Delhi District Court
State vs . 1. Pradeep @ Lala on 25 November, 2014
1
FIR No. 718/07
PS - Nangloi
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 25/13
Unique ID No. : 02404R0695992007
State Vs. 1. Pradeep @ Lala
S/o Kailash Chand
R/o H. No. CII/126,
Sultan Puri, Delhi.
2. Phoolwati
W/o Sh. Jagdish Prasad
R/o EII/223, Shiv Ram Park,
Nangloi, Delhi.
3. Anil @ Lillu
S/o Sh. Jagdish Prasad
R/o EII/223, Shiv Ram Park,
Nangloi, Delhi.
4. Prahlad
S/o Not Known
R/o Not Known
(REMAINED UNSERVED)
1 of 149
2
FIR No. 718/07
PS - Nangloi
FIR No. : 718/07
Police Station : Nangloi
Under Sections : 363/376/328/366A IPC
Date of committal to session Court : 18/12/2007
Date on which judgment reserved : 14/11/2014
Date of which judgment announced : 25/11/2014
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 09/09/2007, ASI Mahender Singh alongwith Constable Dharamvir was present in the area of Police Station - Nangloi. Incharge Police Post (PP) SI Jai Prakash informed ASI Mahender Singh that the girl/prosecutrix (name withheld being a case u/s 376 IPC) regarding whom the missing report is lodged in the PS, is sitting at PS Punjabi Bagh. On which ASI Mahender Singh after calling L/Constable Sudesh reached at PS Punjabi Bagh, where prosecutrix (name 2 of 149 3 FIR No. 718/07 PS - Nangloi withheld) D/o Ram Tek R/o House No. E II/28, Shiv Ram Park, Nangloi, Delhi was found present sitting with the Duty Officer. After making inquiries from the prosecutrix and being satisfied ASI Mahender Singh got the prosecutrix medically examined from SGM Hospital, Mangol Puri vide MLC No. 14052/07 on which Doctor had endorsed ''hymen absent''. The sealed exhibits of vaginal swab and undergarment handed over by the Doctor after her medical examination were taken into Police possession. The prosecutrix made the statement which is to the effect that, she lives at the above address with her parents and studies in 7th class in Government Sarvodaya Seh Siksha School. About 34 months ago, she came to know (Jaan Pehchan Hui Thi) Lala who is also called Pradeep. Bua and Fufa Sh. Ved Prakash of Pradeep lives in her mohalla and there Pradeep used to come (Aata Jaata Rehta Tha). She used to talk with Pradeep on his mobile number 9210650643. Mobile number of her house is 9210780606. Sometimes, Pradeep used to make the phone calls and sometimes she used to give the missed calls. Both she and Pradeep decided that they will perform the marriage between them (Hum Aapas Mei Shadi Kar Lenge). On 22/08/2007, in the morning, Pradeep made a phone call for going (Chalne Ke Liye) and 3 of 149 4 FIR No. 718/07 PS - Nangloi called/asked her to come near dispensary and told that they have to go at 11:00 a.m. On the given time, when she was going ahead of the dispensary then Pradeep @ Lala was seen coming in a white color van. She after sitting in the van with Pradeep went to Neem Ka Thana, Rajasthan. In the van, Shashikant friend of Pradeep, had also gone from Delhi (Dinank 22/08/2007 Ko Subah Pradeep Ne Phone Kiya Ki Chalne Ke Liye Dispensary Ke Paas Bulaya Va Bataya Ki 11:00 Baje Chalna Hai. Diye Gaye Samay Par Mai Dispensary Se Aage Ja Rahi Thi Ki Pradeep @ Lala Safed Rang Ki Van Lata Hua Dikhai Diya. Mai Pradeep Ke Saath Van Mei Baith Kar Neem Ka Thana, Rajasthan Gai Van Mei Pradeep Ka Dost Shashikant Delhi Se Gaya Tha). From Neem Ka Thana, Pradeep took her to one house in Madho Pur and she came to know the name of the owner of the house as Pappu. After staying for one night in the said house, Pradeep took her to another house situated at some distance away and Pradeep kept her in that house for five days. Thereafter, Pradeep took her to the house of Shashikant and after leaving her there, Pradeep went away about one week ago saying that his parents are ill, and he is going to see them (Neem Ka Thana Se Pradeep Mujhe Madho Pur Ek Makaan Mei Le Gaya Va Mujhe Makaan Wale Ka Naam 4 of 149 5 FIR No. 718/07 PS - Nangloi Pappu Malum Hua. Us Raat Us Makaan Mei Rukne Ke Baad Pradeep Mujhe Thodi Dur Par Ek Dusre Makaan Mei Le Gaya Aur Us Makaan Mei Paanch Din Rakha. Is Ke Paschaat Mujhe Pradeep Shashikant Ke Ghar Le Gaya. Aur Wahan Se Ek Saptah Pehle Chor Kar Aa Gaya. Va Yeh Keh Kar Ki Mata Pita Bimaar Hain. Dekhne Ja Raha Hai). Shashikant cooperated with her fully and treated her as his sister (Shashikant Ne Mera Pura Saath Diya Aur Mujhe Behan Mana). Shashikant, by telephoning Pradeep @ Lala told him (Pradeep) that prosecutrix (name withheld) is alone, let he come back but Pradeep @ Lala did not come (Shashikant Ne Pradeep Ko Phone Kar Ke Bataya Ki Prosecutrix (name withheld) Akeli Hai Aa Jaye Lekin Pradeep Nahi Aaya). Then on 08/09/2007, at about 10:00 p.m. in the night, Shashikant and his father after taking her left for Delhi and father of Shashikant had come to Delhi for his some personal work (To Shashikant Va Uske Pita 08/09/2007 Ko Waqt Qareeb 10:00 Baje Raat Mujhe Le Kar Delhi Ko Rawana Huye. Va Shashikant Ke Pita Apne Niji Kaam Se Aaya Tha (The)). On 09/09/2007, at about 4:00 a.m., Shashikant left her at the house of Pradeep at Sultan Puri, Delhi while the father of Shashikant for his personal work had alighted prior to Sultan Puri (09/09/2007 Ko 5 of 149 6 FIR No. 718/07 PS - Nangloi Samay Qareeb 4:00 a.m. Par Shashikant Ne Mujhe Pradeep Ke Ghar Sultan Puri, Delhi Chor Diya Shashikant Ke Pita Ji Apne Kaam Se Sultan Puri Se Pehle Utar Gaye The). She awaken (Jagaya) Pradeep in his house, due to which his entire family had awaken and they came to know about love affairs between her and Pradeep (Maine Pradeep Ko Uske Ghar Mei Jagaya jis Se Uska Parivaar Uth (Jag) Gaya. Jinhone (Jinhe) Hamare Va Pradeep Ke Prem Prasang Ke Bare Mei Pata Chal Gaya). On 20/08/2007, she had given her Ration Card to Pradeep as the Ration Card is required at the time of marriage. In front of Shashikant, Pradeep at his house, said that he will not perform marriage with this girl (her) nor he will keep her (Shashikant Ke Saamne Pradeep Ne Apne Ghar Par Kaha Ki Mai Is Ladki Se Shaadi Nahi Karunga Va Na Hi Rakhunga). Pradeep and Shashikant put her in a three wheeler and left her at PS Punjabi Bagh and said Police will send her to her house (Pradeep Va Shashikant Ne Mujhe Ek Three Wheeler Mei Baithaya Aur Punjabi Bagh Thane Par Chor Diya Aur Kaha Ki Police Tujhe Ghar Pahuncha Degi). She went into the Police Station (PS - Punjabi Bagh) and told in the Police Station about the incident took place with her (Mai Thane Mei Chali Gai Aur Maine Thane Mei Apni Dastaan Batai), on 6 of 149 7 FIR No. 718/07 PS - Nangloi which Police (of PS - Punjabi Bagh) had called the Police officials from Police Post Nihal Vihar, who after taking her, brought her at Police Post Nihal Vihar. Pradeep had established physical relations with her without her consent at Madho Pur, Rajasthan. Pradeep @ Lala after enticing her had taken her on the pretext of marriage and had committed rape upon her. Her medical examination has been got conducted. Legal action be taken. She has heard her statement and is correct. On the basis of the statement, from the inspection of MLC and from the interrogation and from the circumstances, on finding that offences u/s 363/376 IPC appeared to have been committed, the case was got registered and the investigation was handed over to W/SI Darshana. During the course of investigation, W/SI Darshana searched for accused Pradeep @ Lala who was found present at his house and after finding sufficient evidence against him he was arrested and his personal search was conducted in which one mobile phone No. 9210650643 make Nokia was recovered. Accused Pradeep @ Lala also got recovered one ration Card in the name of Ram Tek S/o Yad Ram, which was taken into Police possession. One Maruti Van No. DL9CN4053 used in the kidnapping was also got recovered by accused Pradeep @ Lala at his pointing out, which was also 7 of 149 8 FIR No. 718/07 PS - Nangloi taken into Police possession. The medical examination of accused Pradeep @ Lala was got conducted at SGM Hospital vide MLC no. 14070/07 and the sealed exhibits handed over by the Doctor after his medical examination, were taken into Police possession. Accused Pradeep @ Lala and prosecutrix were produced in the Court, two days Police Custody Remand of accused Pradeep @ Lala was obtained. Prosecutrix was sent to Nari Niketan. On 12/09/2007, statement of the prosecutrix was got recorded u/s 164 Cr.P.C. Statements of the witnesses were recorded. Further investigation, was handed over to ASI Mahender Singh. During the course of investigation ASI Mahender Singh took accused Pradeep @ Lala at Neem Ka Thana, PS Shahar, PS & Village Rani Pura, PS Madhopur, Distt. Sikar, Rajasthan and pointing out memo of the house where the prosecutrix was kept was prepared at the instance of accused Pradeep @ Lala and the said house was of Bhagwan Dass S/o Narayan Singh and Pappu was the son of Bhagwan Singh. Statements of the witnesses were recorded. Further investigation of the case was handed over to W/ASI Darshana who got sent accused Pradeep @ Lala to JC. Thereafter, investigation was handed over to ASI Mahender Singh. During the course of investigation carried out by ASI Mahender 8 of 149 9 FIR No. 718/07 PS - Nangloi Singh no sufficient evidence was found against accused Smt. Phoolwati w/o Jagdish Prasad and her son Lillu and Prahlad, therefore, they were kept in Column No. 2. Exhibits were sent to the FSL.
Upon completion of the necessary further investigation challan for the offences u/s 363/376/328/366A IPC was prepared against accused Pradeep @ Lala and was sent to the Court for trial.
2. Since the offences u/s 376/328/366A IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C., the case against accused Pradeep @ Lala was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session and after hearing on charge, prima facie a case u/s 363/366/376 IPC was made out against accused Pradeep @ Lala. Charge was framed accordingly which was read over and explained to the accused Pradeep @ Lala to which he pleaded not guilty and claimed trial.
4. It is to be mentioned that after the examination of PW4 9 of 149 10 FIR No. 718/07 PS - Nangloi the prosecutrix (name withheld), was completed, on 13/08/2009, an application u/s 319 Cr.P.C. was filed on behalf of the State for summoning of accused Phoolwati, Anil @ Lillu and Prahlad which was allowed by the Learned Predecessor Court vide order dated 19/01/2010. Accused Phoolwati was summoned u/s 363/366 IPC; accused Anil @ Lillu was summoned u/s 363/366/328 IPC and accused Prahlad was summoned u/s 363/366/376(2)(g) IPC. Accused Prahlad could not be served and his presence could not be procured, as his parentage, address and whereabouts were not known as is reflected in the order sheet dated 26/02/2010.
Upon summoning of accused Phoolwati and Anil @ Lillu u/s 319 Cr.P.C. and after hearing on charge, prima facie a case u/s 363/34 IPC against accused Phoolwati and Anil @ Lillu was made out. The charge was framed accordingly, which was read over and explained to both the accused Phoolwati and Anil @ Lillu, to which they pleaded not guilty and claimed trial.
5. In support of its case prosecution has produced and examined 19 witnesses. PW1 W/Constable Sudesh, PW2 Constable 10 of 149 11 FIR No. 718/07 PS - Nangloi Kailash Prasad, PW3 Constable Dharambir, PW4 Prosecutrix (name withheld), PW5 Mamta, PW6 Ram Tek, PW7 HC Rajbir Singh, PW8 Dr. Renu, SR, SGM Hospital, PW9 Ram Sagar Yadav, TGT, Sarvodaya Secondary School, PW10 Dr. P. C. Prabhakar, MO, SGM Hospital, PW11 Constable Jaswant Singh, PW12 W/ASI Darshana, PW13 HC Rohtash Kumar, PW14 W/ASI Raj Bala, PW15 Babu Lal @ Pappu S/o Sh. Bhagwan Shah, 30 years, R/o Village - Rani Pura, Tehsil Shri Madhopur, District - Sikkar, Rajasthan, PW16 Dr. Binay Kumar, MO, SGM Hospital, PW17 Sh. Anil Kumar, Learned ACJ cum ARC, North East District, Karkardooma Courts, Delhi, PW18 Rishi Raj Sharma, Owner of Maruti Van No. DL9CN4053, PW19 ASI Mahender Singh Dahiya.
PW1 W/Constable Sudesh, who deposed that on 09/09/2007, she was posted at PS - Nangloi. On that day, she alongwith ASI Mahinder Singh reached at PS Punjabi Bagh and one lady by the name of prosecutrix (name withheld) was found sitting with the Duty Officer. She was interrogated by ASI Mahinder Singh and on the directions of ASI Mahinder Singh, she took the prosecutrix (name 11 of 149 12 FIR No. 718/07 PS - Nangloi withheld) to SGM Hospital and ASI Mahinder Singh also accompanied them. The prosecutrix was produced before Doctor and after her medical examination IO recorded the statement of the prosecutrix. After medical examination of the prosecutrix, Doctor handed over the MLC, two sealed parcels sealed with the seal of SGM Hospital and one sample seal of SGMH to her. She handed over both the sealed parcels and sample seal to ASI Mahinder Singh, which were seized vide memo Ex. PW1/A. From the Hospital, they reached PP Nihal Vihar and the prosecutrix was produced before ASI Darshana.
PW2 Constable Kailash Prasad, who deposed that on 10/09/2007, he was posted at PS - Nangloi and on that day, accused Pradeep was taken to SGM Hospital for medical examination. After medical examination of accused, Doctor handed over to him two sealed parcels with the seal of the SGMH and sample seal. He handed over the sealed parcels and sample seal to IO which were seized by IO vide seizure memo Ex. PW2/A. PW3 Constable Dharambir, who deposed that on 12 of 149 13 FIR No. 718/07 PS - Nangloi 09/09/2007, he was posted at PS - Nangloi, Delhi. On that day, SI SI Jai Prakash told them that the prosecutrix who is wanted in case FIR No. 718/07 was sitting at PS Punjabi Bagh. SI Jai Prakash sent him, Lady Constable Sudesh and ASI Mahender Singh to bring the prosecutrix. They reached at PS Punjabi Bagh and one girl/prosecutrix (name withheld) was found sitting in Duty Officer room. IO recorded the statement of the prosecutrix. IO made endorsement on the statement of prosecutrix. A rukka was prepared and same was handed over to him. He produced rukka before Duty Officer at PS - Nangloi and after registration of FIR he came back at PS Punjabi Bagh and handed over rukka. Prosecutrix was taken to SGM Hospital for medical examination under the supervision of Lady Constable Sudesh. They went to Sultan Puri and on the pointing out of prosecutrix, accused Pradeep @ Lala was apprehended and he was arrested vide arrest memo Ex. PW3/A. His personal search was conducted vide memo Ex. PW3/B. Accused was taken to SGM Hospital for medical examination. After medical examination, the accused was brought to Police Station before IO. During investigation, Ram Tek produced the School Leaving Certificate of Prosecutrix which was seized by IO Ex. PW3/C. Same bears his 13 of 149 14 FIR No. 718/07 PS - Nangloi signatures at Point 'A'.
PW4 Prosecutrix, is the victim who deposed regarding the incident and deposed that she was medically examined at the Hospital, MLCs Mark 'A' & 'B', which bears her thumb impression at mark 'X'. She deposed that Ex. PW4/A is not true and correct statement but it bears her signature at point 'X'. She has gone through her statement Ex. PW4/A which is not her true statement but it bears her signature at point 'X'. She deposed that her undergarments were taken by the Doctors at the Hospital and she can identity the same. She signed the seizure memo Ex. PW1/A which bears her signature at point 'X'. She identified and proved her one undergarment of brown colour Ex. P1. She proved her statement recorded u/s 164 Cr.P.C. Ex. PW4/B which bears her signatures at point 'X' and thumb impression at point 'Y' and proved her ration card Ex. P2. She deposed that accused Pradeep @ Lala was arrested and proved his arrest memo Ex. PW3/A and personal search memo Ex. PW3/B which bears her signatures at point 'X'. On the leading questions put by Learned Addl. PP for the State to PW4 - prosecutrix, she deposed that it is correct that she stated in her statement 14 of 149 15 FIR No. 718/07 PS - Nangloi u/s 164 Cr.P.C. before the Magistrate that she is aged 16 years and her brother had got married with some girl at Moradabad Court and the parents of that girl had filed a case against her parents. Vol. Due to this Police used to come to their house and that is why she had accompanied Phoolwati and her son Lillu to the PS and that due to lapse of time, she forgot to mention these facts earlier.
