Delhi District Court
State vs . Munna on 21 November, 2014
1
FIR No. 153/09
PS - Kanjhawala
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 172/13
Unique ID No. : 02404R0352722010
State Vs. Munna
S/o Shri Ram Chander
R/o Village Perriya Tirgapur,
PS Bheera,
District Lakhim Pur Kheri (U.P.)
FIR No. : 153/09
Police Station : Kanjhawala
Under Sections : 376/363 IPC
Date of committal to session Court : 04/08/2011
Date on which judgment reserved : 05/11/2014
Date on which judgment announced : 21/11/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the 1 of 148 2 FIR No. 153/09 PS - Kanjhawala report under section 173 Cr.P.C. is as under : That on 30/08/2009, ASI Johar Singh received the copy of DD No. 19 A dated 29/08/2009, which was got lodged by Sri Bhagwan S/o Fakira Prasad R/o H. No. CI/18, Mahabir Vihar, Kanjhawla, permanent resident of Village Phul Baika, P.O. Sonam, Distt. Chhapra, Bihar, aged 37 years at about 5:30 p.m. by coming to the Police Station Kanjhawala, giving information regarding missing of his daughter/prosecutrix (name withheld being a case u/s 376 IPC) which is to the effect that, his daughter/prosecutrix is aged 14 years, height 5'', color gora, face round, body average, having a mark of mole on the cheek, wearing salwar suit of mehroon color with mehroon dupatta and is wearing leather chappals in her feet and is having a small locket in her neck, who had gone out of the house at about 4:00 p.m. in the evening for taking copy in Kanjhawla from her friend monitor. They do not know the name of her friend (saheli) and her daughter/prosecutrix is missing since the evening of 28/08/2009. They suspect one boy who lives on the back of parchoon shop of Pandit Bablu and one boy named Munna Verma S/o Ram Chander Verma R/o Tilakpur, Pataria, Distt. Lakhanpur, Khiri, U.P. aged 28 years who used to be their tenant and also now lives 2 of 148 3 FIR No. 153/09 PS - Kanjhawala with them. Her daughter be searched out. Munna was their tenant about 4 months ago. He also still lives. His daughter was also having mobile phone No. 9210060356 of TATA. Her daughter be traced out. He has read and heard the statement and is correct. (Meri Ladki/prosecutrix (name withheld) D/o Sri Bhagwan R/o C1/18, Mahabir Vihar, Kanjhawala, Umar 14 Saal, Kad 5' Rang Gora Gol Chehra Sharir Darmayana Gaal Par Til Ka Nishan Mehroon Rang Ka Suit Pehne Hai Va Mehroon Dupatta Pairon Mei Chamde Ki Chappal Pehne Hai Gale Mei Chotta Sa Locket Hai. Jo Ghar Se Chaar Baje Apni Saheli Monitor Ke Paas Kanjhawala Gai Thi Kintu Ham Us Saheli Ka Naam Nahi Jante Jo Dinank 28/08/2009 Se Meri Ladki Gum Ho Gai Hai Aur Ek Ladka Pandit Bablu Ki Parchun Ke Peeche Ek Ladka Munna Verma S/o Ra Chander Verma R/o Tilak Pur Patriya, Zilla - Lakhan Pur Kheri, U.P. Umar 18 Saal Jo Pehle Hamara Kirayedaar Tha Jo Ab Hamare Paas Bhi Rehta Hai Us Par Hamara Shaq Hai Meri Ladki Ki Talash Ki Jaye JO Munna Char Maah Pehle Hamara Kirayedaar Tha Ab Bhi Rehta Hai Meri Ladki Ke Paas M. Phone No. 9210060356 TATA Ka Bhi Tha. Aapne Mera Bayan Likha Parh Kar Sunaya Thik Hai. Maine Thik Maan Kar Apne Dastakhat Hindi Mei Kiye). From the statement, on finding 3 of 148 4 FIR No. 153/09 PS - Kanjhawala that an offence u/s 363 IPC appeared to have been committed ASI Johar Singh got registered the case and proceeded with the investigation. During the course of investigation statement of the witnesses were got recorded and the search for the boy and the prosecutrix was made. On 01/09/2009, on the identification of the complainant, from Anand Vihar Bus Stand accused Munna was arrested and from his custody, prosecutrix was recovered. The medical examination of the prosecutrix was got conducted who refused for her internal medical examination. Medical examination of the accused Munna was also got conducted. Statements of the witnesses were recorded. Section 376 IPC was added in the case. Age proof of the prosecutrix was obtained. Statement of the prosecutrix was got recorded u/s 164 Cr.P.C.
Upon completion of the necessary further investigation, challan for the offences u/s 376/363 IPC was prepared against accused Munna and was sent to the Court for trial.
2. Since the offence u/s 376 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 4 of 148 5 FIR No. 153/09 PS - Kanjhawala 207 Cr.P.C., the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 376/363 IPC was made out against accused Munna. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 11 witnesses. PW1 Prosecutrix, PW2 Sri Bhagwan, PW3 HC Sushil Kumar, PW4 Dr. Binay Kumar, Senior Medical Officer, SGM Hospital, Mangol Puri, PW5 W/Constable Seema, PW6 Sh. Naveen Gupta, MM01, Central, Tis Hazari Courts, Delhi, PW7 Ms. Suman Goswami, Teacher, B.S.M. Senior Secondary School, Anandpur Dham, Karala, Delhi, PW8 - Constable Kuldeep Malik, PW9 - ASI Johar Singh, PW10 - Constable Ramesh Kumar and PW11 - Dr. Lakhvinder Kaur, CMO, Sanjay Gandhi, Memorial Hospital, Mangol Puri, Delhi.
5 of 148 6 FIR No. 153/09 PS - Kanjhawala
5. In brief the witnessography of the prosecution witnesses is as under : PW1 prosecutrix is the victim who deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW1/A and also deposed regarding the investigational aspects which she joined.
PW2 Sri Bhagwan is the father of the prosecutrix, who deposed that on 28/08/2009 his daughter/prosecutrix (name withheld) was going to the tuition at Kanjhawla Chowk but she had not returned from the tuition to the house up to evening. He searched his daughter nearby area but could not race her. On the next morning he reported the matter to the Police and FIR No. 153/09 under section 366/363 IPC was recorded. He also raised suspicion over a boy named Bablu @ Munna Verma who was previously residing as a tenant in the house before one year and he had vacated his premises because about Rs. 40005000/ rent amount was cumulated towards him (accused). At the time of vacating the premises he (accused) threatened them that he (accused) will give 6 of 148 7 FIR No. 153/09 PS - Kanjhawala money in such a way that he (PW2) will remember the same through out his life. The premises was given to Bablu @ Rs. 600/ per month. On next day i.e. on 30/08/2009 he received a message from the Police official namely Ramesh from Police Station Kanjhawla that they had received a telephonic call regarding recovery of his daughter and she was present in the Police Station Lakhimpur Kheri, U.P. On this information, he alongwith Police officials of Police Station Kanjhawla went to the above mentioned Police Station i.e. Lakhimpur Kheri, U.P. where his daughter and accused Munna Verma @ Bablu were found at the Police Station. Recovery memo of his daughter/prosecutrix (name withheld) is Ex. PW2/A, signed by him at point 'A'. Thereafter, his daughter/prosecutrix (name withheld) and accused Munna Verma were brought back to Delhi. His daughter was taken for her medical examination to SGM Hospital by the Police officials. He refused for the ''internal examination'' of his daughter. His daughter's statement was also recorded in the Court. His daughter was about 15½ years of age at the time of incident. He does not remember now her date of birth. His daughter/prosecutrix (name withheld) was studying at BSM Senior Secondary Public School at Karala in 9th Class at the time of incident.
7 of 148 8 FIR No. 153/09 PS - Kanjhawala Accused Munna is present in the Court (correctly identified).
PW3 HC Sushil Kumar who deposed that on 30/08/2009, he was working as Duty Officer at Police Station - Kanjhawala from 8:00 a.m. to 4:00 p.m. On that day, at about 2:30 p.m., ASI Johar Singh has given a rukka on the basis of which he got recorded FIR from the Computer Operator under section 363 IPC bearing FIR No. 153/09. After the registration of the FIR, copy of the FIR and original tehrir was given to ASI Johar Singh to whom investigation was entrusted. He has brought the FIR register and the other computerised copy is Ex. PW3/A signed by him at point 'A'. He has also made endorsement Ex. PW3/B on the rukka signed by him at point 'A' regarding registration of the FIR vide kayami DD No. 18A.
PW4 Dr. Binay Kumar, Senior Medical Officer, SGM Hospital, Mangol Puri who deposed that on 01/09/2009, at about 2:40 p.m., one patient/prosecutrix (name withheld) D/o Sri Bhagwan was brought by Constable Sheela for her medical examination with alleged history of kidnapping on 28/08/2009 and recovered by the Police on 8 of 148 9 FIR No. 153/09 PS - Kanjhawala 01/09/2009. After general examination the patient was referred to Senior Gynae for further medical examination. His examination is from portion 'A' to 'A1' on the MLC Ex. PW4/A (previously marked as mark 'X') of the said patient and is signed by him at point 'A'.
PW5 W/Constable Seema who deposed that on 01/09/2009, she was posted as Constable at PS - Kanjhawala. ON that day, she was telephonically informed to come at SGM Hospital as the medical examination of a girl named prosecutrix (name withheld) is to be conducted in case FIR No. 153/09. Accordingly, she reached at SGM Hospital and there she found a girl/prosecutrix (name withheld) present with IO ASI Johar Singh. The medical examination of the girl/prosecutrix (name withheld) was got conducted and after her medical examination, the exhibits in sealed condition as were given by the concerned Doctor were taken in Police possession by the IO. She also signed the seizure memo in this regard. Her statement was also recorded by the IO.
PW6 Sh. Naveen Gupta, MM01, Central, Tis Hazari 9 of 148 10 FIR No. 153/09 PS - Kanjhawala Courts, Delhi who deposed that 02/09/2009, he was posted as Link MM of the Court of Sh. S. S. Malhotra, Learned MM, when the matter for recording of statement u/s 164 Cr.P.C. of girl/prosecutrix (name withheld) was put up before him as marked by Duty MM vide his order dated 01/09/2009. He posted the matter forthwith for recording the statement. He recorded the statement of the prosecutrix (name withheld) vide proceedings running into three pages marked as Ex. PW6/A bearing his signatures at points 'A' on respective pages. The signatures of prosecutrix (name withheld) were obtained by him on her statement which are at points 'A' & 'B'. He appended his certificate with respect to the conduct of the proceedings which is Ex PW6/B. Earlier, IO had identified the prosecutrix. IO thereafter, moved an application for obtaining a copy of the above mentioned proceedings which was allowed by him vide endorsement Ex. PW6/C bearing his signature at point 'A'.
PW7 Ms. Suman Goswami, Teacher, B.S.M. Senior Secondary School, Anandpur Dham, Karala, Delhi who deposed that she has brought the summoned record. As per their record one child/prosecutrix (name withheld) D/o Sri Bhagwan Prasad and Smt. 10 of 148 11 FIR No. 153/09 PS - Kanjhawala Laxmi Devi was admitted in their school on 27/07/2009 in class IX vide admission no. 749. As per their record her date of birth is 20/12/1993 (be read as 20/12/1994). She was admitted in their School on the basis of SLC issued by Vice Principal, Government S. K. Vidhalaya, Kanjhawala, Delhi 81. The copy of the admission register is Ex. PW7/A, copy of the admission form is Ex. PW7/B and copy of SLC of previous school is Ex. PW7/C (original seen and returned).
PW8 - Constable Kuldeep Malik who deposed that on 30/08/2009, he was posted as Constable in PS - Kanjhawala. On that day, Duty Officer handed over to him a copy of FIR and original rukka, which he handed over to IO ASI Johar Singh at Kanjhawala Chowk. On 01/09/2009, he alongwith IO ASI Johar Singh, Constable Ramesh and Sri Bhagwan, father of the prosecutrix/prosecutrix (name withheld), reached at Anand Vihar Bus Adda in search of prosecutrix (name withheld) and accused. At the Anand Vihar Bus Adda, accused Munna and prosecutrix (name withheld) were found present there and at the instance of Sri Bhagwan, apprehended accused Munna and prosecutrix (name withheld). Prosecutrix (name withheld) was recovered vide 11 of 148 12 FIR No. 153/09 PS - Kanjhawala memo Ex. PW2/A, bearing his signature at point 'B'. Accused Munna was interrogated and arrested vide arrest memo Ex. PW8/A and his personal search was conducted vide memo Ex. PW8/B, both bearing his signature at point 'A'. Accused Munna is present in the Court.
PW9 - ASI Johar Singh who deposed that on 30/08/2009, he was posted as Asstt. Sub Inspector in PS Kanjhawla. On that day, DD No. 19A, copy of which is Ex. PW9/A was handed over to him for inquiry. He has perused the DD No. 19A and from the contents of DD No. 19A, offence u/s 363 IPC is made out. Complainant Sri Bhagwan also met him in the PS. He prepared rukka Ex. PW9/B, bearing his signature at point 'A'. The rukka was handed over to Duty Officer for registration of FIR. Thereafter, he alongwith complainant Sri Bhagwan reached at Mahavir Colony, Kanjhawla. Constable Kuldeep came at Kanjhawla Chowk and handed over to him the copy of FIR and original rukka. He searched for accused and prosecutrix but not found. He collected the age proof of prosecutrix (name withheld) from BSM Senior Secondary School, Anandpur Dham, Karala, Delhi and the same is Ex. PW9/C and according to which her Date of birth is 20/12/1994.
12 of 148 13 FIR No. 153/09 PS - Kanjhawala Thereafter, he alongwith Constable Kuldeep, Constable Ramesh and Sri Bhagwan, father of the prosecutrix (name withheld), reached at Anand Vihar Bus Adda in search of prosecutrix (name withheld) and accused. At the Anand Vihar Bus Adda, accused Munna and prosecutrix (name withheld) were found present there and at the instance of Sri Bhagwan they apprehended accused Munna and prosecutrix (name withheld). Prosecutrix (name withheld) was recovered vide memo Ex. PW2/A, bearing his signature at point 'C'. Accused Munna was interrogated and arrested vide arrest memo Ex. PW8/A and his personal search was conducted vide memo Ex. PW8/B, both bearing his signature at point 'B'. They reached at SGM Hospital. Lady Constable Seema was also called. Accused Munna and prosecutrix (name withheld) were medically examined. Prosecutrix (name withheld) refused to get herself internally medically examined. Accused Munna and prosecutrix (name withheld) were produced in the Court. He moved an application for recording the statement of the prosecutrix u/s 164 Cr.P.C. and the application is Ex. PW9/D and the same was fixed for 02/09/2009. Accused was sent to JC and prosecutrix (name withheld) was sent to Nari Niketan. On 02/09/2009, statement of prosecutrix (name withheld) u/s 164 Cr.P.C.
13 of 148 14 FIR No. 153/09 PS - Kanjhawala was got recorded and thereafter, he obtained copy of the same vide his application already exhibited as Ex. PW6/C, bearing his signature at point 'A'. After completing investigation, challan was prepared and filed in the Court. Accused Munna is present in the Court today.
PW10 - Constable Ramesh Kumar who deposed that on 01/09/2009, he was posted as Constable in PS Kanjhawala. On that day, he alongwith ASI Johar Singh, Constable Kuldeep and complainant Sri Bhagwan went to Anand Vihar Bus Terminal in search of accused and prosecutrix. On the bus stand, one boy and girl were sitting and complainant told that the said girl is his daughter and the boy sitting with her is Munna (present in the Court, correctly identified), who had taken away his daughter. Prosecutrix was taken into possession vide memo Ex. PW2/A, bearing his signature at point 'B'. Accused Munna was interrogated and arrested vide arrest memo Ex. PW8/A and his personal search was conducted vide memo Ex. PW8/B, both the memos bearing his signatures at point 'D'.
