State vs . 1. Narender on 22 May, 2015

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Delhi District Court

State vs . 1. Narender on 22 May, 2015

                                1
                                                                                   FIR No. 21/10
                                                                                     PS - Narela



    IN THE COURT OF SH. MAHESH CHANDER GUPTA : 
   ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK 
    COURT : NORTHWEST DISTRICT : ROHINI : DELHI

SESSIONS CASE NO. :  48/13
Unique ID No.     :   02404R0301402010

State            Vs.        1.  Narender
                                 S/o Shri Rohtash
                                 R/o Gali No. 14, Gautam Colony,
                                Narela, Delhi.

                            2.  Tek Ram @ Tinku @ Aman
                                 S/o Shri Hari Om
                                 R/o D843, Gali No. 15,
                                 Gautam Colony, Narela, 
                                 Delhi.

                            3.  Vikram @ Aman
                                 S/o Shri Ramesh Kumar
                                 R/o House No. 73,
                                 Panna Udyan, Narela, Delhi.

FIR No.         :  21/10
Police Station  :  Narela
Under Sections  :  376(2)(g)/363/366 IPC


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                                                                                                FIR No. 21/10
                                                                                                  PS - Narela




Date of committal to session Court           :     27/01/2012

Date on which judgment reserved              :     16/05/2015

Date on which judgment announced :                 22/05/2015



J U D G M E N T

1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 16/01/2010, W/ASI Raj Bala was present in the Police Station Narela. Prosecutrix came to the Police Station alongwith her parents and disclosed about the committal of rape upon her. On which prosecutrix was sent to M. B. Hospital for medical examination with Lady Constable Durga and parents of prosecutrix accompanied her and her medical examination was got conducted and on her MLC Doctor had endorsed alleged H/o sexual assault on 15/01/2010 at around 2:15 p.m. Prosecutrix (name withheld being a case u/s 376 IPC) made the statement which is to the effect that, she lives at Gali No. 12, Near DAV School, Gautam Colony, Narela, Delhi and studies in 9th class in 2 of 187 3 FIR No. 21/10 PS - Narela Sarvodaya Kanya Vidayalaya, Narela. Yesterday on 15/01/2010, at about 1:45 p.m. she had started from School for going to her house, where at the gate of the School itself, Aman @ Tek Ram met her who was on the motorcycle and he telling her his birthday and making her sit on his motorcycle took her to Lal Flats of DDA. With whom side by side on another motorcycle, two boys also reached there whom she can identify on being shown. There, in one flat Aman @ Tek Ram and one of the other two boys had committed Galat Kaam (Rape) upon her without her consent and the other boy kept standing outside. Thereafter, Aman @ Tek Ram making her sit on the motorcycle, had left a little distance away from her house. She knew Aman @ Tek Ram previously as he usually used to meet her while coming and going to School. Yesterday (15/01/2010), due to fever she did not tell about the incident to anyone and today (16/01/2010) she has told about the incident to her mother and now she has come with her parents to the Police Station. Legal action be taken against Aman @ Tek Ram and other two boys. From the statement of the prosecutrix and on the inspection of the MLC, finding that offence u/s 376(2)(g) IPC appeared to have committed, the case was got registered. The sealed exhibits handed over by the Doctor after the 3 of 187 4 FIR No. 21/10 PS - Narela medical examination of the prosecutrix were taken into Police possession. At the instance of the prosecutrix, site plan (without scale) was prepared. On the identification of the prosecutrix accused Narender was apprehended. On 18/01/2010, on the identification of the prosecutrix accused Vikram @ Aman was arrested. The motorcycle on which the prosecutrix was taken on the date of incident, was taken into Police possession. The statements of the witnesses were recorded. Both the accused Narender and Vikram @ Aman were got medically examined from the SRHC Hospital and the sealed exhibits handed over by the concerned Doctor after their medical examination were taken into Police possession. The case property was deposited in the Malkhana. On 20/01/2010, on the identification of the prosecutrix, accused Tek Ram @ Tinku @ Aman was apprehended and after confessing his crime (galti), his father Hari Om was informed and the relevant papers were prepared, which were signed by Hari Om father of accused Tek Ram @ Tinku @ Aman. Statements of the witnesses were recorded. Medical examination of accused Tek Ram @ Tinku @ Aman was got conducted from the SRHC Hospital and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession. Tek Ram 4 of 187 5 FIR No. 21/10 PS - Narela was produced before the Juvenile Justice Board and while sending the said accused to observation home order for verification of his 10th Class Certificate and first attended School was made. As per the 10th class mark sheet of Haryana Board his date of birth is 15/10/1993 and as per the first attended School and MCD Certificate his date of birth is 18/10/1990. The photocopy of the mark sheet of metric class of Haryana Board of accused Vikram was also sent for verification, in which his date of birth was shown as 17/02/1993, by Sh. Sudhanshu Kaushik, Learned MM and accused Vikram was sent to observation home. Ossification test of accused Vikram was got conducted by a Board in the BJRM Hospital in which his age was estimated as 1718 years. Accused Vikram @ Aman had taken away the prosecutrix on the motorcycle. All the said three accused had committed the offence in furtherance of their common intention. Accused Vikram in his disclosure statement has also stated of the committal of rape by accused Narender also. Accused Narender was also got medically examined and the sealed exhibits have also been sent to the FSL. Counsel of accused Narender had moved an application for TIP of accused Narender, in the proceedings of which the prosecutrix did not identify accused Narender while accused Narender was arrested on 5 of 187 6 FIR No. 21/10 PS - Narela the identification of the prosecutrix.

Upon completion of the necessary investigation, challan for the offences u/s 376(2)(g)/363/366 IPC was prepared against accused Narender and was sent to the Court for trial. Separately challan was prepared against accused Tek Ram @ Tinku and Vikram being juvenile and was sent to the Juvenile Justice Board for trial. However, in the proceedings both the accused Tek Ram @ Tinku and Vikram were held not to be juvenile and accordingly separately supplementary challans u/s 376(2)(g)/363/366 IPC were prepared against them and were sent to the Court for trial.

2. Since the offences under section 376(2)(g)/366 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 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 363/34 IPC, u/s 366/34 IPC and 6 of 187 7 FIR No. 21/10 PS - Narela u/s 376(2)(g) IPC was made out against accused Narender, Tek Ram @ Tinku @ Aman and Vikram. The charge was framed accordingly, which was read over and explained to the accused to which they pleaded not guilty and claimed trial.

4. In support of its case prosecution has produced and examined 17 witnesses. PW1 - HC Ram Karan, PW2 - Lady Constable Pooja, PW3 - Constable Parveen, PW4 - HC Suresh Kumar, PW5 - Dr. Geetanjali Singh, Specialist Gynae, Maharishi Balmiki Hospital, Pooth Khurd, Delhi, PW6 - Sh. Vinod Kumar, Laboratory Asst., S.K.V. No. 2, Narela, Delhi, PW7 - Ms. Nazma Khan, PW8 - Sh. Krishan Pal, Head Master, SDHS (Swami Dayanand High School), Kundli, District Sonipat, PW9 - Sh. Satish Kumar, Assistant Public Health Inspector, Narela Zone, MCD, Delhi, PW10 - Sh. Rohtash, PW11 - Constable Hardesh Kumar, PW12 - Mrs. Poonam, PW13 - Ms. Poonam Sharma, SSO (Biology), FSL, Rohini, PW14 - Constable Gunwant, PW15 - Dr. N. S. Khurana, MO, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, PW16 - Prosecutrix (name withheld) and PW17 - ASI Raj Bala.

7 of 187 8 FIR No. 21/10 PS - Narela

5. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Ram Karan who tendered his examinationin chief by way of affidavit Ex. PW1/1 bearing his signature at points 'A' and 'B' to the effect that on 16/01/2010, he was posted at PS - Narela, Delhi. He was duty Officer from 4:00 p.m. to 12:00 p.m. on 16/01/2010. On the basis of rukka presented by IO ASI Raj Bala of PS - Narela, he lodged a Kayme of the case and made endorsement on the rukka and thereafter got registered the FIR No. 21/10 u/s 376(2)(g) IPC on CIPA computer system through computer operation of PS - Narela. On the said day, the CIPA computer system was in proper working condition and FIR No. 21/10, u/s 376(2)(g) IPC, dated 16/01/2010 is correct print out of rukka. After the registration of case FIR No. 21/10, u/s 376(2)(g) copy of FIR and original rukka was handed over to ASI Raj Bala PS - Narela. He proved the copy of FIR Ex. PW1/A, signed by him at point 'A' and his endorsement on the rukka Ex. PW1/B, signed by him at point 'A'.

PW2 Lady Constable Pooja who tendered her 8 of 187 9 FIR No. 21/10 PS - Narela examinationinchief by way of affidavit Ex. PW2/1 bearing her signature at points 'A' and 'B' to the effect that on 16/01/2012, she was posted at PS - Narela, Delhi. She had gone with IO ASI Raj Bala of PS

- Narela for medical examination of victim (name withheld) at M. B. Hospital, Pooth Khurd after medical inspection made vide MLC bearing No. 95/10 she handed over the pullinda to IO ASI Raj Bala. She proved the seizure memo of exhibits of prosecutirx Ex. PW2/A, bearing her signature at point 'A'.

PW3 - Constable Praveen who tendered his examinationin chief by way of affidavit Ex. PW3/1 bearing his signature at points 'A' and 'B' to the effect that on 16/01/2010, he was posted at PS - Narela, Delhi. He got medical examination of accused Narender and Vikram @ Aman and Tek Ram done at SRHC Hospital. He produced all the accused persons before the Court.

PW4 HC Suresh Kumar who deposed that on 16/01/2010, he was posted at Police Station Narela. On that day, he was working as MHC(M) and on the same day three sealed parcels along with sample 9 of 187 10 FIR No. 21/10 PS - Narela seal of MB Hospital Pooth Khurd were deposited in the Malkhana by W/ASI Raj Bala. He received the same in the Malkhana vide entry No. 20 in Register No. 19. Copy of the same is Ex. PW4/A (running into two pages). On 18/01/2010 two sealed pullindas alongwith sample seal of SRHC Hospital and one motorcycle were deposited by W/ASI Raj Bala in the Malkhana. He received the same in the Malkhana vide entry No. 24 in Register No. 19. Copy of the same is Ex. PW4/B (running into two pages). On 20/01/2010 one sealed pullinda with sample seal of SRHC Hospital was deposited by W/ASI Raj Bala in the Malkhana. He received the same in the Malkhana vide entry No. 28 in Register No. 19. Copy of the same is Ex. PW4/C (running into two pages). On 09/03/2010 six sealed pullindas alongwith sample seals were sent to FSL vide RC No. 40/21/10 through IO W/ASI Raj Bala. Copy of the same is Ex. PW4/D bearing his signature at point 'A'. After depositing the same in the FSL, W/ASI Raj Bala handed over to him the receipt of FSL vide receipt No. FSL/2010/B099 dated 09/03/2010, copy of which is Ex. PW4/E (Original entries and original FSL receipt seen and returned).

PW5 Dr. Geetanjali Singh, Specialist, Gynae, Maharishi 10 of 187 11 FIR No. 21/10 PS - Narela Balmiki Hospital, Pooth Khurd, Delhi who deposed that she has been deputed by the Medical Superintendent of the Hospital to depose before this Court on behalf of Dr. Chand Kiran, who had left the services of the Hospital and her whereabouts are not known to the Hospital. She has seen the MLC No. 95/10, according to which on 16/01/2010 a patient/prosecutrix (name withheld), D/o Rohtash, aged 14 years female was brought to the Hospital by L/Constable Pooja with alleged history of sexual assault one day before by three people. Dr. Chand Kiran examined the above said prosecutrix (name withheld) vide MLC Ex. PW5/A bearing the signatures of Dr. Chand Kiran at point 'A' whose signatures she (PW5) identify having seen her while writing and signing as she had worked under her (PW5). As per the observations made by Dr. Chand Kiran, the history given was of sexual assault at 2:15 p.m. yesterday i.e. 15/01/2010. Further, history of sexual assault by three people taken on bike from outside her School at 2:00 p.m. Intercourse done by two people and victim drop back by at 3:00 p.m. As per the observations mentioned at point bracketed 'X' to 'X1' hymen was found ruptured.

11 of 187 12 FIR No. 21/10 PS - Narela PW6 Sh. Vinod Kumar, Laboratory Asst., S.K.V. No. 2, Narela, Delhi who deposed that he has brought the summoned record pertaining to the admission and date of birth of prosecutrix (name withheld) D/o Rohtash R/o House No. 115, Vijay Colony, Narela. As per the admission and withdrawal register prosecutrix (name withheld) was admitted in their School on 31/03/2006 in class 6th on the basis of the SLC of previous School Nigam Adarsh Kanya Vidhyalya, Pana Udhyan I, Narela, Delhi. Her date of birth as per the School record based upon the SLC is 12/12/1995. The relevant entry in the admission and withdrawal register is Ex. PW6/A (OSR) and the copy of SLC is Ex. PW6/B (OSR). The certificate issued by the Principal Dr. Poonam Nagpal is Ex. PW6/C whose signatures he identified at Point 'A'.

PW7 Ms. Nazma Khan is the NGO Councilor who deposed that on 16/01/2010, she received a call from Duty Officer of Police Station Narela and she was called at Police Station Narela. She reached at Police station Narela at about 10:00 - 11:00 a.m. and she met prosecutrix (name withheld) aged about 14 years in the Police Station who had disclosed to her (PW7) that on 15/01/2010 when she had left the 12 of 187 13 FIR No. 21/10 PS - Narela School then one Tek Ram had taken her on a bike and Vikram and Narender accompanied him on another bike. She also disclosed that out of these boys two of the boys had committed rape on her after taking her to red color flats. While two boys were committing rape upon her the third boy stood outside. She further disclosed that after the incident, the boy Tek Ram dropped her near her house. Her detailed statement was thereafter recorded by the Police in her presence. Thereafter, she accompanied the prosecutrix to the Hospital where her medical examination was got conducted and after her medical examination the prosecutrix took the Police to the red color flats and pointed out the place of the incident. Thereafter, they returned to the Police Station and she (PW7) was relieved from there after the IO recorded her statement. At the time when she first met the prosecutrix in the Police Station, she appeared scared/ frightened (dari hui thi). She (PW7) had asked her why she did not disclose this fact the earliest on which she (prosecutrix) informed her (PW7) that she (prosecutrix) was extremely frightened and also felt humuliated and apprehensive of disclosing this fact in the School and to others. It was then that she (PW7) counseled her accordingly.

13 of 187 14 FIR No. 21/10 PS - Narela PW8 Krishan Pal, Head Master, SDHS (Swami Dayanand High School), Kundli, Distt. Sonepat, who deposed that he has brought the summoned record, i.e. Admission & Withdrawal Register and paste file in respect of Tek Ram S/o Hari Om Khatri. According to the School record, Tek Ram was admitted in their School on 06/04/2007 vide admission No. 1439, copy of the same is Ex. PW8/A showing his date of birth as 15/10/1993. The copy of the certificate given to the IO by the Principal is Ex. PW8/B bearing his (PW8) signature at point 'A'. The copy of Admission Form is Ex. PW8/C. Copy of School Leaving Certificate of Lovely Public School on the basis of which Tek Ram got admitted in their School is Ex. PW8/D. He has also brought the copy of the result of the secondary examination of February, 2008 of Tek Ram S/o Hari Om Khatri which copy is Ex. PW8/E. (Original seen and returned).

PW9 Sh. Satish Kumar, Asst. Public Health Inspector, Narela Zone, MCD, Delhi who deposed that he has brought the birth registration register dated 23/06/2009. On that day the information 14 of 187 15 FIR No. 21/10 PS - Narela about the birth of prosecutrix (name withheld) D/o Rohtash Kumar and Suman was registered and the date of birth of the child was 12/12/1995 and the birth certificate was issued and photocopy of the same is Ex. PW9/A and photocopies of their register are Ex. PW9/B and Ex. PW9/C. He has also brought the original Birth Certificate which is Ex. PW9/D. PW10 Rohtash, is the father of the prosecutrix who deposed that he is residing at the aforementioned address (Gali No. 12, Near DAV School, Gautam Colony, Narela, Delhi) for about 56 years along with his family comprising of his wife and three children. His daughter/prosecutrix (name withheld) is his eldest child. His daughter used to study in class 9th in Government School, Narela. He is a fruit vendor and put a rehri. On 15/01/2010 when he reached back home at around 8:00 - 9:00 p.m. On the next day i.e. on 16/01/2010 when he woke up in the morning, his wife told him that their daughter/prosecutrix (name withheld) told her that two boys had committed rape upon their daughter. She informed him that their daughter had told her that after the School hours at about 1:45 p.m. one boy Tek Ram @ Aman met her at the gate of the School and allured her into accompanying her on a 15 of 187 16 FIR No. 21/10 PS - Narela motorcycle. Thereafter, on the way two more boys joined him on a separate motorcycle after which they took her to the red color flats (lal flats) where two boys forcibly committed rape upon her without her consent. Thereafter another boy whose name he does not recollect brought her back and drop her at house. On the next day, he alongwith his wife and his daughter went to the Police Station and made their complaint. Thereafter, they accompanied the IO to the red flats but his daughter could not identify the flat. Thereafter, his daughter was taken to the Pooth Khurd for purpose of her medical examination where her MLC was got prepared. He had consented to the internal examination of his daughter and his signatures are present on the MLC already Ex. PW5/A at point mark 'B'. After they returned to the Police Station where their complaint was lodged and his statement was recorded and they returned to their house thereafter. He did not know any of the accused previously. He can not identify any of the accused.

During the leading questions put by the Learned Addl. PP for the State, PW10 - Sh. Rohtash deposed that it is wrong to suggest that the accused Vikram @ Aman was arrested on the pointing out of his daughter on 18/01/2010. Vol. he is not aware of his arrest. It is wrong to 16 of 187 17 FIR No. 21/10 PS - Narela suggest that Tek Ram @ Aman had been apprehended on the pointing out of his daughter on 20/01/2010. Vol. He is not aware of his arrest.

PW11 Constable Hardesh Kumar who deposed that on 17/01/2010, he was posted at PS Narela. On that day, he alongwith ASI Raj Bala and Constable Gunwant reached at Gautam Colony and at the instance of prosecutrix (name withheld) accused Narender was arrested. His personal search was taken. On 18/01/2010, he joined the investigation with ASI Raj Bala and Constable Gunwant and reached at Gautam Colony, Narela where prosecutrix (name withheld) met them and at the instance of prosecutrix (name withheld) accused Vikram @ Aman was arrested from near the DDA Gas Godown, Mamurpur Flats. His personal search was taken. He was interrogated by the IO and at his instance one motor cycle bearing No. DL 7S H 5088 Hero Honda was recovered from the house of the accused Vikram and seized vide Ex. PW11/A which bears his (PW11) signatures at point 'A'. On 20/01/2010, he also joined the investigation with ASI Raj Bala and Constable Gunwant and reached at Gali No. 15, Gautam Colony and at the instance of prosecutrix (name withheld), accused Tek Ram was taken into custody 17 of 187 18 FIR No. 21/10 PS - Narela vide Ex. PW11/B which bears his (PW11) signatures at point 'A'. His personal search was taken vide Ex. PW11/C which bears his (PW11) signatures at point 'A'. Accused Narender, Vikram and Tek Ram are present in the Court and witness correctly identified the accused persons.

PW12 Mrs. Suman is the mother of the prosecutrix who deposed regarding her family members and about the facts of the incident as was disclosed to her by her daughter/prosecutrix and of the disclosing of these facts by her to husband (PW10 - Rohtash) and also deposed on the investigational aspects which she joined.