PW5 Mamta, is the mother of the prosecutrix, who deposed that prosecutrix is her daughter. In the month of August, two years ago, on one day, she (PW5) was not feeling well and she (PW5) alongwith her husband went to the Doctor at about 10:00 a.m. At that time, her daughter/prosecutrix was present in their house. At about 11:30 a.m., when they came back to their house, their daughter/prosecutrix was not present in their house. They tried their level best to trace her. Even they contacted their relatives and visited their native place and thereafter on 24/08/2007, they reported the matter to the Police. After about 19 days, they received an information from the Police Station Nangloi that her daughter had been traced and she (prosecutrix) is now with the officials of PS - Punjabi Bagh. Later on, 15 of 149 16 FIR No. 718/07 PS - Nangloi her daughter was handed over to them, after medical examination. Her daughter was minor at that time.
PW6 Ram Tek, is the father of the prosecutrix, who deposed that prosecutrix (name withheld) is his daughter. In the month of August, two years ago, on one day, his wife was not feeling well and he alongwith his wife went to the Doctor at about 10:00 a.m. At that time, his daughter (name withheld) was present in their house. At about 11:30 a.m., when they came back to their house, their daughter (name withheld) was not present in their house. They tried their level best to trace her. Even they contacted their relatives and visited their native place and thereafter on the next day, they reported the matter to the Police. Police lodged missing report and the same is Ex. PW6/A. He also handed over the photograph of his daughter. Even the hue and cry notice was also published by the Police. After about 1920 days, they received an information from PS Nangloi that his daughter had been traced and she is now with the officials of PS Punjabi Bagh. Later on, his daughter was handed over to them, after her medical examination. His daughter was minor at that time. During investigation, he also 16 of 149 17 FIR No. 718/07 PS - Nangloi handed over the Birth Certificate of his daughter to the Police, which was seized vide memo Ex. PW3/C, which bears his signature at point 'B'. Date of birth of his daughter is 08/03/1992. He also handed over his original Ration Card to the Police (Original Ration Card is returned to the witness by placing the photocopy of the same on the record). PW6 - Sh. Ram Tek was recalled for further examinationinchief on 31/05/2011 and deposed that he had already given his statement in the Court. About four years back, he had given the School Leaving Certificate Ex. PW9/D of his daughter/prosecutrix (name withheld) to the Police after the incident which was seized by the Police.
PW7 HC Rajbir Singh, is the Duty Officer, who deposed that on 09/09/2007, he was posted at PS Nangloi and was working as Duty Officer from 5:00 p.m. to 1:00 a.m. (next). On that day, at about 11:55 p.m., he received a rukka from Constable Dharambir, sent by ASI Mahender Singh. On the basis of that rukka he registered FIR No. 718/07 u/s 363/376 IPC. He has brought the original FIR Register. Computerized copy of FIR is Ex. PW7/A (OSR). After registration of the FIR, the investigation was handed over to W/ASI Darshana. Copy of 17 of 149 18 FIR No. 718/07 PS - Nangloi FIR alongwith rukka was sent to her through Constable Dharambir. He also mentioned the particulars of the FIR and signed rukka Ex. PW7/B at point 'X'.
PW8 Dr. Renu, S.R. SGM Hospital, who deposed that on 09/09/2007, she was posted as Senior Resident, SGMH Hospital, Mangol Puri. On that day, prosecutrix (name withheld) D/o Ram Tek was referred to her for gynae opinion. She medically examined her. The vaginal swab were taken, sealed and handed over to the Police official. Undergarments were also sealed and handed over to the Police. On examination, she found the hymen absent. She prepared MLC Ex. PW8/A which bears her signature at point 'A'.
PW9 Ram Sagar Yadav, TGT, Sarvodaya Secondary School, who deposed that he has brought the summoned record i.e. admission and withdrawal register pertaining to the year 2006. As per the admission register prosecutrix (name withheld) D/o Shri Ram Tek was admitted to class 6th on 28/04/2006 vide admission no. 3102 and as per the register, her date of birth is mentioned as 08/03/1992. The 18 of 149 19 FIR No. 718/07 PS - Nangloi photocopy of the Admission Register is Ex. PW9/A (OSR). The copy of the form filled up by the guardian at the time of admission of the prosecutrix is Ex. PW9/B (OSR). Prosecutrix (name withheld) was admitted in the abovesaid School on the basis of the School Leaving Certificate issued by the MCD Primary School, Nilothi and the photocopy of the said certificate is Ex. PW9/C (OSR). He has also seen the School Leaving Certificate of prosecutrix (name withheld) from Judicial Record, which was issued by Sh. Dilbagh Singh Gulia, the then Vice Principal, Sarvodaya Coeducation Secondary School, Nilothi. He identifies his signatures on the certificate Ex. PW9/D at point 'A' as he had worked with him in the same School and he had seen him writing and signing during the course of their official duty.
PW10 Dr. P. C. Prabhakar, MO, SGM Hospital, who deposed that he has seen the MLC No. 14070 vide E. No. 57557 of the patient Pradeep @ Lala, dated 10/09/2007 who was brought for medical examination and there was nothing to suggest that the said person was incapable of performing sexual intercourse. He has prepared the MLC which is Ex. PW10/A which bears his signature at point 'A'.
19 of 149 20 FIR No. 718/07 PS - Nangloi PW11 Constable Jaswant Singh, who deposed that on 11/09/2007, he was posted at PP - Nihal Vihar, PS - Nangloi, On that day, he and HC Devender Singh went to Neem Ka Thana, Rajasthan alongwith ASI Mohinder Singh and accused Pradeep @ Lala with them. The accused Pradeep present in the Court was in his custody and HC Devender Singh was also keeping an eye (Nigrani) on the accused. They reached at the Local PS Neem Ka Thana and thereafter, they reached at Abhay Colony, Shehar Neem Ka Thana at the house of Shashi Kant, where IO recorded statement of Shashi Kant. Thereafter, accused pointed out house of Bhagwan Dass at Village - Rani Pura where he pointed out right side room where he kept the prosecutrix who was introduced by him as his wife. The pointing out memo is Ex. PW11/A which bears his (PW11) signature at point 'A'. IO recorded statement of Babu Lal S/o Bhagwan Dass whose house was pointed out by the accused. After completing the proceedings, they came back to PS Neem Ka Thana and from there, they came to PP Nihal Vihar on 12/09/2007. The accused was lodged in the lockup. IO recorded his statement.
20 of 149 21 FIR No. 718/07 PS - Nangloi PW12 W/ASI Darshana, is the subsequent Investigating Officer (IO) of the case, who deposed that on 09/09/2007, she was posted at PS - Nangloi, PP - Nihal Vihar. On that day, she was entrusted with the investigation of the present case and the copy of FIR, original rukka was handed over to her by SI Mahinder Singh. During investigation, she made efforts to search accused Pradeep after making inquiries from the prosecutrix and on the night intervening 0910/09/2007, the accused Pradeep Lala present in the Court was arrested on the pointing out of prosecutrix vide arrest memo Ex. PW3/A which bears her signature at point 'B'. The personal search of accused was conducted vide memo Ex. PW3/B which bears her signature at point 'A'. Original ration card of family of prosecutrix was also found from the house of Pradeep, copy of which is Ex. P1 and same was seized vide memo Ex. PW12/A which bears her signature at point 'A'. A maruti van no. DL9CN4053 in which the prosecutrix was stated to have been kidnapped was also recovered from the park opposite to the house of accused Pradeep. The said van was seized vide seizure memo Ex. PW12/B which bears her signature at point 'A'. She recorded the disclosure statement of accused 21 of 149 22 FIR No. 718/07 PS - Nangloi which is Ex. PW12/C which bears her signature at point 'A'. Thereafter, they all came back at the PS. She sent accused Pradeep for his medical examination through Constable Kailash to SGM Hospital. After medical examination, Constable Kailash handed over the exhibits to her which were taken into possession by her vide memo Ex. PW2/A which bears her signature at point 'B'. Accused and prosecutrix were produced before the Duty Magistrate where two days PC remand of accused was obtained by SI Jai Prakash and the prosecutrix was sent to Nari Niketan for one day. She got the statement of prosecutrix recorded u/s 164 Cr.P.C. on 12/09/2007 which is Ex. PW4/B. ASI Mahender with staff took the accused to Rajasthan for investigation. Accused was remanded to JC by the Court on 12/09/2007. Thereafter, the file was handed over to ASI Mahender Singh. She recorded the statements of witnesses also. Accused Pradeep is present in the Court.
PW13 HC Rohtash Kumar, is the MHC(M) who deposed that on 09/09/2007, he was posted as MHC(M) at PS - Nangloi. On that day, W/ASI Darshana had deposited the exhibits of the prosecutrix in the present case in the Malkhana, details of which were entered by him in 22 of 149 23 FIR No. 718/07 PS - Nangloi Register No. 19 at Serial No. 5378. He has brought the original register and copy of the entry is Ex. PW13/A. On 10/09/2007, W/SI Darshana had deposited the exhibits of the accused Pradeep @ Lala in the present case in the Malkhana, detailed of which were entered by him in Register No. 19 at Serial No. 5381. He has brought the original register and copy of the entry is Ex. PW13/B. On 05/11/2007, he sent the above mentioned exhibits to FSL, Rohini through ASI Mahinder Singh vide RC No. 366/21/07 and the result and the exhibits were received back on 27/08/2008 by Constable Subhash Kumar and he handed over the report in an envelope duly sealed with the seal of FSL to the IO. The endorsement of this fact is mentioned at points 'X' and 'Y' on Ex. PW13/A (OSR).
PW14 W/ASI Raj Bala, who deposed that on 24/08/2007, she was posted at PS Nangloi and was working as Duty Officer from 9:00 a.m. to 5:00 p.m. At about 4:10 p.m. one Ram Tek S/o Late Sh. Yad Ram came in the PS and got a missing report lodged regarding his daughter/prosecutrix (name withheld), aged about 16 years who was missing from 22/08/2007. This report was recorded by her in the DD 23 of 149 24 FIR No. 718/07 PS - Nangloi register vide DD No. 20A which she has brought in original and true copy of the same is Ex. PW14/A which bears the signature of Ram Tek at point 'A'. The DD is in his hand (OSR).
PW15 Babu Lal @ Pappu S/o Sh. Bhagwan Shah, 30 years, R/o Village - Rani Pura, Tehsil Shri Madhopur, District - Sikkar, Rajasthan, who deposed that he was working as a painter and was doing the work of white washing. On 25/08/2007, his cousin Vinod brought two boys and one girl in a maruti van no. 4053 at about 5:00/6:00 a.m. Accused Pradeep @ Lala present in the Court was one of those boys. The girl was wearing a suit salwar and was wearing metal bangles upto just below elbows. He (PW15) inquired from Vinod as to who were those persons who told him that accused Pradeep @ Lala and the other boy were his friends. The girl was wife of accused Pradeep @ Lala. On suspicion, he (PW15) called mother of Vinod and inquired from her also, who told him that those boys were friends of Vinod. Those boys wanted a rented room for their stay. Since there was no room available at Shri Madho Pur where he was residing at that time, hence he sent them to village Rani Pura where his house was situated and gave them one vacant 24 of 149 25 FIR No. 718/07 PS - Nangloi room in the said house for their stay. They lived there for about 5/6 days. In the meanwhile, he (PW15) came to know that those boys had kidnapped that girl but before that the accused Pradeep @ Lala alongwith that girl had left the house in the said maruti van. Police reached at his (PW15) residence on 11/09/2007 in the night and recorded his statement after about 1:30 or 2:00 a.m. The name of other boy was told to him by Vinod as Shashi Kant.
PW16 Dr. Binay Kumar, MO, SGM Hospital, who deposed that he has seen the MLC Ex. PW8/A in the name of prosecutrix (name withheld) D/o Ram Tek, aged - 16 years dated 09/09/2007, which was prepared by him and bears his signatures at point 'C'. The prosecutrix came in the Casualty with the alleged H/o abduction by four persons approximately 20 days back. After examining the prosecutrix, he referred her to the Gynaecology Department.
PW17 Sh. Anil Kumar, Learned ACJcumARC, North East District, Karkardooma Courts, Delhi, who deposed that on 11/09/2007, he was posted as MM, Rohini Courts, Delhi and was 25 of 149 26 FIR No. 718/07 PS - Nangloi working as Link MM to Ms. Barkha Gupta, the then MM and an application for recording the statement of the prosecutrix was marked to him on 11/09/2007 which was fixed for 12/09/2007 and accordingly, the prosecutrix, who was identified by the IO, was produced before him whose statement was recorded by him which is Ex. PW17/A and his certification with regard to the said statement is Ex. PW17/B and thereafter, an application for taking the copy of the statement was moved by the IO which was allowed by him and the application alongwith his order is Ex. PW17/C. PW18 Rishi Raj Sharma, who deposed that he is the registered owner of the Van of the Brand Maruti vide registration No. DL9CN4053 which he has brought in the Court and the same is Ex. C1. He has also brought two photographs of the same which are Ex. C2 and Ex. C3 respectively. He has also brought the original RC of the said car and photocopy of the same is Ex. C4 (OSR). He has also seen the superdaginama on the Judicial File which is signed by him and the same is Ex. C5.
26 of 149 27 FIR No. 718/07 PS - Nangloi PW19 ASI Mahender Singh Dahiya, is the initial Investigating Officer (IO) of the case, who deposed that on 09/09/2007, he was posted at PS Nangloi, PP Nihal Vihar. On that day, he alongwith Constable Dharamvir was on the patrolling duty when SI Jai Prakash I/C PP asked him to go to PS Punjabi Bagh where a girl/prosecutrix was sitting with the Duty Officer whose missing report was lodged at PS Nangloi. He called W/Constable Sudesh and accompanying her he alongwith Constable Dharamvir went to PS Punjabi Bagh. He made inquiries from the prosecutrix and after coming to know about the facts, he sent the prosecutrix to SGM Hospital for her medical examination vide MLC Ex. PW8/A. After her medical examination, the Doctor handed over the sealed exhibits sealed with the seal of SGM Hospital which were taken into Police possession vide memo Ex. PW1/A. Thereafter, he recorded the statement of prosecutrix Ex. PW4/A and made his endorsement Ex. PW7/B. Rukka was handed over to Constable Dharamvir for getting the case registered at PS who went to the PS and got the FIR registered vide FIR Ex. PW7/A. Further investigation of the case was handed over to W/ASI Darshana. On 11/09/2007, the case file was again handed over to him as accused 27 of 149 28 FIR No. 718/07 PS - Nangloi Pradeep @ Lala was already arrested by W/ASI Darshana and he was on Police remand. He alongwith the accused, HC Devender and Constable Jaswant went to Neem Ka Thana Sahar, District - Sikar, Rajasthan. The accused pointed out the house of Shashikant. He made enquiries from Shashikant and recorded his statement. Thereafter, they went to village Rani Pura, PS - Shri Madhav Pura, District Sikar where accused Pradeep @ Lala pointed out the house of Babu Lal where he stayed with the prosecutrix. He prepared the pointing out memo which is already exhibited as Ex. PW11/A. He recorded the statement of Babu Lal and his father Bhagwan Saha owner of the said house u/s 161 Cr.P.C. On 12/09/2007, he alongwith the said persons came back Delhi and handed over the case file and the accused to W/ASI Darshana. On 19/09/2007, again the case file was entrusted to him for further investigation as W/ASI Darshana had proceeded on leave due to some medical ground. During investigation, he collected the School certificate of the prosecutrix showing her date of birth which is Ex. PW9/D and the same was taken into possession by him vide memo Ex. PW3/C which bears his signatures at point 'C'. He deposited the exhibits at FSL, Rohini. Thereafter, he prepared the chargesheet and filed the same in the Court 28 of 149 29 FIR No. 718/07 PS - Nangloi through SHO. On 22/04/2009, he collected the FSL Result and filed the same in the Court vide his application Ex. PW19/A and he tendered the results of FSL which are Ex. PX and Ex. PY.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statements of accused Pradeep @ Lala, Phoolwati and Anil @ Lillu were recorded u/s 313 Cr.P.C., wherein they pleaded innocence and false implication. Accused Phoolwati and Anil @ Lillu did not opt to lead any defence evidence. Accused Pradeep @ Lala opted to lead defence evidence and in his defence accused Pradeep @ Lala examined two defence witnesses namely DW1 Suresh S/o Chitru R/o VPO Tikri Kalan, Delhi 110041 and DW2 Ajay Kumar S/o Lakhi Ram R/o H. No. 101, Kalyan Pana, Tikri Kalan, Delhi - 110041.
DW1 Suresh S/o Chitru R/o VPO Tikri Kalan, Delhi - 110041, who deposed that Pradeep @ Lala son of late Kailash Chand was residing at C2/126, Sultan Puri, Delhi and the dispute between both the 29 of 149 30 FIR No. 718/07 PS - Nangloi family was due to vehicle problem with the Ram Tek father of prosecutrix (name withheld) and due to this reason prosecutrix (name withheld) and her father falsely implicate to Pradeep @ Lala in this case. Pradeep @ Lala is innocent. He knows him since long time. In between 09/09/2007, Pradeep @ Lala was residing with him at his above said address (being his bhanja). Pradeep @ Lala has good moral character.
