delhi where ASI Balwant Singh, HC Murti Devi, Prosecutrix "M", her son Vicky met him. ASI Balwant Singh told him the facts of the case and also produced the complainant prosecutrix "M" and her son and also told that he had already recorded statement of prosecutrix "M", prepared the rukka, got the medical examination of prosecutrix "M" through HC Murti Devi and already sent the rukka for registration of FIR through Ct. Anuj. PW26 made FIR No. 651/05; State Vs. Kanhaiya Page 37 of 45 inquiries from complainant prosecutrix "M", Balwant Singh, produced DD no. 10B, MLC of prosecutrix "M" and four sealed parcels with sample seal and seized the parcels vide memo Ex. PW26/A. Crime Team also reached at the spot and they inspected the scene of crime. PW26 recorded statements of members of Crime Team. PW26 also prepared site plan Ex. PW26/B at the instance of prosecutrix "M". Ct. Anuj reached at the spot and handed over copy of FIR and rukka to him. PW26 inspected the scene of crime and recovered broken bangles lying at the spot which were turned into parcel and sealed with the seal of SD and taken into possession vide memo Ex. PW10/C. He also seized sample bangles which were worn by prosecutrix "M". A parcel in this respect was also prepared and seized vide memo Ex. PW10/D. He recorded statement of witnesses and tried to search the accused persons but they were not traceable at that time. Thereafter they returned back at PS and deposited the case property with MHCM. Subsequently, on his transfer in Vigilance Branch, NW District, he deposited the file with MHCR. PW26 identified the broken bangles as Ex. P3 which were recovered from the ground floor from under the cot from the place of occurrence; two bangles in broken condition as Ex. P4 which were seized after taking from complainant prosecutrix "M". FIR No. 651/05; State Vs. Kanhaiya Page 38 of 45
28. PW27 Shri V. Shankar Narayanan, SSO (Biology), FSL, Rohini deposed that on 27.10.2005, six sealed parcels were received at FSL Rohini for examination in the present FIR and he examined the exhibits biologically. On biological examination, blood was detected on exhibits 2 and 5 but blood could not be detected on exhibits 1, 3, 4, 6a and 6b. Human semen was detected on exhibits 1, 3 and 4. Semen could not be detected on exhibits 6a and 6b. He proved his biological report Ex.PW27/A. PW27 also examined the exhibits serologically. Exhibits 2 and 5 i.e. blood samples were putrefied and hence no opinion could be given. Exhibits 1,3 and 4 showed no reaction with respect to human blood group. He proved his detailed serological report Ex.PW27/B. PW28 Inspector S. P. Vashishth deposed that on 29.09.2005, he was posted as I/C Crime Team N/W District, Delhi and on that day, he along with Crime Team visited H. No. F145, JJ Colony, Mangolpuri Delhi and inspected the spot. Some broken bangles were found at the spot. He prepared detailed report Ex. PW28/A and handed over the same to IO.
29. It is reflected from the above discussed evidence that Prosecutrix examined as PW1 deposed in her examination in chief that after the incident, the accused ran away. Prosecutrix untied herself and immediately came out and started shouting. Her son FIR No. 651/05; State Vs. Kanhaiya Page 39 of 45 also came downstairs on hearing her voice and Kamal Singh and Jaipal, her neighbours also came there and then police was informed by Jaipal. Whereas, PW1 in her crossexamination deposed that her son had not come down as the accused persons had bolted the room from outside. The son of the prosecutrix was also examined as PW2 and deposed that in his examination in chief that at about 2:45 am he heard noise of his mother and he came downstairs and saw his mother running outside her house in a gali. Jaipal Singh made a call to police at 100 number and police came there and got medically examined his mother. During cross examination, PW2 deposed that two police officials came on scooter and made a call at 100 number and then PCR van came at the spot. PW2 even did not bother to go to the hospital with his mother. Kamal examined as PW5 who did not remember even the exact date, month and year of the incident. However, he stated that at about 1:30/ 2 am he heard some noise of the Prosecutrix. He categorically deposed that somebody informed the police. During crossexamination, PW5 deposed that Prosecutrix was shouting 'chorchor'. Jaipal Singh examined himself as PW6 who also did not remember the exact, month and year of the incident but stated that on the day of incident, it was about 2:45 am, he heard a voice of one FIR No. 651/05; State Vs. Kanhaiya Page 40 of 45 lady. He saw that Prosecutrix and her son were raising alarm 'chor chor'. PW6 categorically deposed that he tried to search the accused persons who entered in the house of Prosecutrix but they could not be traced. It reveals from the aforesaid testimonies of PWs that the said statements of the PWs are contradictory to each other.