PW13 Ms. Poonam Sharma, SSO (Biology) FSL, Rohini who deposed that on 09/03/2010, six sealed parcels were received at FSL Rohini and the same were marked to her for further examination. All the parcels were duly sealed and matched with the provided sample seal. The parcels were marked Parcel No. 1 to 6. Parcel No.1 was found to be containing Ex.1a and 1b i.e. underwear and baniyan respectively. Parcel No. 2 was found to be containing Ex. 2a and 2b i.e. salwar and lady's shirt. Parcel No. 3 was found to be containing Ex. 3a and 3b1, 3b2, 3c, 18 of 187 19 FIR No. 21/10 PS - Narela 3d, 3e1, 3e2, 3e3, 3e4, 3e5, 3e6 and 3e7. Parcel No. 4 was found to be containing Ex. 4 i.e. dark brown foul smelling liquid. Parcel No. 5 was found to be containing Ex. 5 i.e. dark brown foul smelling liquid. Parcel No. 6 was found to be containing Ex.6 i.e. dark brown foul smelling liquid. On biological examination, blood was detected on Ex. 3a, Ex. 4, Ex. 5 and Ex. 6. Blood could not be detected on Ex. 1a, 1b, 2a, 2b, 3b, 3c, 3d, 3e1, 3e2, 3e3, 3e4, 3e5 and 3e7. Human semen was detected on Ex. 1a, 2a, 2b, 3e3, 3e4, 3e5, 3e6 and 3e7. Semen could not be detected on Ex. 1b, 3b1, 3b2, 3c, 3d, 3e1 and 3e2. The attested copy of the biological report is Ex. PW13/A bearing her signatures at various pages at point 'A'. On serological examination, Ex. 3a, 4, 5 and 6 were found to be putrified (putrefied) and hence no opinion. Ex. 1a (underwear) gave 'A' group blood while Ex. 2a, 2b, 3e3, 3e4, 3e5 and 3e7 gave no reaction. The attested copy of the serological report is Ex. PW13/B bearing her signatures at various pages at point 'A'.

PW14 Constable Gunwant who deposed that on 17/01/2010, he was posted at PS Narela. On that day, he alongwith 19 of 187 20 FIR No. 21/10 PS - Narela W/ASI Raj Bala and Constable Hardesh reached at Gautam Colony, DAV School, Gali No. 14. Prosecutrix (name withheld) was also present there alongwith her mother and at the instance of prosecutrix (name withheld), accused Narender was arrested from Gautam Colony. Accused Narender was interrogated by the IO W/ASI Raj Bala and he confessed about his involvement in commission of rape with prosecutrix (name withheld) and thereafter, he was arrested by the IO vide Ex. PW14/A which bears his (PW14) signatures at point 'A'. His personal search was taken vide Ex. PW14/B which bears his signatures at point 'A'. His disclosure statement was recorded vide Ex. PW14/C which bears his signatures at point 'A'. He also pointed out the place of incident vide Ex. PW14/D which bears his signatures at point 'A'. Accused Narender was taken to the Police Station and IO recorded his statement. On 18/01/2010, he again joined the investigations with ASI Raj Bala and Constable Hardesh and reached at Narela, Mata Wali Gali and at the instance of prosecutrix (name withheld) accused Vikram was arrested. Mother of prosecutrix (name withheld) was also present there at that time. Accused Vikram was interrogated by the IO and he also confessed about his involvement in the commission of rape with 20 of 187 21 FIR No. 21/10 PS - Narela prosecutrix (name withheld). Accused Vikram was arrested vide Ex. PW14/E which bears his signatures at point 'A', his personal search was taken vide Ex. PW14/F which bears his signatures at point 'A'. His disclosure statement was recorded vide Ex. PW14/G which bears his signatures at point 'A'. Accused Vikram also pointed out the place of incident vide Ex. PW14/H which bears his signatures at point 'A'. At the instance of the accused Vikram his motorcycle bearing no. DL 7S H 5088 of black colour of make Hero Honda Splendor was seized from his house. Thereafter he was taken to the Police Station with seized motorcycle and IO recorded his statement. On 20/01/2010, he again joined the investigation with ASI Raj Bala and Constable Hardesh and reached at Gas Godam, Narela and at the instance of prosecutrix (name withheld), accused Tek Ram was arrested. Mother of prosecutrix (name withheld) was also present there at that time. Accused Tek Ram was interrogated by the IO ASI Raj Bala and accused Tek Ram confessed about his involvement in commission of rape with prosecutrix (name withheld). Accused Tek Ram was taken into custody vide memo already Ex. PW11/B and his personal search was taken vide Ex. PW11/C. IO recorded his statement. Accused Narender, Vikram and Tek Ram are 21 of 187 22 FIR No. 21/10 PS - Narela present in the Court. Witness correctly identified accused Narender, Vikram and Tek Ram. He also identified motorcycle bearing No. DL 7S H 5088 black colour, Hero Honda Splendor in the Court compound as the same was seized at the instance of accused. The motorcycle is Ex. P1.

PW15 Dr. N. S. Khurana, M.O., M. V. Hospital, Pooth Khurd, Delhi who deposed that he has been deputed in place of Dr. S. K. Aggarwal who is not working in their Hospital at present time and his present address is not known to them. He can identify his handwriting and signature as he had worked with him (PW15) and he had seen him while writing and signing. MLC No. 95/10 dated 16/01/2010 of prosecutrix (name withheld) D/o Rohtash, female, 14 years Ex. PW5/A is in the handwriting of Dr. S. K. Aggarwal who medically examined the above said prosecutrix (name withheld) at the casualty of the Hospital and bears his signatures at point 'C'. No fresh external injury seen and the patient was referred to gynae department for further management.

PW16 Prosecutrix, is the victim who deposed regarding 22 of 187 23 FIR No. 21/10 PS - Narela the incident and proved her statement made to the Police Ex. PW16/A bearing her signature at point 'A' and besides proving the arrest memo Ex. PW14/A, personal search memo Ex. PW14/B bearing her signature at points 'B' of accused Narender; arrest memo Ex. PW14/E, personal search memo Ex. PW14/F bearing her signature at points 'B' of accused Vikram @ Aman; apprehension/custody memo Ex. PW11/B, personal search memo Ex. PW11/C bearing her signature at points 'C' of accused Tek Ram; also proved seizure memo of motorcycle No. DL7SH5088 make Hero Honda Splendor black color Ex. PW11/A, Motorcycle Ex. P1. She also proved site plan Ex. PW16/B and identified and proved her clothes Kurta of blue color Ex. P2, Salwar of white color (school dress) Ex. P3, underwear Ex. P4 and Shamiz Ex. P5.

PW17 ASI Raj Bala is the Investigating Officer (IO) of the case, who deposed that on 16/01/2010, she was posted at PS Narela. On that day, the prosecutrix (name withheld) with her parents had come to the PS and gave information regarding commission of rape with her. On receipt of this information, she (PW17) alongwith lady Constable Pooja took prosecutrix (name withheld) to Maharishi Balmiki Hospital, Pooth 23 of 187 24 FIR No. 21/10 PS - Narela Khurd and her parents also accompanied her. After getting her medical examination conducted the Doctor handed over to her three pullindas duly sealed with the seal of the Hospital and a sample seal. She took the same to the PS. After reaching the PS, she recorded the statement of the prosecutrix which statement is already Ex. PW16/A bearing her (PW17) attestation at point 'B' after which she made her endorsement on the same vide Ex. PW 17/A bearing her signatures at point 'A' which she then handed over to the Duty Officer for registration of the case. After the FIR was registered the Duty Officer handed over to her the copy of the FIR and the original rukka which FIR is already Ex. PW1/A. She then seized the exhibits given to her by the Doctor vide memo already Ex. PW2/A bearing her endorsement at point 'B'. They then accompanied the prosecutrix to the spot of the incident. The prosecutrix took them to the Janta Flat, Lal Quarter, DDA Flat, Narela where she pointed out Flat No. 487, IIIrd floor as the place where the incident took place. She prepared the site plan which is already Ex. PW16/B bearing her signatures at point 'A' which she identified. Thereafter, she searched for the accused persons but could not succeed and they returned to the PS. She recorded the supplementary statement of the prosecutrix and 24 of 187 25 FIR No. 21/10 PS - Narela relieved her and also recorded the statement of other Constables who had joined her i.e. Constable Gunwant and Constable Hardesh. On 17/01/2010 the prosecutrix alongwith her parents came to the PS and (with) Constable Gunwant (they) went to Gautam Colony, Narela for search of accused Narender. Then they went to Gali No. 14 where he was residing. On the pointing out of the prosecutrix accused Narender was apprehended from the Gali No. 14. He was arrested vide memo already Ex. PW14/A bearing her signatures at point 'B'. Personal search of the accused Narender was made vide memo already Ex. PW14/B bearing her signatures at point 'B'. She also interrogated accused Narender and (he) also made his disclosure statement vide memo already Ex. PW14/C bearing her endorsement at point 'C' and thereafter took him to the PS and put him in the lockup. In the PS she also recorded the supplementary statement of the prosecutrix and the Police officers who had participated in the investigation and relieved her. On 18/01/2010 the victim/prosecutrix and her parents again came to the PS and they again went to Mamurpur Pana, Narela in search of the accused Vikram and Aman. They were told that accused Vikram resides in that area. When they reached Gas Godown near DDA Flats the prosecutrix pointed out 25 of 187 26 FIR No. 21/10 PS - Narela towards one person standing near the gas godown as accused Vikram. On her pointing out accused Vikram was apprehended and thereafter arrested the accused vide memo Ex. PW14/E bearing her signatures at point 'B'. His personal search was carried out vide memo Ex. PW14/F bearing her signatures at point 'B'. She interrogated accused Vikram who made his disclosure vide memo Ex. PW14/G bearing her endorsement at point 'B'. He was thereafter brought to the PS. Thereafter, both Narender and Vikram were taken to the SRHC Hospital, Narela where their medical examination was got conducted. The Doctor handed over to her the exhibits relating to the accused Narender and Vikram in sealed pullindas alongwith the sample seals of the hospital. She seized the said pullindas vide Ex. PW17/B and Ex. PW17/C bearing her endorsement at point 'A' and signatures of Constable Praveen at point 'B' on both which she identify. Both accused persons were thereafter produced before the Learned Ilaka Magistrate from where they were got remanded to judicial custody. She thereafter returned to the PS and deposited the exhibits in the Malkhana and recorded the statements of the members of the Investigation Team and relieved them. On 20/01/2010 the victim and her parents again came to the PS and they 26 of 187 27 FIR No. 21/10 PS - Narela went to the Gautam Colony, Narela, Gali No. 14 and thereafter to Gali No. 15. There, on the pointing out of the prosecutrix one boy who was coming out of his house situated in Gali No. 15 was apprehended he disclosed his name as Aman @ Tek Ram. She (PW17) interrogated him. He disclosed his involvement in the offence but also gave her his date of birth according to which she found that he was prima facie a minor and therefore he was apprehended and produced before the Juvenile Officer SI Mahender for further investigations and it was SI Mahender who prepared the necessary documents regarding the investigation from this accused. The apprehension memo of accused Tek Ram is already Ex. PW11/B and his personal search is already Ex. PW11/C. His father Hari Om was informed about his apprehension vide memo Ex. PW17/D bearing her signatures at point 'A' signature of Constable Hardev at point 'B', signatures of Constable Gunwant at point 'C' and signature of prosecutrix at point 'D'. After getting his medical examination conducted from the SRHC Hospital the accused was brought back to the PS where she kept him with her during the night under her supervision. The Doctors of SRHC Hospital had given her one blood sample duly sealed with the seal of the Hospital which she seized vide memo Ex. PW17/E 27 of 187 28 FIR No. 21/10 PS - Narela bearing her signatures at point 'A', signature of Constable Praveen at point 'B' and she thereafter deposited the same in the Malkhana. On 21/01/2010, she produced the accused Aman @ Tek Ram before the Juvenile Justice Board from where he was sent to the Observation Home for boys. She got the exhibits deposited in the FSL, Rohini and thereafter prepared the charge sheet and filed in the Court against accused Narender. Separate charge sheets were filed against the accused Vikram and Tek Ram before the Juvenile Justice Board. Later during the inquiry held by the Juvenile Justice Board the accused Vikram and Tek Ram were found to be major and the case was then transfered to this Court. She correctly identified all the three accused persons Narender, Vikram and Tek Ram present in the Court.

During the leading questions put by the Learned Addl. PP for the State, she deposed that : "It is correct that after the accused Narender was apprehended and he made his disclosure statement he also pointed out the place of the incident i.e. Flat No. 427, 3rd floor Sector B4, Pocket III, Janta Flats, Narela after which I prepared the pointing out memo which is already Ex. PW14/D bearing my endorsement at point 'B'. It is also correct that on 18/01/2010 after I interrogated the accused Vikram he also pointed out the place of the incident i.e. Flat No. 427, 3rd floor Sector B4, PocketIII, Janta Flats, Narela after which I prepared the 28 of 187 29 FIR No. 21/10 PS - Narela pointing out memo which is already Ex. PW14/H bearing my endorsement at point 'B'. It is also correct that the date of birth certificate of the prosecutrix (name withheld) was given to me by her father, copy of which is Ex. PW9/A showing her date of birth as 12/12/1995. It is also correct that I had gone to the Govt. Sarvodya Kanya Vidhalya, No. 2, Narela and got the verification of the date of birth of the prosecutrix (name withheld) from the school record which was 12/12/1995 and principle of the school issued a certificate regarding this which is Ex. PW6/C. It is correct that I had also got verified the date of birth of Tek Ram from the School record according to which the same was 15/10/1993 (not disputed by the accused). I could not disclosed (disclose) about the above facts to the court earlier having forgotten the same and also because it was my first case."

The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.

6. It is to be mentioned that on 07/08/2012, accused Narender, Tek Ram @ Tinku and Vikram made statements before the Learned Predecessor Court wherein, accused Narender had admitted the Test Identification Parade (TIP) proceedings conducted by Sh. Vishal Singh, Learned MM, the TIP proceedings were taken out from the duly sealed envelope, the envelope is Ex. PX1 and the 29 of 187 30 FIR No. 21/10 PS - Narela TIP proceedings are Ex. PX2 (Colly.) running into five pages and he had also admitted his medical examination vide MLC Ex. PX3 and had stated that he has 'no objection' if Learned MM and the concerned Doctor are not examined in the Court. Accused Tek Ram @ Tinku had admitted his medical examination vide MLC Ex. PX4 and had stated that he has 'no objection' if the concerned Doctor is not examined in the Court. Accused Vikram had admitted his medical examination vide MLC Ex. PX5 and had stated that he has 'no objection' if the concerned Doctor is not examined in the Court.

7. Statements of accused Narender, Tek Ram @ Tinku and Vikram were recorded u/s 313 Cr.P.C. wherein, they pleaded innocence and false implication. The accused did not opt to lead any defence evidence.

8. Learned Counsel for accused Vikram submitted that in order to prove the case the prosecution has examined 17 PWs. PW1 is HC Ram Karan, PW2 is lady Constable Pooja, PW3 is Constable Praveen, PW4 is HC Suresh Kumar and PW4 has admitted in his cross 30 of 187 31 FIR No. 21/10 PS - Narela examination that in the register they make entries does not obtain (contain) any column for recording the time of depositing of case property and has further admitted that they make entries as per fard given by the concerned IO and which obtains (contain) no time for depositing the case property and further admitted that the entries have been made by him only on the basis of contents of seizure memo and he cannot confirm the correctness of seizure memo, PW5 is Dr. Geetanjali Singh, Specialist Gynae who was deputed by the Medical Superintendent for the Hospital to depose before the Court on behalf of Dr. Chand Kiran and proved the MLC of the patient/prosecutrix (name withheld) as Ex. PW5/A wherein the signature of Dr. Chand Kiran was identified, wherein a history of sexual assault by three people was mentioned. Whereas in the MLC of prosecutrix the term healthy vagina has been mentioned which as per law of prudence indicates no sexual assault upon prosecutrix. She further submitted that as per the alleged history in the MLC of the prosecutrix, it is mentioned as assault by three people, while in her testimony, prosecutrix has deposed that she was sexually assaulted by two persons. Prosecution has examined PW7 Ms. Nazma Khan who came from NGO who has stated that she met prosecutrix (name 31 of 187 32 FIR No. 21/10 PS - Narela withheld) aged about 14 years in the Police Station who had disclosed to her that on 15/01/2010 when she had left the School then Tek Ram had taken her on a bike and Vikram and Narender accompanied him on another bike and has further stated that after the incident, the boy Tek Ram dropped her near house. PW10 - Rohtash is the father of prosecutrix and is a hearsay witness who was turned hostile by the prosecution and the said witness had stated that he came to know about the alleged incident on 16/01/2010 and boy Tek Ram @ Aman met her daughter at the gate of School and allured her to accompany on a bike and he does not know the name of other boys, he further stated that his daughter could not identify the flat i.e. the spot of alleged incident he further failed to identify any of the accused he further failed to prove the prosecution story i.e. apprehension of accused persons at the instance of her daughter, he had further stated that his daughter told him that she does not know any of the boys previously except accused Tek Ram whom she used to meet frequently on her coming and going to the School. The prosecution examined PW12 i.e. mother of the prosecutrix who is also hearsay witness and she had stated that she saw one boy dropping her daughter from the motorcycle and failed to identify the person who 32 of 187 33 FIR No. 21/10 PS - Narela dropped her daughter and she has stated that facts which had not be mentioned in their statement u/s 161 Cr.P.C. i.e. locking her daughter in her room and she had sported (supported) the version of her husband i.e. PW10 regarding the picking and dropping her daughter by accused Tek Ram and she has stated that no accused was arrested in her presence and therefore she cannot identify any of the accused nor her daughter had disclosed any name of the boys and she had admitted that there was no physical injury on the person of her daughter, she had further admitted that her daughter did not identify any of the accused in her presence and she had further answered on Court question that Police had arrested the accused person on their own and she had further admitted that her daughter had given the name of one Tinku not of any other boy. She had further admitted regarding the registration of birth of her daughter in the year only in 2009 and not prior to this that too for the purpose of Ladli Scheme and prosecutrix had examined as PW16 in camera proceedings wherein she had changed the entire version/story as alleged in the FIR No. 21/10 and she had changed the name of the accused persons entirely opposite as mentioned in the FIR as well as the role of the accused persons as alleged in the FIR which clearly indicates the falsehood of the 33 of 187 34 FIR No. 21/10 PS - Narela present FIR as well as false implication of the accused persons in the present case and for this purpose Court needs to go through minutely the entire contents of FIR as well as the entire examination and cross examination word by word in order to reach for just decision of the case as well as to provide justice to innocent person falsely implicated by the prosecutrix as well as this shows the role of the Police officials who implicated/arrested the innocent persons as per their own wish and whims. She further submitted that the IO ASI Raj Bala of the present case has been examined as PW17 who herself is telling about the lacunas in their investigation and failed to mention how the name and address of the accused persons came in the knowledge of the prosecutrix and their arrest and further IO had failed to record the statement of prosecutrix u/s 164 Cr.P.C. she had further failed to get the ossification test of the prosecutrix and further failed to make an inquiry / investigation regarding the exact date of birth of the prosecutrix as well as registration of date of birth of prosecutrix which has been registered in the year, 2005 (be read as 2009). She further submitted that, Pinky friend of the prosecutrix, a material witness has not been produced and examined by the prosecution. She further submitted that the accused Vikram was 34 of 187 35 FIR No. 21/10 PS - Narela examined for ossification test and his age has been mentioned between 17 to 18 as on 02/02/2010 i.e. the time of offence which was Ex. CW2/A before JJB - 1. She further submitted that accused Vikram is an innocent person and having no concern with the alleged FIR and has been falsely implicated for the reason best known to prosecutrix as well as Police officials and prayed for the acquittal of accused Vikram on all the charges levelled against him.