PW11 - Dr. Lakhvinder Kaur, CMO, Sanjay Gandhi, 14 of 148 15 FIR No. 153/09 PS - Kanjhawala Memorial Hospital, Mangol Puri, Delhi who deposed that she has been deputed in this case by the M.S. of the Hospital to depose before the Hon'ble Court on behalf of Dr. Kapila. She has seen MLC No. 11845 of prosecutrix (name withheld) D/o Sri Bhagwan age 16 years female who was brought to Hospital for medical examination. She was initially examined by CMO on duty and thereafter she was referred to S.R. Gyane for further examination whereupon she was examined by Dr. Kapila. As per MLC, there was history of running away from home on 28/08/2009 and recovered by Police on 01/09/2009 as told by patient and IO. Patient and her mother refused to get herself internally medically examined. Patient was also not willing to give her undergarments. At present, Dr. Kapila is not working in their Hospital and her present whereabouts are not known as per record. She is acquainted with the handwriting and signature of Dr. Kapila as she has seen her signing and writing during the course of her duty. The examination of Dr. Kapila is at point 'X' to 'X' on the MLC Ex. PW4/A and bearing signature of Dr. Kapila at point 'Z'.
The testimonies of the prosecution witnesses shall be dealt 15 of 148 16 FIR No. 153/09 PS - Kanjhawala with in detail during the course of appreciation of evidence.
6. Statement of accused Munna was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication. Accused Munna did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that PW1 prosecutrix in her examinationinchief deposed that on 28/08/2011, she had gone to tuition at 3:30 p.m. from her house at Kanjhawala and that the accused Munna met her at bus stand of Kanjhawala Village alongwith his two friends, who forcibly took her to Anand Vihar Bus Stop. Learned Counsel further submitted that in her crossexamination, the prosecutrix has been confronted on this point i.e. about meeting accused and his two friends at Kanjhawala Bus Stand from where, she allegedly was forcibly taken to Anand Vihar Bus Stand and she has replied that she had not given any such statement Mark - DX1. (Confronted with the statement dated 01/09/2009 mark DX1, where it is not so recorded). Learned Counsel further submitted that the prosecutrix has not deposed about any such fact in her statement recorded u/s 164 16 of 148 17 FIR No. 153/09 PS - Kanjhawala Cr.P.C by the Learned Magistrate. Rather she has stated that "On Friday on issue of keys, she was scolded by her mother and father and on Saturday, she had gone for tuition at 4:00. Thereafter, of her own, she went with someone else. From there, she went alongwith Police to Police Station - Kanjhawala". Learned Counsel further submitted that PW1 prosecutrix in her examinationinchief has stated that accused had also broken SIM Card of her mobile phone and handed over the mobile phone to his friend. In her crossexamination, the prosecutrix has been confronted with her statement to the effect as to whether she had stated to the IO about the breaking of SIM card of mobile phone of prosecutrix and about handing over of the mobile by Accused to his friend, to which she had replied that she had stated the same to IO but same was not got recorded. She further went on to state that she had not given any statement Mark DX1. (Confronted with the statement dated 01/09/2009 Mark DX1 where it is not so recorded). Learned Counsel further submitted that there had been no recovery of the alleged SIM Card or the mobile phone from the Accused or any other person. He further submitted that the prosecutrix has not deposed about any such fact in her statement recorded u/s 164 Cr.P.C. by the Learned Magistrate 17 of 148 18 FIR No. 153/09 PS - Kanjhawala and the deposition before the Court was tutored and given at the instance of father & IO. Learned Counsel further submitted that PW1 prosecutrix in her examinationinchief further deposed that thereafter, accused took her to his native village at Lakhimpur, UP where accused Munna kept her whole night in his house and committed rape on her. Learned Counsel further submitted that in her crossexamination, the prosecutrix has been confronted with her statement to the effect as to whether she had stated to the IO that accused took her to his native village at Lakhimpur, UP, where accused Munna kept her whole night in his house and committed rape on her, to which she had replied that she had stated the same to IO in her statement, but it is not mentioned. She further went on to state that she had not given any statement Mark DX1. (Confronted with the statement dated 01/09/2009 Mark DX1 where it is not so recorded). Learned Counsel further submitted that that there is nothing on record to prima facie show/corroborate the alleged story that she was taken to Lakhimpur, U.P, where in the night rape was committed upon her as the prosecution has failed to prove any such fact as neither any person had been cited or deposed as witness from Lakhimpur Village, UP, nor there is any site plan of the place where she alleges to 18 of 148 19 FIR No. 153/09 PS - Kanjhawala have been raped. Learned Counsel further submitted that even in the medical examination of the prosecutrix, which is exhibited as PW4/A, there is no opinion of the Doctor conducting medical examination to the effect that she had been raped. The Doctor has further stated on Ex. PW4/A that there is (no) H/o physical/sexual assault. Learned Counsel further submitted that there is no internal examination report and the clothes, undergarments etc. of the prosecutrix. Learned Counsel further submitted that another glaring aspect of the statement of prosecutrix is that in her examinationinchief, she has stated that she had refused medical examination on the advise of her father/PW2 whereas from the medical record exhibit PW4/A, it transpires that she was accompanied by her mother who had signed on the report and moreover she had refused to get internally examined by stating that she was not ready to get her internal examination done. Learned Counsel further submitted that the prosecutrix has not deposed about any such fact that she had been raped/sexually assaulted by the accused in her statement recorded u/s 164 Cr.P.C. by the Learned Magistrate. Learned Counsel further submitted that PW1 prosecutrix in her examinationinchief, deposed that on the next morning, accused took the prosecutrix to Court for the purpose of 19 of 148 20 FIR No. 153/09 PS - Kanjhawala Court marriage where they reached at around 9:00/10:00 a.m. She further deposed that the marriage could not be registered as Court staff refused to register the marriage as she was 16 years of age. In her cross examination, the prosecutrix had been confronted with her statement to the effect as to whether she had stated to the IO in her statement, to which she had replied that she had stated same to IO in her statement. (Confronted with the statement dated 01/09/2009 Mark DX1 where it is not so recorded). Learned Counsel further submitted that the prosecution has failed to prove any such fact/allegation as neither any public person or Police official from the PS - Bheera, District - Lakhimpur, U.P. had been examined as witness in the Court. Moreover, neither any DD Entry record nor arrest memo nor transit remand order nor any statement of prosecutrix or accused was recorded there, nor any FIR was registered nor any other document has been produced or exhibited which shows the falsity & concoction in the statement of prosecutrix. Learned Counsel further submitted that in her cross examination PW1 - prosecutrix has deposed that she was kept at a ladies Police Station which was at a distance of about 1 hour from PS - Bheera from the time when she was brought by Police officials of PS - Bheera 20 of 148 21 FIR No. 153/09 PS - Kanjhawala till the time when Delhi Police Officials reached there on next morning which clearly shows the falsehood on the part of this witness and her veracity is doubtful. Neither any witness was cited nor anyone has been examined in the Court to prove these wild allegations. Learned Counsel further submitted that even otherwise, the prosecutrix has not deposed about any such fact in her statement, recorded u/s 164 Cr.P.C. by the Learned Magistrate. Learned Counsel further submitted that PW1 prosecutrix in her examinationinchief, has further deposed that in the Police Station she disclosed the number & had telephoned Seema, who was the same lady in whose house accused used to live & work. In her crossexamination, the prosecutrix had been confronted with this part of her statement, to which she replied that she does not recollect. Even otherwise, the prosecution has miserably failed to prove this fact as the said Seema has neither been cited as a witness nor she has deposed in the Court. He further submitted that the father of the prosecutrix i.e. PW2 - Sri Bhagwan has stated in his examinationinchief that "...On 30/08/2009, I received a message from the Police Official namely Ramesh from PS - Kanjhawala that they had received a telephonic call regarding recovery of my daughter and she was present in the Police 21 of 148 22 FIR No. 153/09 PS - Kanjhawala Station, Lakhimpur, U.P. On this information, I alongwith Police officials of PS - Kanjhawala went to the above mentioned place, PS - Lakhimpur, I.P. Where my daughter & accused Munna @ Babloo was found at the Police Station...". Even in his crossexamination PW2 has deposed that "...I was informed by the local Police. I received this information at about 3:00 to 4:00 p.m. At about 5:00 p.m. I left for the Police Station. It was 30th day and was Sunday". Learned Counsel further submitted that PW1 - prosecutrix in her examinationinchief has further deposed that Seema informed the parents of prosecutrix about her presence in the Police Station (at Lakhimpur, U.P.) and further deposed that her parents reached Police Station - Bheera, Lakhimpur, U.P. and she as well as accused was brought to Delhi by Police officials of PS - Kanjhawala. Learned Counsel submitted that neither Seema has been cited as a witness in the prosecution case nor she has deposed in the Court. Moreover, PW2 - Sri Bhagwan has stated in his examinationin chief that he had got the said information about his daughter from one Ramesh, Police official of PS Kanjhawala and that thereafter he went to PS Lakhimpur alongwith Police Officials. Learned Counsel further submitted that PW2 - Sri Bhagwan has deposed that "...On this 22 of 148 23 FIR No. 153/09 PS - Kanjhawala information, I alongwith officials of Police Station - Kanjhawala went to the above mentioned Police Station i.e. Lakhim Pur Kheri, U.P. where my daughter & accused Munna Verma @ Bablu were found at the Police Station. Recovery Memo of my daughter/prosecutrix (name withheld) is Ex. PW2/A signed by me at point 'A'..." Learned Counsel submitted that from the bare perusal of the document Ex. PW2/A it transpires that the alleged recovery of the prosecutrix has been shown from the Bus Stand Anand Vihar at the instance and identification of PW2 - Sri Bhagwan whereas this witness states to have recovered the prosecutrix from PS - Kheri, Lakhimpur, U.P. Moreover, the accused has alleged to have been arrested vide Ex. PW8/A on 01/09/2009 from Anand Vihar Bus Station (Stand), Delhi at 10:15 a.m. whereas the prosecutrix has deposed in her crossexamination that "...I do not recollect as to whether any statement of mine was recorded by the Police of PS - Bheera, District Lakhimpur, U.P. After one to two hours of 9:00/10:00 a.m. of our reaching in the Court, Police of Lakhimpur, U.P. had come there. Immediate after the reaching of the Police Lakhimpur, U.P. at the Court we were taken to PS
- Bheera. I do not recollect the time but after about half to one hour of reaching the Police at Court, we were brought to PS - Bheera. Delhi 23 of 148 24 FIR No. 153/09 PS - Kanjhawala Police of PS - Kanjhawala reached on the next day in the morning at about 10:00/11:00 a.m. at PS - Bheera, District Lakhimpur, U.P......". Meaning thereby (as per the version of the prosecutrix) that on 28/08/2009, the prosecutrix was taken to Lakhimpur, U.P. and that on next day i.e. on 29/08/2009, accused and prosecutrix went to Court for marriage registration where someone called Police and they were taken to Bheera Police Station and on the next day i.e. on 30/08/2009, Delhi Police Officials came and arrested accused Munna and recovered prosecutrix. The whole story is false, fabricated and concocted in as much as the arrest memo Ex. PW8/A states that the accused was arrested on 01/09/2009 from Anand Vihar Bus Station (Stand), Delhi at 10:15 a.m. whereas as per prosecutrix's deposition the accused was arrested on 30/08/2009. The whole prosecution story is silent as to what happened on 31/08/2009 and how the accused who has been allegedly arrested on 30/08/2009 is shown to have been arrested on 01/09/2009 and that too at distant place far away from place where he is shown to have been arrested. Learned Counsel submitted that as such the whole story of the prosecution fails and the alleged arrest and recovery of prosecutrix is manipulated to falsely implicate the accused person. Learned Counsel 24 of 148 25 FIR No. 153/09 PS - Kanjhawala further submitted that PW1 - Prosecutrix in her examinationinchief further deposed that accused was taken into custody and she was interrogated by the Police and taken for medical examination to Sanjay Gandhi Hospital where on the advise of her father, she refused to get her internal examination done, for which an endorsement to this effect was made at point 'A' on MLC. Learned Counsel submitted that even though the witness PW1 had stated in her examinationinchief that accused was taken into custody and she was interrogated and thereafter she was taken for medical examination to Sanjay Gandhi Hospital, however this witness has deposed in her crossexamination that : ".....We straight away came to PS - Kanjhawala. Myself and accused Munna and other Police officials came to Delhi in one vehicle. We were about nine persons in that vehicle. Vol. My father with other persons had also with us in that vehicle. The vehicle was Jeep Marshal which my father had taken from Delhi. My statement was recorded by the Delhi Police after reaching at Delhi at PS - Kanjhawala....." Learned Counsel submitted that the entire proceedings had taken place in the Police Station after deliberation & manipulations so as to falsely implicate the accused persons at the instance of father of prosecutrix -
25 of 148 26 FIR No. 153/09 PS - Kanjhawala PW2 who has motive to falsely implicate the accused as accused owed arrears of rent towards him. Learned Counsel further submitted that the prosecutrix has further stated in her deposition before Court that she had refused medical examination on the advise of her father/PW2 whereas from the medical record Ex. PW4/A it transpires that she was accompanied by her mother who had signed on the report and moreover she had refused to get internally examined by stating that, "I am not ready to get my internal examination done". Learned Counsel submitted that since the tutored prosecutrix and her father/PW2 were aware that by getting internal examination of the prosecutrix done, nothing would come out as no rape has been committed and they feared that their false story would get exposed as such they opted not to get the internal examination done on the prosecutrix. Learned Counsel further submitted that even otherwise, the prosecutrix had not deposed about any such fact that she has been raped/sexually assaulted by the accused in her statement recorded u/s 164 Cr.P.C. by the Learned Magistrate. PW1 - prosecutrix in her examinationinchief has further deposed that her statement u/s 164 Cr.P.C. was got recorded before the Learned Magistrate which is exhibited as Ex. PW1/A bearing signatures of 26 of 148 27 FIR No. 153/09 PS - Kanjhawala prosecutrix at points 'A' & 'B'. Learned Counsel submitted that before the recording of the statement of prosecutrix u/s 164 Cr.P.C., the Learned Magistrate had satisfied itself (himself) as to the absence of fear or pressure upon the prosecutrix. Subsequently, Learned Addl. PP sought permission of the Court to put leading question pertaining to her statement u/s 164 Cr.P.C., which was allowed by the Court, to which she stated that "I was not in proper mental state at that time and I was also intimidated by the accused, myself and the accused, both will be saved. If the statement is made otherwise then his men are waiting outside the Court." Learned Counsel further submitted that in her cross examination the prosecutrix/PW1 had agreed to the suggestion that her statement u/s 164 Cr.P.C. was recorded with calmness & peacefully. In her further crossexamination upon a specific question by the Learned Counsel for the accused she deposed to that effect that : "Q. You have deposed hereinabove that accused Munna had threatened you to give the statement as per his version before the Learned MM u/s 164 Cr.P.C. What was the content of that version? A. I do not recollect the content of the version but he had told to give the statement favouring him."