DW2 Ajay Kumar S/o Lakhi Ram R/o H. No. 101, Kalyan Pana, Tikri Kalan, Delhi - 110041, who deposed that Pradeep @ Lala son of late Kailash Chand was residing at C2/126, Sultan Puri, Delhi and the dispute between both the family was due to vehicle problem with the Ram Tek father of prosecutrix (name withheld) and due to this reason prosecutrix (name withheld) and her father falsely implicate to Pradeep @ Lala in this case. Pradeep @ Lala is innocent. He knows him since long time. In between 09/09/2007, Pradeep @ Lala was residing with his Mama at Village Tikri Kalan. He (DW2) saw him in the Village Tikri Kalan. He has good moral character.
7. Sh. Pradeep Rana, Learned Counsel for the accused 30 of 149 31 FIR No. 718/07 PS - Nangloi Phoolwati and Anil @ Lillu submitted that from the entire deposition of PW4 prosecutrix it may be clearly seen as to how she deposed on the number of times to cover up her false fabricated story with number of developments, confrontation and discrepancies. The allegation raised by the prosecutrix in her u/s 164 statement Ex. PW4/B is neither supported by any other material witness nor any other independent public witnesses. On 17/02/2011, when prosecutrix appeared for cross examination on behalf of accused Phoolwati and Anil @ Lillu in her crossexamination she deposed that when she was leaving her house along with accused Phoolwati her neighbour i.e Bitto and Raju etc. had seen her in the company of accused. Learned Counsel submitted that this fact neither disclosed by the prosecutrix at any point of time i.e during the course of investigation of the case, or recording of her statement u/s 164 Cr.P.C. or at the time of recording her deposition prior to this, nor this fact disclosed by her parents at any point of time, which clearly goes to show that the true facts have been concealed by them just to falsely implicate the accused Phoolwati @ Anil @ Lillu, hence this concealment of the crucial fact point on the part of the prosecutrix and her parents creates serious doubt of her version. Further prosecutrix 31 of 149 32 FIR No. 718/07 PS - Nangloi deposed in her crossexamination that "I remained in a room for about 19 days. I can not tell whether any toilet or bathroom attached with the said room as I remained unconscious thoroughly (throughout) during my stay at the said room. I was never provided any food or eatables during the period of aforesaid 19 days. I was hardly provided water sometimes. During the period of aforesaid 19 days I never went for call of nature or took bath. I remained in the same clothes. I did not make any hue and cry during my stay at the aforesaid room. Vol. I did not regain my consciousness during my stay at that place". Learned Counsel submitted that it is also beyond imagination and clearly indicates that she has deposed falsely before the Court. Learned Counsel further submitted that PW5 Mamta mother of prosecutrix deposed in her cross examination that "I was having low blood pressure on that day and my husband accompanied me to Dr. Kanchan who is situated at a walking distance from my home. I along with my husband started from my home at about 1 a.m. but I do not remember the date, month and year. Within 15 minutes, i.e 11:15 a.m. the Doctor examined and free me and my husband. Doctor had not given any medicine and medical prescription and since the clinic was over crowded. We returned back without getting 32 of 149 33 FIR No. 718/07 PS - Nangloi myself examined by the Doctor." Further she deposed that when they returned home they found her daughter prosecutrix (name withheld) missing and her two younger daughter who were playing outside her home in the other gali showed their ignorance about missing of prosecutrix (name withheld). Learned Counsel further submitted that PW6 Ram Tek, father of prosecutrix has deposed in his cross examination that "on the day of incident my wife was suffering from fever. I left my home at about 10/10:30 a.m. with my wife. My daughter/prosecutrix (name withheld) was alone at home as my two other daughter had gone to School. The house was lying open as my daughter was at home. It took around one or one and a half hour with the Doctor as he took time in diagnosing my wife and giving her medicine and prescribing other test. We were discharge by the Doctor at about 12 noon." Learned Counsel submitted that it is clear from the deposition of the prosecutrix that they were telling lie and were falsely deposing to support the fabricated story of going to Doctor just to create false incriminating evidence against the accused Phoolwati @ Anil @ Lillu but the discrepancy in their deposition qua the said fact clearly shows that they have deposed falsely before the Court. Learned Counsel further 33 of 149 34 FIR No. 718/07 PS - Nangloi submitted that PW15 Babu Lal who deposed in his crossexamination that "The food and clothes were supplied to them at the said room at village Rani Pura and my relative as well as the said girl used to prepare food. The said girl did not complaint to my aunt or to the other village persons at village Rani Pura. The girl was living happily of her own at the said village Rani Pura. Learned Counsel submitted that thus, it is crystal clear from the deposition of the above witnesses that the prosecutrix has fabricated a false story in her statement u/s 164 Cr. P.C Ex.PW4/B qua the accused Phoolwati @ Anil @ Lillu at the instance of her parents just to implicate the innocent persons in the present case. Hence, their testimonies are liable to be discarded. Learned Counsel further submitted that nothing incriminating has come on record which goes to show that the accused Phoolwati @ Anil @ Lillu were involved in the alleged offence having the motive or the reason. On the other hand, there is sufficient reason to believe that as to why they have been implicated in this case on the basis of the previous grudges. Fortunately it is proved by the sufficient material on record which compels to think that the accused Phoolwati @ Anil @ Lillu are innocent and have falsely been implicated in this matter because the prosecutrix had changed her 34 of 149 35 FIR No. 718/07 PS - Nangloi stand steep by steep, simultaneously. Learned Counsel submitted that some of the important points which goes in favour of the accused Phoolwati @ Anil @ Lillu which indicate their false implication being innocent are, the name of the accused Phoolwati @ Anil @ Lillu were not mentioned in the FIR, and later on they were booked in the present case; as per the deposition of the prosecutrix there was a motive and reason on their part as they were previously aggrieved from the accused Phoolwati @ Anil @ Lillu; during the investigation no incriminating evidence was found by the investigating agency against the accused Phoolwati @ Anil @ Lillu, therefore they were not charge sheeted in this case; accused Phoolwati @ Anil @ Lillu were summoned u/s 319 Cr. P.C on the basis of the chief examination of the prosecutrix but her cross examination prove the innocence of accused Phoolwati @ Anil @ Lillu; the prosecutrix herself gave two version in this case i.e earlier version in the rukka and later version in her statement u/s 164 Cr.P.C.; as per her earlier version accused Phoolwati @ Anil @ Lillu were no where in the picture therefore they were not chargesheeted; as per her later version she entirely changed her earlier version and allegedly named accused Phoolwati @ Anil @ Lillu and one Prahlad by fabricating the fact.
35 of 149 36 FIR No. 718/07 PS - Nangloi Learned Counsel submitted that if we believe the later version of the prosecutrix however not admitted " if the alleged incident is true and took place then why the prosecutrix did not disclose the name of the last seen neighbour witnesses Bitto and Raju who saw her when she was leaving her house with accused Phoolwati, on the other hand if we assume the allegation qua the accused Phoolwati and Anil @ Lillu however not admitted, that it would had happened then the neighbour who saw her at the time of leaving her house with accused Phoolwati must would have come forward of their own to disclosed the fact / incident to her parents whatever they had saw because it is universal rule of behaviour. Further, accused Prahlad could not be apprehended, even his name and parentage could not come on record, besides it no prosecution witness of the alleged incident in Rajasthan has deposed qua the presence of Prahlad during the entire episode even any witness except the prosecutrix who deposed regarding his name. Which clearly indicates that prosecutrix has concealed the true fact and fabricated a false story by giving a false fabricated and concocted version in her statement u/s 164 Cr.P.C. just to satisfy the previous grudge of her parents. Learned Counsel further submitted that the entire deposition of 36 of 149 37 FIR No. 718/07 PS - Nangloi the prosecutrix dated 17/02/2011 clearly indicates that the incident deposed by the prosecutrix is beyond the imagination and is fabricated one which is not believable as she narrated the entire story of 19 days Delhi to Rajasthan and Rajasthan to Delhi and lived there for 19 days and meet number of peoples there but neither prosecutrix made hue and cry nor she disclosed the fact of her kidnapping to anyone at any point of time during her entire stay in Rajasthan which clear the entire picture and creates the question qua the veracity of the prosecutrix. Learned Counsel further submitted that it is also settled law that prosecution must stand upon his own legs and should have proved their case beyond any shadow of doubts. The prosecution has completely failed to prove the guilt of accused persons as prosecutrix changed her stand step by step and creates serious doubts qua the incident. Hence, the accused persons are entitled to be acquitted. Learned Counsel further submitted that no public witnesses have been joined by the Police during investigation despite the fact that the alleged place of occurrence is a public place, and is also a thickly populated area and did not make any efforts to know the true facts of incident from any independent witness or neighbour from the locality. Learned Counsel prayed for the acquittal of accused 37 of 149 38 FIR No. 718/07 PS - Nangloi Phoolwati and Anil @ Lillu on all the charges levelled against them.
8. Sh. A. P. Singh, Learned Counsel for accused Pradeep @ Lala submitted that accused Pradeep @ Lala has been falsely implicated in the case. The case which is based totally on misunderstanding and depends on collaboration of Police with the help of anti social element and there is no any eye witness cited by the prosecution in this case. Learned Counsel further submitted that the FSL Report is contradictory. The exhibits in the species of origin shows no reaction and the same reply in respect of ABO Group/remarks which has been filed by Dr. Rajender Kumar, Senior Scientific Officer (Biology) FSL, Rohini, Delhi. Learned Counsel further submitted that the MLC of victim clearly shows that "No any fresh external injury seen over visible part of body i.e. hear, neck both arm, FA hand and face". Learned Counsel further submitted that MLC of victim clearly shows that as per her statement at the time and days of incident she was in last menses period and the date of LMP was 04/09/2007 and she was medically examined on 09/09/2007. Learned Counsel further submitted that as per MLC of accused there is also no any fresh external injury found over his body. Learned Counsel 38 of 149 39 FIR No. 718/07 PS - Nangloi further submitted that the statement u/s 164 Cr.P.C. of victim was recorded after delay i.e. on 12/09/2007 which is totally manipulated, fabricated and after tutoring the victim by her parents only due to anti revengeful motive due to castism. Learned Counsel further submitted that in her examinationinchief statement, PW4 prosecutrix is hostile at number of places i.e. "It is correct that I stated in my statement u/s 164 Cr.P.C. before the magistrate that I am aged 16 years and my brother had got married with some girl at Moradabad Court and the parents of that girl had filed a case against my parents. Vol. due to this Police used to come to our house and that is why I had accompanied Phoolwati and his son Lillu to the PS. It is correct that due to lapse of time, I forgot to mention these facts earlier." Learned Counsel further submitted that the crossexamination of PW4 prosecutrix on behalf of accused Pradeep @ Lala recorded on 08/06/2009, 09/06/2009 and 14/07/2009 clearly shows the anti revengeful motive with Phoolwati and her son Lillu which are coaccused in this case and her younger brother is married before this incident which clearly shows that at the time of registration FIR victim was major. Learned Counsel further submitted that as per cross examination of PW4 - prosecutrix, she did not go to toilet i.e. latrine, 39 of 149 40 FIR No. 718/07 PS - Nangloi bathroom upto 19 days and she does not know where the accused and other used to go to latrine, bathroom she further said that she does not know who used to bring food and water and whenever she gained conscious (consciousness) she was given beatings and became unconscious. "It is correct that during the whole period I remained unconscious. It is also correct that I do not know when comes the morning and night. I do not know whether the said room was rented or not or who owned the said room". Learned Counsel further submitted that as per MLC there is no external injury of the prosecutrix. Learned Counsel further submitted that she also does not know if there is check post in two places from Sikkar to Delhi and toll tax deposited at the Border. "I do not know if there is checking of vehicle at Delhi border. I do not know if the vehicle stopped at any shop from Sikkar to Delhi. It is correct that I suddenly became conscious at Mangol Puri chowk red light. I do not know if there are Police PCR Van and other vehicles of Police at Mangol Puri Chowk red light. It is correct that in Mangol Puri Chowk so many vehicles were passing. One public person Shashi Kant who helped me in hiring me TSR. I reached at Police Station Punjabi Bagh by a TSR. No inquiry was made from the TSR driver by the Police 40 of 149 41 FIR No. 718/07 PS - Nangloi official of Police Station Punjabi Bagh. Shashi Kant paid Rs. 60/ as a fare to the TSR Driver". "At Mangol Puri chowk I did not make any telephone call to my parents. It is correct that there is a telephone connection at our house by the number 9210780606 but now this number is not working". "I had not stated to the Police that I am studying in 7th class in Govt. Sarvoday CoEducation School. I have not stated to the Police that I know Pradeep Lala about 34 months prior to the incident and the Fufa Ved Prakash of Pradeep also reside in our mohalla and the phone no. of Pradeep is 9210650643 with whom I used to contact and some time used to give miss call. It is correct that my mobile no. is 9210780606 but I have not stated in my statement to the Police about my telephone no. I have not given statement Ex. PW4/A to the Police but the Police has recorded the same of their own, however they obtained my signature at point 'X'. I do not know if the ration card of my family was given by the accused to the Police. It is correct that Ration Card belongs to my family. I do not know the complete residential address and parentage of Shashi Kant. It is correct that I have never visited the house of Shashi Kant. It is wrong to suggest that I had a love affair with the accused Pradeep Lala. It is wrong to suggest that I had eloped with 41 of 149 42 FIR No. 718/07 PS - Nangloi Pradeep Lala for marrying with him". Learned Counsel further submitted that false witnesses have been cited by the prosecution in the chargesheet and the witnesses examined are totally false and fabricated based on concocted story. Learned Counsel further submitted that accused was arrested with delay and the Police officials released the real culprit and falsely implicated the accused in the case. Learned Counsel further submitted that there is no public witness in this case and the locality is thickly populated and a number of workers were working surrounding the place where alleged offence occurred and complainant did not raise any alarm and no any accused person were arrested from the spot. Learned Counsel further submitted that star witness and complainant of this case is completely hostile and due to this reason crossexamined by the Learned Addl. PP to prove its case but same is futile and prosecution has completely failed to prove its case. Learned Counsel prayed for the acquittal of accused Pradeep @ Lala on all the charges levelled against him. Learned Counsel for the accused referred to the cases and are reported as Laxman Gouda Vs. State of Orissa, 1982 CRI.L.J. 929 (ori), Surender Kumar Vs. State of Punjab, AIR 1999 SC 215 and Atar Singh Vs. State of Rajasthan, AIR 2004 SC 2865.
42 of 149 43 FIR No. 718/07 PS - Nangloi
9. 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.
10. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State, Sh. Pradeep Rana, Learned Counsel for accused Phoolwati and Anil @ Lillu and Shri A. P. Singh, Learned Counsel for accused Pradeep @ Lala and have also carefully perused the entire record.
11. The charge for the offences punishable u/s 363/366/376 IPC IPC against the accused Pradeep @ Lala is that on 22/08/2007 at about 11:00 a.m., near Dispensary, Shiv Mandir, Nangloi, Delhi within the jurisdiction of PS - Nangloi, he kidnapped the prosecutrix (name withheld) aged about 15 years out of the lawful keeping of her father Sh. Ram Tek and that on the aforesaid date and place, he kidnapped the 43 of 149 44 FIR No. 718/07 PS - Nangloi prosecutrix (name withheld) aged about 15 years with intent that she may be compelled to marry and may be seduced for sexual intercourse with him against her will and that between 22/08/2007 to 09/09/2007, he forcible committed rape upon the prosecutrix (name withheld) aged about 16 years at Rajasthan.
Further, the charge for the offences punishable u/s 363/34 IPC against the accused Phoolwati and Anil @ Lillu is that on 22/08/2007, at about 11:00 a.m., near Dispensary Shiv Vihar, Nangloi, Delhi, within the jurisdiction of PS - Nangloi, they both in furtherance of their common intention kidnapped the prosecutrix (name withheld) out of her lawful guardianship.
12. 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 44 of 149 45 FIR No. 718/07 PS - Nangloi
13. PW4 - prosecutrix, on a leading question by the Learned Addl. PP for the State, during the recording of her examinationinchief on 23/05/2009 has stated that, "it is correct that I stated in my statement u/s 164 Cr.P.C. before the Magistrate that I am aged 16 years....."
During her incisive crossexamination, the said fact, so deposed by PW4 - prosecutrix has not been disputed on behalf of the accused.
PW6 - Sh. Ram Tek, father of PW4 - prosecutrix in his examinationinchief has specifically deposed that, Date of birth of his daughter/prosecutrix is 08/03/1992 and he also handed over his original Ration Card to the Police (Original Ration Card was returned to the witness by placing the photocopy of the same on the record) and has also deposed in his examinationinchief recorded on 31/05/2011 that about four years back, he had given the School Leaving Certificate Ex. PW9/D of his daughter/prosecutrix to the Police, after the incident, which was seized by the Police.
During his crossexamination recorded on 06/08/2011 conducted on behalf of accused Phoolwati and Anil @ Lilu, PW6 - Ram Tek has specifically deposed that, at the time of missing, his daughter 45 of 149 46 FIR No. 718/07 PS - Nangloi was studying in Sarvodaya School, Nilothi in 7th Standard. Before that his daughter was studying in the same village in Government Primary School. At the time of admission of his daughter in Primary School, he submitted her birth related document provided by village Nurse (midwife).