9. Learned Counsel for accused Narender submitted that from the perusal of statements of PWs and the documents exhibited during trial, the following important points deserve the judicious consideration by the Court : A.) Whether the prosecution has been able to prove that at the time of commission of alleged offence, the prosecutrix was minor? In this regard the prosecution has examined PW6 - Sh. Vinod Kumar, who proved relevant entry of admission and withdrawal register of Adarsh Kanya Vidyalaya No. 2, Narela according to which prosecutrix was admitted in the said School in 6th class on the basis of SL issued by previous School according to which her date of birth was shown as 12/12/1995 and the same was exhibited as Ex. PW6/A, copy of SLC was 35 of 187 36 FIR No. 21/10 PS - Narela exhibited as Ex. PW6/B and the certificate issued by Dr. Poonam Nagpal was exhibited as Ex. PW6/C. The prosecution also examined PW9 Sh. Satish Kumar, Assistant Health Inspector, Narela Zone, MCD who proved Birth Registration Register dated 23/06/2009, according to which the date of birth of the prosecutrix is shown as 12/12/1995 and the photocopy of the birth certificate was exhibited as Ex. PW9/A and photocopies of register were exhibited as Ex. PW9/B and Ex. PW9/C and the original birth certificate was exhibited as Ex. PW9/D. He further submitted that whether the aforesaid documents can be treated as genuine in view of the fact that the prosecution did not examine any witness for the purpose of showing as to which document was the basis of initial admission in the School and whether the entry of birth which was for the first time made in the MCD Register on 23/06/2009 for getting benefit of "Laadli Scheme" can be of any help for the prosecution in view of the following facts : Because PW12 - Smt. Suman (mother of the prosecutrix) in her crossexamination admitted that her daughter was born at Village Behra Bakanpur, District Sonepat, Haryana and that there was no registration of birth of her daughter in Haryana. She further admitted it to be correct that date of birth of her daughter was 36 of 187 37 FIR No. 21/10 PS - Narela registered only in the year, 2009 for the purpose of Laadli Scheme and that in the said certificate the place of birth has been shown as New Delhi and she admitted it to be correct that she did not hand over any document regarding the date of birth of her daughter pertaining to Haryana. Therefore, it becomes evident that the parents of the prosecutrix gave wrong statement while procuring her alleged birth certificate from MCD Office by stating that she was born in Delhi and as such there was every possibility that they had given a wrong date of birth in order to show the prosecutrix as a minor for the purpose of enjoying the benefits of "Laadli Scheme" and as such none of the certificate exhibited during trial deserve any credence and the benefit of the same goes to the accused. Because PW16 - prosecutrix in her cross examination specifically admitted that she was born in Haryana in Village Behara Bakipur, District Sonepat and that her date of birth certificate was prepared in the year, 2009. she further replied that she was not aware if her parents got this certificate prepared by mentioning her false date of birth and place of birth for getting the benefit of Laadli Scheme. So far as PW17 - ASI Raj Bala (IO) is concerned, she in her crossexamination admitted it to be correct that the date of birth 37 of 187 38 FIR No. 21/10 PS - Narela certificate of the prosecutrix was prepared/registered on 23/06/2009 and issued on 11/07/2009 and that she did not make any inquiries from the father of the prosecutrix for the purpose of ascertaining as to why the registration of date of birth of the prosecutrix was made in the year, 2009 and not earlier and that she cannot tell if the birth certificate does not mention the correct year or if the prosecutrix was a major. Hence, since the investigating agency failed to seize any document from the concerned authorities from Haryana for the purpose of ascertaining the true and correct age of the prosecutrix and no ossification test of the prosecutrix was got conducted during investigation, therefore, it is evident that the prosecution has miserably failed to establish that the actual date of birth of the prosecutrix is 12/12/1995. B) Whether any offence u/s 363/34 IPC or u/s 366/34 IPC is made out against the accused Narender? On perusal of the entire statements brought on record as well as the charge sheet, there is absolutely nothing that accused Narender was having any common intention with the other accused for the purpose of commission of the aforesaid offence, even if the entire allegations made by the prosecutrix are presumed to be correct without admitting the same in view of the following submissions : Because in her statement Ex.

38 of 187 39 FIR No. 21/10 PS - Narela PW16/A she has alleged that she accompanied accused Aman @ Tek Ram on his motorcycle who took her to DDA Red Flats and that two other boys also reached on a separate motorcycle and in her cross examination she took a about turn by stating that she had been taken from her School by accused Vikram @ Aman and admitted having had telephonic conversation prior to the alleged incident with the said accused and further admitted that she did not try to jump from the motorcycle nor raised any alarm on the way and disclosed the alleged incident only after she was pressurized by her parents. She further admitted it to be correct that she had become friendly with accused Aman @ Vikram and she was having an affair with him. Hence, there are absolutely no allegations against accused Narender that he in any manner enticed the prosecutrix or compelled her to accompany him. Moreover, the prosecution has failed to establish that the prosecutrix at the time of alleged offence was a minor as claimed by her as well as by her parents. Her conduct in allegedly accompanying accused Vikram @ Aman on his motorcycle, travelling a far distance without any protest goes to show that no offence u/s 363/34 and 366/34 is made out against any of the accused persons. He submitted that the entire story created by 39 of 187 40 FIR No. 21/10 PS - Narela the investigating agency in collusion with the prosecutrix and her parents smacks of malafide since had accused Narender reached to the alleged place of occurrence on a separate motorcycle, then what prevented the IO from carrying out investigation regarding the other motorcycle. As no steps were taken during the entire investigation to seize any such motorcycle, therefore, it goes to show that even the IO was sure from the day one that no such other motorcycle was involved in the alleged offence. C) Whether the prosecution has been able to establish the identity of accused Narender beyond reasonable doubt? He submitted that in her initial statement Ex. PW16/A the prosecutrix named only accused Aman @ Tek Ram but did not give any physical description of the other 2 boys who are alleged to have reached at the alleged spot of occurrence and the prosecution is trying to show that the accused Narender was arrested on 17/01/2010 on the pointing out of the prosecutrix. However, the prosecution has miserably failed to connect him with the alleged offence or to establish his identify beyond reasonable doubt on the following grounds : Because accused Narender himself moved an application for getting his judicial TIP conducted, which was duly allowed and his judicial TIP was conducted in Rohini 40 of 187 41 FIR No. 21/10 PS - Narela Jail by Sh Vishal Singh, MM, Rohini Court on 24/02/2010, in which the prosecutrix failed to identify the aforesaid accused which goes to show that the arrest memo of accused Narender has been manipulated by the IO by obtaining the signatures of the prosecutrix thereon. This fact further gets fortified from the fact that in her examinationinchief PW16

- prosecutrix stated that accused Narender was arrested by the Police on her pointing out on 17/01/2010 in morning time, whereas according to his alleged arrest memo Ex. PW14/A, he is shown to have been arrested on 17/01/2010 at 7:00 p.m. So far as PW11 - Constable Hardesh Kumar who is stated to be one of the witness to the alleged arrest of accused Narender is concerned, he in his crossexamination stated that on 17/01/2010 prosecutrix accompanied them from PS and accused Narender was arrested in between Gali Nos. 14 & 15 and being evening time, no public persons were present as they ran away from the spot on seeing the Police officials. So far as PW12 - Ms. Suman, mother of the prosecutrix is concerned, she in her crossexamination admitted it to be correct that her daughter did not identify any of the accused in her presence and the Police had arrested them of their own, although according to the prosecution case,she is also stated to be accompanying 41 of 187 42 FIR No. 21/10 PS - Narela her daughter and the IO at the time of alleged arrest of accused Narender; Because in her crossexamination PW16 prosecutrix admitted it to be correct that she could not identify accused Narender in Rohini Jail and that he was not apprehended at her pointing out; so far as PW17 ASI Raj Bala (IO of the case) is concerned, she in her cross examination admitted it to be correct that in statement Ex. PW16/A, the prosecutrix had not given the name of accused Narender nor she had given his physical description and that she did not make any enquiries from the prosecutrix regarding the description of the other accused who was later on identified as Narender. She further replied that the prosecutrix has not disclosed to her physical description of accused Narender and that it was the prosecutrix who led her to the house of Narender and it was then that she came to know as to who he was and where he was residing, she further replied that she did not recollect if she had mentioned this fact that prosecutrix informed her that the accused Narender had come from the Gautam Colony side in the case diary or in her statement and that she did not make any DD Entry while starting from the PS and did not prepare any pointing out memo showing that accused Narender had been arrested on the pointing out of the 42 of 187 43 FIR No. 21/10 PS - Narela prosecutrix. She further stated that she had not recorded any statement of the prosecutrix that she was a witness to the arrest of accused Narender or that she had signed the arrest memo. Learned Counsel submitted that from the above it becomes crystal clear that the prosecution has miserably failed to establish that accused Narender was arrested on the pointing out of the prosecutrix or that he was involved in the commission of offences punishable u/s 363/34 or 366/34 IPC or 376(2)(g) IPC. The very fact that accused Narender himself moved an application for TIP and the prosecutrix could not identify him during the judicial TIP as one of the offenders, goes to establish the innocence of the aforesaid accused beyond reasonable doubt since identifying the said accused for the first time in the Court during her testimony by the prosecutrix is of no help to the prosecution and the accused deserves clean acquittal. D) Whether the alleged place of occurrence and the site plan Ex. PW16/B have been proved by the prosecution? He submitted that site plan Ex. PW16/A is claimed to have been prepared on the pointing out of Flat No. 487, Third Floor, Janta Flats, Lal Quarters, Narela based upon the alleged pointing out of the prosecutrix but in her examinationinchief, the prosecutrix stated that on the next day Police 43 of 187 44 FIR No. 21/10 PS - Narela took her to the Red Quarters but she got confused about the exact place where the incident had taken place and in her crossexamination she admitted it to be correct that she could only show the place where the Red Quarters are situated but not the exact place where she was taken, hence, it is surprising as to how the IO prepared the site plan of a specific flat when the same was never pointed out by the prosecutrix. So far as, PW17 - ASI Raj Bala (IO) is concerned, she in her cross examination replied that she did not make any ravangi in the DD Register while going to the Janta Flats, Narela alongwith the prosecutrix and that she had not prepared any pointing out memo. Hence, even the place of occurrence has not been proved by the prosecution. E) Whether the serological report Ex. PW13/B or biological report Ex. PW13/A connects accused Narender? He submitted that both the aforesaid reports are also of no help to the prosecution for connecting the accused Narender. There is no an iota of evidence available on record which connect the accused Narender with the commission of the alleged crime and as such the prosecution has miserably failed to prove its case qua accused Narender, and prayed for acquittal of accused Narender on all the charges framed against him.

44 of 187 45 FIR No. 21/10 PS - Narela

10. Learned Counsel for accused Tek Ram submitted that prosecution has miserably failed to prove the date of birth of the prosecutrix 'S' and it cannot be presumed without any concrete evidence that she was under eighteen years of age at the time of alleged incident. He further submitted that from the evidence and crossexamination of the PW16 - prosecutrix and IO ASI Raj Bala, prosecution has been unable to prove that any force or deceitful means was used to compel/induce 'S' to move from one place. It might be that she may be in love with somebody else and to hide her paramour's name, she has implicated the accused Tek Ram also at the instance of her parents, initially. He further submitted that PW12 - mother in her cross examination about Rs. 1,20,000/ at page 7, 4th line from bottom, she says, "...Vol. In whose presence this money was taken and given..."

Meaning thereby that she knew that there was no written or any other evidence regarding the loan. That is why out of revenge/dishonesty, the accused Tek Ram has been falsely framed in this case. He further submitted that 'S' did not receive any internal or 45 of 187 46 FIR No. 21/10 PS - Narela external injuries on her person at the time when as per her rape was committed upon her on 23 times by two boys of sufficient age. If rape would have been committed in this way, there must have been numerous internal injuries and external injuries as well on her person. Ex. PX4 which is MLC of Tek Ram bore this fact of no fresh injury about Tek Ram's person. If rape would have been committed this way on a unmarried (mentioned in PW5/A) girl, then there must have been numerous injuries on the person of 'S' and on the person of other accused including Tek Ram as well, especially at such a time of winter, which is not present in this case. It has not come in evidence whether the hymen was freshly ruptured. It means it was old tear. 'Vagina healthy' has come in evidence. It means vaginal walls bear no scratches, wounds, crashes and tears etc. He further submitted that prosecution has examined PW13 from FSL, Rohini but as per Serological report Ex.PW13/B, most of the samples were putrefied and nothing incriminating has come in evidence against the accused Tek Ram in Forensic examination/analysis. He further submitted that thus, prosecution has miserably failed to prove its aspect on the arrest of accused Tek Ram. He further submitted that prosecution has also failed to prove the siteplan i.e. Ex. PW16/B. He 46 of 187 47 FIR No. 21/10 PS - Narela further submitted that conduct of the prosecutrix and numerous statements do not inspire confidence and are not trustworthy and cannot be relied upon. He further submitted that the prosecution has not joined any public person anywhere in conducting the investigation. He further submitted that in fact Tek Ram's father, Hari Om had advanced a loan of Rs. 1,20,000/ to prosecutrix's father - Rohtash in FebruaryMarch, 2009 and Rohtash was finding it difficult to return the money on account of his dishonesty and he was having/nurturing a grudge against Hari Om. That is the main reason for falsely implicating the accused Tek Ram in this case. Even Hari Om was picked by the Police in this case so that his son, Tek Ram may surrender and accused Tek Ram thereafter, surrendered before the Police to save his father. He was not arrested at the pointing out of the 'S' as is clear from the testimony of PW16, PW10 and PW12. Moreover, due to this grudge, after the registration of the present case, the prosecutrix's father Rohtash had also filed a Criminal Complaint in SC & ST Act before the Court of Sh. Deepak Wason, the then Ld. MM, Rohini but subsequently, the complaint was dismissed as withdrawn. Even accused Tek Ram's defence version was put forward before the PW10 and PW12 but she bluntly states as to in whose 47 of 187 48 FIR No. 21/10 PS - Narela presence this money was taken and when. She knows that there was no eyewitness to the transaction as the loan was advanced on friendly terms to prosecutrix father. Learned Counsel submitted that the prosecution has miserably failed to prove its case beyond reasonable doubts and prayed for the acquittal of accused Tek Ram on all the charges levelled against him.

11. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.

12. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Shri R. N. Sharma, Learned Counsel for accused Narender, Shri Azad Dahiya, Learned Counsel for accused Tek Ram @ Tinku @ Aman and Ms. Surinder Kaur, Learned Counsel for accused Vikram @ Aman and have also carefully perused the entire record.

48 of 187 49 FIR No. 21/10 PS - Narela

13. The charge for the offences punishable u/s 363/34 IPC, 366/34 IPC and 376(2)(g) IPC against accused Narender, Tek Ram @ Tinku @ Aman and Vikram is that on 15/01/2010, at about 1:45 p.m. at the gate of Sarvodaya Kanya Vidhalaya No. 2, Narela within the jurisdiction of PS - Narela, they all in furtherance of their common intention kidnapped the prosecutrix (name withheld) D/o Rohtash, aged about 14 years from the lawful guardianship of her parents and that on the abovesaid date, time and place they all in furtherance of their common intention kidnapped the prosecutrix with intent that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse and that on 15/10/2010, at about 2:15 p.m. at Lal flat DDA, Narela, within the jurisdiction of PS - Narela, they all committed gang rape upon the prosecutrix.

14. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the 49 of 187 50 FIR No. 21/10 PS - Narela interest of justice.

AGE OF THE PROSECUTRIX

15. PW10 - Sh. Rohtash, who is the father of the prosecutrix in his examinationinchief recorded on 25/10/2012 has deposed that : "My daughter/prosecutrix (name withheld) is my eldest child. My daughter used to study in class 9th in Government School, Narela.

PW12 - Mrs. Suman, who is the mother of the prosecutrix, during her examinationinchief recorded on 25/10/2012 has specifically deposed that : "...my family comprising of my husband and three children i.e. One daughter and two sons. Prosecutrix (name withheld) is my eldest child. She was studying in 9th class at the time of incident in the year 2010 and was aged around 14 years at that time."

PW12 - Mrs. Suman, mother of the prosecutrix, during her crossexamination on behalf of accused has categorically deposed that : "I was married in the year 1994 i.e. on 21/06/1994. I was married in Delhi only. My daughter was born after 1½ years. She was 50 of 187 51 FIR No. 21/10 PS - Narela born at home i.e. at village Bahara Bakenpur, District Sonepat, Haryana. I had informed the Anganwari Haryana regarding the birth of the child. There was no registration of birth of my daughter from Haryana. Vol. Only her Janampatri was prepared. It is correct that date of birth of my daughter was registered in the year 2009. Vol. It was prepared for the purpose of Ladli plan. It is correct that in the said certificate the place of birth is shown as Delhi. It is correct that I did not hand over the documents regarding the date of birth of my daughter pertaining to Haryana. It is wrong to suggest that wrong information regarding the date of birth and place of birth was given to the registrar Birth and Death Delhi only to secure the benefits of the Government Schemes for my daughter."

PW16 - prosecutrix in her examinationinchief recorded on 25/10/2012 has deposed that : "I am student of R. K. Memorial School and presently I am in class 11th. In the year, 2010 January, I was a student of Sarvodaya Kanya Vidhalaya No. 2, Narela in class 9th."

PW6 Sh. Vinod Kumar, Laboratory Asst., S.K.V. No. 2, Narela, Delhi who deposed that he has brought the summoned record pertaining to the admission and date of birth of prosecutrix (name withheld) D/o Rohtash R/o House No. 115, Vijay Colony, Narela. As per the admission and withdrawal register prosecutrix (name withheld) was 51 of 187 52 FIR No. 21/10 PS - Narela admitted in their School on 31/03/2006 in class 6th on the basis of the SLC of previous School Nigam Adarsh Kanya Vidhyalya, Pana Udhyan I, Narela, Delhi. Her date of birth as per the School record based upon the SLC is 12/12/1995. The relevant entry in the admission and withdrawal register is Ex. PW6/A (OSR) and the copy of SLC is Ex. PW6/B (OSR). The certificate issued by the Principal Dr. Poonam Nagpal is Ex. PW6/C whose signatures he identified at Point 'A'.

In the circumstances, it stands proved on the record that the date of birth of the prosecutrix is 12/12/1995.

As the date of alleged incident is 15/01/2010 and the date of birth of prosecutrix is 12/12/1995, on simple arithmetical calculation, the age of prosecutrix comes to 14 years, 01 month and 03 days as on the date of incident on 15/01/2010.

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 53 of 187 54 FIR No. 21/10 PS - Narela of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.

14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."

In view of above and in the circumstances, it stands established on record that PW16 prosecutrix was aged 14 years, 01 month and 03 days as on the date of alleged incident on 15/01/2010.

16. Learned Counsel for accused Vikram submitted that IO PW17 - ASI Raj Bala failed to get the ossification test of the prosecutrix and further failed to make an inquiry / investigation regarding the exact date of birth of the prosecutrix as well as registration of date of birth of prosecutrix which has been registered in the year, 2005 (be read as 2009). He further submitted that PW12 - Ms. Suman, mother of the prosecutrix has admitted regarding the registration of birth of her daughter in the year only in 2009 and not prior to this that too for the 54 of 187 55 FIR No. 21/10 PS - Narela purpose of Ladli Scheme.