Learned Counsel further submitted that the prosecutrix does 27 of 148 28 FIR No. 153/09 PS - Kanjhawala not depose that the accused in any way threatened her. Learned Counsel submitted that the prosecutrix/PW2 has been changing her version and has deposed in contradictory manner and as per settled law "one who makes contrary statement is not to be believed." Learned Counsel further submitted that moreover, even the father of the prosecutrix - Sri Bhagwan/PW2 has nowhere deposed before this Court that his daughter was ever threatened by Munna. Learned Counsel further submitted that the prosecutrix/PW1 has made inconsistent, contradictory & false statements/deposition which has been nailed in the course of her cross examination. Learned Counsel submitted that from the perusal of the deposition of PW1 it becomes amply clear that she had not only made false & contradictory statement/deposition but has also made vast improvement in her deposition before the Court as she has been confronted on numerous counts. Even otherwise, the statement of prosecutrix/PW1 does not inspire any confidence and as such she is not to be believed. Learned Counsel further submitted that PW2 - Sri Bhagwan has miserably failed to prove the prosecution case. Learned Counsel submitted that PW2 - Sri Bhagwan has deposed in his examinationinchief that, "on 28/08/2009 my daughter/prosecutrix had 28 of 148 29 FIR No. 153/09 PS - Kanjhawala gone for tuition at Kanjhawala Chowk but she did not return from the tuition to house till evening." He further deposed that he searched for her daughter but could not trace her. He further deposed that "on next morning I reported the matter to the Police and FIR No. 153/09 was registered u/s 363/376 IPC." Learned Counsel further submitted that PW2 - Sri Bhagwan has made vast improvement in his deposition before the Court as in his statement before Police which culminated into the present FIR, PW2 - Sri Bhagwan has stated that on 28/08/2009 at about 4:00 p.m., his daughter/prosecutrix (name withheld) aged about 14 years went to the house of her friend (Monitor of the class) at Kanjhawala to take the notebook but the complainant does not know the name of the said Monitor and alleged that his daughter went missing since 28/08/2009. This is in sharp contrast to the deposition made before the Court by PW2. Moreover, it is unbelievable & imprudent for a person to not lodge a complaint with the Police immediately when he came to know about the missing of his young teenage girl would he wait for one day before he lodges a missing complaint. Moreover, the concoction, fabrication & deliberation on the part of prosecution is writ large from the fact that as per case of prosecution, the girl went missing on 29 of 148 30 FIR No. 153/09 PS - Kanjhawala 28/08/2009, the complaint was lodged by PW2 on 29/08/2009 and FIR was allegedly registered on 30/08/2009 at 2:30 p.m. which does not inspire any confidence in the prosecution story. Learned Counsel further submitted that PW2 - Sri Bhagwan in his examinationinchief has deposed that he raised suspicion over a boy named Bablu @ Munna Verma/accused who was previously residing in his house as a tenant before one year and that he vacated the premises because an amount of Rs. 40005000/ had accumulated against him. He further deposed that at the time of vacating the tenanted premises, accused threatened him that he will give money in such a way that I will remember the same throughout life. He further stated that the premises was given to Bablu @ Rs. 600/ per month. Learned Counsel further submitted that this witness has for the first time made these wild allegations against the accused as he had neither stated such facts in his statement before Police nor the same finds mentioned in the FIR which has been registered on his statement. Learned Counsel further submitted that another important aspect of the case with respect to alleged recovery of prosecutrix & arrest of the accused is deciphered from the crossexamination of PW2 who states that : 30 of 148 31 FIR No. 153/09 PS - Kanjhawala "...I accompanied by two other person and there were 3/4 Police officials exactly I do not recollect who were accompanying by me. Kesari Lal and one person who was called Malawale were accompanied me. The vehicle in which we went it was Jeep type Marshal. From Delhi we straightaway reached at PS - Lakhimpur, U.P." However, IO who has deposed in the Court as PW9 has stated in his cross examination that : "After the arrest of accused Munna and prosecutrix they were both taken in a single auto rickshaw (TSR)." PW9 was further asked in his crossexamination as to : Q. How did you reach at the alleged place of arrest of accused Munna at Anand Vihar Bus Stand from PS - Kanjhawala?
A. We had left the PS on 31/08/2009 and while searching for the accused Munna & prosecutrix on the returning we reached Anand Vihar Bus Stand by bus.
Q. Which modes of transport you had used during the search of accused Munna & prosecutrix and during their apprehension?
A. We had gone by car upto Lakhimpur and returned by car and after leaving the car by bus reached at Anand Vihar Bus Stand."
Learned Counsel further submitted that PW9 - ASI Johar Singh further replied to a question in his crossexamination that the Car was a private Taxi. It was a maruti van. PW9 further stated in his cross examination that from the place of arrest of accused Munna and recovery of prosecutrix at Anand Vihar Bus Stand they were brought to auto 31 of 148 32 FIR No. 153/09 PS - Kanjhawala rickshaw at the Hospital. Per contra, the prosecutrix/PW1 has stated in her crossexamination that : "...We straight away came to PS - Kanjhawala. Myself and accused Munna and other Police officials came to Delhi in one vehicle. We were about nine persons in that vehicle. Vol. My father with other persons had also with us in that vehicle. The vehicle was Jeep Marshal which my father had taken from Delhi. My statement was recorded by the Delhi Police after reaching at Delhi at PS Kanjhawala."
Learned Counsel further submitted that neither of the prosecution witness has even prima facie able to show/prove that any of them had ever been to Lakhimpur, U.P. and as such they are not credible & reliable witnesses. Learned Counsel further submitted that PW2 further deposed in his examinationinchief that his daughter/PW2 was taken for medical examination to SGM Hospital by the Police officials. He further deposed that he refused for the internal examination of his daughter. Learned Counsel further submitted that neither the prosecutrix nor the Police official/Constable accompanying the prosecutrix for medical examination had ever stated to the Doctor, who had conducted the medical examination, about any history of assault, rape etc. which is clear from the document exhibit PW4/A. Learned 32 of 148 33 FIR No. 153/09 PS - Kanjhawala Counsel further submitted that PW2 - Sri Bhagwan has not even whispered/deposed and alleged about the rape being committed by the accused Munna. Learned Counsel submitted that had it been a case of rape, the prosecutrix (PW1) would have told about the same to her family members and they would have deposed to this effect but that was not the case and as such the prosecution has miserably failed to even prima facie show/prove that rape has been committed upon prosecutrix. Learned Counsel submitted that even otherwise, the prosecutrix has not deposed about any such fact that she had been raped/sexually assaulted by the accused in her statement recorded u/s 164 Cr.P.C. by the Learned Magistrate. Learned Counsel further submitted that PW2 - Sri Bhagwan has deposed that the age of the prosecutrix was 15½ at the time of incident. Learned Counsel further submitted that this witness does not know about the date of his marriage, date of birth of the prosecutrix and has deliberately specified the age of the prosecutrix to be 15½ years at the time of incident. In his crossexamination this witness has stated that, ".....document regarding the date of birth proof was given in the Govt. School at the time of her admission.....". However, the witness from the Govt. School where the document of birth proof of the 33 of 148 34 FIR No. 153/09 PS - Kanjhawala prosecutrix is stated to have been given by PW2 was never called/summoned and no document is placed on record. Learned Counsel submitted that even after the deposition of PW2 whereby he stated that the birth proof of prosecutrix was given in the govt. School at the time of her admission, the prosecution did not bother to summon/produce such document to prove the age of prosecutrix. Even otherwise, the accused has been falsely implicated in the case and no case of kidnapping u/s 363 or rape u/s 376 IPC is made out against him and hence there is no point in determining the age of the prosecutrix. Learned Counsel further submitted that PW3 - HC Sushil Kumar is only a formal witness who was duty Officer on the day when the above captioned FIR u/s 363 IPC was registered at PS Kanjhawala. Learned Counsel further submitted that PW4 - Dr. Binay Kumar, SR, Medical Officer, SGM Hospital has proved the medical examination done vide MLC Ex. PW4/A. Learned Counsel further submitted that in the medical examination of the prosecutrix (name withheld) which is exhibited as Ex. PW4/A, there is no opinion of the Doctor conducting medical examination to the effect that she had been raped. The Doctor has further stated on Ex. PW4/A that there is H/o Physical sexual 34 of 148 35 FIR No. 153/09 PS - Kanjhawala assault. Learned Counsel further submitted that there is no internal examination report or the clothes, undergarments etc. of the prosecutrix which she alleged to have been wearing at the time of alleged rape. As such no case of rape is even prima facie made out against the accused Munna Verma. Learned Counsel further submitted that PW5 - W/Constable Seema is only formal witness who has accompanied the prosecutrix at the time of her medical examination at SGM Hospital. Learned Counsel further submitted that PW7 - Ms. Suman Goswami - Teacher deposed about the age of the prosecutrix and had exhibited certain documents which does not includes Birth Certificate which the witness PW2 has stated in his crossexamination to have been submitted in Govt. School at the time of prosecutrix's admission. Even otherwise, the accused has been falsely implicated in the case and no case of kidnapping u/s 363 or rape u/s 376 IPC is made out against him and hence there is no point in determining the age of the prosecutrix. Learned Counsel further submitted that PW8 - Constable Kuldeep Malik is alleged to be a witness to arrest of accused & recovery of prosecutrix. However, his deposition does not inspire any confidence and he is not trustworthy as the other prosecution witnesses, i.e. PW1, PW2 & PW9, 35 of 148 36 FIR No. 153/09 PS - Kanjhawala to arrest of accused and recovery of prosecutrix has given contradictory statements and have failed to prove the case of prosecution. Learned Counsel further submitted that the deposition of PW9 - IO ASI Johar Singh is not trustworthy and there are major contradictions in his deposition visavis the depositions of PW1 - prosecutrix & PW2 - Sri Bhagwan. Learned Counsel further submitted that PW9/IO has stated that in his crossexamination to the effect that ".....no DD entry or any other document relating to this case has ever been obtained by me from the UP Police". The IO has further stated in his deposition that nothing was recovered from the personal search memo which is not believable and does not inspire any confidence. Learned Counsel further submitted that the IO has not prepared or filed/proved on record any site plan of alleged crime scene from where the prosecutrix is alleged to have been kidnapped. Further, there is no site plan of the alleged place in Lakhimpur, U.P. where the prosecutrix alleged to have been raped by the accused on 28/08/2009. As such, PW9 has miserably failed to prove the kidnapping & rape of the prosecutrix. Even otherwise, medical evidence as well as the statement of prosecutrix u/s 164 Cr.P.C. does not corroborate the concocted version of PW9. Even no recovery has been 36 of 148 37 FIR No. 153/09 PS - Kanjhawala effected from the accused and nothing has been seized by the IO which nails the false prosecution story. Learned Counsel further submitted that PW10 - Constable Ramesh Kumar is alleged to be a witness to arrest of accused and recovery of prosecutrix. However, his deposition does not inspire any confidence and he is not trustworthy as the other prosecution witnesses, i.e. PW1, PW2 and PW9, to arrest of accused and recovery of prosecutrix has given contradictory statements and have failed to prove the case or prosecution. Learned Counsel further submitted that PW11 - Dr. Lakhwinder Kaur is Doctor from SGM Hospital who has deposed to the effect that patient/prosecutrix (name withheld) as well as her mother refused to get herself internally medically examined. She further deposed that the prosecutrix even refused to give her undergarments and even refused to get herself internally examined. In totality of the circumstances, the prosecution and its witnesses have failed to prove any case of Rape, as alleged by the prosecution. Learned Counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt and prayed for the acquittal of the accused on all the charges levelled against him.
37 of 148 38 FIR No. 153/09 PS - Kanjhawala
8. 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.
9. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Praveen Dabas, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 363/376 IPC against the accused Munna is that on 28/08/2002 (be read as 28/08/2009), at about 4:00 p.m. from her house at C1/18, Mahavir Vihar, Delhi, within the jurisdiction of PS - Kanjhawala, he kidnapped the prosecutrix (name withheld) D/o Sri Bhagwan who was around 16 years without their consent and that on the above said date he had raped the prosecutrix (name withheld) D/o Sri Bhagwan against her will and without her consent.
38 of 148 39 FIR No. 153/09 PS - Kanjhawala
11. 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
12. PW1 - prosecutrix during her examinationinchief has specifically deposed that : At the time of incident I was about 16 years of age and my date of birth is 20/12/1994. At that time I was studying in 9th Class in BSM Senior Sec. Public School situated at Anandpur Dham, Village Karala, Delhi.
PW1 - prosecutrix during her crossexamination recorded on 03/04/2013 has deposed that : "I will be 20 years of age as on 20/12/2013. My statement was recorded by the Police. It is wrong to suggest that I was studying in 10th Class at the time of incident. Vol. I was studying in 9th Class at that time."
"It is wrong to suggest that I was more than 16 years on the 39 of 148 40 FIR No. 153/09 PS - Kanjhawala date of incident."
PW2 - Sri Bhagwan, father of the prosecutrix during his examinationinchief has deposed that : "I do not remember now her date of birth. My daughter Mamta was studying at BSM Senior Sec. Public School at Karala in 9th Class at the time of incident."
PW2 - Sri Bhagwan, father of the prosecutrix during his crossexamination recorded on 27/04/2012 has deposed that : "I was married about 22/23 years back exact date I do not remember. I have three children consisting of two sons and one daughter. My daughter is the eldest among the children who is about 17/18 years. Vol. on 22/12/2012, my daughter will be of 18 years of age."
PW2 - Sri Bhagwan, father of the prosecutrix during his crossexamination recorded on 13/02/2013 has deposed that : "My first child was born after about 7/8 years of my marriage."
PW2 - Sri Bhagwan, father of the prosecutrix during his crossexamination recorded on 02/04/2013 has deposed that : 40 of 148 41 FIR No. 153/09 PS - Kanjhawala "I am having three children. Eldest is the daughter, then younger to her is the son and younger to him is another son. The age of my middle son is approximately about 15/16 years as on date. The eldest daughter is three years elder to the middle son. My eldest daughter/prosecutrix was studying in 9th class on the date of incident. Vol. In the initial classes she had failed two times. My eldest daughter/prosecutrix was initially in the beginning was admitted in a Private Public School namely Parag Jyoti Public School, Kanjhawla, Delhi in nursery class. No document regarding her date of birth was given in the school at the time of her admission of her in Nursery class. After nursery class prosecutrix was admitted in a govt. school (girls) at Kanjhawla, Delhi. I do not recollect in which class she was admitted in the govt. school. Document regarding the date of birth proof was given in the govt. school at the time of her admission."
"It is wrong to suggest that I have deposed falsely regarding the age of my daughter/ prosecutrix as 15½ years or that the age of my daughter/prosecutrix was about 18 years on the date of the alleged incident."
"It is wrong to suggest that my daughter/prosecutrix was studying in 10th class at the time of alleged incident."
PW9 - ASI Johar Singh, during his examinationinchief has deposed that : "I collected the age proof of prosecutrix Mamta from BSM Senior Secondary School, Anandpur Dham, Karala, Delhi and the same 41 of 148 42 FIR No. 153/09 PS - Kanjhawala is Ex. PW9/C and according to which her Date of birth is 20/12/1994."
There is nothing in the crossexamination of PW1 - prosecutrix, PW2 - Sri Bhagwan and PW9 - ASI Johar Singh, IO so as to impeach their creditworthiness.
PW7 Ms. Suman Goswami, Teacher, B.S.M. Senior Secondary School, Anandpur Dham, Karala, Delhi has deposed that she has brought the summoned record. As per their record one child/prosecutrix (name withheld) D/o Sri Bhagwan Prasad and Smt. Laxmi Devi was admitted in their school on 27/07/2009 in class IX vide admission no. 749. As per their record her date of birth is 20/12/1993 (Be read as 20/12/1994). She was admitted in their school on the basis of SLC issued by Vice Principal, Government S. K. Vidhalaya, Kanjhawala, Delhi 81. the copy of the admission register is Ex. PW7/A, copy of the admission form is Ex. PW7/B and copy of SLC of previous school is Ex. PW7/C (original seen and returned).
During her crossexamination, PW7 - Ms. Suman Goswami has deposed that : 42 of 148 43 FIR No. 153/09 PS - Kanjhawala "I cannot tell for how much time the student/prosecutrix (name withheld) remained absent prior to 28/08/2009 when her name was struck off due to long absence. It is wrong to suggest that document produced by me are fabricated and manipulated one."
There is nothing in the crossexamination of PW7 - Ms. Suman Goswami so as to impeach her creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands established on the record that date of birth of prosecutrix is 20/12/1994.
As the date of alleged incident is 28/08/2009 and the date of birth of prosecutrix is 20/12/1994, on simple arithmetical calculation, the age of prosecutrix comes to 14 years, 08 months and 08 days as on the date of incident on 28/08/2009.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 14 years, 08 43 of 148 44 FIR No. 153/09 PS - Kanjhawala months and 08 days as on the date of alleged incident on 28/08/2009.
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 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....."