There is nothing in the crossexamination of PW6 - Ram Tek so as to impeach his creditworthiness.
Moreover, the testimony of PW6 - Ram Tek is also found to be corroborated by PW9 Ram Sagar Yadav, TGT, Sarvodaya Secondary School.
PW9 Ram Sagar Yadav, TGT, Sarvodaya Secondary School, who deposed that he has brought the summoned record i.e. admission and withdrawal register pertaining to the year 2006. As per the admission register prosecutrix (name withheld) D/o Shri Ram Tek was admitted to class 6th on 28/04/2006 vide admission no. 3102 and as per the register, her date of birth is mentioned as 08/03/1992. The photocopy of the Admission Register is Ex. PW9/A (OSR). The copy of the form filled up by the guardian at the time of admission of the 46 of 149 47 FIR No. 718/07 PS - Nangloi prosecutrix is Ex. PW9/B (OSR). Prosecutrix (name withheld) was admitted in the abovesaid School on the basis of the School Leaving Certificate issued by the MCD Primary School, Nilothi and the photocopy of the said certificate is Ex. PW9/C (OSR). He has also seen the School Leaving Certificate of prosecutrix (name withheld) from Judicial Record, which was issued by Sh. Dilbagh Singh Gulia, the then Vice Principal, Sarvodaya Coeducation Secondary School, Nilothi. He identifies his signatures on the certificate Ex. PW9/D at point 'A' as he had worked with him in the same School and he had seen him writing and signing during the course of their official duty.
Despite grant of opportunity PW9 - Sh. Ram Sagar Yadav was not crossexamined on behalf of accused Pradeep @ Lala. During the crossexamination on behalf of accused Phoolwati and Anil @ Lillu, PW9 - Sh. Ram Sagar Yadav has deposed that, "No birth certificate issued by Registrar of Births and Deaths is in the record of the School pertaining to the said student showing the date of birth. It is correct that date of birth of the said student is mentioned on the basis of Ex. PW9/C only."
There is nothing in the crossexamination of PW9 - Sh.
47 of 149 48 FIR No. 718/07 PS - Nangloi Ram Sagar Yadav so as to impeach his creditworthiness. No 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 the date of birth of PW4 - prosecutrix is 08/03/1992.
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....."
48 of 149 49 FIR No. 718/07 PS - Nangloi As the date of alleged incident is of 22/08/2007 and the date of birth of prosecutrix is 08/03/1992, on simple arithmetical calculation, the age of prosecutrix comes to 15 years, 05 months and 14 days as on the date of incident on 22/08/2007.
In view of above and in the circumstances, it stands established on record that PW4 prosecutrix was aged 15 years, 05 months and 14 days as on the date of alleged incident on 22/08/2007.
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 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 49 of 149 50 FIR No. 718/07 PS - Nangloi 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 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 50 of 149 51 FIR No. 718/07 PS - Nangloi the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating 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 51 of 149 52 FIR No. 718/07 PS - Nangloi alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, 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 52 of 149 53 FIR No. 718/07 PS - Nangloi 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." MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW8 Dr. Renu, S.R. SGM Hospital has deposed that on 09/09/2007, she was posted as Senior Resident, SGMH Hospital, Mangol Puri. On that day, prosecutrix (name withheld) D/o Ram Tek was referred to her for gynae opinion. She medically examined her. The vaginal swab were taken, sealed and handed over to the Police official. Undergarments were also sealed and handed over to the Police. On examination, she found the hymen absent. She prepared MLC Ex. PW8/A which bears her signature at point 'A'.
53 of 149 54 FIR No. 718/07 PS - Nangloi PW16 Dr. Binay Kumar, MO, SGM Hospital, who deposed that he has seen the MLC Ex. PW8/A in the name of prosecutrix (name withheld) D/o Ram Tek, aged - 16 years dated 09/09/2007, which was prepared by him and bears his signatures at point 'C'. The prosecutrix came in the Casualty with the alleged H/o abduction by four persons approximately 20 days back. After examining the prosecutrix, he referred her to the Gynaecology Department.
Despite grant of opportunity neither PW8 Dr. Renu, S.R. SGM Hospital nor PW16 Dr. Binay Kumar, MO, SGM Hospital were examined on behalf of accused.
In view of above and in the circumstances, the medical and the gynaecological examination vide MLC Ex. PW8/A of PW4 - Prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED PRADEEP @ LALA
15. PW10 Dr. P. C. Prabhakar, MO, SGM Hospital has deposed that he has seen the MLC No. 14070 vide E. No. 57557 of the 54 of 149 55 FIR No. 718/07 PS - Nangloi patient Pradeep @ Lala, dated 10/09/2007 who was brought for medical examination and there was nothing to suggest that the said person was incapable of performing sexual intercourse. He has prepared the MLC which is Ex. PW10/A which bears his signature at point 'A'.
Despite grant of opportunity PW10 Dr. P. C. Prabhakar, MO, SGM Hospital was not crossexamined on behalf of accused Pradeep @ Lala.
In view of above and in the circumstances, it stands proved on the record that accused Pradeep @ Lala was capable of performing sexual intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW19 ASI Mahender Singh Dahiya has tendered FSL Result i.e. biological and serological reports in his evidence as Ex. PX and Ex. PY respectively.
As per biological report Ex. PX the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL 55 of 149 56 FIR No. 718/07 PS - Nangloi Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibit '1'. Exhibit '1' : One underwear having dirty stains. Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibit '2', kept in a tube. Exhibit '2' : Dirty cotton wool swab on a wooden stick described as 'Vaginal swab'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibit '3'.
Exhibit '3' : One dirty underwear. Parcel '4' : One sealed cloth parcel sealed with the seal of
"SGMH GOVT. OF NCT DELHI" containing exhibit '4', kept in a vial. Exhibit '4' : Wet foul smelling brown cotton wool swab described as 'blood sample'.
RESULT OF ANALYSIS
1. Blood was detected on exhibit '4'.
2. Human semen was detected on exhibits '1' and '2'.
3. Semen could not be detected on exhibit '3'.
4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 56 of 149 57 FIR No. 718/07 PS - Nangloi 'RK FSL DELHI'.
The serological report Ex. PY reads as under : Exhibits Species of origin ABO Grouping/Remarks Blood stains: '4' Cotton wool swab No reaction Semen stains: '1' Underwear No reaction '2' Cotton wool swab No reaction As per the biological report Ex. PX, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 & Parcel No. 2 belong to the prosecutrix which were seized vide seizure memo Ex. PW1/A, dated 09/09/2007 and Parcel Nos. 3 & 4 belong to accused Pradeep @ Lala which were seized vide seizure memo Ex. PW2/A, dated 10/09/2007.
On careful perusal and analysis of the biological and serological evidence, it shows that blood was detected on exhibit '4' (Blood sample of accused), Human semen was detected on exhibit '1' (underwear of the prosecutrix) and exhibit '2' (vaginal swab of 57 of 149 58 FIR No. 718/07 PS - Nangloi the prosecutrix) and semen could not be detected on exhibit '3' (Dirty Underwear of the accused). As per the serological report Ex. PY, 'No Reaction' was found on the exhibit '4' (Blood Sample of accused), exhibit '1' (Underwear of the prosecutrix) and exhibit '2' (Vaginal swab of the prosecutrix).
As per the biological report Ex. PX prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1' (underwear of the prosecutrix seized vide seizure memo Ex. PW1/A, dated 09/09/2007) and on exhibit '2' (Vaginal swab of the prosecutrix seized vide seizure memo Ex. PW1/A, dated 09/09/2007). Accused Pradeep @ Lala was under an obligation to explain how and under what circumstances, the human semen came to be present on exhibit '1' (underwear of the prosecutrix) and on exhibit '2' (Vaginal swab of the prosecutrix). The absence of such an explanation both in the Section 313 Cr.P.C. statement of accused Pradeep @ Lala and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the 58 of 149 59 FIR No. 718/07 PS - Nangloi prosecution case.
17. Learned Counsel for accused Pradeep @ Lala submitted that FSL Report is contradictory. The exhibits in the species of origin shows no reaction and same is the reply in respect of ABO Group/Remarks which has been filed by Dr. Rajender Kumar, Senior Scientific Officer (Biology), FSL, Rohini, Delhi.
I have carefully perused and analysed the evidence on record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
It is not made clear by the Learned Counsel for the accused as to what he intends to convey by raising the said plea that the FSL Report is contradictory.
The biological and serological evidence Ex. PX and PY has been reproduced, discussed and analysed hereinabove. In the 59 of 149 60 FIR No. 718/07 PS - Nangloi circumstances, no further discussion is called for on the plea so raised.
At the cost of repetition, as per the biological report Ex. PX prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1' (underwear of the prosecutrix seized vide seizure memo Ex. PW1/A, dated 09/09/2007) and on exhibit '2' (Vaginal swab of the prosecutrix seized vide seizure memo Ex. PW1/A, dated 09/09/2007). Accused Pradeep @ Lala was under an obligation to explain how and under what circumstances, the human semen came to be present on exhibit '1' (underwear of the prosecutrix) and on exhibit '2' (Vaginal swab of the prosecutrix). The absence of such an explanation both in the Section 313 Cr.P.C. statement of accused Pradeep @ Lala and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
60 of 149 61 FIR No. 718/07 PS - Nangloi
18. Now let the testimony of PW4 - Prosecutrix be perused and analysed.
PW4 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 22/08/2007 at about 11:00 a.m., my parents had gone for taking medicines. At the same time, one Phoolwati, who is secret informer of the Police, came to my house alongwith her sonLeelu and said (to) me that my parents are beaten by the Police and asked me to take my ration card and accompany them to the PS. But on the way to the PS, there was one white colour Van standing on the road with opened door and when we passed through it, Phoolwati pushed me inside the van and pressed my mouth with her hand. Phoolwati alongwith his (her) son took me in the van and asked the driver of the van, whom they were calling as Prahlad, to start and run away the vehicle. The vehicle ran upto some distance and Phoolwati got down and thereafter her son Leelu pressed my mouth with his hands and he made me to smell something and thereafter near the red light of Nangloi, he got down from the vehicle and I become unconscious. On the next day, when I gain consciousness, I found myself in one room. Prahlad and Pradeep used to keep in Nasha/intoxication and used to beat me and used to have sex with me, without my consent. Whenever I regain consciousness, I found myself without clothes. They used to have sex with me continuously for 19 days and only when my mensuration period started, they stopped committed rape on me, however, I was kept in the same room. One day, they attended some telephone call and they said that this Sikar Zila is not safe 61 of 149 62 FIR No. 718/07 PS - Nangloi for them and they took me to Delhi in the same van, which was driven by Prahlad and when the van reached at Mangol Puri Red Light, as they wanted to purchase Gutka, they stopped the vehicle, only then I pushed and got down from the van and they caught me and gave beatings. At the said place, one public male person who saw beating me, came to my rescue and then they ran away in the same van. That person got hired one TSR and gave me the fare for going to the PS - Punjabi Bagh. I went to PS - Punjabi Bagh, where I narrated the whole incident to the Police, who called the Police of PS - Nangloi. Police of PS - Nangloi reached at the PS - Punjabi Bagh. The Police of PS - Nangloi, took me to their PS on 09/09/2007. On the whole night, I was kept by the Police of PS - Nangloi and I was beaten and forcibly made to sign some statements by the Police. My true statement was not recorded by the Police. (the prosecutrix is weeping while giving her statement). My parents were not even allowed to meet me throughout the night, however, they were present in the PS. I was medically examined at the Hospital, my MLCs are mark 'A' & 'B', both bears my thumb impression at mark 'X'. Exhibit PW4/A is not true and correct statement, but it bears my signatures at point 'X'. I had gone through my statement Ex. PW4/A today, which is not my true statement. But it bears my signatures at point 'X'.
My undergarments were taken by the Doctors at the Hospital and I can identify the same. I signed the Ex. PW1/A which bears my signatures at point 'X'.
At this stage, MHC(M) has produced one envelope duly sealed with the seal of RK, FSL, Delhi. The same is opened and found containing one undergarment of brown colour. The same is Ex. P1.
I was brought to the Court and was sent to Nari Niketan. My statement was recorded by the Judge Sahab. My statement u/s 164 62 of 149 63 FIR No. 718/07 PS - Nangloi Cr.P.C. is Ex. PW4/B and bears my signatures at point 'X' and thumb impression at point 'Y'. My ration card is on record Ex. P2, correctly identified the same. Accused Pradeep @ Lala was arrested vide personal search and arrest memo Ex. PW3/A and 3/B and bears my signatures at point 'X'. I do not want to say anything else."
From the aforesaid narration of PW4 - prosecutrix, it is clear that on 22/08/2007 at about 11:00 a.m., her parents had gone for taking medicines. At the same time, one Phoolwati, who is secret informer of the Police, came to her house alongwith her son Lillu and said to her that her parents are beaten by the Police and asked her to take her ration card and accompany them to the PS. But on the way to the PS, there was one white colour Van standing on the road with opened door and when they passed through it, Phoolwati pushed her inside the van and pressed her mouth with her hand. Phoolwati alongwith her son took her (prosecutrix) in the van and asked the driver of the van, whom they were calling as Prahlad, to start and run away the vehicle. The vehicle ran upto some distance and Phoolwati got down and thereafter her son Lillu pressed her (prosecutrix) mouth with his hands and he made her to smell something and thereafter near the red light of Nangloi, he got 63 of 149 64 FIR No. 718/07 PS - Nangloi down from the vehicle and she become unconscious. On the next day, when she gained consciousness, she found herself in one room. Prahlad and Pradeep used to keep in Nasha/intoxication and used to beat her and used to have sex with her, without her consent. Whenever she regain consciousness, she found herself without clothes. They used to have sex with her continuously for 19 days and only when her mensuration period started, they stopped committed rape on her, however, she was kept in the same room. One day, they attended some telephone call and they said that this Sikar Zila is not safe for them and they took her to Delhi in the same van, which was driven by Prahlad and when the van reached at Mangol Puri Red Light, as they wanted to purchase Gutka, they stopped the vehicle, only then she pushed and got down from the van and they caught her and gave beatings. At the said place, one public male person who saw beating her, came to her rescue and then they ran away in the same van. That person got hired one TSR and gave her the fare for going to the PS - Punjabi Bagh. She went to PS - Punjabi Bagh, where she narrated the whole incident to the Police, who called the Police of PS - Nangloi. Police of PS - Nangloi reached at the PS - Punjabi Bagh. The Police of PS - Nangloi, took her to their PS on 09/09/2007. On the 64 of 149 65 FIR No. 718/07 PS - Nangloi whole night, she was kept by the Police of PS - Nangloi and she was beaten and forcibly made to sign some statements by the Police. Her true statement was not recorded by the Police. Her parents were not even allowed to meet her throughout the night, however, they were present in the PS. She was medically examined at the Hospital, her MLCs are mark 'A' & 'B', both bears her thumb impression at mark 'X'. Exhibit PW4/A is not true and correct statement, but it bears her signatures at point 'X'. She had gone through her statement Ex. PW4/A, which is not her true statement. But it bears her signatures at point 'X'. She proved the seizure memo of her undergarment Ex. PW1/A which bears her signature at point 'A' and identified and proved her undergarment of brown colour as Ex. P1. She was brought to the Court and was sent to Nari Niketan. Her statement was recorded by the Judge Sahab. Her statement u/s 164 Cr.P.C. is Ex. PW4/B and bears her signatures at point 'X' and thumb impression at point 'Y'. Her ration card is on record Ex. P2 and correctly identified the same. Accused Pradeep @ Lala was arrested vide personal search and arrest memo Ex. PW3/A and PW3/B and bears her signatures at point 'X'.
65 of 149 66 FIR No. 718/07 PS - Nangloi On the leading questions put by the Learned Addl. PP for the State, PW4 - Prosecutrix has deposed which is reproduced and reads under : "It is correct that I stated in my statement u/s 164 Cr.P.C. before the Magistrate that I am aged 16 years and my brother had got married with some girl at Moradabad Court and the parents of that girl had filed a case against my parents. Vol. Due to this Police used to come to our house and that is why I had accompanied Phoolwati and his (her) son Leelu to the PS. It is correct that due to lapse of time, I forgot to mention these facts earlier."