Learned Counsel for accused Narender submitted that with regard to the age of prosecutrix, the prosecution has examined PW6 - Sh. Vinod Kumar, who proved relevant entry of admission and withdrawal register of Adarsh Kanya Vidyalaya No. 2, Narela according to which prosecutrix was admitted in the said School in 6th class on the basis of SL issued by previous School according to which her date of birth was shown as 12/12/1995 and the same was exhibited as Ex. PW6/A, copy of SLC was exhibited as Ex. PW6/B and the certificate issued by Dr. Poonam Nagpal was exhibited as Ex. PW6/C. The prosecution also examined PW9 Sh. Satish Kumar, Assistant Health Inspector, Narela Zone, MCD who proved Birth Registration Register dated 23/06/2009, according to which the date of birth of the prosecutrix is shown as 12/12/1995 and the photocopy of the birth certificate was exhibited as Ex. PW9/A and photocopies of register were exhibited as Ex. PW9/B and Ex. PW9/C and the original birth certificate was exhibited as Ex. PW9/D. He further submitted that whether the aforesaid documents can be treated as genuine in view of the fact that the 55 of 187 56 FIR No. 21/10 PS - Narela prosecution did not examine any witness for the purpose of showing as to which document was the basis of initial admission in the School and whether the entry of birth which was for the first time made in the MCD Register on 23/06/2009 for getting benefit of "Laadli Scheme" can be of any help for the prosecution in view of the following facts : Because PW12 - Smt. Suman (mother of the prosecutrix) in her cross examination admitted that her daughter was born at Village Behra Bakanpur, District Sonepat, Haryana and that there was no registration of birth of her daughter in Haryana. She further admitted it to be correct that date of birth of her daughter was registered only in the year, 2009 for the purpose of Laadli Scheme and that in the said certificate the place of birth has been shown as New Delhi and she admitted it to be correct that she did not hand over any document regarding the date of birth of her daughter pertaining to Haryana. Therefore, it becomes evident that the parents of the prosecutrix gave wrong statement while procuring her alleged birth certificate from MCD Office by stating that she was born in Delhi and as such there was every possibility that they had given a wrong date of birth in order to show the prosecutrix as a minor for the purpose of enjoying the benefits of "Laadli Scheme" and as such none of the 56 of 187 57 FIR No. 21/10 PS - Narela certificate exhibited during trial deserve any credence and the benefit of the same goes to the accused. Because PW16 - prosecutrix in her cross examination specifically admitted that she was born in Haryana in Village Behara Bakipur, District Sonepat and that her date of birth certificate was prepared in the year, 2009. she further replied that she was not aware if her parents got this certificate prepared by mentioning her false date of birth and place of birth for getting the benefit of Laadli Scheme. So far as PW17 - ASI Raj Bala (IO) is concerned, she in her crossexamination admitted it to be correct that the date of birth certificate of the prosecutrix was prepared/registered on 23/06/2009 and issued on 11/07/2009 and that she did not make any inquiries from the father of the prosecutrix for the purpose of ascertaining as to why the registration of date of birth of the prosecutrix was made in the year, 2009 and not earlier and that she cannot tell if the birth certificate does not mention the correct year or if the prosecutrix was a major. Hence, since the investigating agency failed to seize any document from the concerned authorities from Haryana for the purpose of ascertaining the true and correct age of the prosecutrix and no ossification test of the prosecutrix was got conducted during investigation, therefore, it is evident that the 57 of 187 58 FIR No. 21/10 PS - Narela prosecution has miserably failed to establish that the actual date of birth of the prosecutrix is 12/12/1995.

Learned Counsel for accused Tek Ram submitted that prosecution has miserably failed to prove the date of birth of the prosecutrix 'S' and it cannot be presumed without any concrete evidence that she was under eighteen years of age at the time of alleged incident.

I have carefully perused and analysed the evidence on record.

The testimonies of PW16 - prosecutrix, PW10 -

Rohtash, her father and PW12 - Ms. Suman, her mother, on the aspect of age of prosecutrix have been reproduced, discussed and analysed hereinbefore. On careful perusal and analysis, their testimonies have been found to clear, natural, cogent, trustworthy and inspiring confidence. They have deposed the facts candidly as to what they acted, perceived, experienced and observed. Their testimonies have also found to be corroborated by the testimonies of PW6 - Sh. Vinod Kumar, Laboratory Asst., S.K.V. No. 2, Narela, 58 of 187 59 FIR No. 21/10 PS - Narela Delhi and PW9 - Sh. Satish Kumar, Assistant Public Health Inspector, Narela Zone, MCD, Delhi as detailed, discussed and analysed hereinabove.

So far as, the theory floated by the Learned Counsel for accused Narender that, "the parents of the prosecutrix gave wrong statement while procuring her alleged birth certificate from MCD Office by stating that she was born in Delhi and as such there was every possibility that they had given a wrong date of birth in order to show the prosecutrix as a minor for the purpose of enjoying the benefits of "Laadli Scheme", is concerned, the same is found to have no substance in view of as to what PW12 - Mrs. Suman during her cross examination on behalf of accused has categorically deposed that she was married in the year, 1994 i.e. on 21/06/1994 and her daughter/prosecutrix was born after 1½ years. It is a matter of common knowledge that the human gestation period is normally of about 9 months. As the date of marriage of PW12 - Ms. Suman, mother of the prosecutrix is 21/06/1994 and prosecutrix was born after 1½ years of her marriage, on simple arithmetical calculation, the birth of the prosecutrix comes to fall in 59 of 187 60 FIR No. 21/10 PS - Narela December, 1995, which corresponds to the date of birth of the prosecutrix 12/12/1995 as registered with MCD vide Birth Certificate Ex. PW9/A, copies of Birth Registration Register Ex. PW9/B, Ex. PW9/C and the original Birth Certificate Ex. PW9/D as well as her School record vide Ex. PW6/A, Ex. PW6/B and Ex. PW6/C as discussed & analysed hereinbefore.

At the cost of repetition, the testimony of PW12 - Mrs. Suman, mother of the prosecutrix is reproduced and reads as under : "I was married in the year 1994 i.e. on 21/06/1994. I was married in Delhi only. My daughter was born after 1½ years. She was born at home i.e. at village Bahara Bakenpur, District Sonepat, Haryana. I had informed the Anganwari Haryana regarding the birth of the child. There was no registration of birth of my daughter from Haryana. Vol. Only her Janampatri was prepared. It is correct that date of birth of my daughter was registered in the year 2009. Vol. It was prepared for the purpose of Ladli plan. It is correct that in the said certificate the place of birth is shown as Delhi. It is correct that I did not hand over the documents regarding the date of birth of my daughter pertaining to Haryana. It is wrong to suggest that wrong information regarding the date of birth and place of birth was given to the registrar Birth and Death Delhi only to secure the benefits of the Government Schemes for my daughter."

(Underlined by me) 60 of 187 61 FIR No. 21/10 PS - Narela In the circumstances, the said theory so propounded by the Learned Counsel for the accused is found to be devoid of matrix and falls flat on the ground.

As regards the plea raised by Learned Counsel for accused Vikram that PW17 - ASI Raj Bala, IO failed to get the ossification test of the prosecutrix and further failed to make an inquiry / investigation regarding the exact date of birth of the prosecutrix as well as registration of date of birth of prosecutrix which has been registered in the year, 2005 (be read as 2009), is concerned, nonconducting of the ossification test of the prosecutrix and nonmaking of the inquiry regarding the exact date of birth of the prosecutrix and its registration does not falsify the case of the prosecution, which is otherwise proved on record by clear, cogent and convincing evidence. PW17 - ASI Raj Bala IO during her crossexamination has candidly and specifically deposed that : "I did not carry out any verification regarding the date of birth of the prosecutrix from the Registrar Birth and Death. It is correct that the date of birth certificate of the prosecutrix was 61 of 187 62 FIR No. 21/10 PS - Narela prepared/registered on 23/06/2009 and issued on 11/07/2009. I did not make any inquiries from the father of the prosecutrix why the registration of the date of birth of the prosecutrix was made in the year, 2009 and not earlier."

"It is correct that I did not get any ossification/age determination test conducted. Vol. it was not required in view of the date of birth certificate showing her age as 12/12/1995. "

(Underlined by me) Moreover, the said lapse/irregularity may reflect on the investigation but does not reflect upon the substantive and the probative value of the statement of PW16 - prosecutrix made on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The core facts about the committal of the crime by the accused have remained intact.

In view of as to what has been discussed hereinabove, under the heading "Age of the Prosecutrix" at the cost of repetition, it stands established on record that PW16 - prosecutrix was aged 14 years, 01 month and 03 days as on the date of alleged incident on 15/01/2010.

62 of 187 63 FIR No. 21/10 PS - Narela 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 PW16

- prosecutrix, as provided under Rule 12 (3)(a)(ii) is available, therefore, the same is adopted as the highest rated first available basis in terms of the scheme of options under clause (a) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.

It is pertinent to reproduce para 20 of Jarnail Singh's case (Supra) of the Hon'ble Supreme Court which reads as under : "On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 63 of 187 64 FIR No. 21/10 PS - Narela 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 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 64 of 187 65 FIR No. 21/10 PS - Narela 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 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."

65 of 187 66 FIR No. 21/10 PS - Narela 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 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 66 of 187 67 FIR No. 21/10 PS - Narela determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX

17. PW5 Dr. Geetanjali Singh, Specialist, Gynae, Maharishi Balmiki Hospital, Pooth Khurd, Delhi has deposed that she has been deputed by the Medical Superintendent of the Hospital to depose before this Court on behalf of Dr. Chand Kiran, who had left the services of the Hospital and her whereabouts are not known to the Hospital. She has seen the MLC No. 95/10, according to which on 16/01/2010 a patient/prosecutrix (name withheld), D/o Rohtash, aged 14 years female was brought to the Hospital by L/Constable Pooja with alleged history of sexual assault one day before by three people. Dr. Chand Kiran examined the above said prosecutrix (name withheld) vide MLC Ex. PW5/A bearing the signatures of Dr. Chand Kiran at point 'A' whose signatures she (PW5) identify having seen her while writing and signing 67 of 187 68 FIR No. 21/10 PS - Narela as she had worked under her (PW5). As per the observations made by Dr. Chand Kiran, the history given was of sexual assault at 2:15 p.m. yesterday i.e. 15/01/2010. Further, history of sexual assault by three people taken on bike from outside her School at 2:00 p.m. Intercourse done by two people and victim drop back by at 3:00 p.m. As per the observations mentioned at point bracketed 'X' to 'X1' hymen was found ruptured.

PW15 Dr. N. S. Khurana, M.O., M. V. Hospital, Pooth Khurd, Delhi has deposed that he has been deputed in place of Dr. S. K. Aggarwal who is not working in their Hospital at present time and his present address is not known to them. He can identify his handwriting and signature as he had worked with him (PW15) and he had seen him while writing and signing. MLC No. 95/10 dated 16/01/2010 of prosecutrix (name withheld) D/o Rohtash, female, 14 years Ex. PW5/A is in the handwriting of Dr. S. K. Aggarwal who medically examined the above said prosecutrix (name withheld) at the casualty of the Hospital and bears his signatures at point 'C'. No fresh external injury seen and the patient was referred to gynae department for further management.

68 of 187 69 FIR No. 21/10 PS - Narela Despite grant of opportunity, PW5 Dr. Geetanjali Singh and PW15 Dr. N. S. Khurana were not crossexamined on behalf of the accused.

In view of above and in the circumstances, the medical and the gynaecological examination vide MLC Ex. PW5/A and vide observations mentioned at point bracketed 'X to 'X1' on the MLC Ex. PW5/A of PW16 - prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED TEK RAM @ TINKU @ AMAN, VIKRAM @ AMAN AND NARENDER

18. It is to be mentioned that on 07/08/2012, accused Narender, Tek Ram @ Tinku and Vikram made statements before the Learned Predecessor Court and had admitted their medical examination vide MLCs Ex. PX3, Ex. PX4 and Ex. PX5 respectively and had stated that they have no objection if the concerned Doctors are not examined in the Court.

From the testimony of PW17 - ASI Raj Bala, it is also 69 of 187 70 FIR No. 21/10 PS - Narela indicated that on 18/01/2010, accused Vikram @ Aman was got medically examined at SRHC Hospital vide Memo No. 87/10 and the sealed pullinda alongwith the sample seals handed over by the Doctor after his medical examination seized vide seizure memo Ex. PW17/B. Perusal of the MLC of accused Narender Ex. PX3, MLC of accused Tek Ram @ Tinku @ Aman Ex. PX4 and medical examination memo no. 87/10 dated 18/01/2010 of accused Vikram @ Aman indicate that the Doctor has opined that there is nothing to suggest that they cannot perform sexual intercourse.

In view of above and in the circumstances, it stands proved on the record that accused Narender, Tek Ram @ Tinku @ Aman and Vikram @ Aman were capable of performing sexual intercourse.

BIOLOGICAL AND SEROLOGICAL EVIDENCE

19. PW13 Ms. Poonam Sharma, SSO (Biology) FSL, Rohini has proved the biological report Ex. PW 13/A and the Serological report Ex. PW 13/B bearing her signature at various pages at points 'A'.

70 of 187 71 FIR No. 21/10 PS - Narela The biological report Ex. PW13/A reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed envelope sealed with the seal of "CASUALTY MB HOSPITAL POOTH KHUD DELHI 39" containing exhibits '1a' & '1b' marked 'A'.

Exhibit '1a'          :       One underwear.
Exhibit '1b'          :       One banian.

Parcel '2'    :   One     sealed     envelope sealed     with     the     seal       of

"CASUALTY MB HOSPITAL POOTH KHUD DELHI 39" containing exhibits '2a' & '2b' marked 'B'.

Exhibit '2a' : One salwar having dirty stains.

Exhibit '2b'          :       One lady's shirt.

Parcel '3'    :   One     sealed     envelope sealed     with     the     seal       of

"CASUALTY MB HOSPITAL POOTH KHUD DELHI 39" containing exhibits '3a', '3b', '3c', '3d' & '3e'.

Exhibit '3a' : Dark brown foul smelling liquid kept in three tubes all of which then kept in an envelope marked 'Blood sample'.

Exhibit '3b' : one envelope marked 'Nail clippings + Nail scraping (on a wooden stick)' containing exhibits '3b1' & 71 of 187 72 FIR No. 21/10 PS - Narela '3b2'.

Exhibit '3b1'     :       Few nail clippings.
Exhibit '3b2'     :       A small stick.

Exhibit '3c' :    Few strands of hair described as 'Scalp hair' kept in 
                  an envelope marked 'Scalp hair'.
Exhibit '3d' :    A bunch of hair described as 'pubic hair' kept in an  
                  envelope marked 'Pubic hair'.
Exhibit '3e' :    One envelope marked as 'Vaginal swab' containing

exhibits '3e1', '3e2', '3e3', '3e4', '3e5', '3e6' & '3e7' Exhibit '3e1': Cotton wool swab on a wooden stick marked as 'Oral swab'.

Exhibit '3e2': Cotton wool swab on a wooden stick marked as 'swab from neckcontusion site'.

Exhibit '3e3': Cotton wool swab on a wooden stick marked as 'posterior swab (Vaginal)'.

Exhibit '3e4': Cotton wool swab on a wooden stick marked as 'Lateral swab (Vaginal)'.

Exhibit '3e5': Cotton wool swab on a wooden stick marked as 'Anterior swab (Vaginal)'.

Exhibit '3e6': One microslide having faint whitish smear. Exhibit '3e7': Some fluid kept in a vial described as vaginal washings'.

Parcel '4' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '4' kept in a tube.

Exhibit '4' : Dark brown foul smelling liquid described as 'blood sample'.

72 of 187 73 FIR No. 21/10 PS - Narela Parcel '5' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '5' kept in a tube.

Exhibit '5' : Dark brown foul smelling liquid described as 'blood sample'.

Parcel '6' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibits '6' kept in a tube.

Exhibit '6' : Dark brown foul smelling liquid described as 'blood sample'.

RESULT OF ANALYSIS

1. Blood was detected on exhibits '3a', '4', '5' & '6'.

2. Blood could not be detected on exhibits '1a', '1b', '2a', '2b', '3b', '3c', '3d', '3e1', '3e2', '3e3', '3e4', '3e5' & '3e7'.

3. Human semen was detected on exhibits '1a', '2a', '2b', '3e3', '3e4', '3e5', '3e6' & '3e7'.

4. Semen could not be detected on exhibits '1b', '3b1', '3b2', '3c', '3d', '3e1' & '3e2'.

5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'P. Sh. FSL DELHI'.

73 of 187 74 FIR No. 21/10 PS - Narela The serological report Ex. PW13/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood Stains: '3a' Blood sample Sample blood putrefied, hence no opinion '4' Blood sample Sample blood putrefied, hence no opinion '5' Blood sample Sample blood putrefied, hence no opinion '6' Blood sample Sample blood putrefied, hence no opinion Semen Stains: '1a' Underwear 'A' Group '2a' Salwar No reaction '2b' Lady's shirt No reaction '3e3' Cotton wool swab No reaction '3e4' Cotton wool swab No reaction '3e5' Cotton wool swab No reaction '3e7' Fluid No reaction As per the Biological Report Ex. PW13/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1, 2 and 3 belong to the prosecutrix which was seized vide seizure memo Ex. PW2/A dated 16/01/2010 and Parcel No. 4 belongs 74 of 187 75 FIR No. 21/10 PS - Narela to accused Narender which was seized vide seizure memo Ex. PW17/C dated 18/01/2010 and Parcel No. 5 belongs to accused Vikram @ Aman which was seized vide seizure memo Ex. PW17/B dated 18/01/2010 and Parcel No. 6 belongs to accused Tek Ram @ Tinku @ Aman which was seized vide seizure memo Ex. PW17/E dated 20/01/2010.

On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '3a' (Blood sample of the prosecutrix), exhibit '4' (Blood sample of accused Narender), exhibit '5' (Blood sample of accused Vikram @ Aman) & exhibit '6' (Blood sample of Tek Ram @ Tinku @ Aman); blood could not be detected on exhibit '1a' (Underwear of the prosecutrix), exhibit '1b' (Banian of the prosecutrix), exhibit '2a' (Salwar of the prosecutrix), exhibit '2b' (Lady's shirt of the prosecutrix), exhibit '3b' (Nail clipping + Nail scraping of the prosecutrix), exhibit '3c' (Scalp hair of the prosecutrix), exhibit '3d' (Pubic hair of the prosecutrix), exhibit '3e1' (Oral swab of the prosecutrix), exhibit '3e2' (Swab from neckcontusion site of the prosecutrix), exhibit '3e3' (Posterior swab 75 of 187 76 FIR No. 21/10 PS - Narela (Vaginal) of the prosecutrix), exhibit '3e4' (Lateral swab (Vaginal) of the prosecutrix), exhibit '3e5' (Anterior swab (Vaginal) of the prosecutrix) & exhibit '3e7' (Vaginal washings of the prosecutrix); Human semen was detected on exhibit '1a' (Underwear of the prosecutrix), exhibit '2a' (Salwar of the prosecutrix), exhibit '2b' (Lady's shirt of the prosecutrix), exhibit '3e3' (Posterior swab (Vaginal) of the prosecutrix), exhibit exhibit '3e4' (Lateral swab (Vaginal) of the prosecutrix), exhibit '3e5' (Anterior swab (Vaginal) of the prosecutrix), exhibit '3e6' (Microslide having faint whitish smear of the prosecutrix) & exhibit '3e7' (Vaginal washings of the prosecutrix) and semen could not be detected on exhibit '1b' (Banian of the prosecutrix), exhibit '3b1' (Few nail clippings of the prosecutrix), exhibit '3b2' (A small stick of the prosecutrix), exhibit '3c' (Scalp hair of the prosecutrix), exhibit '3d' (Pubic hair of the prosecutrix), exhibit '3e1' (Oral swab of the prosecutrix) & exhibit '3e2' (Swab from neck contusion site of the prosecutrix). As per the serological report Ex. PW13/B 'Sample was putrefied hence no opinion' could be given on the exhibit '3a' (Blood Sample of prosecutrix), exhibit '4' (Blood Sample of 76 of 187 77 FIR No. 21/10 PS - Narela accused Narender), exhibit '5' (Blood Sample of accused Vikram @ Aman) and exhibit '6' (Blood Sample of Tek Ram @ Tinku @ Aman).

On a conjoint reading of the medical/gynaecological examination of PW16 - prosecutrix at point bracketed 'X' to 'X1' on MLC Ex. PW5/A together with the MLC of accused Tek Ram @ Tinku @ Aman Ex. PX4, MLC of accused Narender Ex. PX3 and medical examination vide memo No. 87/10 dated 18/01/2010 at SRHC Hospital of accused Vikram @ Aman, in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.

In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant case.