13. Learned Counsel for the accused submitted that PW2 - Sri Bhagwan has deposed that the age of the prosecutrix was 15½ at the 44 of 148 45 FIR No. 153/09 PS - Kanjhawala time of incident. Learned Counsel further submitted that this witness does not know about the date of his marriage, date of birth of the prosecutrix and has deliberately specified the age of the prosecutrix to be 15½ years at the time of incident. In his crossexamination this witness has stated that, ".....document regarding the date of birth proof was given in the Govt. School at the time of her admission.....". However, the witness from the Govt. School where the document of birth proof of the prosecutrix is stated to have been given by PW2 was never called/summoned and no document is placed on record. Learned Counsel submitted that even after the deposition of PW2 whereby he stated that the birth proof of prosecutrix was given in the govt. School at the time of her admission, the prosecution did not bother to summon/produce such document to prove the age of prosecutrix. Even otherwise, the accused has been falsely implicated in the case and no case of kidnapping u/s 363 or rape u/s 376 IPC is made out against him and hence there is no point in determining the age of the prosecutrix. Learned Counsel further submitted that PW7 - Ms. Suman Goswami - Teacher deposed about the age of the prosecutrix and had exhibited certain documents which does not includes Birth Certificate which the 45 of 148 46 FIR No. 153/09 PS - Kanjhawala witness PW2 has stated in his crossexamination to have submitted in Govt. School at the time of prosecutrix's admission.
I have carefully perused and analysed the evidence on record.
With regard to the age of the prosecutrix, as to what has been discussed hereinabove under the heading "AGE OF THE PROSECUTRIX", at the cost of repetition, the age of the prosecutrix stands established on record that PW1 prosecutrix was aged 14 years, 08 months and 08 days as on the date of alleged incident on 28/08/2009.
In case "Jarnail Singh Vs. State of Haryana", 2013 VII AD (S.C.) 313 in para 20, the Hon'ble Supreme Court has held that, it would be just and appropriate to apply Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
In the instant case, since the date of birth certificate 46 of 148 47 FIR No. 153/09 PS - Kanjhawala from the School (Other than a Play School), first attended by PW1 - 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.
It is pertinent to reproduce para 20 of Jarnail Singh's case (Supra) of the Hon'ble Supreme Court which reads as under : "On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to hereinabove reads as under : "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of 47 of 148 48 FIR No. 153/09 PS - Kanjhawala 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 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 48 of 148 49 FIR No. 153/09 PS - Kanjhawala 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 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 49 of 148 50 FIR No. 153/09 PS - Kanjhawala 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."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW4 Dr. Binay Kumar, Senior Medical Officer, SGM 50 of 148 51 FIR No. 153/09 PS - Kanjhawala Hospital, Mangol Puri has deposed that on 01/09/2009, at about 2:40 p.m., one patient/prosecutrix (name withheld) D/o Sri Bhagwan was brought by Constable Sheela for her medical examination with alleged history of kidnapping on 28/08/2009 and recovered by the Police on 01/09/2009. After general examination the patient was referred to Senior Gynae for further medical examination. His examination is from portion 'A' to 'A1' on the MLC Ex. PW4/A (previously marked as mark 'X') of the said patient and is signed by him at point 'A'.
During his crossexamination, PW4 - Dr. Binay Kumar has deposed that : "The age was stated by the patient herself which is mentioned at point 'DB' on the MLC Ex. PW4/A."
There is nothing in the crossexamination of PW4 - Dr. Binay Kumar so as to impeach his creditworthiness.
PW11 - Dr. Lakhvinder Kaur, CMO, Sanjay Gandhi, Memorial Hospital, Mangol Puri, Delhi has deposed that she has been deputed in this case by the M.S. of the Hospital to depose before the Hon'ble Court on behalf of Dr. Kapila. She has seen MLC No. 11845 of prosecutrix (name withheld) D/o Sri Bhagwan age 16 years female who 51 of 148 52 FIR No. 153/09 PS - Kanjhawala was brought to Hospital for medical examination. She was initially examined by CMO on duty and thereafter she was referred to S.R. Gyane for further examination whereupon she was examined by Dr. Kapila. As per MLC, there was history of running away from home on 28/08/2009 and recovered by Police on 01/09/2009 as told by patient and IO. Patient and her mother refused to get herself internally medically examined. Patient was also not willing to give her undergarments. At present, Dr. Kapila is not working in their Hospital and her present whereabouts are not known as per record. She is acquainted with the handwriting and signature of Dr. Kapila as she has seen her signing and writing during the course of her duty. The examination of Dr. Kapila is at point 'X' to 'X' on the MLC Ex. PW4/A and bearing signature of Dr. Kapila at point 'Z'.
Despite grant of opportunity, PW11 - Dr. Lakhvinder Kaur was not crossexamined on behalf of the accused.
In view of above and in the circumstances, the medical examination from portion 'A' to 'A1' and the gynaecological examination from point 'X' to 'X' on the MLC Ex. PW4/A of PW1 -
52 of 148 53 FIR No. 153/09 PS - Kanjhawala prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED MUNNA
15. PW9 - ASI Johar Singh in his examinationinchief has deposed that : "Accused Munna was interrogated and arrested vide arrest memo Ex. PW8/A and his personal search was conducted vide memo Ex. PW8/B, both bearing my signature at point B. We reached at SGM Hospital. Lady Constable Seema was also called. Accused Munna and prosecutrix (name withheld) were medically examined."
I have carefully perused and analysed the MLC of accused Munna No. 11847 dated 01/09/2009 at 3:50 p.m. On perusal of the same it is found that he was conscious, oriented and all systems normal and on local examination no fresh external injury seen at the time of examination and was advised nothing.
From the MLC nothing is being indicated that patient (accused Munna) was not capable of performing sexual act. Nor it is been disputed by accused that he was not capable of performing sexual act.
In view of above and in the circumstances, it stands 53 of 148 54 FIR No. 153/09 PS - Kanjhawala proved on the record that accused Munna was capable of performing sexual act.
16. Now let the testimony of PW1 Prosecutrix be perused and analysed.
PW1 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 28/08/2009, I have gone for tuition at about 3:30 p.m. from my house Kanjhawala. Accused Munna present in Court today (correctly identified) met me at the bus stand of Kanjhawala Village who was alongwith his two friends, had taken me forcefully to Anand Vihar Bus Stop. Accused has also broken SIM of my mobile phone and mobile phone was handed over to his friend. Accused thereafter taken me to his native village Lakhim Pur in U.P."
During her further examinationinchief recorded on 03/02/2012, PW1 prosecutrix has deposed that : "Accused has taken me to his house at Lakhimpur, U.P. He has kept me whole night in his house and in the night he has committed rape with me. On the next day accused has taken me to the Court for the purpose of Court marriage in the morning hours. We reached in the Court for the purpose of Court marriage in the morning hours. We 54 of 148 55 FIR No. 153/09 PS - Kanjhawala reached in the Court at about 9:00/10:00 a.m. The marriage could not be registered because my age was 16 years and the Court staff refused to register the marriage. Someone has phone to the Police and lot of Police people came outside the Court and I and accused was apprehended by the Police and were taken to Police Station Bheera, District Lakhimpur, U.P. I could not disclose my home address to anyone because accused had threatened me not to disclose the same to anyone. I disclosed the telephone number of Seema to the said Police. Seema was the lady whose house the accused used to live and work with her. Police telephoned Seema and Seema later on informed my parents about my presence in the said Police Station on which Delhi Police and my parents reached at the Police Station Bheera, Lakhimpur, U.P. I and accused were brought by Delhi Police officials to PS - Kanjhawala at Delhi. Accused was taken into custody by the Police. Police interrogated me and had also taken me to Sanjay Gandhi Memorial Hospital for my medical examination but I on the advise of my father refused for my internal examination and an endorsement to this effect was also made by me at Point 'A' on the MLC Mark 'X' and signed by me at point 'B'. Police also got recorded my statement before the Rohini Court u/s 164 Cr.P.C.
At this stage, an envelope sealed with the seal of 'NG' is opened which is found to contain the proceedings u/s 164 Cr.P.C. I have seen the statement which was made by me before the Court and has been signed by me at Point 'A' & at Point 'B' and my statement u/s 164 Cr.P.C. is Ex. PW1/A. At the time of incident I was about 16 years of age and my date of birth is 20/12/1994. At that time I was studying in 9th Class in BSM Senior Sec. Public School situated at Anandpur Dham, Village Karala, Delhi.
55 of 148 56 FIR No. 153/09 PS - Kanjhawala I do not remember as to whether any documents were prepared by the Police but documents might have been prepared. I can identify the accused Munna, if shown.
At this stage, the wooden partition has been removed. Accused Munna is present in the Court (correctly identified)."
On a leading question put by the Learned Addl. PP for the State pertaining to the statement recorded u/s 164 Cr.P.C., PW1 - prosecutrix has deposed that : "I was not in a proper mental state at that time and I was also intimidated by the accused, if I will make a favourable statement to the accused, myself and the accused, both will be saved. If the statement is made otherwise then his men are waiting outside the Court."
From the aforesaid narration of PW1 - prosecutrix, it is clear that on 28/08/2009, she had gone for tuition at about 3:30 p.m. from her house Kanjhawala. Accused Munna present in Court met her at the bus stand of Kanjhawala Village who was alongwith his two friends, had taken her forcefully to Anand Vihar Bus Stop. Accused has also broken SIM of her mobile phone and mobile phone was handed over to his friend. Accused thereafter taken her to his native village Lakhim Pur 56 of 148 57 FIR No. 153/09 PS - Kanjhawala in U.P. Accused has taken her to his house at Lakhimpur, U.P. He has kept her whole night in his house and in the night he has committed rape with her. On the next day accused has taken her to the Court for the purpose of Court marriage in the morning hours. They reached in the Court for the purpose of Court marriage in the morning hours. They reached in the Court at about 9:00/10:00 a.m. The marriage could not be registered because her age was 16 years and the Court staff refused to register the marriage. Someone has phone to the Police and lot of Police people came outside the Court and she and accused were apprehended by the Police and were taken to Police Station Bheera, District Lakhimpur, U.P. She could not disclose her home address to anyone because accused had threatened her not to disclose the same to anyone. She disclosed the telephone number of Seema to the said Police. Seema was the lady whose house the accused used to live and work with her. Police telephoned Seema and Seema later on informed her parents about her presence in the said Police Station on which Delhi Police and her parents reached at the Police Station Bheera, Lakhimpur, U.P. Prosecutrix and accused were brought by Delhi Police officials to PS - Kanjhawala at Delhi. Accused was taken into custody by the Police. Police 57 of 148 58 FIR No. 153/09 PS - Kanjhawala interrogated the prosecutrix and had also taken her to Sanjay Gandhi Memorial Hospital for her medical examination but she on the advise of her father refused for her internal examination and an endorsement to this effect was also made by her at Point 'A' on the MLC Mark 'X' and signed by her at point 'B'. Police also got recorded her statement before the Rohini Court u/s 164 Cr.P.C. She also proved her statement u/s 164 Cr.P.C. Ex. PW1/A which was signed by her at Point 'A' & 'B'. At the time of incident she was about 16 years of age and her date of birth is 20/12/1994. At that time she was studying in 9th Class in BSM Senior Sec. Public School situated at Anandpur Dham, Village Karala, Delhi. She does not remember as to whether any documents were prepared by the Police but documents might have been prepared. She correctly identified accused Munna present in the Court. She was not in a proper mental state at that time and she was also intimidated by the accused, if she will make a favourable statement to the accused, herself and the accused, both will be saved. If the statement is made otherwise then his men are waiting outside the Court.
PW1 - Prosecutrix during her crossexamination has 58 of 148 59 FIR No. 153/09 PS - Kanjhawala negated the suggestions that she was studying in 10th Class at the time of incident or that no Galat Kaam was ever committed by the accused Munna with her or that she was in love with accused Munna and this fact came in the knowledge of her father and for this reason, accused Munna has been falsely implicated in this case or that she refused for her internal medical examination as no Galat Kaam (rape) was done with her or that accused Munna had not taken her in any Court for the purpose of marriage or that no Police had taken her and accused Munna from the Court where she was brought by accused Munna for marriage purpose or that she had given the statement u/s 164 Cr.P.C. voluntarily without any threat or pressure of accused Munna or that she was aged more than 16 years on the date of incident or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - Prosecutrix, nothing material has been brought out so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW1 - prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence.
59 of 148 60 FIR No. 153/09 PS - Kanjhawala There is nothing in her statement to suggest that she had any animus against the accused Munna to falsely implicate him in the case. Her version on the core spectrum of crime has remained intact.
The testimony of PW1 - Prosecutrix is also found to be in consonance with the medical evidence, as discussed hereinbefore, as well as her statement recorded u/s 164 Cr.P.C. Ex. PW1/A. The testimony of PW1 - Prosecutrix is also found to be corroborated by PW2 - Sri Bhagwan, father of the prosecutrix, in material particulars.
PW2 - Sri Bhagwan in his examinationinchief has deposed that : "On 28/08/2009, my daughter/prosecutrix (name withheld) was going to the tuition at Kanjhawala Chowk but she had not returned from the tuition to the house up to evening. I searched my daughter nearby area but could not trace her. On the next morning I reported the matter to the Police and FIR No. 153/09 under section 366/363 IPC was recorded. I also raised suspicion over a boy named Bablu @ Munna Verma who was previously residing as a tenant in the house before one 60 of 148 61 FIR No. 153/09 PS - Kanjhawala year and I had vacated my premises because about 4/5,000/ rent amount was cumulated towards him. At the time of vacating the premises he (Bablu) threatened us that he will given money in such a way that I will remember the same through out my life. The premises was given to Bablu @ Rs. 600/ p.m. On the next day i.e. on 30/08/2009 I received a message from the Police official namely Ramesh from Police Station Kanjhawala that they had received a telephonic call regarding recovery of my daughter and she was present in the Police Station Lakhimpur Kheri, U.P. On this information, I alongwith Police officials of Police Station Kanjhawala went to the above mentioned Police Station i.e. Lakhimpur Kheri U.P. where my daughter and accused Munna Verma @ Bablu were found at the Police Station. Recovery memo of my daughter/prosecutrix (name withheld) is Ex. PW2/A signed by me at point 'A'. thereafter, my daughter/prosecutrix (name withheld) and accused Munna Verma were brought back to Delhi. My daughter was taken for her medical examination to SGM Hospital by the Police officials. I refused for the "internal examination" of my daughter/prosecutrix. My daughter's statement was also recorded in the Court. My daughter was about 15½ years of age at the time of incident. I do not remember now her date of birth. My daughter/prosecutrix (name withheld) was studying at BSM Senior Sec. Public School at Karala in 9th Class at the time of incident. Accused Munna is present in the Court today (correctly identified)."
From the aforesaid narration of PW2 - Sri Bhagwan, it is clear that on 28/08/2009, his daughter/prosecutrix (name withheld) was going to the tuition at Kanjhawala Chowk but she had not returned from 61 of 148 62 FIR No. 153/09 PS - Kanjhawala the tuition to the house up to evening. He searched his daughter nearby area but could not trace her. On the next morning, he reported the matter to the Police and FIR No. 153/09 under section 366/363 IPC was recorded. He also raised suspicion over a boy named Bablu @ Munna Verma who was previously residing as a tenant in the house before one year and he (PW2 - Sri Bhagwan) had vacated his (PW2) premises because about 4/5,000/ rent amount was cumulated towards him (accused Munna). At the time of vacating the premises he (Bablu) threatened them that he will given money in such a way that he (PW2) will remember the same through out his (PW2) life. The premises was given to Bablu @ Rs. 600/ p.m. On the next day i.e. on 30/08/2009 he (PW6) received a message from the Police official namely Ramesh from Police Station Kanjhawala that they had received a telephonic call regarding recovery of his daughter and she was present in the Police Station Lakhimpur Kheri, U.P. On this information, he (PW2) alongwith Police officials of Police Station Kanjhawala went to the above mentioned Police Station i.e. Lakhimpur Kheri U.P. where his daughter and accused Munna Verma @ Bablu were found at the Police Station. Recovery memo of his daughter/prosecutrix (name withheld) is Ex.
62 of 148 63 FIR No. 153/09 PS - Kanjhawala PW2/A signed by him at point 'A'. Thereafter, his daughter/prosecutrix (name withheld) and accused Munna Verma were brought back to Delhi. His daughter was taken for her medical examination to SGM Hospital by the Police officials. He (PW2) refused for the "internal examination" of his daughter/prosecutrix. His daughter's statement was also recorded in the Court. His daughter was about 15½ years of age at the time of incident. He does not remember now her date of birth. His daughter/prosecutrix (name withheld) was studying at BSM Senior Sec. Public School at Karala in 9th Class at the time of incident and he also identified the accused Munna in the Court.