PW4 - Prosecutrix during her crossexamination has negated the suggestions that the accused Pradeep @ Lala was also tracing her brother and her Bhabhi namely Preeti or that she had eloped with Pradeep @ Lala for marrying with him or that she stated in her statement that one day she went to the house of accused Pradeep where who (he) was sleeping to whom she woke up and his other family members also woke up and all the family members came to know about their love affair or that she have a love affair with the accused Pradeep @ Lala and they decided to run away from the house for the purpose of marriage with ration card which she handed over to the accused Pradeep 66 of 149 67 FIR No. 718/07 PS - Nangloi for completing the formalities of Court marriage or that her parents objected to their marriage because she belongs to upper caste and the accused belongs to the lower caste or that she gave statement before Judge Sahab u/s 164 Cr.P.C. under influence of her parents/family members or that her correct statement is recorded by the Police officials vide Ex. PW4/A or that sometime she used to give miss call or sometime accused Pradeep used to make telephone call on 9210659643 or that they decided to marry each other or that she used to call accused Pradeep @ Lala on his mobile from the mobile phone of her father or that she was having a love affair with him or that her parents came to know about the said affair and her marriage was fixed with one Ashok R/o Hansi, Haryana or that since she wanted to marry with Pradeep @ Lala, she herself run away with him with a view to marry with him without the consent and knowledge of her parents or for the said purposes she carried her ration card alongwith her so the marriage can be performed or that while she came back her true statement was recorded by the Police and same was signed by her after understanding the contents thereof or that she falsely named accused Phoolwati and Lillu on the tutoring of her parents, being aggrieved by the Police action initiated by 67 of 149 68 FIR No. 718/07 PS - Nangloi accused Phoolwati alongwith parents of Preeti against her entire family members against the said conduct of her brother Manjit or that Phoolwati never took her alongwith her on the said pretext or accused Lillu was found present in the can as deposed by her above or that Phoolwati never pressed her mouth a alleged nor he got down from the said van at the said place as deposed by her above or that the Police officials were also named by her in this case only to teach them a lesson as they were inquiring into the complaints made by parents of Preeti and pressurizing them to reveal the whereabouts of Manjit or that she made the allegations against accused Phoolwati and Lillu at the instance of her parents or that she is deposing falsely.
Inspite of incisive crossexamination of PW4 - 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 PW4 - prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of crime has remained 68 of 149 69 FIR No. 718/07 PS - Nangloi intact. There is nothing in her statement to suggest that she had any animus against the accused Pradeep @ Lala, Phoolwati and Anil @ Lillu to falsely implicate them in the case.
The testimony of PW4 - Prosecutrix is also found to be corroborated by the medical evidence as well as the biological and serological evidence as discussed hereinbefore.
The testimony of PW4 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW4/B (also Ex. PW17/A).
The testimony of PW4 - Prosecutrix is also found to be corroborated by PW5 - Smt. Mamta, her mother and PW6 - Ram Tek, her father, to whom prosecutrix disclosed the facts relating to the crime shortly after the incident, at first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW5 - Smt. Mamta in her examinationinchief has deposed that : "Prosecutrix (name withheld) is my daughter. In the month 69 of 149 70 FIR No. 718/07 PS - Nangloi of August, two years ago, on one day, I was not feeling well and I alongwith my husband went to the Doctor at about 10:00 a.m. At that time, my daughter (name withheld) was present in our house. At about 11:30 a.m., when we came back to our house, our daughter (name withheld) was not present in our house. We tried our level best to trace her. Even we contacted our relatives and visited our native place and thereafter on 24/08/2007, we reported the matter to the Police. After about 19 days, we received an information from the Police Station Nangloi that my daughter had been traced and she is now with the officials of PS - Punjabi Bagh. Later on, my daughter was handed over to us, after medical examination. My daughter was minor at that time."
From the aforesaid narration of PW5 - Smt. Mamta it is clear that prosecutrix is her daughter. In the month of August, two years ago, on one day, she (PW5) was not feeling well and she alongwith her husband went to the Doctor at about 10:00 a.m. At that time, her daughter/prosecutrix was present in their house. At about 11:30 a.m., when they came back to their house, their daughter/prosecutrix was not present in their house. They tried their level best to trace her. Even they contacted their relatives and visited their native place and thereafter on 24/08/2007, they reported the matter to the Police. After about 19 days, they received an information from the Police Station Nangloi that her daughter had been traced and she (prosecutrix) is now with the officials 70 of 149 71 FIR No. 718/07 PS - Nangloi of PS - Punjabi Bagh. Later on, her daughter was handed over to them, after medical examination. Her daughter was minor at that time.
During her crossexamination PW5 - Mamta has negated the suggestions that her daughter was having an affair with accused Pradeep and due to that reason they fixed her marriage with one Ashok R/o Hansi or that inspite of the same she herself eloped with accused Pradeep @ Lala in order to marry him or that they knew about the same and that is why they did not lodge any report for two days. Parents of Ashok had broken the marriage saying that her daughter had come back after 19 days so they cannot marry her or that accused Phoolwati was favouring the parents of Preeti, hence, they were feeling aggrieved and therefore she alongwith her husband tutored her daughter to depose against the accused Phoolwati and Anil when she met her and her husband or that upon tutoring she made a false statement against accused Phoolwati and Anil at their instance or that she is deposing falsely.
PW6 - Ram Tek in his examinationinchief has deposed that : "Prosecutrix (name withheld) is my daughter. In the month of August, two years ago, on one day, my wife was not feeling well and I 71 of 149 72 FIR No. 718/07 PS - Nangloi alongwith my wife went to the Doctor at about 10:00 a.m. At that time, my daughter (name withheld) was present in our house. At about 11:30 a.m., when we came back to our house, our daughter (name withheld) was not present in our house. We tried our level best to trace her. Even we contacted our relatives and visited our native place and thereafter on the next day, we reported the matter to the Police. Police lodged missing report and the same is Ex. PW6/A. I also handed over the photograph of my daughter. Even the hue and cry notice was also published by the Police.
After about 1920 days, we received an information from the Police Station Nangloi that my daughter had been traced and she is now with the officials of PS Punjabi Bagh. Later on, my daughter was handed over to us, after her medical examination. My daughter was minor at that time.
During investigation, I also handed over the birth certificate of my daughter to the Police, which was seized vide memo Ex. PW3/C, which bears my signature at point 'B'. Date of birth of my daughter is 08/03/1992. I also handed over my original ration card to the Police."
PW6 - Sh. Ram Tek during his further examinationinchief recorded on 31/05/2011 has deposed that : "I had already given my statement in the Court. About four years back, I had given the School Leaving Certificate Ex. PW9/D of my daughter/prosecutrix (name withheld) to the Police after the incident which was seized by the Police."
72 of 149 73 FIR No. 718/07 PS - Nangloi From the aforesaid narration of PW6 - Ram Tek, it is clear that prosecutrix (name withheld) is his daughter. In the month of August, two years ago, on one day, his wife was not feeling well and she alongwith his wife went to the Doctor at about 10:00 a.m. At that time, his daughter (name withheld) was present in their house. At about 11:30 a.m., when they came back to their house, their daughter (name withheld) was not present in their house. They tried their level best to trace her. Even they contacted their relatives and visited their native place and thereafter on the next day, they reported the matter to the Police. Police lodged missing report and the same is Ex. PW6/A. He also handed over the photograph of his daughter. Even the hue and cry notice was also published by the Police. After about 1920 days, they received an information from PS Nangloi that his daughter had been traced and she is now with the officials of PS Punjabi Bagh. Later on, his daughter was handed over to them, after her medical examination. His daughter was minor at that time. During investigation, he also handed over the birth certificate of his daughter to the Police, which was seized vide memo Ex. PW3/C, which bears his signature at point 'B'. Date of birth of his daughter is 08/03/1992. He also handed over his 73 of 149 74 FIR No. 718/07 PS - Nangloi original Ration Card to the Police. He had given the School Leaving Certificate Ex. PW9/D of his daughter/prosecutrix (name withheld) to the Police after the incident which was seized by the Police.
During his crossexamination PW6 - Ram Tek has negated the suggestions that Ashok and his family came to know about the fact that his daughter has eloped with Pradeep @ Lala or that they were feeling aggrieved from the fact hat accused Phoolwati was favouring Ranbir on the issue of missing of his daughter alongwith his son.
The testimony of PW4 - prosecutrix is also found to be corroborated by PW15 Babu Lal @ Pappu S/o Sh. Bhagwan Shah, 30 years, R/o Village - Rani Pura, Tehsil Shri Madhopur, District - Sikkar, Rajasthan, whose cousin Vinod was the friend of accused Pradeep @ Lala.
PW15 - Sh. Babu Lal @ Pappu in his examinationinchief has deposed that : "I am working as a Painter and do white washing. On 25/08/2007, my cousin Vinod brought two boys and one girl in a maruti 74 of 149 75 FIR No. 718/07 PS - Nangloi Van no. 4053 at about 5:00/6:00 a.m. Accused Pradeep @ Lala present in the Court today, was one of those boys. The girl was wearing a suit salwar and was wearing metal bangles upto just below elbows. I inquired from Vinod as to who were those persons who told me that accused Pradeep Lala and the other boy were his friends. The girl was wife of Pradeep Lala. On suspicion, I called mother of Vinod and inquired form her also, who told me that those boys were friends of Vinod. Those boys wanted a rented room for their stay. Since there was no room available at Shri Madhopur where I was residing at that time, hence I sent them to Village Ranipura where my house was situated and gave them one vacant room in the said house for their stay. They lived there for about 5/6 days. In the meanwhile, I came to know that those boys had kidnapped that girl but before that the accused Pradeep @ Lala alongwith that girl had left the house in the said Maruti van. Police reached at my residence on 11/09/2007 in the night and recorded my statement after about 1:30 or 2:00 a.m. The name of other boy was told to me by Vinod as Shashi Kant."
From the aforesaid narration of PW15 - Babu Lal @ Pappu, it is clear that he is working as a Painter and do white washing. On 25/08/2007, his cousin Vinod brought two boys and one girl in a maruti Van no. 4053 at about 5/6:00 a.m. Accused Pradeep @ Lala present in the Court, was one of those boys. The girl was wearing a suit salwar and was wearing metal bangles upto just below elbows. He (PW15) inquired from Vinod as to who were those persons who told him that accused 75 of 149 76 FIR No. 718/07 PS - Nangloi Pradeep Lala and the other boy were his friends. The girl was wife of Pradeep Lala. On suspicion, he (PW15) called mother of Vinod and inquired form her also, who told him that those boys were friends of Vinod. Those boys wanted a rented room for their stay. Since there was no room available at Shri Madhopur where he (PW15) was residing at that time, hence he sent them to Village Rani Pura where his house was situated and gave them one vacant room in the said house for their stay. They lived there for about 5/6 days. In the meanwhile, he (PW15) came to know that those boys had kidnapped that girl but before that the accused Pradeep @ Lala alongwith that girl had left the house in the said Maruti van. Police reached at his (PW15) residence on 11/09/2007 in the night and recorded his statement after about 1:30 or 2:00 a.m. The name of other boy was told to him by Vinod as Shashi Kant.
Inspite of incisive crossexamination of PW5 - Smt. Mamta, mother of the prosecutrix, PW6 - Sh. Ram Tek, father of the prosecutrix and PW15 - Sh. Babu Lal @ Pappu, nothing material has been brought out so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal 76 of 149 77 FIR No. 718/07 PS - Nangloi 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 testimonies of PW5 - Smt. Mamta and PW6 - Sh. Ram Tek are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case. PW5 - Smt. Mamta and PW6 - Shri Ram Tek have also explained the reasons for the delay of two days in reporting the matter to Police on 24/08/2007, vide missing person report Ex. PW6/A in their testimonies as reproduced hereinabove.
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.
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).
77 of 149 78 FIR No. 718/07 PS - Nangloi The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the Police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the Police is because of society's attitude towards such women; it casts doubt and shame upon her rather 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)."
78 of 149 79 FIR No. 718/07 PS - Nangloi The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a Doctor. In a given case even if the Doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less 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 79 of 149 80 FIR No. 718/07 PS - Nangloi has courage to go before the Police Station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
19. While analysing the testimonies of PW4 Prosecutrix, PW5 80 of 149 81 FIR No. 718/07 PS - Nangloi
- Smt. Mamta and PW6 - Ram Tek as discussed hereinabove inspite of incisive crossexamination of PW4 Prosecutrix, PW5 - Smt. Mamta and PW6 - Ram Tek nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestion by the defence to PW1 Prosecutrix that the accused Pradeep @ Lala was also tracing her brother and her Bhabhi namely Preeti or that she had eloped with Pradeep @ Lala for marrying with him or that she stated in her statement that one day she went to the house of accused Pradeep where who (he) was sleeping to whom she woke up and his other family members also woke up and all the family members came to know about their love affair or that she have a love affair with the accused Pradeep @ Lala and they decided to run away from the house for the purpose of marriage with ration card which she handed over to the accused Pradeep for completing the formalities of Court marriage or that her parents objected to their marriage because she belongs to upper caste and the accused belongs to the lower caste or that she gave statement before Judge Sahab u/s 164 Cr.P.C. under influence of her parents/family members or that her correct statement is recorded by the Police officials vide Ex. PW4/A or that sometime she used to give 81 of 149 82 FIR No. 718/07 PS - Nangloi miss call or sometime accused Pradeep used to make telephone call on 9210659643 or that they decided to marry each other or that she used to call accused Pradeep @ Lala on his mobile from the mobile phone of her father or that she was having a love affair with him or that her parents came to know about the said affair and her marriage was fixed with one Ashok R/o Hansi, Haryana or that since she wanted to marry with Pradeep @ Lala, she herself run away with him with a view to marry with him without the consent and knowledge of her parents or for the said purposes she carried her ration card alongwith her so the marriage can be performed or that while she came back her true statement was recorded by the Police and same was signed by her after understanding the contents thereof or that she falsely named accused Phoolwati and Lillu on the tutoring of her parents, being aggrieved by the Police action initiated by accused Phoolwati alongwith parents of Preeti against her entire family members against the said conduct of her brother Manjit or that Phoolwati never took her alongwith her on the said pretext or accused Lillu was found present in the can as deposed by her above or that Phoolwati never pressed her mouth a alleged nor he got down from the said van at the said place as deposed by her above or that the Police 82 of 149 83 FIR No. 718/07 PS - Nangloi officials were also named by her in this case only to teach them a lesson as they were inquiring into the complaints made by parents of Preeti and pressurizing them to reveal the whereabouts of Manjit or that she made the allegations against accused Phoolwati and Lillu at the instance of her parents or that she is deposing falsely, the suggestions to PW5 - Smt. Mamta that her daughter was having an affair with accused Pradeep and due to that reason they fixed her marriage with one Ashok R/o Hansi or that inspite of the same she herself eloped with accused Pradeep @ Lala in order to marry him or that they knew about the same and that is why they did not lodge any report for two days. Parents of Ashok had broken the marriage saying that her daughter had come back after 19 days so they cannot marry her or that accused Phoolwati was favouring the parents of Preeti, hence, they were feeling aggrieved and therefore she alongwith her husband tutored her daughter to depose against the accused Phoolwati and Anil when she met her and her husband or that upon tutoring she made a false statement against accused Phoolwati and Anil at their instance or that she is deposing falsely and the suggestions to PW6 - Ram Tek that Ashok and his family came to know about the fact that his daughter has eloped with Pradeep @ Lala or that they were 83 of 149 84 FIR No. 718/07 PS - Nangloi feeling aggrieved from the fact hat accused Phoolwati was favouring Ranbir on the issue of missing of his daughter alongwith his son, 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.
However a futile attempt has been made by accused Pradeep @ Lala to save his skin from the clutches of law by way of examination of two defence witnesses DW1 Suresh S/o Chitru R/o VPO Tikri Kalan, Delhi 110041 and DW2 Ajay Kumar S/o Lakhi Ram R/o H. No. 101, Kalyan Pana, Tikri Kalan, Delhi - 110041.
DW1 Suresh S/o Chitru R/o VPO Tikri Kalan, Delhi - 110041, who deposed that Pradeep @ Lala son of late Kailash Chand was residing at C2/126, Sultan Puri, Delhi and the dispute between both the family was due to vehicle problem with the Ram Tek father of prosecutrix (name withheld) and due to this reason prosecutrix (name withheld) and her father falsely implicate to Pradeep @ Lala in this case.
84 of 149 85 FIR No. 718/07 PS - Nangloi Pradeep @ Lala is innocent. He knows him since long time. In between 09/09/2007, Pradeep @ Lala was residing with him at his above said address (being his bhanja). Pradeep @ Lala has good moral character.
During his crossexamination by the Learned Addl. PP DW1 Suresh, maternal uncle of accused Pradeep @ Lala has taken a complete UTurn when he deposed that, "I am not aware as to why Pradeep and Ram Tek used to quarrel. I made enquiries from Pradeep as to why he used to quarrel with Ram Tek but Pradeep has not disclosed anything to me".
"I have not made any written complaints to the higher officer of the Police or in any court that accused Pradeep has been falsely implicated in this case".
The aforesaid part of crossexamination as conducted by the Learned Addl. PP for the State has nullified the impact of examination inchief of DW1 Suresh in which he has deposed that dispute between the both family was due to vehicle problem with Ram Tek, father of prosecutrix (name withheld).
85 of 149 86 FIR No. 718/07 PS - Nangloi If in the estimation of DW1 - Suresh (maternal uncle of accused Pradeep @ Lala), that his Bhanja/accused Pradeep @ Lala has been falsely implicated by prosecutrix (name withheld) and her father in the case, then why DW1 - Suresh did not make any complaint against the alleged false implication of accused Pradeep @ Lala to Police/Senior Police officer or to any count, the reasons for the same must be known to him. It clearly indicates that, Had accused Pradeep @ Lala been falsely implicated in the case, DW1 - Suresh (maternal uncle of accused Pradeep @ Lala) must have made the complaint to Police/Senior Police officer or to any count against his false implication. In the circumstances, the testimony of DW1 - Suresh does not inspire confidence and he is a procured witness.