As per the Biological Report Ex. PW13/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1a' (Underwear of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '2a' (Salwar of the prosecutrix 77 of 187 78 FIR No. 21/10 PS - Narela seized vide seizure memo Ex. PW2/A), exhibit '2b' (Lady's shirt of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '3e3' (Posterior swab (Vaginal) of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit exhibit '3e4' (Lateral swab (Vaginal) of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '3e5' (Anterior swab (Vaginal) of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '3e6' (Microslide having faint whitish smear of the prosecutrix seized vide seizure memo Ex. PW2/A) & exhibit '3e7' (Vaginal washings of the prosecutrix seized vide seizure memo Ex. PW2/A). Accused were under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1a', '2a', '2b', '3e3', '3e4', '3e5', '3e6' and '3e7' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statements of the accused and their omission to lead any evidence in this regard and their complete denial becomes an additional link in the prosecution case.

20. Learned Counsel for accused Tek Ram submitted that 78 of 187 79 FIR No. 21/10 PS - Narela prosecution has examined PW13 from FSL, Rohini but as per Serological report Ex.PW13/B, most of the samples were putrefied and nothing incriminating has come in evidence against the accused Tek Ram in Forensic examination/analysis.

Learned Counsel for accused Narender submitted that Serological Report Ex. PW13/B or Biological Report Ex. PW13/A does not connect accused Narender.

I have carefully perused and analysed the evidence on record.

The Biological and Serological evidence Ex. PW13/A and Ex. PW13/B has been reproduced, discussed and analysed herein before.

So far as the plea raised by the Learned Counsel for the accused that, "prosecution has examined PW13 from FSL, Rohini but as per Serological report Ex.PW13/B, most of the samples were putrefied and nothing incriminating has come in evidence against the accused Tek Ram in Forensic examination/analysis" and the plea that, "Serological 79 of 187 80 FIR No. 21/10 PS - Narela Report Ex. PW13/B or Biological Report Ex. PW13/A does not connect accused Narender", are concerned, the same are found to have no substance in view of as to what has been discussed hereinbefore under the heading "Biological and Serological Evidence", at the cost of repetition, as per the Biological Report Ex. PW13/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1a' (Underwear of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '2a' (Salwar of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '2b' (Lady's shirt of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '3e3' (Posterior swab (Vaginal) of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit exhibit '3e4' (Lateral swab (Vaginal) of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '3e5' (Anterior swab (Vaginal) of the prosecutrix seized vide seizure memo Ex. PW2/A), exhibit '3e6' (Microslide having faint whitish smear of the prosecutrix seized vide seizure memo Ex. PW2/A) & exhibit '3e7' (Vaginal washings of the prosecutrix seized vide seizure memo Ex. PW2/A). Accused were under an obligation to explain how 80 of 187 81 FIR No. 21/10 PS - Narela and under what circumstances, the Human semen came to be present on the said exhibits '1a', '2a', '2b', '3e3', '3e4', '3e5', '3e6' and '3e7' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statements of the accused and their omission to lead any evidence in this regard and their 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.

21. Now let the testimony of PW16 - Prosecutrix be perused and analysed.

PW16 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I am residing at the aforementioned address (Gali No. 12, near DAV School, Gautam Colony, Narela, Delhi) since last 3½ - 4 years alongwith my family comprising of my parents and two younger brothers. I am student of R. K. Memorial School and presently I am in class 11th. In the year, 2010 January, I was a student of Sarvodaya Kanya 81 of 187 82 FIR No. 21/10 PS - Narela Vidhalaya No. 2, Narela in class 9th.

Two or three days prior to 15/01/2010 I had noticed one boy following me while I used to go the School. I later came to know that his name was Aman, he is present in the Court today. At this stage the witness has identified the accused Vikram @ Aman as the said boy. On 15/01/2010 at about 1:30 p.m. accused Vikram @ Aman met me at the gate of our School. Accused Vikram informed me that it was his birthday and asked me to accompany him. At that time my friend was also with me but he caught hold of my hand and forcibly made me sit on his motorcycle. Witness pointed out towards the accused Tek Ram and stated that another boy was also there on the same motorcycle (the witness has identified the accused Tek Ram by pointing out towards him as the said boy) and thereafter accused Vikram @ Aman and Tek Ram took me to some DDA Flats which were about 25 minutes distance from the place where I have picked up. On the way another boy who was on a red colour motorcycle whose name I later on came to know as Narender also joined them. The said boy is also present in the Court. At this stage, the witness has correctly identified the accused Narender by pointing out towards him. Thereafter all these boys including Narender took me to the said DDA flats on the third floor and locked me in the same. They were all speaking to each other outside and after some time Narender remained outside and the other two boys i.e. Tek Ram and Vikram came inside and asked me to make physical relations with them or else I would not be left. Thereafter both Tek Ram and Vikram committed rape on me one by one for 23 times. I pleaded with these boys and hence the accused Vikram brought me back on the motorcycle and left me at Gautam Colony near a shop. My parents were also coming from somewhere and I was dropped by the accused Vikram over there. Accused Vikram ran away from there after dropping me and my 82 of 187 83 FIR No. 21/10 PS - Narela parents could not apprehend him. Thereafter I alongwith my mother came to my house. My parents asked me about the above said boy but I did not tell anything to them. At the evening time, my mother again lovingly asked me what had happened when I disclosed to her everything. On the next morning I alongwith my parents went to my School but our Principal did not allow me to attend my classes and told me to appear in the examination only and thereafter I alongwith my parents went to Police Station Narela. Police made inquiries from me and took me to the hospital where my medical examination was conducted. Police also recorded my statement which is Ex. PW16/A bearing my signatures at point 'A' which I identify.

On the next day Police also took me to the red quarters but I was confused about the exact place where the incident had taken place.

On 17/01/2010 at the morning time accused Narender was arrested by the Police on my pointing out from gali no. 14, Gautam Colony vide already Ex. PW14/A bearing my signature at point 'B'. His personal search was taken vide already Ex. PW14/B bearing my signatures at point 'B'.

On 18/01/2010 at evening time accused Vikram @ Aman was arrested from Mata wali gali, Panna Udhyan vide already Ex. PW14/E bearing my signatures at point 'B'. His personal search was also conducted vide already Ex. PW14/F bearing my signatures at point 'B'.

Police again called me at the Police Station and I identified both accused Narender and Vikram.

On 20/01/2010, I went to the Police Station and I identified third accused Tek Ram and Police arrested him. Accused Tek Ram was taken into custody vide already Ex. PW11/B bearing my signatures at point 'C' and his personal search was taken vide already Ex. PW11/C bearing my signatures at point 'C'.

83 of 187 84 FIR No. 21/10 PS - Narela PW16 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was not giving the complete details. The crossexamination as conducted by the Ld. Addl. PP for the State reads as under : "It is wrong to suggest that I had told the Police that the person who had taken me was Tek Ram @ Aman and not Vikram @ Aman. Vol. He is the person who is sitting in the Court today. At this stage the witness has pointed out towards accused Vikram @ Aman as the person who had taken her. It is wrong to suggest that I had told the Police that it as Tek Ram @ Aman who had left me on the motorcycle near my house. Vol. I had identified accused Vikram @ Aman as the said boy.

On Court question : At that time, I did not know the names of any of the boys except of Aman. At this stage the prosecutrix has pointed out towards accused Vikram @ Aman as the person whose name she was aware as Aman and states that she did not know the names of other two boys.

It is correct that the Police had also prepared the site plan on my pointing out which plan is Ex. PW16/B. Vol. the said site plan was prepared in my presence. It is correct that after the arrest of the accused Vikram @ Aman his motorcycle of black colour make Hero Honda Splendor bearing No. DL7SH5088 was seized by the Police from his house vide seizure memo already Ex. PW11/A bearing my signatures at point 'B'. It is wrong to suggest that accused Tek Ram was arrested in my presence from Gautam Colony, Narela. Vol. I have seen the accused 84 of 187 85 FIR No. 21/10 PS - Narela Tek Ram in the Police Station and identified him there. Doctor seized my clothes at the hospital and I can identify the same if shown to me. I can also identify the motorcycle if shown to me but I do not remember its registration number.

At this stage MHC(M) has produced the motorcycle at the parking of the Court complex and same is shown to the witness who has correctly identified the same. The motorcycle is already Ex. P1.

At this stage MHC(M) has produced one sealed parcel No. 2 duly sealed with the seal of P.Sh. FSL Delhi and same is opened after breaking the seal and one Kurta of blue colour and one salwar of white colour (school dress) are taken out and same are shown to the witness who correctly identified the same belonging to her and taken by the Doctors. Kurta is Ex. P2 and Salwar is Ex. P3.

At this stage MHC(M) has produced one sealed parcel No. 1 duly sealed with the seal of P.Sh. FSL Delhi and same is opened after breaking the seal and one underwear and one Shamiz are taken out and same are shown to the witness who correctly identified the same belonging to her and taken by the Doctors. Underwear is Ex. P4 and Shamiz is Ex. P5."

From the aforesaid narration of PW16 - prosecutrix, it is clear that she is residing at the aforementioned address (Gali No. 12, near DAV School, Gautam Colony, Narela, Delhi) since last 3½ - 4 years alongwith her family comprising of her parents and two younger brothers. She is student of R. K. Memorial School and presently she is in 85 of 187 86 FIR No. 21/10 PS - Narela class 11th. In the year, 2010 January, she was a student of Sarvodaya Kanya Vidhalaya No. 2, Narela in class 9th. Two or three days prior to 15/01/2010, she had noticed one boy following her while she used to go the School. She later came to know that his name was Aman, he is present in the Court. At this stage the witness has identified the accused Vikram @ Aman as the said boy. On 15/01/2010 at about 1:30 p.m. accused Vikram @ Aman met her at the gate of their School. Accused Vikram informed her that it was his birthday and asked her to accompany him. At that time her friend was also with her but he caught hold of her hand and forcibly made her sit on his motorcycle. Witness pointed out towards the accused Tek Ram and stated that another boy was also there on the same motorcycle (the witness has identified the accused Tek Ram by pointing out towards him as the said boy) and thereafter accused Vikram @ Aman and Tek Ram took her to some DDA Flats which were about 25 minutes distance from the place where she had picked up. On the way, another boy who was on a red colour motorcycle whose name she later on came to know as Narender also joined them. The said boy is also present in the Court. At this stage, the witness has correctly identified the accused Narender by pointing out towards him. Thereafter 86 of 187 87 FIR No. 21/10 PS - Narela all these boys including Narender took her to the said DDA flats on the third floor and locked her in the same. They were all speaking to each other outside and after some time Narender remained outside and the other two boys i.e. Tek Ram and Vikram came inside and asked her to make physical relations with them or else she would not be left. Thereafter, both Tek Ram and Vikram committed rape on her one by one for 23 times. She pleaded with these boys and hence the accused Vikram brought her back on the motorcycle and left her at Gautam Colony near a shop. Her parents were also coming from somewhere and she was dropped by the accused Vikram over there. Accused Vikram ran away from there after dropping her and her parents could not apprehend him. Thereafter, she alongwith her mother came to her house. Her parents asked her about the above said boy but she did not tell anything to them. At the evening time, her mother again lovingly asked her what had happened when she disclosed to her everything. On the next morning she alongwith her parents went to her School but their Principal did not allow her to attend her classes and told her to appear in the examination only and thereafter she alongwith her parents went to Police Station Narela. Police made inquiries from her and took her to the 87 of 187 88 FIR No. 21/10 PS - Narela Hospital where her medical examination was conducted. Police also recorded her statement which is Ex. PW16/A bearing her signatures at point 'A' which she identify. On the next day Police also took her to the red quarters but she was confused about the exact place where the incident had taken place. On 17/01/2010 at the morning time accused Narender was arrested by the Police on her pointing out from Gali No. 14, Gautam Colony vide already Ex. PW14/A bearing her signature at point 'B'. His personal search was taken vide already Ex. PW14/B bearing her signatures at point 'B'. On 18/01/2010 at evening time accused Vikram @ Aman was arrested from Mata Wali Gali, Panna Udhyan vide already Ex. PW14/E bearing her signatures at point 'B'. His personal search was also conducted vide already Ex. PW14/F bearing her signatures at point 'B'. Police again called her at the Police Station and she identified third accused Tek Ram and Police arrested him. Accused Tek Ram was taken into custody vide already Ex. PW11/B bearing her signatures at point 'C' and his personal search was taken vide already Ex. PW11/C bearing her signatures at point 'C'.

PW16 - Prosecutrix during her crossexamination has 88 of 187 89 FIR No. 21/10 PS - Narela negated the suggestions that since she was meeting these boys of her own therefore the School Authorities refused to take her responsibility and asked her only to appear for the examination or that she used to frequently call up the accused vol. she had only made a call to the accused Vikram @ Aman once on the same day in his presence or that when her parents came to know of the above (regarding her friendship/affair with accused Vikram @ Aman) they were furious and on legal advice framed up the accused Narender, Vikram @ Aman and also Tek Ram in the present case or that no incident as aforesaid had taken place or that she is deposing falsely on the tutoring and at the instance of her parents or that her date of birth as mentioned in School record is not correct or that she had never seen Narender previously in the area and it is for this reason that she had never made any specific allegation against him to the Police or that she has identified the accused Narender on the pointing out of the Police.

Inspite of incisive crossexamination of PW16 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross 89 of 187 90 FIR No. 21/10 PS - Narela examination and her testimony is consistent throughout. The testimony of PW16 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

The testimony of PW16 - 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 PW16 - Prosecutrix is also found to be in consonance with her statement Ex. PW16/A made to the Police.

The testimony of PW16 - Prosecutrix is also found to be corroborated by PW10 - Rohtash, father of the prosecutrix and PW12 - Mrs. Suman, mother of the prosecutrix to whom prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.

90 of 187 91 FIR No. 21/10 PS - Narela PW10 - Rohtash, father of the prosecutrix in his examinationinchief has deposed that : "I am residing at the aforementioned address (Gali No. 12, Near DAV School, Gautam Colony, Narela, Delhi) for about 56 years along with my family comprising of my wife and three children. My daughter/prosecutrix (name withheld) is my eldest child. My daughter used to study in class 9th in government school, Narela. I am a fruit vendor and put a rehri. On 15/01/2010 when I reached back home at around 8:00 - 9:00 p.m. On the next day i.e. On 16/01/2010 when I woke up in the morning, my wife told me that our daughter/prosecutrix (name withheld) told her that two boys had committed rape upon our daughter. She informed me that our daughter had told her that after the school hours at about 1:45 p.m. one boy Tek Ram @ Aman met her at the gate of the school and allured her into accompanying her on a motorcycle. Thereafter on the way two more boys joined him on a separate motorcycle after which they took her to the red color flats (lal flats) where two boys forcibly committed rape upon her without her consent. Thereafter another boy whose name I do not recollect brought her back and drop her at house. On the next day I along with my wife and my daughter went to the police station and made our complaint. Thereafter we accompanied the IO to the red flats but my daughter could not identify the flat. Thereafter my daughter was taken to the Pooth Khurd for purpose of her medical examination where her MLC was got prepared. I had consented to the internal examination of my daughter and my signatures are present on the MLC already Ex. PW5/A at point mark 'B'. After we returned to the police station where our complaint 91 of 187 92 FIR No. 21/10 PS - Narela was lodged and my statement was recorded and we returned to our house thereafter.

I did not know any of the accused previously. I cannot identify any of the accused."

From the aforesaid narration of PW10 - Rohtash it is clear that the he is residing at the aforementioned address (Gali No. 12, Near DAV School, Gautam Colony, Narela, Delhi) for about 56 years along with his family comprising of his wife and three children. His daughter/prosecutrix (name withheld) is his eldest child. His daughter used to study in class 9th in Government School, Narela. He is a fruit vendor and put a rehri. On 15/01/2010 when he reached back home at around 8:00 - 9:00 p.m. On the next day i.e. on 16/01/2010 when he woke up in the morning, his wife told him that their daughter/prosecutrix (name withheld) told her that two boys had committed rape upon their daughter. She informed him that their daughter had told her that after the School hours at about 1:45 p.m. one boy Tek Ram @ Aman met her at the gate of the School and allured her into accompanying her on a motorcycle. Thereafter, on the way two more boys joined him on a separate motorcycle after which they took her to the red color flats (lal 92 of 187 93 FIR No. 21/10 PS - Narela flats) where two boys forcibly committed rape upon her without her consent. Thereafter another boy whose name he does not recollect brought her back and drop her at house. On the next day, he alongwith his wife and his daughter went to the Police Station and made their complaint. Thereafter, they accompanied the IO to the red flats but his daughter could not identify the flat. Thereafter, his daughter was taken to the Pooth Khurd for purpose of her medical examination where her MLC was got prepared. He had consented to the internal examination of his daughter and his signatures are present on the MLC already Ex. PW5/A at point mark 'B'. After they returned to the Police Station where their complaint was lodged and his statement was recorded and they returned to their house thereafter. He did not know any of the accused previously. He can not identify any of the accused.

During his crossexamination PW10 - Rohtash has negated the suggestions that his daughter is having an affair with Tek Ram and had been meeting with him previously or that the accused Tek Ram and his family were known to him previously or that the father of the accused Tek Ram namely Hari Om is known to him previously or that Hari Om 93 of 187 94 FIR No. 21/10 PS - Narela had given him (DW10) a sum of Rs. one lac twenty thousand which he did not want to return and he became dishonest and got his (Hari Om) son implicated in this false case or that the accused Vikram has been falsely implicated only because Tek Ram was using the bike of Vikram in view of their family relations or that accused Narender has been falsely implicated by him (PW10) and his daughter or that Tek Ram has been falsely implicated only to settle scores with his family.

PW12 - Mrs. Suman, mother of the prosecutrix in her examinationinchief has deposed that : "I am residing at the aforementioned address (Gali No. 12, near DAV School, Gautam Colony, Narela, Delhi) since last four years along with my family comprising of my husband and three children i.e. One daughter and two sons. Prosecutrix (name withheld) is my eldest child. She was studying in 9th class at the time of incident in the year 2010 and was aged around 14 years at that time. It was 15/01/2010 my daughter/prosecutrix (name withheld) had left for the school in the morning at about 7:30 a.m. but she did not return by her normal time i.e by 2:00 p.m. At 2:30 p.m., I went to look for her and while I had left the house and had just reached Gautam colony after about five minutes, I saw one boy drop my daughter from a motorcycle behind the police station situated at Gautam Colony. I had never seen that boy previously. I cannot recognize the boy because I had seen him from a distance, I also cannot tell if he is present in the court or not. At that time my daughter did not tell me anything. In the evening time I asked about the boy, 94 of 187 95 FIR No. 21/10 PS - Narela initially my daughter/prosecutrix (name withheld) did not tell me anything but when I slapped her, she then disclosed that one boy had picked her up from outside her school on a motorcycle on the allurement of celebrating of his birthday and thereafter he took her to red and yellow quarters where she was locked in a room. She further disclosed to me that on the way two other boys joined on a motorcycle. Thereafter my daughter was kept in the room against her wishes while she kept on telling these boys to leave her but they did not permit her to go. There they compelled to make physical relations with her and these boys said that only thereafter she would be released. She further told me that thereafter while two boys made physical relations with her/rape upon her while one boy stood outside the room. She also disclosed that thereafter one boy brought her back on the motorcycle and left her near the house from where I had seen her. (Objected to by the Ld. Defence counsels being hearsay).

It was on the next day morning that I disclosed these facts to my husband. Thereafter we all i.e. myself, my husband and my daughter went to the police station where my daughter was interrogated and her statement was recorded. We then went to the MV hospital where the medical examination of my daughter was conducted. Thereafter we went to red quarters where my daughter pointed out the place of incident. Wearing clothes of prosecutrix (name withheld) were taken by the doctor and thereafter police seized the same in sealed condition. No one was arrested in my presence and therefore I cannot identify any of the accused nor my daughter had disclosed name of any of the boys."