30. The Prosecutrix even could not identify the knife which the accused showed her at the time of incident. Even the Prosecutrix failed to identify the silver pajebs in the TIP conducted by Ld. MM examined as PW4. The Prosecutrix in her examination in chief deposed that when the accused Kanhaiya s/o Nepal was arrested, she was called in the PS to identify him. PW2 also deposed in his crossexamination that his mother was called in the PS to identify the accused. PW2 also deposed in his cross examination that he was shown his VCD in the PS and he identified the same. PW9 categorically deposed that VCD player was recovered from Kanhaiya @ Chochu (transferred to JJ Board) who disclosed that he along with Kanhaiya s/o Nepal had entered in the house of Prosecutrix and raped her and they had robbed the said VCD player from that house. PW10 proved the receipt / invoice regarding purchase of the said VCD player as Mark A which was FIR No. 651/05; State Vs. Kanhaiya Page 41 of 45 taken into possession vide seizure memo Ex. PW1/B. PW10 also proved the rukka Ex. PW10/B. PW10 denied the suggestion in his crossexamination that no articles were seized from the spot in his presence. PW12 also proved on record that on the bottom of the VCD, Vicky was written in red colour. Clarion VCD was printed on the VCD player. PW14 also supported the version of PW12. PW15 deposed that they recovered one black colour pant, one shirt of grey colour of half sleeves, one pair of gold tops, one pair of pajeb and one buttondar knife from the polythene from the accused. IO prepared sketch of the buttondar knife. PW15 denied the suggestion in his crossexamination that no recovery was effected from the accused. In this context, I would place a reliance upon the judgement reported in the case of Nanak Chand Vs. State of Delhi 1991 JCC 1, in a case under Section 25 Arms Act, the Hon'ble High Court held that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, FIR No. 651/05; State Vs. Kanhaiya Page 42 of 45 may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola. In Staila Sayyed Vs. State 2008 (4) JCC 2840, it was held that there was nonjoining of public witness at the time of arrest of accused and recoveries. All the witnesses to the recoveries were police officials. Such recoveries do not inspire confidence. Therefore, in the present case, neither the Prosecutrix identified the knife nor any public witness was joined by the police at the time of recovery of the knife. It seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of knife. Therefore, the prosecution has failed to prove that knife was used by the accused at the time of incident.
31. So far as the other articles are concerned, Prosecutrix correctly identified one pair of gold ear rings in the TIP conducted by PW4. PW2 also identified the same in his examination in chief. The aforesaid contradictions of the PWs are the minor contradictions which do not go to the root of the case. In this context, I would place a reliance upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. FIR No. 651/05; State Vs. Kanhaiya Page 43 of 45 Therefore, the prosecution has proved on record by way of evidence that the accused committed robbery at the time of incident.
32. The Prosecutrix has categorically deposed in her examination in chief that in the intervening night of 28/29092005 at 2 am, the accused after tying her committed rape upon her. She was medically examined at the hospital by the police. According to PW3 Dr. Shankar Gupta, on local examination of the Prosecutrix, there was no injury mark on the body of Prosecutrix, ecto vaginal swab was taken and hymen torn (old). High vaginal swab taken and sample was sent for forensic opinion. As per CFSL report Ex. PW27/A, semen was detected on Ex. 1 i.e petikot, Ex. 3 i.e. vaginal swab and Ex. 4 i.e. cotton wool swab on a wooden stick described as HVS. As per the MLC Ex. PW3/A, there are four injuries upon the body of the prosecutrix found after local examination i.e. superficial CLW 1 x .5 cm on right ear lob lower side anterior region; abrasion 2 x 1 cm on left elbow joint posteriorly; abrasion 1 x .5 cm on left lower 1/3 of forearm posteriorly; and tenderness on left knee joint. I, therefore, have no reason to disbelieve the testimony of PW1 / Prosecutrix which is corroborated by the scientific evidence. The evidence adduced by the Prosecution proves that the accused Kanhaiya s/o Nepal had committed rape of the Prosecutrix. FIR No. 651/05; State Vs. Kanhaiya Page 44 of 45
33. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against accused Kanhaiya s/o Nepal beyond doubt. I, therefore, hold the accused Kanhaiya s/o Nepal guilty and convict him u/s 392/376 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 28052012 FIR No. 651/05; State Vs. Kanhaiya Page 45 of 45