During his crossexamination PW2 - Sri Bhagwan has negated the suggestions that his daughter/prosecutrix was not missing from her house or that he did not go to PS - Lakhim Pur Kheri, U.P. with Police officials or that he has deposed falsely regarding the age of his daughter/prosecutrix as 15½ years or that the age of his daughter/prosecutrix was about 18 years on the date of the alleged incident or that accused Munna Verma was not his tenant at any point of time or that on 30/08/2009 no message was received by him from the 63 of 148 64 FIR No. 153/09 PS - Kanjhawala local Police that his daughter/prosecutrix was at PS Lakhim Pur Kheri, U.P. or that he had not refused for the internal medical examination of his daughter/prosecutrix or that he did not accompany his daughter/prosecutrix to the hospital or that his daughter/prosecutrix was studying in 10th class at the time of alleged incident or that a false case has been foisted upon the accused by him or that he is deposing falsely.
Inspite of incisive crossexamination of PW2 - Sri Bhagwan, nothing material has been brought out so as to impeach his creditworthiness. He has withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] the testimony of PW2 - Sri Bhagwan 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 Munna to falsely implicate him in the case.
17. While analysing the testimonies of PW1 - Prosecutrix and 64 of 148 65 FIR No. 153/09 PS - Kanjhawala PW2 - Sri Bhagwan, father of the prosecutrix as discussed hereinabove inspite of incisive crossexamination of PW1 - Prosecutrix and PW2 - Sri Bhagwan 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 she was studying in 10th Class at the time of incident or that no Galat Kaam was ever committed by the accused Munna with her or that she was in love with accused Munna and this fact came in the knowledge of her father and for this reason, accused Munna has been falsely implicated in this case or that she refused for her internal medical examination as no Galat Kaam (rape) was done with her or that accused Munna had not taken her in any Court for the purpose of marriage or that no Police had taken her and accused Munna from the Court where she was brought by accused Munna for marriage purpose or that she had given the statement u/s 164 Cr.P.C. voluntarily without any threat or pressure of accused Munna or that she was aged more than 16 years on the date of incident or that she is deposing falsely and the suggestions to PW2 - Sri Bhagwan that his daughter/prosecutrix was not missing from her house or that he did not go to PS - Lakhim Pur Kheri, U.P. with Police officials or that he 65 of 148 66 FIR No. 153/09 PS - Kanjhawala has deposed falsely regarding the age of his daughter/prosecutrix as 15½ years or that the age of his daughter/prosecutrix was about 18 years on the date of the alleged incident or that accused Munna Verma was not his tenant at any point of time or that on 30/08/2009 no message was received by him from the local Police that his daughter/prosecutrix was at PS Lakhim Pur Kheri, U.P. or that he had not refused for the internal medical examination of his daughter/prosecutrix or that he did not accompany his daughter/prosecutrix to the hospital or that his daughter/prosecutrix was studying in 10th class at the time of alleged incident or that a false case has been foisted upon the accused by him 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 has been falsely implicated because of animosity.
18. 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.
66 of 148 67 FIR No. 153/09 PS - Kanjhawala It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "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 67 of 148 68 FIR No. 153/09 PS - Kanjhawala any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of the medical examination from portion 'A' to 'A1' and the gynaecological examination from portion 'X' to 'X' on the MLC Ex. PW4/A of the prosecutrix together with the MLC No. 11847 dated 01/09/2009 of accused Munna, as discussed hereinbefore, the performance of the act of sexual intercourse activity by complete penetration of the penis or by partial penetration of the penis, within the 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 Munna with PW1 - Prosecutrix without her consent.
19. Learned Counsel for the accused submitted that PW1 68 of 148 69 FIR No. 153/09 PS - Kanjhawala prosecutrix in her examinationinchief deposed that on 28/08/2011, she had gone to tuition at 3:30 p.m. from her house at Kanjhawala and that the accused Munna met her at bus stand of Kanjhawala Village alongwith his two friends, who forcibly took her to Anand Vihar Bus Stop. Learned Counsel further submitted that in her crossexamination, the prosecutrix has been confronted on this point i.e. about meeting accused and his two friends at Kanjhawala Bus Stand from where, she allegedly was forcibly taken to Anand Vihar Bus Stand and she has replied that she had not given any such statement Mark - DX1. (Confronted with the statement dated 01/09/2009 mark DX1, where it is not so recorded). Learned Counsel further submitted that the prosecutrix has not deposed about any such fact in her statement recorded u/s 164 Cr.P.C by the Learned Magistrate. Rather she has stated that "On Friday on issue of keys, she was scolded by her mother and father and on Saturday, she had gone for tuition at 4:00. Thereafter, of her own, she went with someone else. From there, she went alongwith Police to Police Station - Kanjhawala". Learned Counsel further submitted that PW1 prosecutrix in her examinationinchief has stated that accused had also broken SIM Card of her mobile phone and handed over the 69 of 148 70 FIR No. 153/09 PS - Kanjhawala mobile phone to his friend. In her crossexamination, the prosecutrix has been confronted with her statement to the effect as to whether she had stated to the IO about the breaking of SIM card of mobile phone of prosecutrix and about handing over of the mobile by Accused to his friend, to which she had replied that she had stated the same to IO but same was not got recorded. She further went on to state that she had not given any statement Mark DX1. (Confronted with the statement dated 01/09/2009 Mark DX1 where it is not so recorded). Learned Counsel further submitted that there had been no recovery of the alleged SIM Card or the mobile phone from the Accused or any other person. He further submitted that the prosecutrix has not deposed about any such fact in her statement recorded u/s 164 Cr.P.C. by the Learned Magistrate and the deposition before the Court was tutored and given at the instance of father & IO. Learned Counsel further submitted that PW1 prosecutrix in her examinationinchief further deposed that thereafter, accused took her to his native village at Lakhimpur, UP where accused Munna kept her whole night in his house and committed rape on her. Learned Counsel further submitted that in her crossexamination, the prosecutrix has been confronted with her statement to the effect as to 70 of 148 71 FIR No. 153/09 PS - Kanjhawala whether she had stated to the IO that accused took her to his native village at Lakhimpur, UP, where accused Munna kept her whole night in his house and committed rape on her, to which she had replied that she had stated the same to IO in her statement, but it is not mentioned. She further went on to state that she had not given any statement Mark DX1. (Confronted with the statement dated 01/09/2009 Mark DX1 where it is not so recorded). Learned Counsel further submitted that PW1 prosecutrix in her examinationinchief, deposed that on the next morning, accused took the prosecutrix to Court for the purpose of Court marriage where they reached at around 9:00/10:00 a.m. She further deposed that the marriage could not be registered as Court staff refused to register the marriage as she was 16 years of age. In her cross examination, the prosecutrix had been confronted with her statement to the effect as to whether she had stated to the IO in her statement, to which she had replied that she had stated same to IO in her statement. (Confronted with the statement dated 01/09/2009 Mark DX1 where it is not so recorded).
I have carefully perused and analysed the evidence on 71 of 148 72 FIR No. 153/09 PS - Kanjhawala record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. In the witness box she has withstood the rigors of crossexamination without being shaken. Her version 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 him in the case.
It is pertinent to reproduce the relevant part of cross examination of PW1 - prosecutrix regarding which the plea has been raised by the Learned Counsel for the accused which is reproduced and reads as under : "Q. Have you told in your statement dated 01/09/2009 given to the IO that accused Munna who met you at Kanjhawla Bus Stand alongwith his two friends and had taken you forcibly to Anand Vihar Bus Stand?
(Attention of the witness is drawn to her statement u/s 161 Cr.P.C. dated 01/09/2009).
A. I had told such fact to the IO in my statement but it is 72 of 148 73 FIR No. 153/09 PS - Kanjhawala not mentioned in it. Vol. I had not given such statement Mark DX1. (Confronted with the statement dated 01/09/2009 Mark DX1 where it is not so recorded).
Q. Have you told in your statement dated 01/09/2009 given to the IO that accused Munna had also broken the SIM Card of your mobile phone and mobile phone was handed over to his friend?
(Attention of the witness is drawn to her statement u/s 161 Cr.P.C. dated 01/09/2009).
A. I had told such fact to the IO in my statement but it is not mentioned in it. Vol. I had not given such statement Mark DX1. (Confronted with the statement dated 01/09/2009 Mark DX1 where it is not so recorded).
Q. Have you told in your statement dated 01/09/2009 given to the IO that accused Munna had taken you to his house at Lakhim Pur, UP and he has kept you whole night in his house and in the night he had committed rape with you?
(Attention of the witness is drawn to her statement u/s 161 Cr.P.C. dated 01/09/2009).
A. I have told such fact to the IO. (Confronted with the statement dated 01/09/2009 Mark DX1 where it is not so recorded, however the fact of the committal of the Galat Kam is mentioned there).
Q. Have you told in your statement dated 01/09/2009 given 73 of 148 74 FIR No. 153/09 PS - Kanjhawala to the IO that on the next day accused Munna had taken you to the court for the purpose of Court Marriage in the morning hours and you both reached in the Court at about 9:00/10:00 a.m. The marriage could not be registered because your age was 16 years and the court staff refused to register the marriage?
(Attention of the witness is drawn to her statement u/s 161 Cr.P.C. dated 01/09/2009).
A. I had told such fact to the IO. (Confronted with the statement dated 01/09/2009 Mark DX1 where it is not so recorded)."
From the aforesaid narration of PW1 - prosecutrix, it is clearly indicated that she had told such facts to the IO in her statement with which she has been confronted with as reflected in her cross examination reproduced hereinabove.
In view of above, they are explainable variations and do not, in any way, adversely affect the case of the prosecution, for the reason that PW1 - prosecutrix has categorically stated that she had informed the Police of what she stated under oath before the Court but why it was not so recorded in her statement dated 01/09/2009 Mark DX1 recorded by the Investigating Officer PW9 - ASI Johar Singh would be a reason best 74 of 148 75 FIR No. 153/09 PS - Kanjhawala known to the Investigating Officer. Strangely, when PW9 - ASI Johar Singh was being crossexamined, no such question was put to him as to why he did not completely record the statement of the witness/PW1 - prosecutrix or whether this witness had made such aforementioned statement (with which she was confronted with as reproduced and detailed hereinabove).
In case titled as 'Kuria & Anr. Vs. State of Rajasthan', 2012 XI AD (S.C) 376, while dealing with a similar situation, where witness stated under oath before the Court that he had informed the Police of what he stated under oath before the Court but it was not so recorded in his statement under Section 161 Cr.P.C. recorded by the Investigating Officer (IO) the Hon'ble Supreme Court has held the reason for the same would be best known to the Investigating Officer (IO). (Para 20 & 21).
Para 20 and 21 of Kuria's Case (Supra) reads as under :
20. These cannot be termed as contradictions between the statements of the witnesses. They are explainable variations which are likely to occur in the normal course and do not, in any way, adversely affect the case of the prosecution. Thus, there are no material contradictions in the statement of the witnesses or the documents, nor 75 of 148 76 FIR No. 153/09 PS - Kanjhawala can the presence of PW15 be doubted at the place of occurrence.
21. For instance PW15, in his crossexamination, had stated before the Court that Laleng had twisted the neck of the deceased. According to the accused, it was not so recorded in his statement under Section 161, Exhibit D/2 upon which he explained that he had stated before the Police the same thing, but he does not know why the Police did not take note of the same. Similarly, he also said that he had informed the Police that the four named accused had dragged the body of the deceased and thrown it near the hand pump outside their house, but he does not know why it was not so noted in Exhibit D/2. There are some variations or insignificant improvements in the statements of PW3 and PW7. According to the learned counsel appearing for the appellants, these improvements are of such nature that they make the statement of these witnesses unbelievable and unreliable. We are again not impressed with this contention. The witnesses have stated that they had informed the Police of what they stated under oath before the court, but why it was not so recorded in their statements under Section 161 recorded by the Investigating Officer would be a reason best known to the Investigating Officer, PW16, was being crossexamined, no such question was put to him as to why he did not completely record the statements of the witnesses or whether these witnesses had made such aforementioned statements. Improvements or variations of the statements of the witnesses should be of such nature that it would create a definite doubt in the mind of the Court that the witnesses are trying to state something which is not true and which is not duly corroborated by the statements of the other witnesses. That is not the situation here. These improvements do not create any legal impediment in accepting the statements of PW3, PW4, PW7 and PW15 made under oath."
(Underlined by me) 76 of 148 77 FIR No. 153/09 PS - Kanjhawala PW1 - Prosecutrix in her statement recorded u/s 164 Cr.P.C. Ex. PW1/A, dated 02/09/2009 has stated which is reproduced and reads as under : "On the day of Friday, on the issue of key Mummy and Papa had scolded her. On Saturday at 4:00 p.m., she had gone on tuition, then from there, she, of her own, has gone with someone. From there, with Police she came at PS - Kanjhawala (Friday Wale Din Chaabi Ki Baat Par Mummy Papa Ne Mujhe Danta Tha. Saturday Ko 4:00 Baje Tuition Par Gai Thi. Fir Wahan Se Main Apne Aap Kisi Aur Ke Saath Chali Gai. Wahan Se Police Ke Saath Kanjhawala Thane Mei Aa Gai)"
On a leading question put by the Learned Addl. PP pertaining to the statement recorded u/s 164 Cr.P.C., PW1 - prosecutrix has specifically deposed : "I was not in a proper mental state at that time and I was also intimidated by the accused, if I will make a favourable statement to the accused, myself and the accused, both will be saved. If the statement is made otherwise then his men are waiting outside the Court."
During her crossexamination, by the Learned Counsel for 77 of 148 78 FIR No. 153/09 PS - Kanjhawala the accused, PW1 - prosecutrix has negated the suggestion that she had given the statement u/s 164 Cr.P.C. voluntarily, without any threat or pressure of accused Munna.
During her crossexamination, by the Learned Counsel for the accused, PW1 - prosecutrix has specifically deposed that : "I had told about such threat to my father after my statement u/s 164 Cr.P.C. was recorded in the Court."
"Q. You have deposed hereinabove that accused Munna had threatened you to give the statement as per his version before the Learned MM u/s 164 Cr.P.C., what was the content of that version?
A. I do not recollect the content of that version but he had told to give the statement facing him."
"Q. Is it correct that your statement was recorded u/s 164 Cr.P.C. with calmness and peacefully?
A. Yes.
Q. Is it correct that you made the statement u/s 164 Cr.P.C. voluntarily?
A. I made the statement at the instance of accused Munna who had told me, if I will make statement as has been told by him by which he, as well as me will be saved. He had also threatened, if the statement, as told/instructed by him, is not given by me then he will not spare anyone of my family."
78 of 148 79 FIR No. 153/09 PS - Kanjhawala From the aforesaid narration of PW1 - prosecutrix, it is clearly indicated that she made the statement u/s 164 Cr.P.C. though, with calmness and peacefully but under the lurking threat of accused Munna that if the statement, as told/instructed by him, is not given by her then he will not spare anyone of her family. She has also given the reason for making the statement at the instance of accused Munna by which he, as well as she will be saved. The said reason, so given by PW1 - prosecutrix for making the statement u/s 164 Cr.P.C., at the instance of accused Munna has not been challenged during her cross examination on behalf of the accused.
The perusal of the statement u/s 164 Cr.P.C. Ex. PW1/A made by the prosecutrix, as reproduced hereinabove, also indicates the mental turmoil through which she may be passing at the time of making such statement. Moreover, devoid of detailed factual particulars in the statement u/s 164 Cr.P.C. by itself does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
79 of 148 80 FIR No. 153/09 PS - Kanjhawala It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
The sight cannot be lost of the fact that PW1 -
prosecutrix was recovered vide recovery memo Ex. PW2/A, dated 01/09/2009 when she was under the dominance and control of accused Munna.