From the aforesaid narration of PW12 - Mrs. Suman it is 95 of 187 96 FIR No. 21/10 PS - Narela clear that she is residing at the aforementioned address (Gali No. 12, near DAV School, Gautam Colony, Narela, Delhi) since last four years along with her family comprising of her husband and three children i.e. One daughter and two sons. Prosecutrix (name withheld) is her eldest child. She was studying in 9th class at the time of incident in the year 2010 and was aged around 14 years at that time. It was 15/01/2010 her daughter/prosecutrix (name withheld) had left for the school in the morning at about 7:30 a.m. but she did not return by her normal time i.e by 2:00 p.m. At 2:30 p.m., she (PW12) went to look for her (prosecutrix) and while she (PW12) had left the house and had just reached Gautam colony after about five minutes, she saw one boy drop her daughter from a motorcycle behind the Police Station situated at Gautam Colony. She had never seen that boy previously. She cannot recognize the boy because she had seen him from a distance, she also cannot tell if he is present in the Court or not. At that time her daughter did not tell her anything. In the evening time she asked about the boy, initially her daughter/prosecutrix (name withheld) did not tell her anything but when she (PW12) slapped her, she then disclosed that one boy had picked her up from outside her school on a motorcycle on the allurement of 96 of 187 97 FIR No. 21/10 PS - Narela celebrating of his birthday and thereafter he took her to red and yellow quarters where she was locked in a room. She (prosecutrix) further disclosed to her that on the way two other boys joined on a motorcycle. Thereafter, her daughter was kept in the room against her wishes while she kept on telling these boys to leave her but they did not permit her to go. There they compelled to make physical relations with her and these boys said that only thereafter she would be released. She (prosecutrix) further told her that thereafter while two boys made physical relations with her/rape upon her while one boy stood outside the room. She (prosecutrix) also disclosed that thereafter one boy brought her back on the motorcycle and left her near the house from where she (PW12) had seen her. (Objected to by the Ld. Defence counsels being hearsay). It was on the next day morning that she (PW12) disclosed these facts to her husband. Thereafter they all i.e. she herself, her husband and her daughter went to the Police Station where her daughter was interrogated and her statement was recorded. They then went to the MV hospital where the medical examination of her daughter was conducted. Thereafter, they went to red quarters where her daughter pointed out the place of incident. Wearing clothes of prosecutrix (name withheld) were 97 of 187 98 FIR No. 21/10 PS - Narela taken by the Doctor and thereafter Police seized the same in sealed condition. No one was arrested in her (PW12) presence and therefore she cannot identify any of the accused nor her daughter had disclosed name of any of the boys.

During her crossexamination PW12 - Mrs. Suman has negated the suggestions that her daughter/prosecutrix (name withheld) was having friendly relations with the accused Tek Ram and knew him much prior to the incident or that at that time her daughter was fully composed or that she did not leave her daughter to school nor she pick her up. vol. she sometimes leave her and pick her up or that she was aware of the relationship of her daughter with Tek Ram and hence she was going towards the house of Tek Ram. vol. Tek Ram is residing in gali No. 15 and she never knew him previously or that when the statement of her daughter was recorded by the Police, she did not disclose the name of any of the accused. vol. She had given the name of one Tinku or that wrong information regarding the date of birth and place of birth was given to the registrar Birth and Death Delhi only to secure the benefits of the Government Schemes for her daughter or that she is known to Hari 98 of 187 99 FIR No. 21/10 PS - Narela Om because her husband had taken Rs. one lac twenty thousand from him in the month of FebruaryMarch, 2009. vol. in whose presence this money was taken and when or that her husband had become dishonest and did not want to return the money on account of which the accused Tek Ram has been falsely implicated or that the accused Narender and Vikram has been falsely implicated in the present case.

Inspite of incisive crossexamination of PW10 - Rohtash, father of the prosecutrix and PW12 - Mrs. Suman, mother of the prosecutrix 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 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 PW10 - Rohtash and PW12 - Mrs. Suman 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. They have deposed regarding the facts as to what they perceived, observed and experienced.

99 of 187 100 FIR No. 21/10 PS - Narela

22. While analysing the testimonies of PW16 - Prosecutrix, PW10 - Rohtash, father of the prosecutrix and PW12 - Mrs. Suman, mother of the prosecutrix as discussed hereinabove, inspite of incisive crossexamination of PW16 - Prosecutrix, PW10 - Rohtash and PW12 - Mrs. Suman, nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by the defence to PW16 Prosecutrix that since she was meeting these boys of her own therefore the School Authorities refused to take her responsibility and asked her only to appear for the examination or that she used to frequently call up the accused vol. she had only made a call to the accused Vikram @ Aman once on the same day in his presence or that when her parents came to know of the above (regarding her friendship/affair with accused Vikram @ Aman) they were furious and on legal advice framed up the accused Narender, Vikram @ Aman and also Tek Ram in the present case or that no incident as aforesaid had taken place or that she is deposing falsely on the tutoring and at the instance of her parents or that her date of birth as mentioned in School record is not correct or that she had never seen 100 of 187 101 FIR No. 21/10 PS - Narela Narender previously in the area and it is for this reason that she had never made any specific allegation against him to the Police or that she has identified the accused Narender on the pointing out of the Police, the suggestions to PW10 - Rohtash that his daughter is having an affair with Tek Ram and had been meeting with him previously or that the accused Tek Ram and his family were known to him previously or that the father of the accused Tek Ram namely Hari Om is known to him previously or that Hari Om had given him (DW10) a sum of Rs. one lac twenty thousand which he did not want to return and he became dishonest and got his (Hari Om) son implicated in this false case or that the accused Vikram has been falsely implicated only because Tek Ram was using the bike of Vikram in view of their family relations or that accused Narender has been falsely implicated by him (PW10) and his daughter or that Tek Ram has been falsely implicated only to settle scores with his family and the suggestions to PW12 - Mrs. Suman that her daughter/prosecutrix (name withheld) was having friendly relations with the accused Tek Ram and knew him much prior to the incident or that at that time her daughter was fully composed or that she did not leave her daughter to school nor she pick her up. vol. she sometimes 101 of 187 102 FIR No. 21/10 PS - Narela leave her and pick her up or that she was aware of the relationship of her daughter with Tek Ram and hence she was going towards the house of Tek Ram. vol. Tek Ram is residing in gali No. 15 and she never knew him previously or that when the statement of her daughter was recorded by the Police, she did not disclose the name of any of the accused. vol. She had given the name of one Tinku or that wrong information regarding the date of birth and place of birth was given to the registrar Birth and Death Delhi only to secure the benefits of the Government Schemes for her daughter or that she is known to Hari Om because her husband had taken Rs. one lac twenty thousand from him in the month of FebruaryMarch, 2009. vol. in whose presence this money was taken and when or that her husband had become dishonest and did not want to return the money on account of which the accused Tek Ram has been falsely implicated or that the accused Narender and Vikram has been falsely implicated in the present case, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.

102 of 187 103 FIR No. 21/10 PS - Narela At the cost of repetition, from the suggestions put to PW16 Prosecutrix and PW10 Rohtash, father of the prosecutrix as detailed hereinabove, by the accused, it is to be noticed that a futile attempt has been made by the accused to save their skins from the clutches of law by floating every possible theory. The theories floated by the accused are : During the crossexamination of PW16 Prosecutrix it was suggested to her, which she negated that, when her parents came to know of the above (regarding her friendship/affair with accused Vikram @ Aman) they were furious and on legal advice framed up the accused Narender, Vikram @ Aman and also Tek Ram in the present case.

The said Theory so propounded by the Learned Counsel for the accused that, "when her parents came to know of the above (regarding her friendship/affair with accused Vikram @ Aman) they were furious and on legal advice framed up the accused Narender, Vikram @ Aman and also Tek Ram in the present case", has not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded was either put to 103 of 187 104 FIR No. 21/10 PS - Narela PW10 Rohtash, father of the prosecutrix or to PW12 Mrs. Suman, mother of the prosecutrix during their incisive and lengthy cross examination. Nor even a single word regarding the said theory was uttered by any of the accused during their statements recorded u/s 313 Cr.P.C.

In the circumstances, the said theory so propounded is found to have no substance and falls flat on the ground.

Further during the crossexamination of PW10 Rohtash, father of the prosecutrix, it was suggested to him which he negated that, accused Vikram has been falsely implicated only because Tek Ram was using the bike of Vikram in view of their family relations.

The said Theory so propounded by the Learned Counsel for the accused that, "accused Vikram has been falsely implicated only because Tek Ram was using the bike of Vikram in view of their family relations.", besides being vague has also not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded was put to PW16 Prosecutrix 104 of 187 105 FIR No. 21/10 PS - Narela during her entire incisive and lengthy crossexamination. Nor any suggestion regarding the said theory so propounded was put to PW12 Mrs. Suman, mother of the prosecutrix during her incisive and lengthy crossexamination. Nor even a single word regarding the said theory was uttered by any of the accused during their statements recorded u/s 313 Cr.P.C.

In the circumstances, the said theory so propounded is found to have no substance and falls flat on the ground.

23. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.

It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen 105 of 187 106 FIR No. 21/10 PS - Narela 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."

In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."

106 of 187 107 FIR No. 21/10 PS - Narela On analysing the testimony of PW16 - Prosecutrix in the light of the medical and the gynaecological examination vide MLC Ex. PW5/A and vide observations mentioned at point bracketed 'X' to 'X1' on MLC Ex. PW5/A of the prosecutrix, biological and serological evidence Ex. PW13/A and Ex. PW13/B, together with the MLC of accused Tek Ram @ Tinku @ Aman Ex. PX4, MLC of accused Narender Ex. PX3 and medical examination vide memo Ex. 87/10 dated 18/01/2010 at SRHC Hospital of accused Vikram @ Aman, as discussed herein before, 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 Vikram @ Aman and Tek Ram @ Tinku @ Aman with PW16 - prosecutrix without her consent as a group of persons with accused Narender acting in furtherance of their common intention. NOW LET THE SUBMISSIONS/REMAINING PLEAS RAISED 107 of 187 108 FIR No. 21/10 PS - Narela BY THE LEARNED DEFENCE COUNSEL BE ANALYSED AND APPRECIATED

24. Learned Counsel for the accused Tek Ram submitted that prosecution has not joined any public person anywhere in conducting the investigation.

Learned Counsel for accused Vikram submitted that, Pinky friend of the prosecutrix, a material witness has not been produced and examined by the prosecution.

I have carefully perused and analysed the evidence on record.

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.

PW17 - ASI Raj Bala IO during her crossexamination has specifically deposed that : "I had asked the neighbours to join the investigation but they refused. I did not give any notice to the neighbours for not joining the 108 of 187 109 FIR No. 21/10 PS - Narela investigation. I did not mention this fact regarding nonjoining of the public witnesses in the case diary"

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).

It is a matter of common experience that the public persons do not come forward to assist the Police in the investigation.

In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."

Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it.

109 of 187 110 FIR No. 21/10 PS - Narela Though, the neighbourhood may be replete with other residents also.

In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."

So far as the plea raised by the Learned Counsel for accused Vikram that, "Pinky friend of the prosecutrix, a material witness has not been produced and examined by the prosecution", is concerned, it is evident from the record that during the crossexamination of PW17 -

110 of 187 111 FIR No. 21/10 PS - Narela ASI Raj Bala IO, none of the said accused voiced their concerns or raised any apprehension regarding the nonexamination of Pinky. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. In such a situation, the accused cannot be heard saying that since the most material witness was withheld by the prosecution, therefore adverse inference should be drawn against it.

In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.', (1979) 4 SCC 345, 'State of U.P. Vs. Anil Singh', AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar', 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.

Recently in case 'Mahavir Singh Vs. State of Haryana', 111 of 187 112 FIR No. 21/10 PS - Narela (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

25. Learned Counsel for the accused Narender submitted that PW16 - prosecutrix admitted that she did not try to jump from the motorcycle nor raised any alarm on the way.

I have carefully perused and analysed the evidence on record.

PW16 - prosecutrix during her crossexamination has specifically deposed that : "Pinky was present there when Vikram has forcibly caught my hand and pulled me. I had raised an alarm and told Pinky to help me. It is correct that there are shops and lot of passer byes (passers by) in the area. Vol. In the gali where we were stopped, there was no one in the 112 of 187 113 FIR No. 21/10 PS - Narela gali."

From the aforesaid narration of PW16 - prosecutrix, it is clearly indicated that she raised an alarm when accused Vikram had forcibly caught her hand and pulled her but to her misfortune, no one came to her help and moreover, in the gali, where the motorcycle was stopped by accused Vikram, there was no one in the gali.

In the circumstances, it is clearly indicated that PW16 - prosecutrix had resisted and protested for forcibly catching of her hand and her pulling by accused Vikram. It does not lie in the mouth of accused to utter that no hue and cry or alarm was raised by the prosecutrix at the time of her taking away from the gate of her School. Moreover, the sight cannot be lost of the fact that PW16 - prosecutrix when was forcibly made to sit on the motorcycle by catching hold of her hand by accused Vikram @ Aman and taken away on the motorcycle and all throughout, the prosecutrix remained under the total dominance and control of the accused. One is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to raise 113 of 187 114 FIR No. 21/10 PS - Narela hue and cry.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

26. Learned Counsel for accused Tek Ram submitted that 'S'/prosecutrix did not receive any internal or external injuries on her person at the time when as per her rape was committed upon her on 23 times by two boys of sufficient age. If rape would have been committed in this way, there must have been numerous internal injuries and external injuries as well on her person. Ex. PX4 which is MLC of Tek Ram bore this fact of no fresh injury about Tek Ram's person. If rape would have been committed this way on a unmarried (mentioned in PW5/A) girl, then there must have been numerous injuries on the person of 'S' and on the person of other accused including Tek Ram as well, especially at such a time of winter, which is not present in this case. It has not come in evidence whether the hymen was freshly ruptured. It means it was old tear. 'Vagina healthy' has come in evidence. It means vaginal walls bear no scratches, wounds, crashes and tears etc. Learned Counsel further 114 of 187 115 FIR No. 21/10 PS - Narela submitted that in the MLC of accused Tek Ram Ex. PX4 no fresh injury has been seen.

Learned Counsel for the accused Vikram submitted that as per the alleged history in the MLC of the prosecutrix, it is mentioned as assault by three people, while in her testimony, prosecutrix has deposed that she was sexually assaulted by two persons.

I have carefully perused and analysed the evidence on record.

The medical and gynaecological evidence of the prosecutrix has been discussed and analysed hereinbefore.

PW5 Dr. Geetanjali Singh, Specialist, Gynae, M.B. Hospital, Pooth Khurd, Delhi has proved the medical examination of the prosecutrix as was conducted by Dr. Chand Kiran vide MLC Ex. PW5/A signed by Dr. Chand Kiran at point `A`. She further deposed that as per the observations made at point bracketed X to X1, Hymen was found ruptured.

PW15 Dr. N. S. Khurana, M.O., M. V. Hospital, Pooth 115 of 187 116 FIR No. 21/10 PS - Narela Khurd, Delhi has proved the medical examination of the prosecutrix as was conducted by Dr. S. K. Agarwal, vide MLC No. 95/10 dated 16/01/2010 Ex. PW5/A signed by Dr. S. K. Agarwal at point 'C' and further deposed that no fresh external injury seen and the patient/prosecutrix was referred to Gyane Department for further management.

There is nothing in the crossexamination of PW5 - Dr. Geetanjali Singh and PW15 - N. S. Khurana, so as to impeach their creditworthiness.

It is to be mentioned that on 07/08/2012, accused Tek Ram @ Tinku S/o Hari Om made a statement before the Learned Predecessor Court and had admitted his medical examination vide MLC Ex. PX4 and had stated that he had 'no objection' if the concerned Doctor is not examined in the Court.

Perusal of the MLC Ex. PX4 of accused Tek Ram @ Tinku indicates that the Doctor has opined there is nothing to suggest that the said accused is incapable of performing the sexual intercourse.

116 of 187 117 FIR No. 21/10 PS - Narela So far as the plea raised by the Learned Counsel that no fresh injuries were seen on the body of the accused Tek Ram, is concerned, nonfinding of any injury does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.

As regards the plea raised by the Learned Counsel for accused Tek Ram that as per the MLC Ex. PW5/A of the prosecutrix, it is mentioned healthy vagina which means vaginal walls bear no scratches, wounds, crashes and tears etc. and no external injuries seen, is concerned, PW5 - Dr. Geetanjali Singh, Specialist Gynae, Maharishi Balmiki Hospital, Pooth Khurd, Delhi, during her examinationinchief has deposed that as per observations made by Dr. Chand Kiran at point bracketed 'X' to 'X1', on the MLC Ex. PW5/A of the prosecutrix, hymen was found ruptured. The perusal of the MLC Ex. PW5/A of the prosecutrix also indicates that as per speculum (P/S) examination it is mentioned as 'vagina healthy'. The absence of any injury and the finding of 'vagina healthy' ipso facto does not falsify the case of the prosecution 117 of 187 118 FIR No. 21/10 PS - Narela which is otherwise proved on record by clear, cogent and convincing evidence.

Emission of semen or rupture of hymen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).

Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

118 of 187 119 FIR No. 21/10 PS - Narela 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.

So far as the plea raised by the Learned Counsel for accused Tek Ram that it has not come in evidence whether the hymen of the prosecutrix was freshly ruptured. It means it was old tear, is concerned it is not made clear by the Learned Counsel for the accused as to what he intends to convey from the plea so raised. Does he intend to convey that the prosecutrix is a girl of 'easy virtues' or a girl of 'loose moral character'.

119 of 187 120 FIR No. 21/10 PS - Narela If it is so, it is not permissible as every girl/woman has a right to protect her dignity and cannot be subjected to rape only for that reason.

In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"

can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.

In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to 120 of 187 121 FIR No. 21/10 PS - Narela refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.

The Hon'ble Supreme Court in case, 'Md. Iqbal & Anr. Vs. State of Jharkhand' AIR 2013 SC 3077 while relying upon the observations of Narender Kumar Vs. State (NCT of Delhi) AIR 2012 SC 2281 had noted that even if a woman is of easy virtue or used to sexual intercourse, it cannot be a licence for any person to commit rape and it further held : "24. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the Court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.

The Court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of."

121 of 187 122 FIR No. 21/10 PS - Narela So far as the plea raised by the Learned Counsel for accused Vikram that, "as per the alleged history in the MLC of the prosecutrix, it is mentioned as assault by three people, while in her testimony, prosecutrix has deposed that she was sexually assaulted by two persons.", is concerned, with due respect it appears that Learned Counsel for the accused has either misread or not read the alleged history given in the MLC Ex. PW5/A dated 16/01/2010 of the prosecutrix. In the MLC Ex. PW5/A dated 16/01/2010 of PW16 - prosecutrix, in the alleged history, it is interalia found mentioned therein, " H/O assault by 3 people. Taken on bike from outside her School at 2:00 p.m. Intercourse done by two people & victim dropped back at 3:00 p.m. " The said alleged history on careful perusal and analysis of the evidence on record is found to be in consonance with the testimony of PW16 - prosecutrix as reproduced, discussed and analysed herein before.

Even if, in the estimation of the Learned Counsel for the accused, there was any contradiction/variation between the alleged history given by the prosecutrix mentioned in the MLC Ex. PW5/A and 122 of 187 123 FIR No. 21/10 PS - Narela in her testimony, then an explanation must have been obtained from her during the course of her crossexamination. Moreover it is evident from the record that during the crossexamination of PW16 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension on the aspect 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.

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 Vikram submitted that the IO failed to get record the statement of PW16 - prosecutrix u/s 164 Cr.P.C.

I have carefully perused and analysed the evidence on record.

PW17 - ASI Raj Bala IO during her crossexamination has specifically deposed that : 123 of 187 124 FIR No. 21/10 PS - Narela "I did not get recorded any statement of the prosecutrix u/s 164 Cr.P.C. Vol. the FIR was on the basis of the statement of the prosecutrix."

As far as the plea of the Learned Counsel for the accused that the statement of PW16 prosecutrix was not recorded u/s 164 Cr.P.C. and this is the lacuna in the investigation, is concerned, the same is without any substance as nonrecording of the statement of the prosecutrix u/s 164 Cr.P.C. cannot prove fatal to her case in as much as to get recording of such a statement is the prerogative of the prosecution. (Rel. Tasleem @ Pappu Vs. State (NCT Govt. of Delhi 2011 III AD (Delhi) 325).