DW2 Ajay Kumar S/o Lakhi Ram R/o H. No. 101, Kalyan Pana, Tikri Kalan, Delhi - 110041, who deposed that Pradeep @ Lala son of late Kailash Chand was residing at C2/126, Sultan Puri, Delhi and the dispute between both the family was due to vehicle problem with the Ram Tek father of prosecutrix (name withheld) and due to this reason 86 of 149 87 FIR No. 718/07 PS - Nangloi prosecutrix (name withheld) and her father falsely implicate to Pradeep @ Lala in this case. Pradeep @ Lala is innocent. He knows him since long time. In between 09/09/2007, Pradeep @ Lala was residing with his Mama at Village Tikri Kalan. He (DW2) saw him in the Village Tikri Kalan. He has good moral character.
DW2 Ajay Kumar during his crossexamination by Learned Addl. PP for State has deposed that, "I know accused Pradeep since his childhood. I am having visiting terms with the family of accused Pradeep and having cordial relation with them. Pradeep is driver by profession". "I am (have) not made any written complaints to the Police or went to the Police Station that accused Pradeep has been falsely implicated in this case".
From above it is clearly indicated that DW2 Ajay Kumar knows accused Pradeep @ Lala since childhood and is having visiting terms with the family of accused Pradeep @ Lala and having cordial relations with them.
If in the estimation of DW2 - Ajay Kumar, who was 87 of 149 88 FIR No. 718/07 PS - Nangloi knowing accused Pradeep @ Lala since childhood and was having visiting terms with the family of accused Pradeep @ Lala and was having cordial relations with them that accused Pradeep @ Lala has been falsely implicated then why he did not make any complaint against the alleged false implication of accused Pradeep @ Lala to Police/Senior Police officer or to any count, the reasons for the same must be known to him. It clearly indicates that, Had accused Pradeep @ Lala been falsely implicated in the case, DW2 - Ajay Kumar must have made the complaint to Police/Senior Police officer or to any count against his false implication. In the circumstances, the testimony of DW2 - Ajay Kumar does not inspire confidence and he is a procured witness.
20. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in 88 of 149 89 FIR No. 718/07 PS - Nangloi 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 any seminal stains."
89 of 149 90 FIR No. 718/07 PS - Nangloi In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW4 - Prosecutrix in the light of medical and gynaecological examination vide MLC Ex. PW8/A of the prosecutrix, biological and serological evidence Ex. PX and PY, together with the MLC of accused Pradeep @ Lala Ex. PW10/A, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission of semen, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Pradeep @ Lala with PW4 - Prosecutrix without her consent.
90 of 149 91 FIR No. 718/07 PS - Nangloi
21. Learned Counsel for the accused Phoolwati and Anil @ Lillu submitted that from the entire deposition of PW4 prosecutrix it may be clearly seen as to how she deposed on the number of times to cover up her false fabricated story with number of developments, confrontation and discrepancies. The allegation raised by the prosecutrix in her u/s 164 Cr.P.C. statement Ex. PW4/B is neither supported by any other material witness nor any other independent public witnesses.
Learned Counsel for accused Pradeep @ Lala submitted that star witness and complainant of this case is completely hostile and due to this reason crossexamined by the Learned Addl. PP to prove its case but same is futile and prosecution has completely failed to prove its case. He further submitted that in her examinationinchief statement, PW4 prosecutrix is hostile at number of places i.e. "It is correct that I stated in my statement u/s 164 Cr.P.C. before the magistrate that I am aged 16 years and my brother had got married with some girl at Moradabad Court and the parents of that girl had filed a case against my parents. Vol. due to this Police used to come to our house and that is why I had accompanied Phoolwati and his son Lillu to the PS. It is correct that due to lapse of time, I forgot to mention these facts earlier." He further 91 of 149 92 FIR No. 718/07 PS - Nangloi submitted that the statement u/s 164 Cr.P.C. of victim was recorded after delay i.e. on 12/09/2007 which is totally manipulated, fabricated and after tutoring the victim by her parents only due to anti revengeful motive due to castism.
I have carefully perused and analysed the evidence on record.
On careful perusal and analysis, the testimony of PW4 - prosecutrix has been found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW4/B (also Ex. PW17/A).
It is pertinent to reproduce as to what has been stated by PW4 Prosecutrix in her statement recorded on 12/09/2007 u/s 164 Cr.P.C. Ex. PW4/B (also Ex. PW17/A) which reads as under : "I am sixteen years of age. My brother after performing court marriage with a girl had gone. He performed the court marriage in Muradabad. About this we were not knowing. After the going of that girl, her family members had filed a case against my mummy and daddy. Phoolwati and her son Lilu one day came to my house, when my mummy daddy were not at home. On that day the date was 22/08/2007. They said that, "your mummy daddy has called you at Police 92 of 149 93 FIR No. 718/07 PS - Nangloi Station/Chowki after taking the Ration Card". They (in logo ne) on the way after pushing me, put me in a van. Phoolwati pressed my mouth. Thereafter, they (Vo log) took her away out of Nangloi. Phoolwati got down from the vehicle near her house. Her son got down near Red Light. They (Un logo ne) had tied my hands and feet. Lilu after smelling me medicine had got down (Lilu dwai sungha kar utar gaya tha), I had become unconscious. I regained consciousness in the morning and found myself closed in a room. There one more boy had met (wahan ek aur larka mil gaya). His name was Pradeep. The name of the driver was Prahlad. They (Un logo ne) kept me in that room for about 19 days. They (Vo log) used to make me unconscious (Vo log mujhe behosh kar dete the) and used to do galat kaam with me. I cannot say as to who & who among them committed the galat kaam (Mai nahi keh sakti ki unmese kon kon galat kaam kiya tha) because I was made unconscious (kunki mai behosh kar di jati thi). My menses had started from the first day of this month and since then they did not commit galat kaam (isi mahine ki pehli taarikh se mera period shuru ho gaya, tab se un logon ne galat kaam nahi kiya). Thereafter, they (un logon) left me at Mangol Puri Chowk. I was unconscious on the way. When I was left, then, only driver Prahlad was there (jab mujhe chhoda gaya tab kewal driver Prahlad hi tha). They kept me in some Sikar Distt. of Rajasthan because they were taking this name (woh log mujhe Rajasthan mein koi Sikar zila mein rakha tha, kyoki woh log isi ka naam le rahe the). At the time of leaving, driver threatened me not to take his name otherwise, he will kill me or will send me to Tihar (chhodte waqt driver ne mujhe dhamkaya ki uska naam na loon nahi to woh mujhe jaan se maar daalega, ya Tihar bhijwa dega). When Prahlad left me thereafter, I was weeping lonely (jab Prahlad ne mujhe chhoda, uske baad, main akeli ro rahi thi), then, there one person by the name Shashikant met (tabhi 93 of 149 94 FIR No. 718/07 PS - Nangloi wahan Shashikant naam ka ek vyakti mila), I told him about myself (usko main apne baare me batayi). He after giving some money sent me to Punjabi Bagh, Police Station [uske (usne) kuchh paise dekar mujhe Punjabi Bagh thaane bhej diya). From there, I was brought by the Police officials of Police Station Nangloi (Waha se Nangloi thane wale mujhe le aye)."
The testimony of PW4 - prosecutrix has been reproduced, discussed and detailed hereinabove. At the cost of repetition, it is pertinent to reproduce the relevant part of the examinationinchief of PW4 - prosecutrix which reads as under : "At that said place, one public male person who saw beating me, came to my rescue and them they ran away in the same van. That person got hired one TSR and gave me the fare for going to the PS - Punjabi Bagh. I went to PS - Punjabi Bagh, where I narrated the whole incident to the Police, who called the Police of PS - Nangloi. Police of PS - Nangloi reached at the PS - Punjabi Bagh. The Police of PS Nangloi, took me to their PS on 09/09/2007. On the whole night, I was kept by the Police of PS - Nangloi and I was beaten and forcibly made to sign some statements by the Police. My true statement was not recorded by the Police. (the prosecutrix is weeping while giving her statement). My parents were not even allowed to meet me throughout the night, however, they were present in the PS. I was medically examined at the Hospital, my MLCs are mark 'A' & 'B', both bears my thumb impression at mark 'X'. Exhibit PW4/A is not true and correct statement, but it bears my signatures at point 'X'. I had gone through my statement Ex. PW4/A 94 of 149 95 FIR No. 718/07 PS - Nangloi today, which is not my true statement. But it bears my signatures at point 'X'."
During her crossexamination recorded on 17/02/2011, PW4
- prosecutrix has deposed that : "The Police recorded my first statement in this case on 09/09/2007. I had stated to the Police in my statement dated 09/09/2007 that on 22/08/2007 at about 11:00 a.m., my parents had gone for taking medicines or at the same time one Phoolwati who is secret informer of the Police, came to my house alongwith her son Lilu and said to me that my parents are beaten by the Police and asked me to take my ration card and accompany them to the Police Station. (Confronted with statement Ex. PW4/A where it is not so recorded.) I had stated to the Police that on the way to the PS, there was one white colour van standing on the road with open door and when we passed through it, Phoolwati pushed me inside the van and pressed my mouth with her hand. (Confronted with statement Ex. PW4/A where it is not so recorded.) I had stated to the Police in my statement that Phoolwati alongwith his son took me in the van and asked the driver of the van, whom they were calling as Prahlad to start and run away the vehicle and the vehicle ran up to some distance and Phoolwati got down and thereafter, her son Lilu pressed my mouth with his hands and he made me to smell something and thereafter near the traffic signal of Nangloi, he got down from the vehicle and I became unconscious. (Confronted with statement Ex. PW4/A where it is not so recorded.) (The Learned Addl. PP has submitted that the said facts which have been confronted as mentioned above, are mentioned in the statement of the witness u/s 164 Cr.P.C. Ex. PW4/B.) I had stated to the 95 of 149 96 FIR No. 718/07 PS - Nangloi Police in my statement that on the next day when I gain consciousness, I found myself in one room and Prahlad and Pradeep used to keep me in Nasha/intoxication and used to beat me and used to have sex with me without my consent and that whenever I regained consciousness I found myself without clothes. (Confronted with statement Ex. PW4/A where it is not so recorded.) I had stated to the Police in my statement that one day the van was driven by Prahlad along with me and when the van reached at Mangol Puri traffic red light, as they wanted to purchase Gutka they stopped the vehicle, only then, I pushed and got down from the van and they caught me and gave me beatings and that at that said place, one public male person who saw beating me came to my rescue and then they ran away in the said van and that, that person got hired a TSR and gave me the fare for going to PS - Punjabi Bagh. (Confronted with statement Ex. PW4/A where it is not so recorded.)"
(Underlined by me) 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 PW4 - 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 Ex. PW4/A recorded by the Investigating Officer PW19 - ASI Mahender Singh would be a reason best known to the Investigating Officer. Strangely, when PW19 - ASI Mahender Singh was being crossexamined, no such question was put to him as to why he
96 of 149 97 FIR No. 718/07 PS - Nangloi did not completely record the statement of the witness/PW4 - 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 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 97 of 149 98 FIR No. 718/07 PS - Nangloi 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."
So far as the plea raised by the Learned Counsel for accused 98 of 149 99 FIR No. 718/07 PS - Nangloi Pradeep @ Lala that, "the statement of PW4 - prosecutrix u/s 164 Cr.P.C. Ex. PW4/B (also Ex. PW17/A) was recorded after delay on 12/09/2007", is concerned, it is evident from the record that on 09/09/2007, PW4 - prosecutrix made the statement to the Police and got lodged the case, on 10/09/2007, she was produced before the Court of Learned Duty MM and an application dated 10/09/2007 was moved for recording her statement u/s 164 Cr.P.C., which was ordered to be put before the concerned Court on 11/09/2007, on the separate application dated 10/09/2007 moved by the IO PW12 - ASI Darshana for sending the prosecutrix to Nari Niketan before the Court of Learned Duty MM, she was sent to Nari Niketan by Learned Duty MM with the direction to produce her before the Court concerned on 11/09/2007. On 11/09/2007, prosecutrix was produced from Nari Niketan before the concerned Court, the application for recording of statement of prosecutrix u/s 164 Cr.P.C. was marked by the Learned concerned Court to the Court of Learned Link MM, Sh. Anil Kumar and also directed for the production of the prosecutrix before the Court of Learned Link MM immediately. On 12/09/2007, on the application for recording of statement of prosecutrix u/s 164 Cr.P.C. and on the production of prosecutrix before the Court of 99 of 149 100 FIR No. 718/07 PS - Nangloi Learned Link MM, Sh. Anil Kumar, he recorded the statement of prosecutrix u/s 164 Cr.P.C. Ex. PW4/B (also Ex. PW17/A). In the circumstances, from the testimony of PW12 W/ASI Darshana and PW17 - Sh. Anil Kumar, the then MM, it is clearly indicated that there is no delay in the recording of the statement of PW4 - prosecutrix u/s 164 Cr.P.C. on 12/09/2007 and the said statement u/s 164 Cr.P.C. has been recorded promptly and at the first available opportunity, by the Learned Link MM, Sh. Anil Kumar (PW17).
At the cost of repetition, PW12 - ASI Darshana IO in her examinationinchief has deposed that, on 09/09/2007, she was posted at PS - Nangloi, PP - Nihal Vihar. On that day, she was entrusted with the investigation of the present case and the copy of FIR, original rukka was handed over to her by SI Mahinder Singh. During investigation, she made efforts to search accused Pradeep after making inquiries from the prosecutrix and on the night intervening 0910/09/2007, the accused Pradeep Lala present in the Court was arrested on the pointing out of prosecutrix vide arrest memo Ex. PW3/A which bears her signature at point 'B'. The personal search of accused was conducted vide memo Ex.
100 of 149 101 FIR No. 718/07 PS - Nangloi PW3/B which bears her signature at point 'A'. Original ration card of family of prosecutrix was also found from the house of Pradeep, copy of which is Ex. P1 and same was seized vide memo Ex. PW12/A which bears her signature at point 'A'. A maruti van no. DL9CN4053 in which the prosecutrix was stated to have been kidnapped was also recovered from the park opposite to the house of accused Pradeep. The said van was seized vide seizure memo Ex. PW12/B which bears her signature at point 'A'. She recorded the disclosure statement of accused which is Ex. PW12/C which bears her signature at point 'A'. Thereafter, they all came back at the PS. She sent accused Pradeep for his medical examination through Constable Kailash to SGM Hospital. After medical examination, Constable Kailash handed over the exhibits to her which were taken into possession by her vide memo Ex. PW2/A which bears her signature at point 'B'. Accused and prosecutrix were produced before the Duty Magistrate where two days PC remand of accused was obtained by SI Jai Prakash and the prosecutrix was sent to Nari Niketan for one day. She got the statement of prosecutrix recorded u/s 164 Cr.P.C. on 12/09/2007 which is Ex. PW4/B. ASI Mahender with staff took the accused to Rajasthan for investigation. Accused was remanded to JC by 101 of 149 102 FIR No. 718/07 PS - Nangloi the Court on 12/09/2007. Thereafter, the file was handed over to ASI Mahender Singh. She recorded the statements of witnesses also. Accused Pradeep is present in the Court.
Despite grant of opportunity, PW12 - W/ASI Darshana was not crossexamined on behalf of the accused Pradeep @ Lala.
At the cost of repetition, PW17 - Sh. Anil Kumar, the then MM in his examinationinchief has deposed that, on 11/09/2007, he was posted as MM, Rohini Courts, Delhi and was working as Link MM to Ms. Barkha Gupta, the then MM and an application for recording the statement of the prosecutrix was marked to him on 11/09/2007 which was fixed for 12/09/2007 and accordingly, the prosecutrix, who was identified by the IO, was produced before him whose statement was recorded by him which is Ex. PW17/A and his certification with regard to the said statement is Ex. PW17/B and thereafter, an application for taking the copy of the statement was moved by the IO which was allowed by him and the application alongwith his order is Ex. PW17/C. Despite grant of opportunity, PW17 - Sh. Anil Kumar was not crossexamined on behalf of all the accused.
102 of 149 103 FIR No. 718/07 PS - Nangloi Even if in the estimation of Learned Counsel for accused Pradeep @ Lala there was any delay in the recording of the statement of PW4 - prosecutrix on 12/09/2007, then it was for the said accused Pradeep @ Lala to voice his concern during the crossexamination of PW12 - W/ASI Darshana IO but PW12 - W/ASI Darshana, IO was not crossexamined on behalf of accused Pradeep @ Lala despite grant of opportunity. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.
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 103 of 149 104 FIR No. 718/07 PS - Nangloi admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for the accused Phoolwati and Anil @ Lillu submitted that on 17/02/2011, when prosecutrix appeared for cross examination on behalf of accused Phoolwati and Anil @ Lillu in her crossexamination, she deposed that when she was leaving her house along with accused Phoolwati her neighbour i.e Bitto and Raju etc. had seen her in the company of accused. Learned Counsel submitted that this fact neither disclosed by the prosecutrix at any point of time i.e during the course of investigation of the case, or recording of her statement u/s 164 Cr. PC or at the time of recording her deposition prior to this, nor this fact disclosed by her parents at any point of time, which clearly goes to show that the true facts have been concealed by them just to falsely implicate the accused Phoolwati and Anil @ Lillu, hence this concealment of the crucial fact point on the part of the prosecutrix and 104 of 149 105 FIR No. 718/07 PS - Nangloi her parents creates serious doubt of her version.
I have carefully perused and analysed the evidence on record.