As regards the plea raised by the Learned Counsel for the accused that PW2 - Sri Bhagwan, father of the prosecutrix has also not deposed regarding the threat disclosed to her by her daughter, PW1 - prosecutrix, is concerned, it is evident from the record that during the crossexamination of PW2 - Sri Bhagwan, the said accused did not voice his concern 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 80 of 148 81 FIR No. 153/09 PS - Kanjhawala 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.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
On analysing the entire testimony of PW1 - prosecutrix, it transpires that she has described the scenario, implicating the accused Munna to be author of the crime, of the committal of the sexual assault upon her. Accused has failed to illicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination.
81 of 148 82 FIR No. 153/09 PS - Kanjhawala The witness has made some improvements and deposed certain facts which were not stated in the statements u/s 161 Cr.P.C. Mark DX1 and u/s 164 Cr.P.C. Ex. PW1/A. However, those facts do not affect her credibility as they are the explainable variations as discussed herein above. The core facts about the committal of the crime by accused remained intact.
As far as the plea raised by the Learned Counsel for the accused that, "there had been no recovery of the alleged SIM Card or the mobile phone from the accused or any other person", is concerned, it is evident from the record that during the crossexamination of PW9 - ASI Johar Singh IO, the said accused did not voice his concern or raised any apprehension on the said aspect regarding which the plea has been raised. For such failure, accused is to blame himself and none else.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
82 of 148 83 FIR No. 153/09 PS - Kanjhawala 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.
The fact regarding the whereabouts of the SIM Card and the mobile phone must be within the knowledge of the accused Munna. Prosecution has discharged its initial burden of proving that the SIM Card of PW1 - prosecutrix was broken by the accused Munna and her mobile phone was handed over by accused Munna to his friend. Accused Munna was under an obligation to explain the same.
Section 106 of the Indian Evidence Act, 1872 provides for burden of proving fact especially within knowledge.
It reads as under : "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
83 of 148 84 FIR No. 153/09 PS - Kanjhawala In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
20. Learned Counsel for accused submitted that that there is nothing on record to prima facie show/corroborate the alleged story that she was taken to Lakhimpur, U.P, where in the night rape was committed upon her as the prosecution has failed to prove any such fact as neither any person had been cited or deposed as witness from Lakhimpur Village, UP, nor there is any site plan of the place where she alleges to have been raped. Learned Counsel further submitted that even in the medical examination of the prosecutrix, which is exhibited as PW4/A, there is no opinion of the Doctor conducting medical examination to the effect that she had been raped. The Doctor has further stated on Ex. PW4/A that there is (no) H/o physical/sexual assault. Learned Counsel further submitted that there is no internal examination report and the clothes, undergarments etc. of the prosecutrix. Learned Counsel further submitted that another glaring aspect of the statement of prosecutrix is that in her examinationinchief, she has stated that she had refused 84 of 148 85 FIR No. 153/09 PS - Kanjhawala medical examination on the advise of her father/PW2 whereas from the medical record exhibit PW4/A, it transpires that she was accompanied by her mother who had signed on the report and moreover she had refused to get internally examined by stating that she was not ready to get her internal examination done. Learned Counsel further submitted that the prosecutrix has not deposed about any such fact that she had been raped/sexually assaulted by the accused in her statement recorded u/s 164 Cr.P.C. by the Learned Magistrate.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. In the witness box she has withstood the rigors of crossexamination without being shaken. Her version 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 him in the case.
85 of 148 86 FIR No. 153/09 PS - Kanjhawala On analysing the entire testimony of PW1 - prosecutrix, it transpires that she has described the scenario, implicating the accused Munna to be author of the crime, of the committal of the sexual assault upon her. Accused has failed to illicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination.
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 away. 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 86 of 148 87 FIR No. 153/09 PS - Kanjhawala 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."
The plea regarding nonpreparation of the site plan of the place where prosecutrix alleged to have been raped, shall be dealt with by me in the later part of the judgment.
As regards nonciting of any person as a witness from Lakhimpur village, U.P., is concerned, it is evident from the record that during the crossexamination of PW9 - ASI Johar Singh IO, the said accused did not voice his concern or raised any apprehension on the said 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.
The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or 87 of 148 88 FIR No. 153/09 PS - Kanjhawala untrustworthy (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).
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.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
The testimony of PW11 - Dr. Lakhvinder Kaur has been discussed and analysed hereinbefore.
At the cost of repetition, PW11 - Dr. Lakhvinder Kaur has deposed in her examinationinchief that she has been deputed in this 88 of 148 89 FIR No. 153/09 PS - Kanjhawala case by the M.S. of the Hospital to depose before the Hon'ble Court on behalf of Dr. Kapila. She has seen MLC No. 11845 of prosecutrix (name withheld) D/o Sri Bhagwan age 16 years female who was brought to Hospital for medical examination. She was initially examined by CMO on duty and thereafter she was referred to S.R. Gyane for further examination whereupon she was examined by Dr. Kapila. As per MLC, there was history of running away from home on 28/08/2009 and recovered by Police on 01/09/2009 as told by patient and IO. Patient and her mother refused to get herself internally medically examined. Patient was also not willing to give her undergarments. At present, Dr. Kapila is not working in their Hospital and her present whereabouts are not known as per record. She is acquainted with the handwriting and signature of Dr. Kapila as she has seen her signing and writing during the course of her duty. The examination of Dr. Kapila is at point 'X' to 'X' on the MLC Ex. PW4/A and bearing signature of Dr. Kapila at point 'Z'.
Despite grant of opportunity, PW11 - Dr. Lakhvinder Kaur was not crossexamined on behalf of the accused.
As regards the plea raised by the Learned Counsel for the 89 of 148 90 FIR No. 153/09 PS - Kanjhawala accused that in the MLC of PW1 - prosecutrix Ex. PW4/A, there is no opinion of Doctor to the effect that she has been raped, is concerned, at the cost of repetition, 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.
At the cost of repetition, the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
(Underlined by me) 90 of 148 91 FIR No. 153/09 PS - Kanjhawala As regards the plea raised by Learned Counsel for the accused that there is no internal examination report and the clothes, undergarments etc. of the prosecutrix, is concerned, it is not made clear by the Learned Counsel as to what benefit he intends to reap by raising the said plea. Refusal for internal medical examination will not ipso facto falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. PW11 - Dr. Lakhvinder Kaur in her examinationinchief has specifically deposed that, "Patient and her mother refused to get herself internally medically examined. Patient was also not willing to give her undergarments". Moreover, PW1 - prosecutrix during her crossexamination has specifically deposed that : "It is wrong to suggest that I refused for my internal medical examination as no Galat Kam (rape) was done with me. Vol. I refused for my internal medical examination as I was advised by the person including the Police officials for refusing for the same."
As far as the plea raised by the Learned Counsel for the 91 of 148 92 FIR No. 153/09 PS - Kanjhawala accused that, "the Doctor has stated on MLC Ex. PW4/A that there is (no) H/o physical/sexual assault", is concerned, it is not made clear by the Learned Counsel for the accused as to what he intends to convey and as to what benefit he intends to reap from the plea so raised.
At the cost of repetition, the 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.
At the cost of repetition, PW1 - prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : "On 28/08/2009, I have gone for tuition at about 3:30 p.m. from my house Kanjhawala. Accused Munna present in Court today (correctly identified) met me at the bus stand of Kanjhawala Village who was alongwith his two friends, had taken me forcefully to Anand Vihar Bus Stop. Accused has also broken SIM of my mobile phone and mobile phone was handed over to his friend. Accused thereafter taken me to his native village Lakhim Pur in U.P."
"Accused has taken me to his house at Lakhimpur, U.P. He
92 of 148 93 FIR No. 153/09 PS - Kanjhawala has kept me whole night in his house and in the night he has committed rape with me."
There is nothing in the crossexamination of PW1 - prosecutrix so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. Her version on the core spectrum of crime has remained intact.
As regards the plea raised by the Learned Counsel for the accused that prosecutrix has stated in her examinationinchief that she had refused medical examination on the advise of her father PW2 - Sri Bhagwan whereas the MLC Ex. PW4/A shows that she was accompanied by her mother, who had signed on the report, is concerned, PW2 - Sri Bhagwan during his examinationinchief has specifically deposed that, "I refused for the "internal examination" of my daughter". Further, it is evident from the record that during the crossexamination of PW2 - Sri Bhagwan, father of the prosecutrix, the said accused did not voice his concern or raised any apprehension on the said aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the 93 of 148 94 FIR No. 153/09 PS - Kanjhawala factual situation. For such failure, 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.
Moreover, the said variation/discrepancy does reflect upon the substantive evidence and the probative value of the statement of PW1
- prosecutrix made on relevant and material aspects. Her testimony is clear, natural, categorical, cogent, reliable and inspires confidence. Her version on the core spectrum of the crime has remained intact.
As regards the plea raised by the Learned Counsel for the accused that PW1 - prosecutrix has not deposed any fact that she had been raped/sexually assaulted by the accused in her statement recorded 94 of 148 95 FIR No. 153/09 PS - Kanjhawala u/s 164 Cr.P.C., is concerned, as discussed and analysed hereinabove, nonfinding of such fact in her statement u/s 164 Cr.P.C. does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
At the cost of repetition, on a leading question put by the Learned Addl. PP pertaining to the statement recorded u/s 164 Cr.P.C., PW1 - prosecutrix has specifically deposed : "I was not in a proper mental state at that time and I was also intimidated by the accused, if I will make a favourable statement to the accused, myself and the accused, both will be saved. If the statement is made otherwise then his men are waiting outside the Court."
During her crossexamination, by the Learned Counsel for the accused, PW1 - prosecutrix has negated the suggestion that she had given the statement u/s 164 Cr.P.C. voluntarily, without any threat or pressure of accused Munna.
During her crossexamination, by the Learned Counsel for 95 of 148 96 FIR No. 153/09 PS - Kanjhawala the accused, PW1 - prosecutrix has specifically deposed that : "I had told about such threat to my father after my statement u/s 164 Cr.P.C. was recorded in the Court."
"Q. You have deposed hereinabove that accused Munna had threatened you to give the statement as per his version before the Learned MM u/s 164 Cr.P.C., what was the content of that version?
A. I do not recollect the content of that version but he had told to give the statement facing him."
"Q. Is it correct that your statement was recorded u/s 164 Cr.P.C. with calmness and peacefully?
A. Yes.
Q. Is it correct that you made the statement u/s 164 Cr.P.C. voluntarily?
A. I made the statement at the instance of accused Munna who had told me, if I will make statement as has been told by him by which he, as well as me will be saved. He had also threatened, if the statement, as told/instructed by him, is not given by me then he will not spare anyone of my family."
From the aforesaid narration of PW1 - prosecutrix, it is clearly indicated that she made the statement u/s 164 Cr.P.C. though, with calmness and peacefully but under the lurking threat of accused Munna that if the statement, as told/instructed by him, is not given by her 96 of 148 97 FIR No. 153/09 PS - Kanjhawala then he will not spare anyone of her family. She has also given the reason for making the statement at the instance of accused Munna by which he, as well as she will be saved. The said reason, so given by PW1 - prosecutrix for making the statement u/s 164 Cr.P.C., at the instance of accused Munna has not been challenged during her cross examination on behalf of the accused.
The perusal of the statement u/s 164 Cr.P.C. Ex. PW1/A made by the prosecutrix, as reproduced hereinabove, also indicates the mental turmoil through which she may be passing at the time of making such statement.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for accused submitted that the prosecution has failed to prove any such fact/allegation as neither any public person or Police official from the PS - Bheera, District - Lakhimpur, U.P. had been examined as witness in the Court. Moreover, neither any DD Entry record nor arrest memo nor transit remand order nor any statement of 97 of 148 98 FIR No. 153/09 PS - Kanjhawala prosecutrix or accused was recorded there, nor any FIR was registered nor any other document has been produced or exhibited which shows the falsity & concoction in the statement of prosecutrix. Learned Counsel further submitted that in her crossexamination PW1 - prosecutrix has deposed that she was kept at a ladies Police Station which was at a distance of about 1 hour from PS - Bheera from the time when she was brought by Police officials of PS - Bheera till the time when Delhi Police Officials reached there on next morning which clearly shows the falsehood on the part of this witness and her veracity is doubtful. Neither any witness was cited nor anyone has been examined in the Court to prove these wild allegations. Even otherwise, Learned Counsel further submitted that the prosecutrix had not deposed about any such fact in her statement, recorded u/s 164 Cr.P.C. by the Learned Magistrate.
I have carefully perused and analysed the evidence on record.
Although, the related plea raised by the Learned Counsel for the accused has been analysed and discussed herein 98 of 148 99 FIR No. 153/09 PS - Kanjhawala before, yet in the interest of justice, I shall deal with the plea so raised by the Learned Counsel for the accused.
The testimony of PW9 - ASI Johar Singh IO has been detailed hereinbefore. On careful perusal and analysis of the testimony of ASI Johar Singh, IO, it is found to be clear, cogent and a graphic details of the steps which he took during the course of investigation. He has deposed regarding the facts as to what he acted, perceived and observed. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case.
At the cost of repetition, PW9 - ASI Johar Singh IO in his examinationinchief has deposed that, on 30/08/2009, he was posted as Asstt. Sub Inspector in PS Kanjhawla. On that day, DD No. 19A, copy of which is Ex. PW9/A was handed over to him for inquiry. He has perused the DD No. 19A and from the contents of DD No. 19A, offence u/s 363 IPC is made out. Complainant Sri Bhagwan also met him in the PS. He prepared rukka Ex. PW9/B, bearing his signature at point 'A'. The rukka was handed over to Duty Officer for registration of FIR. Thereafter, he alongwith complainant Sri Bhagwan reached at Mahavir 99 of 148 100 FIR No. 153/09 PS - Kanjhawala Colony, Kanjhawla. Constable Kuldeep came at Kanjhawla Chowk and handed over to him the copy of FIR and original rukka. He searched for accused and prosecutrix but not found. He collected the age proof of prosecutrix (name withheld) from BSM Senior Secondary School, Anandpur Dham, Karala, Delhi and the same is Ex. PW9/C and according to which her Date of birth is 20/12/1994. Thereafter, he alongwith Constable Kuldeep, Constable Ramesh and Sri Bhagwan, father of the prosecutrix (name withheld), reached at Anand Vihar Bus Adda in search of prosecutrix (name withheld) and accused. At the Anand Vihar Bus Adda, accused Munna and prosecutrix (name withheld) were found present there and at the instance of Sri Bhagwan they apprehended accused Munna and prosecutrix (name withheld). Prosecutrix (name withheld) was recovered vide memo Ex. PW2/A, bearing his signature at point 'C'. Accused Munna was interrogated and arrested vide arrest memo Ex. PW8/A and his personal search was conducted vide memo Ex. PW8/B, both bearing his signature at point 'B'. They reached at SGM Hospital. Lady Constable Seema was also called. Accused Munna and prosecutrix (name withheld) were medically examined. Prosecutrix (name withheld) refused to get herself internally 100 of 148 101 FIR No. 153/09 PS - Kanjhawala medically examined. Accused Munna and prosecutrix (name withheld) were produced in the Court. He moved an application for recording the statement of the prosecutrix u/s 164 Cr.P.C. and the application is Ex. PW9/D and the same was fixed for 02/09/2009. Accused was sent to JC and prosecutrix (name withheld) was sent to Nari Niketan. On 02/09/2009, statement of prosecutrix (name withheld) u/s 164 Cr.P.C. was got recorded and thereafter, he obtained copy of the same vide his application already exhibited as Ex. PW6/C, bearing his signature at point 'A'. After completing investigation, challan was prepared and filed in the Court. Accused Munna is present in the Court today.
There is nothing in the crossexamination of PW9 - ASI Johar Singh IO so as to impeach his creditworthiness.
As discussed hereinabove, nonexamination of any public person or Police official from PS - Bheera, District - Lakhimpur, U.P. does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. PW9 - ASI Johar Singh IO during his crossexamination has specifically deposed that, "No DD Entry or any other document relating to this case had ever been 101 of 148 102 FIR No. 153/09 PS - Kanjhawala obtained by me from the U.P. Police".
At the cost of repetition, 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).