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

28. Learned Counsel for accused Tek Ram submitted that in fact in fact Tek Ram's father, Hari Om had advanced a loan of Rs. 1,20,000/ to prosecutrix's father - Rohtash in FebruaryMarch, 2009 and Rohtash was finding it difficult to return the money on account of his dishonesty 124 of 187 125 FIR No. 21/10 PS - Narela and he was having/nurturing a grudge against Hari Om. That is the main reason for falsely implicating the accused Tek Ram in this case.

I have carefully perused and analysed the evidence on record.

During his crossexamination of PW10 - Rohtash, father of the prosecutrix has specifically deposed, "It is wrong to suggest that Hari Om had given a sum of Rs. One lac, twenty thousand which I did not want to return and I became dishonest and got his son implicated in this false case. Vol. I had not taken any money from Hari Om, infact, I have no concern with him.

During her crossexamination, PW12 - Mrs. Suman, mother of the prosecutrix has negated the suggestion that she is known to Hari Om (father of accused Tek Ram @ Tinku) because her husband had taken Rs. One lac twenty thousand from him in the month of February March, 2009 and that her husband had become dishonest and did not want to return the money on account of which the accused Tek Ram @ Tinku has been falsely implicated.

125 of 187 126 FIR No. 21/10 PS - Narela It is pertinent to reproduce the relevant part of cross examination of PW12 - Mrs. Suman which is reproduced and reads as under : "It is wrong to suggest that I am known to Hari Om because my husband had taken Rs, One Lac twenty thousand from him in the month of FebruaryMarch, 2009. Vol. In whose present this money was taken and when. It is wrong to suggest that my husband had become dishonest and did not want to return the money on account of which the accused Tek Ram has been falsely implicated."

So far as the theory floated by the Learned Counsel for accused Tek Ram that, "Tek Ram's father, Hari Om had advanced a loan of Rs. 1,20,000/ to prosecutrix's father - Rohtash in February March, 2009 and Rohtash was finding it difficult to return the money on account of his dishonesty and he was having/nurturing a grudge against Hari Om. That is the main reason for falsely implicating the accused Tek Ram in this case", is concerned, the same has not at all been made probable much established by any cogent evidence. No evidence, has been led on the record to indicate as to when 126 of 187 127 FIR No. 21/10 PS - Narela the said alleged amount of Rs. 1,20,000/ was advanced by Hari Om to PW10 - Rohtash, in what connection and for what purpose, the said amount was given to PW10 - Rohtash, who were the witnesses/persons in the presence of whom, the said amount was given to PW10 - Rohtash, as to what were the terms and conditions for giving the said amount to PW10 - Rohtash, whether the said amount was given in one time or was given in installments, if it was given in installments, in how many installments it was given, against which property/documents, the said amount was given to PW10 - Rohtash. Nor the said theory so propounded was put to PW16 - prosecutrix during her entire incisive and lengthy crossexamination. In the circumstances, except for raising empty and baseless money advancement theory, nothing has been substantiated by accused Tek Ram @ Tinku therefore the said theory falls flat on the ground. It appears that a futile attempt has been made by accused Tek Ram @ Tinku to save his skin from the clutches of law by floating such baseless and unfounded money advancement theory.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

127 of 187 128 FIR No. 21/10 PS - Narela

29. Learned Counsel for accused Tek Ram submitted that it might be that she (PW16 - prosecutrix) may be in love with somebody else and to hide her paramour's name, she has implicated the accused Tek Ram also at the instance of her parents, initially.

I have carefully perused and analysed the evidence on record.

So far as, the theory floated by the Learned Counsel for the accused Tek Ram that, "it might be that she (PW16 - prosecutrix) may be in love with somebody else and to hide her paramour's name, she has implicated the accused Tek Ram also at the instance of her parents, initially", is concerned, the same has not at all being made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded was put to PW16 - prosecutrix during her incisive and lengthy crossexamination. Nor any suggestion regarding the said theory so propounded was put either to PW10 - Rohtash, father of the prosecutrix or to PW12 - Ms. Suman, mother of the prosecutrix during their incisive and lengthy crossexamination. Nor 128 of 187 129 FIR No. 21/10 PS - Narela even a single word regarding the said theory, so propounded was uttered by the accused Tek Ram during his statement recorded u/s 313 Cr.P.C.

In the circumstances, the said theory so floated is merely an afterthought and falls flat on the ground.

It is also to be noticed that during the crossexamination of PW10 - Rohtash, father of the prosecutrix, it was suggested to him that accused Tek Ram has been falsely implicated only to settle scores with his family which he negated.

The relevant part of crossexamination of PW10 - Rohtash reads as under : "It is wrong to suggest that Tek Ram has been falsely implicated only to settle scores with his family."

So far as the theory propounded by the Learned Counsel for accused Tek Ram by way of suggestion to PW10 - Rohtash during his crossexamination, which he negated that, "Accused Tek Ram has been falsely implicated by PW10 - Rohtash (father of the prosecutrix) 129 of 187 130 FIR No. 21/10 PS - Narela only to settle scores with his family", the same has not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded was put to PW16 - prosecutrix during her incisive and lengthy crossexamination. Nor any suggestion regarding the said theory so propounded was put to PW12 - Mrs. Suman, mother of the prosecutrix during her incisive and lengthy cross examination. Nor even a single word regarding the said theory, so propounded was uttered by the accused Tek Ram during his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theory so floated is merely an afterthought and falls flat on the ground.

In the circumstances, it clearly indicates that a futile attempt has been made by accused Tek Ram to save his skin from the clutches of law by floating every possible baseless and unfounded theories.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

30. Learned Counsel for the accused submitted that there is a 130 of 187 131 FIR No. 21/10 PS - Narela delay in the registration of the case.

I have carefully perused and analysed the evidence on record.

PW16 - prosecutrix during her examinationinchief has specifically deposed that : "...At the evening time, my mother again lovingly asked me what had happened when I disclosed to her everything. On the next morning I alongwith my parents went to my School but our Principal did not allow me to attend my classes and told me to appear in the examination only and thereafter I alongwith my parents went to Police Station Narela. Police made inquiries from me and took me to the hospital where my medical examination was conducted. Police also recorded my statement which is Ex. PW16/A bearing my signatures at point 'A' which I identify."

During her crossexamination, PW16 - prosecutrix has specifically deposed that : "My father had also returned to our house alongwith me on my way back. I did not disclose to them what had happened to me. They had asked me that what had happened. Both my parents has asked me where I had gone but I initially did not disclose to them. It is correct that my mother had even slapped me in the evening and asked me to disclose 131 of 187 132 FIR No. 21/10 PS - Narela where I was . Vol. Thereafter, she lovingly asked me and I had disclosed to her everything. It is correct that I had got scared of my parents and felt that I would be exposed and my parents would question me as to why I had made a call to Aman and it is for this reason, I did not disclose to them anything".

On a conjoint reading and analysis of the said parts of the testimony of PW16 - prosecutrix, it is clearly indicated that because of the fear of her parents, she did not disclose to them and when her mother lovingly asked her, she disclosed everything to her. The sight cannot be lost of the fact that a minor girl who is fearful of her parents, on whom a sexual assault has been committed, one is left wandering as to how it is expected that she would gather the courage in such adverse circumstances to disclose the incident at the first asking of her parents. In the circumstances, the delay in registering the report with the Police vide her statement Ex. PW16/A stands sufficiently and satisfactorily explained.

The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her 132 of 187 133 FIR No. 21/10 PS - Narela prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.

Delay in lodging of FIR is a normal phenomenon especially in cases like rape or outraging the modesty of a women, the aggrieved or the injured person or her relations will naturally think twice before giving a complaint to the police (Ref. Mohd. Habib Vs. State (Delhi Administration) 1989 CRLJ 137 (Delhi).

The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).

133 of 187 134 FIR No. 21/10 PS - Narela The Hon'ble Apex Court in Ravinder Kumar Vs. State of Punjab, VI (2001) SLT 471 has held as under : "The law has not fixed any time limit for lodging of FIR. Hence, a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version."

In case Tara Singh Vs. State of Punjab, (1991 Suppl. (1) SCC 536), the Hon'ble Supreme Court has held that : "It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the Police Station immediately after the occurrence. Human nature as it is, the kith and kin who have witnesses the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the Police."

In State Vs. Gurmeet Singh, IV (1996) CCR 134 (SC), the Hon'ble Supreme Court, inter alia observed as under : "The Courts cannot overlook the fact that in sexual offence delay in the lodging of the FIR can be due to variety of the prosecutrix or 134 of 187 135 FIR No. 21/10 PS - Narela her family members to go to the Police and complaint about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodge."

In Gian Chand Vs. State, II (2001) SLT 740, the Hon'ble Supreme Court has observed as under : "That mere delay in filing FIR is no ground to doubt the case of the prosecution and not believing the testimony given by the prosecutrix in the Court. It was held that delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on that ground."

Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].

The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P. (1995) 5 SCC 518, has held : 135 of 187 136 FIR No. 21/10 PS - Narela "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."

The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience 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 : 136 of 187 137 FIR No. 21/10 PS - Narela "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"

The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that 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 137 of 187 138 FIR No. 21/10 PS - Narela 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."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

31. Learned Counsel for the accused Vikram submitted that PW16 - prosecutrix has changed the entire version/story as alleged in the FIR and has changed the name of the accused as well as the role of the accused persons as alleged in the FIR.

I have carefully perused and analysed the evidence on record.

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 : 138 of 187 139 FIR No. 21/10 PS - Narela

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.

For the purpose of dealing with the plea so raised by the Learned Counsel for the accused it is pertinent to reproduce the entire testimony of PW16 - prosecutrix.

PW16 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I am residing at the aforementioned address since last 3½ - 4 years alongwith my family comprising of my parents and two younger brothers. I am student of R. K. Memorial School and presently I am in class 11th. In the year, 2010 January, I was a student of Sarvodaya Kanya Vidhalaya No. 2, Narela in class 9th.

Two or three days prior to 15/01/2010 I had noticed one boy 139 of 187 140 FIR No. 21/10 PS - Narela following me while I used to go the School. I later came to know that his name was Aman, he is present in the Court today. At this stage the witness has identified the accused Vikram @ Aman as the said boy. On 15/01/2010 at about 1:30 p.m. accused Vikram @ Aman met me at the gate of our School. Accused Vikram informed me that it was his birthday and asked me to accompany him. At that time my friend was also with me but he caught hold of my hand and forcibly made me sit on his motorcycle. Witness pointed out towards the accused Tek Ram and stated that another boy was also there on the same motorcycle (the witness has identified the accused Tek Ram by pointing out towards him as the said boy) and thereafter accused Vikram @ Aman and Tek Ram took me to some DDA Flats which were about 25 minutes distance from the place where I have picked up. On the way another boy who was on a red colour motorcycle whose name I later on came to know as Narender also joined them. The said boy is also present in the Court. At this stage, the witness has correctly identified the accused Narender by pointing out towards him. Thereafter all these boys including Narender took me to the said DDA flats on the third floor and locked me in the same. They were all speaking to each other outside and after some time Narender remained outside and the other two boys i.e. Tek Ram and Vikram came inside and asked me to make physical relations with them or else I would not be left. Thereafter both Tek Ram and Vikram committed rape on me one by one for 23 times. I pleaded with these boys and hence the accused Vikram brought me back on the motorcycle and left me at Gautam Colony near a shop. My parents were also coming from somewhere and I was dropped by the accused Vikram over there. Accused Vikram ran away from there after dropping me and my parents could not apprehend him. Thereafter I alongwith my mother came to my house. My parents asked me about the above said boy but 140 of 187 141 FIR No. 21/10 PS - Narela IO did not tell anything to them. At the evening time, my mother again lovingly asked me what had happened when I disclosed to her everything. On the next morning I alongwith my parents went to my School but our Principal did not allow me to attend my classes and told me to appear in the examination only and thereafter I alongwith my parents went to Police Station Narela. Police made inquiries from me and took me to the hospital where my medical examination was conducted. Police also recorded my statement which is Ex. PW16/A bearing my signatures at point 'A' which I identify.

On the next day Police also took me to the red quarters but I was confused about the exact place where the incident had taken place.

Police again called me at the Police Station and I identified third accused Tek Ram and Police arrested him. Accused Tek Ram was taken into custody vide already Ex. PW11/B bearing my signatures at point 'C' and his personal search was taken vide already Ex. PW11/C bearing my signatures at point 'C'."

PW16 - Prosecutrix was also crossexamined/put leading 141 of 187 142 FIR No. 21/10 PS - Narela questions by the Learned Addl. PP for the State with the permission of the Court as she was not giving the complete details. The cross examination as was conducted by the Learned Addl. PP for the State is reproduced and reads as under : "It is wrong to suggest that I had told the Police that the person who had taken me was Tek Ram @ Aman and not Vikram @ Aman. Vol. He is the person who is sitting in the Court today. At this stage the witness has pointed out towards accused Vikram @ Aman as the person who had taken her. It is wrong to suggest that I had told the Police that it was Tek Ram @ Aman who had left me on the motorcycle near my house. Vol. I had identified accused Vikram @ Aman as the said boy.

It is correct that the Police had also prepared the site plan on my pointing out which plan is Ex. PW16/B. Vol. the said site plan was prepared in my presence. It is correct that after the arrest of the accused Vikram @ Aman his motorcycle of black colour make Hero Honda Splendor bearing No. DL7SH5088 was seized by the Police from his house vide seizure memo already Ex. PW11/A bearing my signatures at point 'B'. It is wrong to suggest that accused Tek Ram was arrested in my presence from Gautam Colony, Narela. Vol. I have seen the accused Tek Ram in the Police Station and identified him there. Doctor seized 142 of 187 143 FIR No. 21/10 PS - Narela my clothes at the hospital and I can identify the same if shown to me. I can also identify the motorcycle if shown to me but I do not remember its registration number.

At this stage MHC(M) has produced the motorcycle at the parking of the Court complex and same is shown to the witness who has correctly identified the same. The motorcycle is already Ex. P1.

At this stage,MHC(M) has produced one sealed parcel No. 2 duly sealed with the seal of P Sh FSL Delhi and same is opened after breaking the seal and one Kurta of blue colour and one Salwar of white color (school dress) are taken out and same are shown to the witness who correctly identified the same belonging to her and taken by he Doctors. Kurta is Ex. P2 and Salwar is Ex. P3.

At this stage, MHC(M) has produced one sealed parcel No. 1 duly sealed with the seal of P Sh FSL Delhi and same is opened after breaking the seal and one underwear and one Shamiz are taken out and same are shown to the witness who correctly identified the same belonging to her and taken by the Doctors. Underwear is Ex. P4 and Shamiz is Ex. P5."

(Underlined by me) During her crossexamination, by the Learned Counsel for the accused PW16 - prosecutrix has deposed which is reproduced and reads as under : "I was studying in Sarvodya School since Class 6th. I was with my friend Pinky when the accused Aman @ Vikram had stopped me. Pinky is residing near my house and sometimes we come home 143 of 187 144 FIR No. 21/10 PS - Narela together. My mother does not come to pick me up. Vol. My brother used to go with me. It is correct that my brother studies in different School which is ahead of my School. I did not disclose to Pinky or to my teachers in the School that one boy is following me. It is correct that one day next to the alleged incident my parents had gone to the Principal and there was a quarrel because they had objected to the boys meeting outside the School. It is wrong to suggest that since I was meeting these boys of my own therefore School Authorities refused to take my responsibility and asked me only to appear for the examination. Vol. The Principal had said that her responsibility was only till the School complex and not beyond that. It is wrong to suggest that I used to frequently call up the accused. Vol. I had only made a call to the accused Vikram @ Aman once on the same day in his presence. I was never carrying a mobile and do not have a phone at home. I had made a call to accused Vikram @ Aman from the public booth because he had threatened me that in case I do not make a call to him, he will keep following me. I did not disclose this fact to the Police when my statement was recorded. I do not recollect the number on which I had made a call. I did not know the address of any of the accused. I had never seen the accused Tek Ram or Narender previously. Again said, I had seen Narender once previously in the area when I was going for tuitions.

I had told the Police officers that both the boys committed rape on me two or three times. Confronted with the statement Ex. PW16/A where this fact is not so recorded. I had not taken a bath after the incident till the time my medical was conducted.

It is correct that after I was forcibly taken by the accused Vikram @ Aman there were three of us sitting on the same bike. I was sitting on the seat at the end. The motorcycle was being driven by 144 of 187 145 FIR No. 21/10 PS - Narela Vikram @ Aman. Again said what I had stated earlier was incorrect and the other boy Tek Ram had only made me sit on the bike and went away and later met us alongwith Narender. Pinki was present there when Vikram had forcibly caught my hand and pulled me. I had raised an alarm and told Pinki to help me. It is correct that there are shops and lot of passer byes in the area. Vol. In the gali where we were stopped there was no one in the gali. It is correct that the gali does not lead to my house.

Court Question : What were you doing in the gali? Ans. Accused Vikram @ Aman had told me to meet him in the gali on the next day.

This phone conversation took place two days prior to the incident i.e on 13th of January, 2010. I did not disclose to my parents either on 13th or on 14th or even on 15th that I was asked by this boy to meet him in the gali. I think 14th was a Sunday and that is why I did not go to School on 14th. I do not recollect if 14th was not a Sunday and it was a Thursday. Vol. I used to go to School everyday.

I did not try to jump from the motorcycle when I was taken to red quarters nor I raised any alarm on the way or when I was taken to the third floor of the red quarters. There was also a fourth floor in the said quarters. I cannot tell if all the flats on the sides and on the ground floor of the said flat on the third floor were occupied. Vol. I did not find any person there. It is correct that I could only show the place where the red quarters were situated but not the exact flat where I was taken. It is correct that there was a large number of quarters. I cannot tell if the number of flats in the area were around 500. Vol. They could be more or less the same. It is correct that there was a boundary wall around the flats. It is correct that I did not receive any injury. I had told the Police officials that my parents had met me in the way after I was left in the 145 of 187 146 FIR No. 21/10 PS - Narela area by the accused Aman @ Vikram. Confronted with the statement Ex. PW16/A where this fact does not find a mention.

I had not given the name of accused to the Doctor. My father had also returned to our house alongwith me on my way back. I did not disclose to them that what had happened to me. They had asked me that what had happened. Both my parents had asked me where I had gone but I initially did not disclose to them. It is correct that my mother had even slapped me in the evening and asked me to disclose where I was. Vol. Thereafter she lovingly asked me and I had disclosed to her everything. It is correct that I had got scared of my parents and felt that I would be exposed and my parents would question me as to why I had made a call to Aman and it is for this reason I did not disclose to them anything. It is correct that I had become friendly to Aman @ Vikram (witness has specifically identified him as the person who had befriended her). It is correct that I was in an affair with the accused Vikram @ Aman. Vol. It was just a few days prior to the incident that I knew him. It is wrong to suggest that when my parents came to know of the above they were furious and on legal advice framed up the accused Narender, Vikram @ Aman and also Tek Ram in the present case. It is wrong to suggest that no incident as aforesaid had taken place or that I am deposing falsely on the tutoring and at the instance of my parents. I was born in Haryana in a village Behra Bakipur, District Sonepat. I shifted to Delhi when I was hardly 1½ years old. It is correct that my date of birth certificate was prepared in the year, 2009. I am not aware if my parents got this certificate prepared by mentioning my false date of birth and place of birth for getting the benefit of Ladli Scheme. I am not aware if my parents are getting the benefits on my behalf under the above scheme of the Government. I had never failed in any class. It is wrong to suggest that my date of birth as mentioned in School record is not 146 of 187 147 FIR No. 21/10 PS - Narela correct. It is wrong to suggest that I had never seen Narender previously in the area and it is for this reason that I had never made any specific allegation against him to the Police. It is correct that I had never gone to Jail for the purpose of identification of accused. Again said, I had gone to Rohini Jail. It is correct that I could not identify the accused Narender at Rohini Jail. It is correct that Narender was not apprehended on my pointing out. It is wrong to suggest that I have identified the accused Narender on the pointing out of Police."