The testimony of PW4 - prosecutrix has been reproduced, analysed and discussed in detail hereinbefore. The version of PW4 - prosecutrix, on the core spectrum of the crime has remained intact. PW4
- prosecutrix has given a graphic description of the incident and of the rigors which she had undergone.
The testimonies of PW5 - Smt. Mamta, mother of the prosecutrix and PW6 - Sh. Ram Tek, father of the prosecutrix have been reproduced, analysed and discussed hereinbefore. At the cost of repetition, the testimonies of PW5 - Smt. Mamta and PW6 - Sh. Ram Tek have been found to be natural, clear, reliable, inspiring confidence and having a ring of truth. They have deposed the facts as to what they experienced, observed and perceived. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicated them in the case.
So far as the plea raised by the Learned Counsel for the 105 of 149 106 FIR No. 718/07 PS - Nangloi accused Phoolwati and Anil @ Lillu that, prosecutrix in her cross examination recorded on 17/02/2011 has deposed that when she was leaving her house alongwith accused Phoolwati her neighbour i.e. Bitto and Raju etc. had seen her in the company of accused and this fact neither disclosed by the prosecutrix at any point of time i.e. during the course of investigation of the case or recording of her statement u/s 164 Cr.P.C. or at the time of recording her deposition prior to this nor this fact disclosed by her parents at any point of time, is concerned, it is evident from the record that during the crossexamination of PW4 - prosecutrix, the said accused did not voice his concern or raised any apprehension nor elicited the reasons on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. Nor during the crossexamination of PW5 - Smt. Mamta, mother of the prosecutrix and PW6 - Sh. Ram Tek, father of the prosecutrix, the said accused voiced his concern or raised any apprehension on the aspects regarding which the plea has been raised.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court 106 of 149 107 FIR No. 718/07 PS - Nangloi 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, 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 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 107 of 149 108 FIR No. 718/07 PS - Nangloi Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
It is a settled principle of law that every improvement or 108 of 149 109 FIR No. 718/07 PS - Nangloi variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the 109 of 149 110 FIR No. 718/07 PS - Nangloi 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.
23. Learned Counsel for the accused Phoolwati and Anil @ Lillu submitted that prosecutrix deposed in her cross examination that "I remained in a room for about 19 days. I can not tell whether any toilet or bathroom attached with the said room as I remained unconscious thoroughly (throughout) during my stay at the said room. I was never provided any food or eatables during the period of aforesaid 19 days. I was hardly provided water sometimes. During the period of aforesaid 19 days I never went for call of nature or took bath. I remained in the same clothes. I did not make any hue and cry during my stay at the aforesaid 110 of 149 111 FIR No. 718/07 PS - Nangloi room. Vol. I did not regain my consciousness during my stay at that place". Learned Counsel submitted that it is also beyond imagination and clearly indicates that she has deposed falsely before the Court.
Learned Counsel for accused Pradeep @ Lala submitted that as per crossexamination of PW4 - prosecutrix, she did not go to toilet i.e. latrine, bathroom upto 19 days and she does not know where the accused and other used to go to latrine, bathroom she further said that she does not know who used to bring food and water and whenever she gained conscious (consciousness) she was given beatings and became unconscious. "It is correct that during the whole period I remained unconscious. It is also correct that I do not know when comes the morning and night. I do not know whether the said room was rented or not or who owned the said room".
I have carefully perused and analysed the evidence on record.
The testimony of PW4 - prosecutrix has been reproduced, analysed and discussed in detail hereinbefore. It is well settled that the different people act and react to the different situations differently. There 111 of 149 112 FIR No. 718/07 PS - Nangloi is no any particular standard that every individual is to react to a situation in one particular way. The version of PW4 - prosecutrix, on the core spectrum of the crime has remained intact. PW4 - prosecutrix has given a graphic description of the incident and of the rigors which she had undergone.
When a minor girl, PW4 - prosecutrix who was under the total dominance and control of the accused and was made unconscious throughout during her confinement/stay in the room, one is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to raise hue and cry.
Non making of any hue and cry during her confinement/stay in a room by PW4 - prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by the clear, cogent and convincing evidence.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
112 of 149 113 FIR No. 718/07 PS - Nangloi
24. Learned Counsel for the accused Phoolwati and Anil @ Lillu submitted that PW5 - Mamta, mother of prosecutrix has deposed in her crossexamination that "I was having low blood pressure on that day and my husband accompanied me to Dr. Kanchan who is situated at a walking distance from my home. I along with my husband started from my home at about 1 a.m. but I do not remember the date, month and year. Within 15 minutes, i.e 11:15 a.m. the Doctor examined and free me and my husband. Doctor had not given any medicine and medical prescription and since the clinic was over crowded. We returned back without getting myself examined by the Doctor". Further she deposed that when they returned home they found her daughter prosecutrix (name withheld) missing and her two younger daughter who were playing outside her home in the other gali showed their ignorance about missing of prosecutrix (name withheld). Learned Counsel further submitted that PW6 Ram Tek, father of prosecutrix has deposed in his cross examination that "on the day of incident my wife was suffering from fever. I left my home at about 10/10:30 a.m. with my wife. My daughter/prosecutrix (name withheld) was alone at home as my two 113 of 149 114 FIR No. 718/07 PS - Nangloi other daughter had gone to School. The house was lying open as my daughter was at home. It took around one or one and a half hour with the Doctor as he took time in diagnosing my wife and giving her medicine and prescribing other test. We were discharge by the Doctor at about 12 noon." Learned Counsel submitted that it is clear from the deposition of the prosecutrix that they were telling lie and were falsely deposing to support the fabricated story of going to Doctor just to create false incriminating evidence against the accused Phoolwati and Anil @ Lillu but the discrepancy in their deposition qua the said fact clearly shows that they have deposed falsely before the Court.
I have carefully perused and analysed the evidence on record.
The testimony of PW4 - prosecutrix has been reproduced, analysed and discussed in detail hereinbefore. The version of PW4 - prosecutrix, on the core spectrum of the crime has remained intact. PW4
- prosecutrix has given a graphic description of the incident and of the rigors which she had undergone.
The testimonies of PW5 - Mamta, mother of the prosecutrix 114 of 149 115 FIR No. 718/07 PS - Nangloi and PW6 - Ram Tek, father of the prosecutrix have been reproduced, discussed and analysed hereinbefore. At the cost of repetition, on careful perusal and analysis, their testimonies have been found to be natural, clear, cogent, reliable and having a ring of truth. Inspite of their incisive crossexamination nothing material has been brought out so as to impeach their creditworthiness. They have deposed the facts which they performed, experienced and observed and also about the facts which were disclosed to them, relating to the crime, shortly after the incident, at the first available opportunity, by their daughter/PW4 - prosecutrix, which are relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
As far as the theory propounded by the Learned Counsel for accused Phoolwati and Anil @ Lillu that, "it is clear from the deposition of the prosecutrix that they (PW5 Smt. Mamta and PW6
- Sh. Ram Tek) were telling lie and were falsely deposing to support the fabricated story of going to Doctor just to create false incriminating evidence against the accused Phoolwati and Anil @ Lillu", is concerned, it is found to have no substance in view of the testimonies of PW4 - prosecutrix, PW5 - Smt. Mamta and PW6 - Sh. Ram Tek, as reproduced, analysed and discussed hereinbefore, it is 115 of 149 116 FIR No. 718/07 PS - Nangloi settled principle that, 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. Nor the said theory so propounded has at all been made probable much established by any cogent evidence.
So far as the plea relate to the discrepancies in the testimonies of PW5 - Smt. Mamta and PW6 - Sh. Ram Tek, is concerned, these are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence. Nor do they go to the root of the matter. Nor do that reflect upon the substantive evidence and the probative value of the statement made by PW4 - prosecutrix on material and relevant aspects. Nor do they dislodge the substratum of the prosecution case and despite their existence the clear, cogent and convincing, reliable and trustworthy evidence proved on record bears out the case of the prosecution.
At the cost of repetition, 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 116 of 149 117 FIR No. 718/07 PS - Nangloi witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
At the cost of repetition, even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
At the cost of repetition, 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.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
117 of 149 118 FIR No. 718/07 PS - Nangloi
25. Learned Counsel for the accused Phoolwati and Anil @ Lillu submitted that PW15 Babu Lal has deposed in his cross examination that "The food and clothes were supplied to them at the said room at village Rani Pura and my relative as well as the said girl used to prepare food. The said girl did not complaint to my aunt or to the other village persons at village Rani Pura. The girl was living happily of her own at the said village Rani Pura. Learned Counsel submitted that thus, it is crystal clear from the deposition of the above witnesses that the prosecutrix has fabricated a false story in her statement u/s 164 Cr.P.C. Ex.PW4/B qua the accused at the instance of her parents just to implicate the innocent persons in the present case. Hence, their testimonies are liable to be discarded.
I have carefully perused and analysed the evidence on record.
The testimony of PW15 - Babu Lal @ Pappu has been reproduced, discussed and analysed hereinbefore. PW15 - Babu Lal has deposed the facts which he observed and experienced. It is not made 118 of 149 119 FIR No. 718/07 PS - Nangloi clear by the Learned Counsel for the accused as to what benefit he intends to reap from the testimony of PW15 - Babu Lal, especially, in view of the cogent, reliable and consistent evidence of PW4 - prosecutrix proved on the record. PW4 - prosecutrix has given a graphic description of the incident and of the rigors which she had undergone. In the circumstances, the corelation made between the testimony of PW15 - Babu Lal and that of PW4 - prosecutrix does not hold any water. Moreover, the testimony of PW15 - Babu Lal also fortifies the case of the prosecution that PW4 - prosecutrix after kidnapping was taken to Sikkar, Rajasthan and had lived/stayed there in his house for about 5/6 days.
At the cost of repetition, PW15 - Sh. Babu Lal @ Pappu in his examinationinchief has deposed that : "I am working as a Painter and do white washing. On 25/08/2007, my cousin Vinod brought two boys and one girl in a maruti Van no. 4053 at about 5:00/6:00 a.m. Accused Pradeep @ Lala present in the Court today, was one of those boys. The girl was wearing a suit salwar and was wearing metal bangles upto just below elbows. I inquired from Vinod as to who were those persons who told me that accused Pradeep Lala and the other boy were his friends. The girl was wife of 119 of 149 120 FIR No. 718/07 PS - Nangloi Pradeep Lala. On suspicion, I called mother of Vinod and inquired form her also, who told me that those boys were friends of Vinod. Those boys wanted a rented room for their stay. Since there was no room available at Shri Madhopur where I was residing at that time, hence I sent them to Village Ranipura where my house was situated and gave them one vacant room in the said house for their stay. They lived there for about 5/6 days. In the meanwhile, I came to know that those boys had kidnapped that girl but before that the accused Pradeep @ Lala alongwith that girl had left the house in the said Maruti van. Police reached at my residence on 11/09/2007 in the night and recorded my statement after about 1:30 or 2:00 a.m. The name of other boy was told to me by Vinod as Shashi Kant."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused Phoolwati and Anil @ Lillu submitted that the name of the accused Phoolwati and Anil @ Lillu were not mentioned in the FIR, and later on they were booked in the present case. As per the deposition of the prosecutrix there was a motive and reason on their part as they were previously aggrieved from the accused Phoolwati and Anil @ Lillu. During the investigation no incriminating evidence was found by the investigating agency against the accused 120 of 149 121 FIR No. 718/07 PS - Nangloi Phoolwati and Anil @ Lillu, therefore they were not charge sheeted in this case. Accused Phoolwati and Anil @ Lillu were summoned u/s 319 Cr.P.C on the basis of the chiefexamination of the prosecutrix but her crossexamination prove the innocence of the accused Phoolwati and Anil @ Lillu. The prosecutrix herself gave two version in this case i.e earlier version in the rukka and later version in her statement u/s 164 Cr.P.C. As per her earlier version accused Phoolwati and Anil @ Lillu were no where in the picture therefore they were not chargesheeted.
I have carefully perused and analysed the evidence on record.
The testimony of PW4 - prosecutrix has been reproduced, analysed and discussed in detail hereinbefore. The version of PW4 - prosecutrix, on the core spectrum of the crime has remained intact. PW4
- prosecutrix has given a graphic description of the incident and of the rigors which she had undergone.
The said plea, so raised, partly relates to the proceedings conducted during the trial and partly to the evidence on the record.
At the cost of repetition, undisputably, after the examination 121 of 149 122 FIR No. 718/07 PS - Nangloi of PW4, the prosecutrix (name withheld), was completed, on 13/08/2009, an application u/s 319 Cr.P.C. was filed on behalf of the State for summoning of accused Phoolwati, Anil @ Lillu and Prahlad which was allowed by the Learned Predecessor Court vide order dated 19/01/2010. Accused Phoolwati was summoned u/s 363/366 IPC; accused Anil @ Lillu was summoned u/s 363/366/328 IPC and accused Prahlad was summoned u/s 363/366/376 (2) (g) IPC. Accused Prahlad could not be served and his presence could not be procured, as his parentage, address and whereabouts were not known as is reflected in the order sheet dated 26/02/2010.
As regards the plea of two version theory of PW4 - prosecutrix, the same has been discussed and analysed hereinabove and does not call for any further discussion on it.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for the accused Phoolwati and Anil @ Lillu submitted that as per her later version in her statement u/s 164 122 of 149 123 FIR No. 718/07 PS - Nangloi Cr.P.C. she entirely changed her earlier version and allegedly named accused Phoolwati and Anil @ Lillu and one Prahlad by fabricating the fact. Learned Counsel submitted that if we believe the later version of the prosecutrix however not admitted " if the alleged incident is true and took place then why the prosecutrix did not disclose the name of the last seen neighbour witnesses Bitto and Raju who saw her when she was leaving her house with accused Phoolwati, on the other hand if we assume the allegation qua the accused Phoolwati and Anil @ Lillu however not admitted, that it would had happened then the neighbour who saw her at the time of leaving her house with accused Phoolwati must would have come forward of their own to disclosed the fact / incident to her parents whatever they had saw because it is universal rule of behaviour. Further accused Prahlad could not be apprehended, even his name and parentage could not come on record, besides it no prosecution witness of the alleged incident in Rajasthan has deposed qua the presence of Prahlad during the entire episode even anyone witness except the prosecutrix who deposed regarding his name. Which clearly indicates that prosecutrix has concealed the true fact and fabricated a false story by giving a false fabricated and concocted version in her 123 of 149 124 FIR No. 718/07 PS - Nangloi statement u/s 164 Cr.P.C. just to satisfy the previous grudge of her parents.
I have carefully perused and analysed the evidence on record.
The plea so raised by the Learned Counsel for the accused is a repeated one and the same has already been dealt with hereinbefore and does not call for any further discussion on it.
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 Phoolwati and Anil @ Lillu submitted that the entire deposition of the prosecutrix dated 17/02/2011 clearly indicates that the incident deposed by the prosecutrix is beyond the imagination and is fabricated one which is not believable as she narrated the entire story of 19 days Delhi to Rajasthan and Rajasthan to Delhi and lived there for 19 days and meet number of peoples there but neither prosecutrix made hue and cry nor she disclosed the fact of 124 of 149 125 FIR No. 718/07 PS - Nangloi her kidnapping to anyone at any point of time during her entire stay in Rajasthan which clear the entire picture and creates the question qua the veracity of the prosecutrix.
Learned Counsel for accused Pradeep @ Lala submitted that she also does not know if there is check post in two places from Sikkar to Delhi and toll tax deposited at the Border. "I do not know if there is checking of vehicle at Delhi border. I do not know if the vehicle stopped at any shop from Sikkar to Delhi. It is correct that I suddenly became conscious at Mangol Puri chowk red light. I do not know if there are Police PCR Van and other vehicles of Police at Mangol Puri Chowk red light. It is correct that in Mangol Puri Chowk so many vehicles were passing. One public person Shashi Kant who helped me in hiring me TSR. I reached at Police Station Punjabi Bagh by a TSR. No inquiry was made from the TSR driver by the Police official of Police Station Punjabi Bagh. Shashi Kant paid Rs. 60/ as a fare to the TSR Driver".
"At Mangol Puri chowk I did not make any telephone call to my parents. It is correct that there is a telephone connection at our house by the number 9210780606 but now this number is not working". "I had not
125 of 149 126 FIR No. 718/07 PS - Nangloi stated to the Police that I am studying in 7th class in Govt. Sarvoday Co Education School. I have not stated to the Police that I know Pradeep Lala about 34 months prior to the incident and the Fufa Ved Prakash of Pradeep also reside in our mohalla and the phone no. of Pradeep is 9210650643 with whom I used to contact and some time used to give miss call. It is correct that my mobile no. is 9210780606 but I have not stated in my statement to the Police about my telephone no. I have not given statement Ex. PW4/A to the Police but the Police has recorded the same of their own, however they obtained my signature at point 'X'. I do not know if the ration card of my family was given by the accused to the Police. It is correct that Ration Card belongs to my family. I do not know the complete residential address and parentage of Shashi Kant. It is correct that I have never visited the house of Shashi Kant. It is wrong to suggest that I had a love affair with the accused Pradeep Lala. It is wrong to suggest that I had eloped with Pradeep Lala for marrying with him".
I have carefully perused and analysed the evidence on record.