As regards the plea raised by the Learned Counsel for the accused that, in her crossexamination PW1 - prosecutrix has deposed that she was kept at a ladies Police Station which was at a distance of about 1 hour from PS - Bheera from the time when she was brought by Police officials of PS - Bheera till the time when Delhi Police Officials reached there on next morning which clearly shows the falsehood on the part of this witness and her veracity is doubtful, is concerned, she has deposed the facts as to what she observed, perceived and experienced. At the cost of repetition, the testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. The testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. In the witness box she has 102 of 148 103 FIR No. 153/09 PS - Kanjhawala withstood the rigors of crossexamination without being shaken. Her version 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 him in the case.
As regards the plea raised by the Learned Counsel for the accused that PW1 - prosecutrix has not deposed any fact that she was kept at the Lady's Police Station which was at a distance of about one hour from PS - Bheera from the time when she was brought by Police officials of PS - Bheera till the time when Delhi Police officials reached there next morning in her statement recorded u/s 164 Cr.P.C., is concerned, as discussed and analysed hereinabove, nonfinding of such fact in her statement u/s 164 Cr.P.C. does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
At the cost of repetition, on a leading question put by the Learned Addl. PP pertaining to the statement recorded u/s 164 Cr.P.C., PW1 - prosecutrix has specifically deposed : 103 of 148 104 FIR No. 153/09 PS - Kanjhawala "I was not in a proper mental state at that time and I was also intimidated by the accused, if I will make a favourable statement to the accused, myself and the accused, both will be saved. If the statement is made otherwise then his men are waiting outside the Court."
During her crossexamination, by the Learned Counsel for the accused, PW1 - prosecutrix has negated the suggestion that she had given the statement u/s 164 Cr.P.C. voluntarily, without any threat or pressure of accused Munna.
During her crossexamination, by the Learned Counsel for the accused, PW1 - prosecutrix has specifically deposed that : "I had told about such threat to my father after my statement u/s 164 Cr.P.C. was recorded in the Court."
"Q. You have deposed hereinabove that accused Munna had threatened you to give the statement as per his version before the Learned MM u/s 164 Cr.P.C., what was the content of that version?
A. I do not recollect the content of that version but he had told to give the statement facing him."
"Q. Is it correct that your statement was recorded u/s 164 Cr.P.C. with calmness and peacefully?
104 of 148 105 FIR No. 153/09 PS - Kanjhawala A. Yes.
Q. Is it correct that you made the statement u/s 164 Cr.P.C. voluntarily?
A. I made the statement at the instance of accused Munna who had told me, if I will make statement as has been told by him by which he, as well as me will be saved. He had also threatened, if the statement, as told/instructed by him, is not given by me then he will not spare anyone of my family."
From the aforesaid narration of PW1 - prosecutrix, it is clearly indicated that she made the statement u/s 164 Cr.P.C. though, with calmness and peacefully but under the lurking threat of accused Munna that if the statement, as told/instructed by him, is not given by her then he will not spare anyone of her family. She has also given the reason for making the statement at the instance of accused Munna by which he, as well as she will be saved. The said reason, so given by PW1 - prosecutrix for making the statement u/s 164 Cr.P.C., at the instance of accused Munna has not been challenged during her cross examination on behalf of the accused.
The perusal of the statement u/s 164 Cr.P.C. Ex. PW1/A made by the prosecutrix, as reproduced hereinabove, also indicates the 105 of 148 106 FIR No. 153/09 PS - Kanjhawala mental turmoil through which she may be passing at the time of making such statement.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for the accused submitted that PW1 prosecutrix in her examinationinchief, has deposed that in the Police Station she disclosed the number & had telephoned Seema, who was the same lady in whose house accused used to live & work. In her cross examination, the prosecutrix had been confronted with this part of her statement, to which she replied that she does not recollect. Even otherwise, the prosecution has miserably failed to prove this fact as the said Seema has neither been cited as a witness nor she has deposed in the Court.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, 106 of 148 107 FIR No. 153/09 PS - Kanjhawala discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. In the witness box she has withstood the rigors of crossexamination without being shaken. Her version 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 him in the case.
So far as the plea raised by the Learned Counsel for the accused that Seema has neither been cited as a witness nor been examined by the prosecution is concerned, as it is evident from the record that during the crossexamination of PW9 - ASI Johar Singh, IO the said accused did not voice his concern or raised any apprehension on the said 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 is to blame himself and none else. In such a situation, the accused cannot be heard saying that since the most material witness was withheld by the prosecution, therefore, adverse inference should be drawn against it.
107 of 148 108 FIR No. 153/09 PS - Kanjhawala At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
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 case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.', (1979) 4 SCC 345, 'State of U.P. Vs. Anil Singh', AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar', 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is 108 of 148 109 FIR No. 153/09 PS - Kanjhawala not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
It is well settled in law that nonexamination of the material witness is not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be (Ref. State of H.P. Vs. Gian Chand, (2001) 6 SCC 71).
In case Takhaji Hiraji Vs Thakore Kubersing Chamansing, 2001 IV AD (S.C.) 393, the Hon'ble Supreme Court has held that : ".....If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of other witnesses."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
109 of 148 110 FIR No. 153/09 PS - Kanjhawala
23. Learned Counsel submitted that the father of the prosecutrix i.e. PW2 - Sri Bhagwan has stated in his examinationinchief that "...On 30/08/2009, I received a message from the Police Official namely Ramesh from PS - Kanjhawala that they had received a telephonic call regarding recovery of my daughter and she was present in the Police Station, Lakhimpur, U.P. On this information, I alongwith Police officials of PS - Kanjhawala went to the above mentioned place, PS - Lakhimpur, I.P. Where my daughter & accused Munna @ Babloo was found at the Police Station...". Even in his crossexamination PW2 has deposed that "...I was informed by the local Police. I received this information at about 3:00 to 4:00 p.m. At about 5:00 p.m. I left for the Police Station. It was 30th day and was Sunday". Learned Counsel further submitted that PW1 - prosecutrix in her examinationinchief has deposed that Seema informed the parents of prosecutrix about her presence in the Police Station (at Lakhimpur, U.P.) and further deposed that her parents reached Police Station - Bheera, Lakhimpur, U.P. and she as well as accused was brought to Delhi by Police officials of PS - Kanjhawala. Learned Counsel further submitted that neither Seema has 110 of 148 111 FIR No. 153/09 PS - Kanjhawala been cited as a witness in the prosecution case nor she has deposed in the Court. Moreover, PW2 - Sri Bhagwan has stated in his examination inchief that he had got the said information about his daughter from one Ramesh, Police official of PS Kanjhawala and that thereafter he went to PS Lakhimpur alongwith Police Officials. Learned Counsel further submitted that PW2 - Sri Bhagwan in his examinationinchief has deposed that "...On this information, I alongwith officials of Police Station - Kanjhawala went to the above mentioned Police Station i.e. Lakhim Pur Kheri, U.P. where my daughter & accused Munna Verma @ Bablu were found at the Police Station. Recovery Memo of my daughter/prosecutrix (name withheld) is Ex. PW2/A signed by me at point 'A'..." Learned Counsel submitted that from the bare perusal of the document Ex. PW2/A it transpires that the alleged recovery of the prosecutrix has been shown from the Bus Stand Anand Vihar at the instance and identification of PW2 - Sri Bhagwan whereas this witness states to have recovered the prosecutrix from PS - Kheri, Lakhimpur, U.P. Moreover, the accused has alleged to have been arrested vide Ex. PW8/A on 01/09/2009 from Anand Vihar Bus Station (Stand), Delhi at 10:15 a.m. whereas the prosecutrix has deposed in her crossexamination 111 of 148 112 FIR No. 153/09 PS - Kanjhawala that, "...I do not recollect as to whether any statement of mine was recorded by the Police of PS - Bheera, District Lakhimpur, U.P. After one to two hours of 9:00/10:00 a.m. of our reaching in the Court, Police of Lakhimpur, U.P. had come there. Immediate after the reaching of the Police Lakhimpur, U.P. at the Court we were taken to PS - Bheera. I do not recollect the time but after about half to one hour of reaching the Police at Court, we were brought to PS - Bheera. Delhi Police of PS - Kanjhawala reached on the next day in the morning at about 10:00/11:00 a.m. at PS - Bheera, District Lakhimpur, U.P......". Meaning thereby (as per the version of the prosecutrix) that on 28/08/2009, the prosecutrix was taken to Lakhimpur, U.P. and that on next day i.e. on 29/08/2009, accused and prosecutrix went to Court for marriage registration where someone called Police and they were taken to Bheera Police Station and on the next day i.e. on 30/08/2009, Delhi Police Officials came and arrested accused Munna and recovered prosecutrix. The whole story is false, fabricated and concocted in as much as the arrest memo Ex. PW8/A states that the accused was arrested on 01/09/2009 from Anand Vihar Bus Station (Stand), Delhi at 10:15 a.m. whereas as per prosecutrix's deposition the accused was arrested on 30/08/2009. The 112 of 148 113 FIR No. 153/09 PS - Kanjhawala whole prosecution story is silent as to what happened on 31/08/2009 and how the accused who has been allegedly arrested on 30/08/2009 is shown to have been arrested on 01/09/2009 and that too at distant place far away from place where he is shown to have been arrested.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that Seema has neither been cited nor been examined by the prosecution, is concerned, it has been dealt with and discussed here inbefore.
The testimony of PW2 - Sri Bhagwan, father of the prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, his testimony has been found to be clear, natural, cogent, convincing and having a ring of truth. There is nothing in his crossexamination so as to impeach his creditworthiness. He has withstood the rigors of crossexamination without being shaken. There is nothing in his statement to suggest that he had any animus against the 113 of 148 114 FIR No. 153/09 PS - Kanjhawala accused to falsely implicate him in the case.
As regards the plea raised by the Learned Counsel for the accused that PW2 - Sri Bhagwan in his examinationinchief has stated that he received the message from the Police official namely Ramesh from PS - Kanjhawala that they had received a telephonic call regarding recovery of his daughter and she was present in the Police Station Lakhimpur, U.P. and that PW1 - prosecutrix in her examinationinchief has deposed that Seema informed her parents about her presence in the Police Station - Lakhimpur, U.P. is concerned, the said PWs have deposed the facts as to what they perceived, observed and experienced. The said variation/discrepancy does not reflect upon the substantive and probative value of statements made on material and relevant aspects. Nor does it dislodge the the substratum of the prosecution case and despite its existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on record bears out the case of the prosecution.
As regards the plea raised by Learned Counsel for the 114 of 148 115 FIR No. 153/09 PS - Kanjhawala accused that, PW2 - Sri Bhagwan in his examinationinchief has deposed that the recovery of his daughter/prosecutrix was made at Police Station - Lakhimpur, U.P., vide recovery memo Ex. PW2/A, PW1 - prosecutrix in her crossexamination has deposed that the Delhi Police of PS Kanjhawala reached on the next day (on 30/08/2009) in the morning at about 10:00/11:00 a.m. at PS - Bheera, District - Lakhimpur, U.P. and that the whole prosecution story is silent as to what happened on 31/08/2009, as per PW1 - prosecutrix, accused was arrested on 30/08/2009 while, as per his arrest memo Ex. PW8/A, he was arrested on 01/09/2009 from Anand Vihar Bus Stand, Delhi at 10:15 a.m., is concerned, it is evident from the record that during the cross examination of PW9 - ASI Johar Singh IO, the said accused did not voice his concern or raised any apprehension on the said 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 is to blame himself and none else.
It is also to be noticed that during his crossexamination, 115 of 148 116 FIR No. 153/09 PS - Kanjhawala PW9 - ASI Johar Singh IO has specifically deposed which is reproduced and reads as under : "Q. How did you reach at the alleged place of arrest of accused Munna at Anand Vihar, Bus Stand from the PS Kanjhawala?
Ans. We had left the PS on 31/08/2009 and while searching for the accused Munna and the prosecutrix on the returning we reached at Anand Vihar Bus Stand by bus."
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
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.
116 of 148 117 FIR No. 153/09 PS - Kanjhawala In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that PW2 - Sri Bhagwan has deposed in his examinationinchief that, "on 28/08/2009 my daughter/prosecutrix had gone for tuition at Kanjhawala Chowk but she did not return from the tuition to house till evening". He further deposed that he searched for her daughter but could not trace her. He further deposed that, "on next morning I reported the matter to the Police and FIR No. 153/09 was registered u/s 363/376 IPC." Learned Counsel submitted that PW2 - Sri Bhagwan has made vast improvement in his deposition before the Court as in his statement before Police which culminated into the present FIR, PW2 - Sri Bhagwan has stated that on 28/08/2009 at about 4:00 p.m., his daughter/prosecutrix (name withheld) aged about 14 years went to the house of her friend (Monitor of the class) at Kanjhawala to take the notebook but the complainant does not know the name of the said Monitor and alleged that his daughter went missing since 28/08/2009. This is in sharp contrast to the deposition 117 of 148 118 FIR No. 153/09 PS - Kanjhawala made before the Court by PW2. Moreover, it is unbelievable & imprudent for a person to not lodge a complaint with the Police immediately when he came to know about the missing of his young teenage girl would he wait for one day before he lodges a missing complaint. Moreover, the concoction, fabrication & deliberation on the part of prosecution is writ large from the fact that as per case of prosecution, the girl went missing on 28/08/2009, the complaint was lodged by PW2 on 29/08/2009 and FIR was allegedly registered on 30/08/2009 at 2:30 p.m. which does not inspire any confidence in the prosecution story.
I have carefully perused and analysed the evidence on record.
The testimony of PW2 - Sri Bhagwan, father of the prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, his testimony has been found to be clear, natural, cogent, convincing and having a ring of truth. There is nothing in his crossexamination so as to impeach his creditworthiness. He has withstood the rigors of crossexamination without being shaken. There 118 of 148 119 FIR No. 153/09 PS - Kanjhawala is nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case.
PW2 - Sri Bhagwan in his examinationinchief has specifically deposed that, on 28/08/2009 his daughter/prosecutrix (name withheld) was going to the tuition at Kanjhawla Chowk but she had not returned from the tuition to the house up to evening. He searched his daughter nearby area but could not race her. On the next morning he reported the matter to the Police and FIR No. 153/09 under section 366/363 IPC was recorded.
PW9 - ASI Johar Singh, IO in his examinationinchief has deposed that on 30/08/2009, he was posted as Asstt. Sub Inspector in PS Kanjhawla. On that day, DD No. 19A, copy of which is Ex. PW9/A was handed over to him for inquiry. He has perused the DD No. 19A and from the contents of DD No. 19A, offence u/s 363 IPC is made out. Complainant Sri Bhagwan also met him in the PS. He prepared rukka Ex. PW9/B, bearing his signature at point 'A'. The rukka was handed over to Duty Officer for registration of FIR.
PW3 HC Sushil Kumar in his examinationinchief has deposed that on 30/08/2009, he was working as Duty Officer at Police 119 of 148 120 FIR No. 153/09 PS - Kanjhawala Station - Kanjhawala from 8:00 a.m. to 4:00 p.m. On that day, at about 2:30 p.m., ASI Johar Singh has given a rukka on the basis of which he got recorded FIR from the Computer Operator under section 363 IPC bearing FIR No. 153/09. After the registration of the FIR, copy of the FIR and original tehrir was given to ASI Johar Singh to whom investigation was entrusted. He has brought the FIR register and the other computerised copy is Ex. PW3/A signed by him at point 'A'. He has also made endorsement Ex. PW3/B on the rukka signed by him at point 'A' regarding registration of the FIR vide kayami DD No. 18A.
There is nothing in the crossexamination of said PWs so as to impeach their creditworthiness.
On a conjoint reading, from the aforesaid narration of the said PWs, it is clearly indicated that on 28/08/2009, daughter of PW2 Sri Bhagwan had gone to tuition at Kanjhawala Chowk and had not returned to the home from tuition till evening and PW2 - Sri Bhagwan searched his daughter in nearby area but could not trace her and on the next morning (on 29/08/2009), he reported the matter to the Police vide DD No. 19A, Ex. PW9/A and on the basis of which FIR dated 120 of 148 121 FIR No. 153/09 PS - Kanjhawala 30/08/2009, Ex. PW3/A was recorded.
The sight cannot be lost of the fact that there are several factors which weigh in the mind of the family members of the prosecutrix before coming to the Police Station to lodge a complaint and that PW2 - Sri Bhagwan searched his daughter in nearby area but could not trace her and on the next morning (on 29/08/2009), he reported the matter to the Police vide DD No. 19A, Ex. PW9/A and on the basis of which FIR dated 30/08/2009, Ex. PW3/A was recorded.
In view of above and in the circumstances, the delay in reporting the matter to the Police sufficiently and satisfactorily stands explained.
Normally a woman would not falsely implicate for the 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)].
121 of 148 122 FIR No. 153/09 PS - Kanjhawala 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 to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India 122 of 148 123 FIR No. 153/09 PS - Kanjhawala 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 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 123 of 148 124 FIR No. 153/09 PS - Kanjhawala 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 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......."
As regards the plea raised by the Learned Counsel for the accused that it is unbelievable & imprudent for a person to not lodge a complaint with the Police immediately when he came to know about the missing of his young teenage girl would he wait for one day before he lodges a missing complaint, is concerned, it is found to have no substance as to what has been discussed hereinabove. Moreover, PW2 124 of 148 125 FIR No. 153/09 PS - Kanjhawala
- Sri Bhagwan in his examinationinchief, as discussed hereinabove, has specifically deposed and explained that when on 28/08/2009, her daughter, prosecutrix did not return from the tuition to the home, till evening, he searched for her in nearby area and when could not trace her, immediate thereafter, on the next morning on 29/08/2009, he lodged the report with the Police vide DD No. 19A, Ex. PW9/A, on the basis of which the FIR Ex.PW3/A was registered.
So far as the plea raised by the Learned Counsel for the accused that there is discrepancy in the testimony of PW2 - Sri Bhagwan, who in his examinationinchief has deposed that on 28/08/2009, his daughter had gone for tuition at Kanjhawala Chowk, while in the report lodged with the Police Ex. PW9/A, he has stated that on 28/08/2009 she had gone to the house of her friend/monitor of the class at Kanjhawal to take the notebook, is concerned, it is evident from the record that during the crossexamination of PW2 - Sri Bhagwan, the said accused did not voice his concern or raised any apprehension on the said aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining 125 of 148 126 FIR No. 153/09 PS - Kanjhawala correctly the factual situation. For such failure, accused is to blame himself and none else.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
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 said variation/discrepancy does not reflect upon the substantive and probative value of statements made on material and relevant aspects. Nor does it dislodge the the substratum of the prosecution case and despite its existence, the clear, cogent, convincing, 126 of 148 127 FIR No. 153/09 PS - Kanjhawala reliable and trustworthy evidence proved on record bears out the case of the prosecution.
It is also to be noticed that in the statement u/s 164 Cr.P.C. Ex. PW1/A, which is heavily relied upon by the Learned Counsel for the accused, PW1 - prosecutrix has interalia specifically deposed that, "on Saturday at 4:00 p.m. she had gone for tuition". Further, PW1 - prosecutrix in her examinationinchief has specifically deposed that, "on 28/08/2009, I had gone for tuition at about 3:30 p.m. from my house Kanjhawala".
Moreover a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
Even the honest and truthful witness may differ in some 127 of 148 128 FIR No. 153/09 PS - Kanjhawala details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video
128 of 148 129 FIR No. 153/09 PS - Kanjhawala tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of 129 of 148 130 FIR No. 153/09 PS - Kanjhawala doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused submitted that PW2 - Sri 130 of 148 131 FIR No. 153/09 PS - Kanjhawala Bhagwan in his examinationinchief has deposed that he raised suspicion over a boy named Bablu @ Munna Verma/accused who was previously residing in his house as a tenant before one year and that he vacated the premises because an amount of Rs. 40005000/ had accumulated against him. He further deposed that at the time of vacating the tenanted premises, accused threatened him that he will give money in such a way that I will remember the same throughout life. He further stated that the premises was given to Bablu @ Rs. 600/ per month. Learned Counsel further submitted that this witness has for the first time made these wild allegations against the accused as he had neither stated such facts in his statement before Police nor the same finds mentioned in the FIR which has been registered on his statement.
I have carefully perused and analysed the evidence on record.
With due respect, it appears that the Learned Counsel for the accused has either misread or not read the evidence on the record.
In the report lodged by PW2 - Sri Bhagwan with the Police vide DD No. 19A, dated 29/08/2009, Ex. PW9/A, the factum regarding 131 of 148 132 FIR No. 153/09 PS - Kanjhawala the suspicion on accused Munna Verma and that he was the tenant in his (PW2 Sri Bhagwan) house and was living with them is clearly mentioned.
The said missing report Ex. PW9/A was lodged by PW2 - Sri Bhagwan on the basis of which FIR Ex. PW3/A was registered. It is well settled that FIR is not an encyclopedia to contain each and every minute detail. On careful perusal and analysis of the missing report Ex. PW9/A, it is found to contain all the relevant facts which may assist the Police in searching the missing daughter/prosecutrix of PW2 - Sri Bhagwan. Nonmentioning of the facts in the missing report Ex. PW9/A regarding the duration of tenancy; as to when the premises was got vacated; how much rent arrears owed by the accused at the time of vacating the premises and of the conduct/threatening given by the accused at the time of vacating the premises, does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
PW2 - Sri Bhagwan in his examinationinchief has specifically deposed that : 132 of 148 133 FIR No. 153/09 PS - Kanjhawala "I also raised suspicion over a boy named Bablu @ Munna Verma who was previously residing as a tenant in the house before one year and I had vacated my premises because about 4/5,000/ rent amount was cumulated towards him. At the time of vacating the premises he (Bablu) threatened us that he will given money in such a way that I will remember the same through out my life. The premises was given to Bablu @ Rs. 600/ p.m."
During his crossexamination, PW2 - Sri Bhagwan has specifically deposed that : "Munna was leaving (living) on rent in my house one year prior to the incident. Vol. The house was got vacated from Munna two months prior to the incident as a amount of Rs. 4000/ was to be taken from him. There was no rent agreement executed between me and Munna. The house was let out to Munna at the rent of Rs. 600/ per month. The rent amount of Rs. 600/ did not include providing of ration. My statement was recorded by the Police."
From the aforesaid narration of PW2 - Sri Bhagwan, it is clearly indicated that accused has not disputed the factum of his tenancy in the house of PW2 - Sri Bhagwan nor has disputed the rate of rent nor has disputed the arrears of rent owed by him (accused).
On careful perusal and analysis of the testimony of PW2 -
133 of 148 134 FIR No. 153/09 PS - Kanjhawala Sri Bhagwan, it is found that he has withstood the rigors of cross examination without being shaken. Infact, so called improvements are the 'clarifications' or 'elaboration' of facts in response to the questions put to him. The core facts about the tenancy of the accused and of the rate of rent remained intact.
On the aspect of owing of arrears of rent by accused Munna, the testimony of PW2 - Sri Bhagwan is also corroborated by his daughter/PW1 - prosecutrix, who in her examinationinchief has specifically deposed that : "I know the accused as he was previously our tenant. Accused had not paid the rent and the ration charges for about 7 to 8 months which accumulated to Rs. 8,000/, therefore, the tenanted room was got vacated from him. Vol. Thereafter, he started living in the house of Seema."
It is also to be noticed that on the fact deposed by PW2 - Sri Bhagwan in his examinationinchief that, "at the time of vacating the tenanted premises, accused threatened him that he will give money in such a way that I will remember the same throughout life", he was not crossexamined on behalf of the accused. For such failure, accused is to blame himself and none else.
134 of 148 135 FIR No. 153/09 PS - Kanjhawala At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
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, if in the estimation of Learned Counsel for the accused, there was any contradiction in the previous statement made to the Police by PW2 - Sri Bhagwan, visavis his examinationinchief in the Court, then he (PW2 - Sri Bhagwan) should have been contradicted with by the Learned Counsel for the accused in accordance with the provisions contained in Section 145 of the Indian Evidence Act, 1872, 135 of 148 136 FIR No. 153/09 PS - Kanjhawala but that was not done for the reasons best known to him. Section 145 Indian Evidence Act, 1872 provides for crossexamination as to previous statements in writing.
It reads as under :
145. Crossexamination as to previous statements in writing. A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused submitted that PW2 - Sri Bhagwan has not even whispered/deposed and alleged about the rape being committed by the accused Munna. Learned Counsel further submitted that had it been a case of rape, the prosecutrix (PW1) would have told about the same to her family members and they would have deposed to this effect but that was not the case and as such the 136 of 148 137 FIR No. 153/09 PS - Kanjhawala prosecution has miserably failed to even prima facie show/prove that rape has been committed upon prosecutrix.
I have carefully perused and analysed the evidence on record.
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The testimony of PW2 - Sri Bhagwan, father of the prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, his testimony has been found to be clear, natural, cogent, convincing and having a ring of truth. There is nothing in his crossexamination so as to impeach his creditworthiness. He has 137 of 148 138 FIR No. 153/09 PS - Kanjhawala withstood the rigors of crossexamination without being shaken. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case.
At the cost of repetition, PW2 - Sri Bhagwan has deposed the facts which he experienced, perceived, observed, acted and regarding the investigational facts which he joined, in a natural and candid manner. He is not a tutored witness. Had he been a tutored witness, he could have incorporated any other facts also but he did not.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. In the witness box she has withstood the rigors of crossexamination without being shaken. Her version 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 him in the case.
138 of 148 139 FIR No. 153/09 PS - Kanjhawala At the cost of repetition, PW1 - prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : "On 28/08/2009, I have gone for tuition at about 3:30 p.m. from my house Kanjhawala. Accused Munna present in Court today (correctly identified) met me at the bus stand of Kanjhawala Village who was alongwith his two friends, had taken me forcefully to Anand Vihar Bus Stop. Accused has also broken SIM of my mobile phone and mobile phone was handed over to his friend. Accused thereafter taken me to his native village Lakhim Pur in U.P."
"Accused has taken me to his house at Lakhimpur, U.P. He has kept me whole night in his house and in the night he has committed rape with me."
There is nothing in the crossexamination of PW1 - prosecutrix so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. Her version on the core spectrum of crime has remained intact.
At the cost of repetition, on analysing the entire testimony of PW1 - prosecutrix, it transpires that she has described the scenario, implicating the accused Munna to be author of the crime, of the 139 of 148 140 FIR No. 153/09 PS - Kanjhawala committal of the sexual assault upon her. Accused has failed to illicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The core facts about the committal of the crime by accused remained intact.
At the cost of repetition, on analysing the testimony of PW1
- Prosecutrix in the light of the medical examination from portion 'A' to 'A1' and the gynaecological examination from portion 'X' to 'X' on the MLC Ex. PW4/A of the prosecutrix together with the MLC No. 11847 dated 01/09/2009 of accused Munna, as discussed hereinbefore, the performance of the act of sexual intercourse activity by complete penetration of the penis or by partial penetration of the penis, within the 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 Munna with PW1 - Prosecutrix without her consent.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
140 of 148 141 FIR No. 153/09 PS - Kanjhawala
27. Learned Counsel submitted that the IO has not prepared or filed/proved on record any site plan of alleged crime scene from where the prosecutrix is alleged to have been kidnapped. Further, there is no site plan of the alleged place in Lakhimpur, U.P. where the prosecutrix alleged to have been raped by the accused on 28/08/2009. As such, PW9
- ASI Johar Singh has miserably failed to prove the kidnapping & rape of the prosecutrix.
I have carefully perused and analysed the evidence on record.
The testimony of PW1 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. In the witness box she has withstood the rigors of crossexamination without being shaken. Her version 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 him in the case.
141 of 148 142 FIR No. 153/09 PS - Kanjhawala PW9 - ASI Johar Singh IO, during his crossexamination recorded on 21/05/2014 has specifically deposed that, "I have not prepared any site plan of the place of incident. It is wrong to suggest that no incident involved in the present case has ever occurred."
So far as the plea raised by the Learned Counsel for the accused that, "the IO has not prepared or filed/proved on record any site plan of alleged crime scene from where the prosecutrix is alleged to have been kidnapped and that there is no site plan of the alleged place in Lakhimpur, U.P. where the prosecutrix alleged to have been raped by the accused on 28/08/2009", is concerned, it is evident from the record that during the crossexamination of PW9 - ASI Johar Singh IO, the said accused did not voice his concern or raised any apprehension or elicited any reason for the nonpreparation of the site plan of the place of kidnapping and of the place of rape of the prosecutrix. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else. In such a situation, the accused cannot be heard 142 of 148 143 FIR No. 153/09 PS - Kanjhawala saying that since a material piece of evidence was withheld by the prosecution, therefore adverse inference should be drawn against the prosecution.
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.
At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
Moreover, the said lapse/discrepancy may reflect on the investigation but does not reflect upon the substantive evidence and probative value of the statement of PW1 - prosecutrix made on material 143 of 148 144 FIR No. 153/09 PS - Kanjhawala and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW1 - prosecutrix on the core spectrum of crime has remained intact.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for the accused submitted that PW2 - Sri Bhagwan, father of the prosecutrix has a motive to falsely implicate the accused as the accused owed arrears of rent towards him.
I have carefully perused and analysed the evidence on record.
The testimony of PW2 - Sri Bhagwan, father of the prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, his testimony has been found to be clear, natural, cogent, convincing and having a ring of truth. There is nothing in his crossexamination so as to impeach his creditworthiness. He has 144 of 148 145 FIR No. 153/09 PS - Kanjhawala withstood the rigors of crossexamination without being shaken. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case.
So far as the theory propounded by the Learned Counsel for the accused that, "PW2 - Sri Bhagwan, has a motive to falsely implicate the accused as the accused owed arrears of rent towards him", is concerned, 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 to PW2 - Sri Bhagwan during the course of his crossexamination. Nor any suggestion regarding the said theory, so propounded, was put to PW1 - prosecutrix during her incisive and lengthy crossexamination. Nor even a single word regarding the said theory, so propounded was uttered by the accused during his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theory, so floated is merely an afterthought and falls flat on the ground.
It is also to be noticed that Learned Counsel for the accused 145 of 148 146 FIR No. 153/09 PS - Kanjhawala has propounded another theory for the false implication of the accused, when he suggested to PW1 prosecutrix during her crossexamination that, "She was in love with accused Munna and this fact came in the knowledge of her father and for this reason, accused Munna has been falsely implicated in this case", which she negated. The said theory, so propounded by the Learned Counsel for the accused has also not at all been made probable, much established by any cogent evidence. Nor even a single word regarding the said theory, so propounded, was uttered by accused during his statement recorded u/s 313 Cr.P.C. In the circumstances, the theory, so propounded, is also found to be devoid of substance and falls flat on the ground.
In the circumstances, it appears that by floating such baseless theories accused has made a futile attempt in order to save his skin from the clutches of law.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. In view of above and in the circumstances, prosecution has 146 of 148 147 FIR No. 153/09 PS - Kanjhawala thus categorically proved beyond shadows of all reasonable doubts that on 28/08/2009, at about 3:30 p.m., when PW1 - prosecutrix, aged around 14 years (to be exact 14 years, 08 months and 08 days), from her house, C1/18, Mahavir Vihar, Kanjhawala, Delhi had gone for tuition and had reached at bus stand of Kanjhawala village, accused Munna came there alongwith his two friends. Accused Munna broke SIM of her mobile phone and handed over her mobile phone to his friend. Thereafter, accused Munna kidnapped her, out of the lawful custody of her parents without their consent and he forcefully took her to Anand Vihar Bus Stop. From there, accused Munna took her to his house at his native village Lakhimpur in U.P. and kept her there for the whole night and in the night he committed rape upon her without her consent.
I accordingly hold accused Munna guilty for the offences punishable u/s 363/376 IPC and convict him thereunder.
30. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Munna in the commission of the offences u/s 363/376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate 147 of 148 148 FIR No. 153/09 PS - Kanjhawala analysis, the prosecution has been able to bring the guilt home to the accused Munna beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Munna guilty for the offences punishable u/s 363/376 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 21st Day of November, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 148 of 148