126 of 149 127 FIR No. 718/07 PS - Nangloi The testimony of PW4 - prosecutrix has been discussed and analysed hereinbefore. At the cost of repetition, her testimony has been found to be natural, clear, cogent, convincing and inspiring confidence. Her entire testimony does not indicate, in any manner, that the incident deposed by her is beyond the imagination and is a fabricated one and is not believable. She has deposed all the facts and circumstances through the rigors of which she had undergone. It is well settled that the different people act and react to the different situations differently. There is no any particular standard that every individual is to react to a situation in one particular way. The version of PW4 - prosecutrix, on the core spectrum of the crime has remained intact. In the circumstances, the theory propounded by the Learned Counsel for the accused that, "the testimony of PW4 - prosecutrix, is beyond imagination, fabricated one and unbelievable", falls flat on the ground.
So far as the theory propounded by the Learned Counsel for the accused Pradeep @ Lala by way of suggestion to PW4 - prosecutrix during her crossexamination that, "she had a love affair with accused Pradeep @ Lala and she had eloped with accused 127 of 149 128 FIR No. 718/07 PS - Nangloi Pradeep @ Lala for marrying with him", which PW4 - prosecutrix negated, is concerned, the said theory so propounded has not at all being made probable much established by any cogent evidence. Nor even a single word regarding the said theory so propounded by the Learned Counsel for accused Pradeep @ Lala has been uttered by accused Pradeep @ Lala during his statement recorded u/s 313 Cr.P.C.
Moreover, the theory of false implication of accused Pradeep @ Lala attempted to be propounded through defence witnesses namely DW1 Suresh S/o Chitru and DW2 Ajay Kumar S/o Lakhi Ram that there was dispute due to vehicle problem between the family of accused Pradeep @ Lala and that of PW4 - prosecutrix also does not hold water and the said defence witnesses have been found to be procured one and their testimonies do not inspire confidence as discussed hereinbefore.
At the cost of repetition, DW1 Suresh S/o Chitru R/o VPO Tikri Kalan, Delhi - 110041, who deposed that Pradeep @ Lala son of late Kailash Chand was residing at C2/126, Sultan Puri, Delhi and the 128 of 149 129 FIR No. 718/07 PS - Nangloi dispute between both the family was due to vehicle problem with the Ram Tek father of prosecutrix (name withheld) and due to this reason prosecutrix (name withheld) and her father falsely implicate to Pradeep @ Lala in this case. Pradeep @ Lala is innocent. He knows him since long time. In between 09/09/2007, Pradeep @ Lala was residing with him at his above said address (being his bhanja). Pradeep @ Lala has good moral character.
During his crossexamination by the Learned Addl. PP DW1 Suresh, maternal uncle of accused Pradeep @ Lala has taken a complete UTurn when he diposed that, "I am not aware as to why Pradeep and Ram Tek used to quarrel. I made enquiries from Pradeep as to why he used to quarrel with Ram Tek but Pradeep has not disclosed anything to me".
"I have not made any written complaints to the higher officer of the Police or in any court that accused Pradeep has been falsely implicated in this case".
The aforesaid part of crossexamination as conducted by the 129 of 149 130 FIR No. 718/07 PS - Nangloi Learned Addl. PP for the State has nullified the impact of examination inchief of DW1 Suresh in which he has deposed that dispute between the both family was due to vehicle problem with Ram Tek, father of prosecutrix (name withheld).
If in the estimation of DW1 - Suresh (maternal uncle of accused Pradeep @ Lala), that his Bhanja/accused Pradeep @ Lala has been falsely implicated by prosecutrix (name withheld) and her father in the case, then why DW1 - Suresh did not make any complaint against the alleged false implication of accused Pradeep @ Lala to Police/Senior Police officer or to any count, the reasons for the same must be known to him. It clearly indicates that, Had accused Pradeep @ Lala been falsely implicated in the case, DW1 - Suresh (maternal uncle of accused Pradeep @ Lala) must have made the complaint to Police/Senior Police officer or to any count against his false implication. In the circumstances, the testimony of DW1 - Suresh does not inspire confidence and he is a procured witness.
At the cost of repetition, DW2 Ajay Kumar S/o Lakhi Ram R/o H. No. 101, Kalyan Pana, Tikri Kalan, Delhi - 110041, who deposed 130 of 149 131 FIR No. 718/07 PS - Nangloi that Pradeep @ Lala son of late Kailash Chand was residing at C2/126, Sultan Puri, Delhi and the dispute between both the family was due to vehicle problem with the Ram Tek father of prosecutrix (name withheld) and due to this reason prosecutrix (name withheld) and her father falsely implicate to Pradeep @ Lala in this case. Pradeep @ Lala is innocent. He knows him since long time. In between 09/09/2007, Pradeep @ Lala was residing with his Mama at Village Tikri Kalan. He (DW2) saw him in the Village Tikri Kalan. He has good moral character.
DW2 Ajay Kumar during his crossexamination by Learned Addl. PP for State has deposed that, "I know accused Pradeep since his childhood. I am having visiting terms with the family of accused Pradeep and having cordial relation with them. Pradeep is driver by profession". "I am (have) not made any written complaints to the Police or went to the Police Station that accused Pradeep has been falsely implicated in this case".
From above it is clearly indicated that DW2 Ajay Kumar knows accused Pradeep @ Lala since childhood and is having visiting terms with the family of accused Pradeep @ Lala and having cordial 131 of 149 132 FIR No. 718/07 PS - Nangloi relations with them.
If in the estimation of DW2 - Ajay Kumar, who was knowing accused Pradeep @ Lala since childhood and was having visiting terms with the family of accused Pradeep @ Lala and was having cordial relations with them that accused Pradeep @ Lala has been falsely implicated then why he did not make any complaint against the alleged false implication of accused Pradeep @ Lala to Police/Senior Police officer or to any count, the reasons for the same must be known to him. It clearly indicates that, Had accused Pradeep @ Lala been falsely implicated in the case, DW2 - Ajay Kumar must have made the complaint to Police/Senior Police officer or to any count against his false implication. In the circumstances, the testimony of DW2 - Ajay Kumar does not inspire confidence and he is a procured witness.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
132 of 149 133 FIR No. 718/07 PS - Nangloi
29. Learned Counsel for accused Phoolwati and Anil @ Lillu submitted that no public witnesses have been joined by the Police during investigation despite the fact that the alleged place of occurrence is a public place, and is also a thickly populated area and did not make any efforts to know the true facts of incident from any independent witness or neighbour from the locality.
Learned Counsel for accused Pradeep @ Lala submitted that there is no public witness in this case and the locality is thickly populated and a number of workers were working surrounding the place where alleged offence occurred and complainant did not raise any alarm and no any accused person were arrested from the spot.
I have carefully perused and analysed the evidence on record.
PW19 - ASI Mahender SIngh during his crossexamination on behalf of accuse dPRadeep @ Lala has deposed that : "It was a residential area where the house was pointed out by accused Pradeep @ Lala. I did not enquire any person of the locality who was residing adjacent to the said house. I did not call or enquire the 133 of 149 134 FIR No. 718/07 PS - Nangloi Sarpanch of the village with regard to investigation of this case. We stayed there for about 1½ hour."
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.
The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of 134 of 149 135 FIR No. 718/07 PS - Nangloi 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."
It is a matter of common experience that the public persons are reluctant to join the Police in the investigation.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).
In the circumstances, there is no substance in the plea so 135 of 149 136 FIR No. 718/07 PS - Nangloi raised by the Learned Counsel for the accused.
30. Learned Counsel for accused Pradeep @ Lala submitted that as per the MLC Ex. PW8/A of the prosecutrix, no any fresh external injury was seen over visible part of her body.
I have carefully perused and analysed the evidence on record.
As regards nonfinding of any signs of injury on the body part of the prosecutrix is concerned, the absence of signs of any injury does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or 136 of 149 137 FIR No. 718/07 PS - Nangloi leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
137 of 149 138 FIR No. 718/07 PS - Nangloi In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for accused Pradeep @ Lala submitted that accused Pradeep @ Lala was arrested with delay and the Police officials released the real culprit and falsely implicated the said accused in the case.
I have carefully perused and analysed the evidence on record.
The testimony of PW4 - prosecutrix has been reproduced, analysed and discussed in detail hereinbefore. The version of PW4 - prosecutrix, on the core spectrum of the crime has remained intact. PW4
- prosecutrix has given a graphic description of the incident and of the rigors which she had undergone.
PW12 - W/ASI Darshana in her examinationinchief has deposed that : "On 09/09/2007, I was posted at PS - Nangloi, PP - Nihal Vihar. On that day, I was entrusted with the investigation of the present case and the copy of FIR, original rukka was handed over to me by SI 138 of 149 139 FIR No. 718/07 PS - Nangloi Mahinder Singh. During investigation, I made efforts to search accused Pradeep after making inquiries from the prosecutrix and on the night intervening 0910/09/2007, the accused Pradeep Lala present in the Court was arrested on the pointing out of prosecutrix vide arrest memo Ex. PW3/A which bears my signature at point 'B'. The personal search of accused was conducted vide memo Ex. PW3/B which bears my signature at point 'A'."
To the same effect, has also been deposed by PW3 Constable Dharambir in his examinationinchief that : "We went to Sultan Puri and on the pointing out of prosecutrix, accused Pradeep @ Lala was apprehended and he was arrested vide memo Ex. PW3/A. His personal search was conducted vide memo Ex. PW3/B."
There is nothing in the crossexamination of PW12 - W/ASI Darshana and PW3 - Constable Dharambir so as to impeach their creditworthiness. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.
PW4 - prosecutrix reported the matter to the Police on 09/09/2007 and on 10/09/2007, accused Pradeep @ Lala was arrested at 139 of 149 140 FIR No. 718/07 PS - Nangloi the instance of the prosecutrix vide arrest memo Ex. PW3/A and the personal search memo Ex. PW3/B. Learned Counsel for the accused failed to explain as to how there is delay in the arrest of the accused Pradeep @ Lala.
As regards the theory floated by the Learned Counsel for accused Pradeep @ Lala that, "Police officials released the real culprit and falsely implicated the accused Pradeep @ Lala in the case", is concerned, the said theory so propounded, not only being vague, 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 the accused Pradeep @ Lala during his statement recorded u/s 313 Cr.P.C. It is also evident from the record that during the cross examination of PW12 - ASI Darshana IO, the said accused did not voice his concern or raised any apprehension on the said theory so propounded. In the circumstances, the said theory so propounded is merely an afterthought and falls flat on the ground.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court 140 of 149 141 FIR No. 718/07 PS - Nangloi 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).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
32. Learned Counsel for accused Pradeep @ Lala submitted that MLC of victim clearly shows that as per her statement, at the time and days of incident, she was in last menses period and the date of LMP was 04/09/2007 and she was medically examined on 09/09/2007.
I have carefully perused and analysed the evidence on 141 of 149 142 FIR No. 718/07 PS - Nangloi record.
The testimony of PW4 - prosecutrix has been reproduced, analysed and discussed in detail hereinbefore. The version of PW4 - prosecutrix, on the core spectrum of the crime has remained intact. PW4
- prosecutrix has given a graphic description of the incident and of the rigors which she had undergone.
With due respect, it appears that Learned Counsel for the accused has either misread or not read the evidence on record.
The medical and the gynecological examination of PW4 - prosecutrix, as was conducted by PW8 - Dr. Renu, S.R. SGM Hospital and PW16 Dr. Binay Kumar, MO, SGM Hospital has been discussed and analysed hereinbefore.
At the cost of repetition, PW8 Dr. Renu, S.R. SGM Hospital has deposed that on 09/09/2007 she gynaecologically examined the prosecutrix and handed over the sealed pullanda to the Police. On examination, she found the hymen absent and also proved the MLC Ex. PW8/A bearing her signature at point 'A'.
At the cost of repetition, PW16 Dr. Binay Kumar, MO, SGM Hospital, who deposed that on 09/09/2007, he medically examined 142 of 149 143 FIR No. 718/07 PS - Nangloi the patient/prosecutrix (name withheld) and prepared the MLC Ex. PW8/A, bearing his signature at point 'C' and further deposed that after examining the prosecutrix, he referred her to the gynaecology department.
Perusal of the gynecological examination of PW4 - prosecutrix, as conducted by PW8 - Dr. Renu, SR, SGM Hospital on 09/09/2007 at 6:00 p.m., clearly indicates the LMP (Last Menstrual Period) as 04/09/2007.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea. Does he intend to convey that no sexual assault could have been committed on PW4 prosecutrix having the LMP as 04/09/2007. If it is so, it is found to have no substance as PW4 - prosecutrix during her examination inchief has specifically deposed that, "They used to have sex with me continuously for 19 days and only when my mensuration period started, they stopped committed rape on me, however, I was kept in the same room." Moreover it is also evident from the record that during the crossexamination of PW4 - prosecutrix, the said accused did not voice his concern or raised any apprehension regarding the plea raised 143 of 149 144 FIR No. 718/07 PS - Nangloi that, at the time and days of incident, she was in last menses period having LMP as 04/09/2007 and the sexual assault could not have been committed upon her. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.
At the cost of repetition, recently in case 'Mahavir Singh 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).
In the circumstances, there is no substance in the plea so 144 of 149 145 FIR No. 718/07 PS - Nangloi raised by the Learned Counsel for the accused.
33. Learned Counsel for accused Pradeep @ Lala referred to the cases and are reported as Laxman Gouda Vs. State of Orissa, 1982 CRI.L.J. 929 (ori), Surender Kumar Vs. State of Punjab, AIR 1999 SC 215 and Atar Singh Vs. State of Rajasthan, AIR 2004 SC 2865.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
34. In view of above and in the circumstances, prosecution has 145 of 149 146 FIR No. 718/07 PS - Nangloi thus proved its case beyond shadows of all reasonable doubts that on 22/08/2007 at about 11:00 a.m., near Dispensary, Shiv Mandir, Nangloi, Delhi, accused Phoolwati, Anil @ Lillu, Pradeep @ Lala and Prahlad (not arrested) in furtherance of their common intention kidnapped PW4
- prosecutrix, aged about 15 years (to be exact 15 years 05 months and 14 days) out of the lawful keeping of her father Sh. Ram Tek with intent that she may be forced or seduced to illicit intercourse and in furtherance of their common intention, she was taken to Sikkar, Zila - Rajasthan by accused Prahlad (not arrested), where she was kept confined in a room for 19 days from 22/08/2007 to 09/09/2007 where accused Pradeep @ Lala and accused Prahlad (not arrested) in furtherance of their common intention forcibly, continuously committed rape upon PW4 - prosecutrix from 22/08/2007 to 09/09/2007 without her consent. The offences were committed in the manner that on 22/08/2007, at about 11:00 a.m., the parents of PW4 - prosecutrix had gone for taking medicine at the same time accused Phoolwati, who is Secret Informer of the Police, with her son accused Anil @ Lillu came to the house of prosecutrix and told her that her parents are beaten by the Police and asked her to take her Ration Card and to accompany them to the Police Station but on the way to the 146 of 149 147 FIR No. 718/07 PS - Nangloi Police Station, there was one white colour van standing on the road with opened door and when they passed through it, accused Phoolwati pushed her (prosecutrix) inside the van and pressed her mouth with her hand. Accused Phoolwati and her son accused Anil @ Lillu took her (prosecutrix) in the van and asked the driver of the van, the accused Prahlad (not arrested), to start and run away the vehicle. The vehicle ran upto some distance and accused Phoolwati got down and thereafter her son accused Anil @ Lillu pressed her mouth with his hands and he made her (prosecutrix) to smell something and thereafter near the red light of Nangloi, he (accused Anil @ Lillu) got down from the vehicle and she (prosecutrix) became unconscious. On the next day, when she (prosecutrix) regained consciousness, she found herself in a closed room, where accused Pradeep @ Lala and accused Prahlad (not arrested) were found present and they kept her there in that room for about 19 days and they used to make her unconscious and used to beat her and used to have sex with her, without her consent and whenever she regained consciousness, she found herself without clothes. They had sex with her continuously for 19 days and only when her mensuration period started they stopped committed rape on her and she was kept in that room and 147 of 149 148 FIR No. 718/07 PS - Nangloi one day, they attended some telephone call and they said this Sikkar Zila is not safe for them and they took her to Delhi in the same van, which was driven by accused Prahlad (not arrested) and when the van reached at Mangol Puri Red Light, as they wanted to purchase Gutka, they stopped the vehicle, only then she pushed and got down from the van and they caught her and gave beatings and on been seen beating her, she was rescued by one public person and then they [accused Pradeep @ Lala and Prahlad (not arrested)] ran away in the same van.
I accordingly hold accused Pradeep @ Lala, Phoolwati & Anil @ Lillu guilty for the offences punishable u/s 363/366/34 IPC. Accused Pradeep @ Lala is also hold guilty for the offence punishable u/s 376 IPC and convict them thereunder.
35. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Pradeep @ Lala, Phoolwati & Anil @ Lillu in the commission of the offences u/s 363/366/34 IPC and that of accused Pradeep @ Lala also in the commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the 148 of 149 149 FIR No. 718/07 PS - Nangloi prosecution has been able to bring the guilt home to the accused Pradeep @ Lala, Phoolwati & Anil @ Lillu beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Pradeep @ Lala, Phoolwati & Anil @ Lillu guilty for the offences punishable u/s 363/366/34 IPC. Accused Pradeep @ Lala is also hold guilty for the offence punishable u/s 376 IPC and convict them thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 25th Day of November, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 149 of 149