(Underlined by me) It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.

So far as the plea raised by the Learned Counsel for the accused that, "PW16 - prosecutrix has changed the entire version/story as alleged in the FIR and has changed the name of the accused as well as the role of the accused persons as alleged in the FIR.", is concerned, it is found to have no substance as on analysing the entire testimony of PW16

- prosecutrix, as reproduced hereinabove, it transpires that she has described the scenario implicating the accused to be authors of the 147 of 187 148 FIR No. 21/10 PS - Narela crime, of the committal of the sexual assault upon her by accused Vikram @ Aman and Tek Ram @ Tinku @ Aman without her consent as a group of persons with accused Narender acting in furtherance of their common intention. Though she has been attempted to be shown as having oscillated while deposing in the Court with regard to the names and role of the accused persons visavis her Police Statement Ex. PW16/A, but it is not so, as on careful and meticulous scrutiny of the evidence on record, it clearly indicates that she has categorically deposed that it was accused Vikram @ Aman (correctly identified present in the Court) who took her and negated the suggestion of Learned Addl. PP that she told the Police that person who had taken her was Tek Ram @ Aman and not Vikram @ Aman. She has also specifically deposed that it was accused Vikram @ Aman who had left her on the motorcycle near her house. She has also specifically deposed in reply to the Court question while pointing out towards accused Vikram @ Aman as the person whose name she was aware as Aman and did not know the names of other two boys. She has also specifically deposed that accused Tek Ram had only made her sit on the bike and went away and later met them alongwith Narender. She has also specifically deposed that she had 148 of 187 149 FIR No. 21/10 PS - Narela become friendly to Aman @ Vikram (correctly identified present in the Court) and she was in an affair with the accused Vikram @ Aman. Vol. it was just a few days prior to the incident that I know him.

At the cost of repetition, in the interest of justice, the relevant part of the testimony of PW16 - prosecutrix is reproduced and reads as under : PW16 - Prosecutrix during her examinationinchief has specifically deposed that : "Thereafter all these boys including Narender took me to the said DDA flats on the third floor and locked me in the same. They were all speaking to each other outside and after some time Narender remained outside and the other two boys i.e. Tek Ram and Vikram came inside and asked me to make physical relations with them or else I would not be left. Thereafter both Tek Ram and Vikram committed rape on me one by one for 23 times. I pleaded with these boys and hence the accused Vikram brought me back on the motorcycle and left me at Gautam Colony near a shop."

(Underlined by me) PW16 - Prosecutrix during her crossexamination by the 149 of 187 150 FIR No. 21/10 PS - Narela Learned Addl. PP for the State has deposed that : "It is wrong to suggest that I had told the Police that the person who had taken me was Tek Ram @ Aman and not Vikram @ Aman. Vol. He is the person who is sitting in the Court today. At this stage the witness has pointed out towards accused Vikram @ Aman as the person who had taken her. It is wrong to suggest that I had told the Police that it as Tek Ram @ Aman who had left me on the motorcycle near my house. Vol. I had identified accused Vikram @ Aman as the said boy."

(Underlined by me) PW16 - Prosecutrix on a Court question has replied as under : "On Court question : At that time, I did not know the names of any of the boys except of Aman. At this stage the prosecutrix has pointed out towards accused Vikram @ Aman as the person whose name she was aware as Aman and states that she did not know the names of other two boys."

(Underlined by me) PW16 - Prosecutrix during her crossexamination by the Learned Counsel for the accused has deposed that : "It is correct that after I was forcibly taken by the accused Vikram @ Aman there were three of us sitting on the same bike. I was sitting on the seat at the end. The motorcycle was being driven by 150 of 187 151 FIR No. 21/10 PS - Narela Vikram @ Aman. Again said what I had stated earlier was incorrect and the other boy Tek Ram had only made me sit on the bike and went away and later met us alongwith Narender."

"It is correct that I had become friendly to Aman @ Vikram (witness has specifically identified him as the person who had befriended her). It is correct that I was in an affair with the accused Vikram @ Aman. Vol. It was just a few days prior to the incident that I knew him."

(Underlined by me) It is also to be noticed that during her crossexamination by the Learned Counsel for the accused, PW16 - prosecutrix has specifically deposed that : "I had told the Police officers that both the boys committed rape on me two or three times. Confronted with the statement Ex. PW16/A where this fact is not so recorded."

(Underlined by me) "I had told the Police officials that my parents had met me in the way after I was left in the area by the accused Aman @ Vikram. Confronted with the statement Ex. PW16/A where this fact does not find a mention."

(Underlined by me) 151 of 187 152 FIR No. 21/10 PS - Narela During her crossexamination by the Learned Addl. PP for the State, PW16 - prosecutrix has specifically deposed that : "It is wrong to suggest that I had told the Police that the person who had taken me was Tek Ram @ Aman and not Vikram @ Aman. Vol. He is the person who is sitting in the Court today. At this stage the witness has pointed out towards accused Vikram @ Aman as the person who had taken her. It is wrong to suggest that I had told the Police that it was Tek Ram @ Aman who had left me on the motorcycle near my house. Vol. I had identified accused Vikram @ Aman as the said boy."

(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 PW16 - 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. PW16/A recorded by the Investigating Officer PW17 - ASI Raj Bala would be a reason best known to the Investigating Officer. Strangely, when PW17 - ASI Raj Bala IO was being crossexamined, no such question was put to her as to why she did not completely record the statement of the witness/PW16 -

152 of 187 153 FIR No. 21/10 PS - Narela prosecutrix or whether this witness had made such aforementioned statement as reproduced 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 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 153 of 187 154 FIR No. 21/10 PS - Narela 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."

At the cost of repetition, the testimony of PW16 - prosecutrix on careful perusal and analysis has been found to be natural clear, cogent, convincing and inspiring confidence. She has withstood 154 of 187 155 FIR No. 21/10 PS - Narela the rigors of crossexamination without being shaken. Her version on the core spectrum of the crime has remained intact. Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. The power of observation, retention and reproduction differs with individuals.

In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.

Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission 155 of 187 156 FIR No. 21/10 PS - Narela or contradictions.....".

Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).

The Hon'ble Supreme Court of India in case 'Leela Ram 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.

It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused 156 of 187 157 FIR No. 21/10 PS - Narela 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 occurrence is not a ground to doubt the testimony of a witness. The 157 of 187 158 FIR No. 21/10 PS - Narela 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.

32. Learned Counsel for the accused Narender submitted that there is no investigation about other motorcycle used by accused Narender for reaching to the alleged place of occurrence.

I have carefully perused and analysed the evidence on record.

PW14 - Constable Gunwant during his examinationinchief has specifically deposed that, at the instance of the accused Vikram, his motorcycle bearing No. DL7SH5088 of black colour of make Hero 158 of 187 159 FIR No. 21/10 PS - Narela Honda Splendor was seized from his house (vide seizure memo Ex. PW11/A) and identified and proved the said motorcycle as Ex. P1.

So far the plea raised by the Learned Counsel for accused Narender that there is no investigation about other motorcycle used by accused Narender for reaching to the alleged place of occurrence, is concerned, it is evident from the record that during the cross examination of PW17 - ASI Raj Bala IO, none of the said accused voiced their concerns or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.

It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).

At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court 159 of 187 160 FIR No. 21/10 PS - Narela 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.

Further, the fact regarding the other motorcycle used by accused Narender must be within his especial knowledge and the burden for proving the same was upon him. Section 106 of The Indian Evidence Act, 1872, provides for burden of proving fact especially within knowledge.

It reads as under :

106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

In case Prithipal Singh and Ors. Vs. State of Punjab and Anr. (2012) 1 SCC 10 the Hon'ble Supreme Court has held as under in para 53 : "In State of W. B. V. Mir Mohammad Omar, this Court held that if fact is especially in the 160 of 187 161 FIR No. 21/10 PS - Narela knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.........."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

33. Learned Counsel for accused Vikram submitted that PW10

- Rohtash, father of prosecutrix has stated that he came to know about the alleged incident on 16/01/2010 and boy Tek Ram @ Aman met her daughter at the gate of School and allured her to accompany on a bike 161 of 187 162 FIR No. 21/10 PS - Narela and he does not know the name of other boys, he further stated that his daughter could not identify the flat i.e. the spot of alleged incident he further failed to identify any of the accused, he further failed to prove the prosecution story i.e. apprehension of accused persons at the instance of her daughter, he had further stated that his daughter told him that she does not know any of the boys previously except accused Tek Ram whom she used to meet frequently on her coming and going to the School. Learned Counsel further submitted that PW12 - Mrs. Suman, mother of the prosecutrix has stated that no accused was arrested in her presence and therefore she cannot identify any of the accused nor her daughter had disclosed any name of the boys and she had admitted that there was no physical injury on the person of her daughter, she had further admitted that her daughter did not identify any of the accused in her presence and she had further answered on Court question that Police had arrested the accused person on their own and she had further admitted that her daughter had given the name of one Tinku not of any other boy.

Learned Counsel for accused Narender submitted that in her initial statement Ex. PW16/A the prosecutrix named only accused Aman @ Tek Ram but did not give any physical description of the other 2 boys 162 of 187 163 FIR No. 21/10 PS - Narela who are alleged to have reached at the alleged spot of occurrence and the prosecution is trying to show that the accused Narender was arrested on 17/01/2010 on the pointing out of the prosecutrix. However, the prosecution has miserably failed to connect him with the alleged offence or to establish his identify beyond reasonable doubt on the following grounds : Because accused Narender himself moved an application for getting his judicial TIP conducted, which was duly allowed and his judicial TIP was conducted in Rohini Jail by Sh Vishal Singh, MM, Rohini Court on 24/02/2010, in which the prosecutrix failed to identify the aforesaid accused which goes to show that the arrest memo of accused Narender has been manipulated by the IO by obtaining the signatures of the prosecutrix thereon. This fact further gets fortified from the fact that in her examinationinchief PW16 - prosecutrix stated that accused Narender was arrested by the Police on her pointing out on 17/01/2010 in morning time, whereas according to his alleged arrest memo Ex. PW14/A, he is shown to have been arrested on 17/01/2010 at 7:00 p.m. So far as PW11 - Constable Hardesh Kumar who is stated to be one of the witness to the alleged arrest of accused Narender is concerned, he in his crossexamination stated that on 17/01/2010 163 of 187 164 FIR No. 21/10 PS - Narela prosecutrix accompanied them from PS and accused Narender was arrested in between Gali Nos. 14 & 15 and being evening time, no public persons were present as they ran away from the spot on seeing the Police officials. So far as PW12 - Ms. Suman, mother of the prosecutrix is concerned, she in her crossexamination admitted it to be correct that her daughter did not identify any of the accused in her presence and the Police had arrested them of their own, although according to the prosecution case,she is also stated to be accompanying her daughter and the IO at the time of alleged arrest of accused Narender; Because in her crossexamination PW16 prosecutrix admitted it to be correct that she could not identify accused Narender in Rohini Jail and that he was not apprehended at her pointing out; so far as PW17 ASI Raj Bala (IO of the case) is concerned, she in her crossexamination admitted it to be correct that in statement Ex. PW16/A, the prosecutrix had not given the name of accused Narender nor she had given his physical description and that she did not make any enquiries from the prosecutrix regarding the description of the other accused who was later on identified as Narender. She further replied that the prosecutrix has not disclosed to her physical description of accused Narender and that it was the prosecutrix who led 164 of 187 165 FIR No. 21/10 PS - Narela her to the house of Narender and it was then that she came to know as to who he was and where he was residing, she further replied that she did not recollect if she had mentioned this fact that prosecutrix informed her that the accused Narender had come from the Gautam Colony side in the case diary or in her statement and that she did not make any DD Entry while starting from the PS and did not prepare any pointing out memo showing that accused Narender had been arrested on the pointing out of the prosecutrix. She further stated that she had not recorded any statement of the prosecutrix that she was a witness to the arrest of accused Narender or that she had signed the arrest memo. Learned Counsel submitted that from the above it becomes crystal clear that the prosecution has miserably failed to establish that accused Narender was arrested on the pointing out of the prosecutrix.

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 165 of 187 166 FIR No. 21/10 PS - Narela reference.

PW16 - Prosecutrix in her examinationinchief recorded on 25/10/2012 has specifically deposed that : "On 17/01/2010 at the morning time accused Narender was arrested by the Police on my pointing out from gali no. 14, Gautam Colony vide already Ex. PW14/A bearing my signature at point 'B'. His personal search was taken vide already Ex. PW14/B bearing my signatures at point 'B'.

Police again called me at the Police Station and I identified both accused Narender and Vikram.

PW16 - Prosecutrix in her crossexamination conducted by the Learned Addl. PP for the State recorded on 25/10/2012 has deposed that : 166 of 187 167 FIR No. 21/10 PS - Narela "It is wrong to suggest that accused Tek Ram was arrested in my presence from Gautam Colony, Narela. Vol. I have seen the accused Tek Ram in the Police Station and identified him there."

From the aforesaid narration of PW16 - prosecutrix, it is clearly indicated that accused Narender, Vikram as well as accused Tek Ram were arrested in the case on identification of PW16 - prosecutrix. Accused Narender was arrested vide arrest memo Ex. PW14/A, his personal search was conducted vide personal search memo Ex. PW14/B, both dated 17/01/2010, both memos bearing signature of PW16 - prosecutrix at point 'B'. Accused Vikram was arrested vide arrest memo Ex. PW14/E, his personal search was conducted vide personal search memo Ex. PW14/F, both dated 18/01/2010, both memos bearing signature of PW16 - prosecutrix at point 'B'. Accused Tek Ram was arrested vide arrest (Apprehension) memo Ex. PW11/B and his personal search was conducted vide personal search memo Ex. PW11/C, both dated 20/01/2010, both memos bearing the signature of PW16 - prosecutrix at point 'C'.

It is also to be noticed that during the crossexamination of PW17 - ASI Raj Bala IO, it was suggested to her by the Learned 167 of 187 168 FIR No. 21/10 PS - Narela Counsel for accused which she negated that accused Vikram was lifted from the house of his Mama from Sonepat and falsely implicated in the present case in connivance with the family of the prosecutrix.

The said Theory so propounded by the Learned Counsel for the accused that, "accused Vikram was lifted from the house of his Mama from Sonepat and falsely implicated in the present case in connivance with the family of the prosecutrix", has not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded was put either to PW16 - prosecutrix or to PW10 - Rohtash, her father or to PW12 - Mrs. Suman, her mother during their entire incisive and lengthy cross examination.

In the circumstances, the said theory so propounded is found to have no substance and falls flat on the ground.

As regards the plea raised by Learned Counsel for accused Narender that, because accused Narender himself moved an application for getting his judicial TIP conducted, which was duly allowed and his 168 of 187 169 FIR No. 21/10 PS - Narela judicial TIP was conducted in Rohini Jail by Sh Vishal Singh, MM, Rohini Court on 24/02/2010, in which the prosecutrix failed to identify the aforesaid accused which goes to show that the arrest memo of accused Narender has been manipulated by the IO by obtaining the signatures of the prosecutrix thereon, is concerned, on careful perusal and analysis of the evidence on record and as to what has been discussed hereinabove it found to be totally misplaced. At the cost of repetition, accused Narender was arrested vide arrest memo Ex. PW14/A on 17/01/2010 on the identification of the prosecutrix and the Test Identification Parade (TIP) proceedings of accused Narender Ex. PX2 (Colly.) claimed by him was conducted on 24/02/2010, after about five weeks of his arrest in the case on 17/01/2010 on the identification of the prosecutrix vide arrest memo Ex. PW14/A and the fact that the prosecutrix could not identify him in the TIP proceedings does not by itself falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. A futile attempt appears to have been made by accused Narender to reap the benefit of TIP which was conducted on 169 of 187 170 FIR No. 21/10 PS - Narela 24/02/2010 (after about five weeks of his arrest in the case on 17/01/2010 on the identification of the prosecutrix) of the factum of his nonidentification by the prosecutrix in TIP being totally oblivious to the glaring fact of his arrest on 17/01/2010 itself vide arrest memo Ex. PW14/A, on the identification of the prosecutrix.

Moreover, PW16 - prosecutrix during her cross examination conducted by the Learned Counsel for the accused recorded on 25/10/2012 has specifically deposed that : "It is wrong to suggest that I had never seen Narender previously in the area and it is for this reason that I had never made any specific allegation against him to the Police. It is correct that I had never gone to Jail for the purpose of identification of accused. Again said, I had gone to Rohini Jail. It is correct that I could not identify the accused Narender at Rohini Jail. It is correct that Narender was not apprehended on my pointing out. It is wrong to suggest that I have identified the accused Narender on the pointing out of Police."

(Underlined by me) The testimony of PW16 - prosecutrix also finds corroboration from the testimony of PW14 - Constable Gunwant as well as the testimony of PW11 - Constable Hardesh.

170 of 187 171 FIR No. 21/10 PS - Narela PW14 - Constable Gunwant in his examinationinchief recorded on 25/10/2012 has deposed that : "On 17/01/2010 I was posted at PS Narela. On that day I alongwith W/ASI Raj Bala and Constable Hardesh reached at Gautam Colony, DAV School, Gali No. 14. Prosecutrix (name withheld) was also present there alongwith her mother and at the instance of prosecutrix (name withheld), accused Narender was arrested from Gautam Colony. Accused Narender was interrogated by the IO W/ASI Raj Bala and he confessed about his involvement in commission of rape with/prosecutrix (name withheld) and thereafter he was arrested by the IO vide Ex. PW14/A which bears my signatures at point 'A'. His personal search was taken vide Ex. PW14/B which bears my signatures at point 'A'. His disclosure statement was recorded vide Ex. PW14/C which bears my signatures at point 'A'. He also pointed out the place of incident vide Ex. PW14/D which bears my signatures at point 'A'. Accused Narender was taken to the police station and IO recorded my statement.

On 18/01/2010 I again join (joined) the investigations with ASI Raj Bala and Constable Hardesh and reached at Narela, Mata Wali Gali and at the instance of prosecutrix (name withheld) accused Vikram was arrested. Mother of prosecutrix (name withheld) was also present there at that time. Accused Vikram was interrogated by the IO and he also confessed about his involvement in the commission of rape with prosecutrix (name withheld). Accused Vikram was arrested vide Ex. PW14/E which bears my signatures at point 'A', he personal search was taken vide Ex. PW14/F which bears my signatures at point 'A'. His 171 of 187 172 FIR No. 21/10 PS - Narela disclosure statement was recorded vide Ex. PW14/G which bears my signatures at point 'A'. Accused Vikram also pointed out the place of incident vide Ex. PW14/H which bears my signatures at point 'A'. At the instance of the accused Vikram his motorcycle bearing no. DL 7S H 5088 of black colour of make Hero Honda Splendor was seized from his house. Thereafter he was taken to the police station with seized motorcycle and IO recorded my statement.

On 20/01/2010 I again joined the investigation with ASI Raj Bala and Constable Hardesh and reached at Gas Godam, Narela and at the instance of prosecutrix (name withheld), accused Tek Ram was arrested. Mother of prosecutrix (name withheld) was also present there at that time. Accused Tek Ram was interrogated by the IO ASI Raj Bala who and accused Tek Ram confessed about his involvement in commission of rape with prosecutrix (name withheld). Accused Tek Ram was taken into custody vide memo already Ex. PW11/B and his personal search was taken vide Ex. PW11/C. IO recorded my statement. Accused Narender, Vikram and Tek Ram are present in the court today. Witness correctly identified accused Narender, Vikram and Tek Ram."

PW14 - Constable Gunwant in his crossexamination recorded on 25/10/2012 has deposed that : "On 17/01/2010 prosecutrix (name withheld) accompanied us from Police Station. Accused Narender was arrested in the between of Gali No. 14 and 15. At the evening time no public persons was present as they ran way from the spot on seeing police officials. It is correct that Narender was arrested in the presence of the prosecutrix and 172 of 187 173 FIR No. 21/10 PS - Narela her mother."

"It is wrong to suggest that accused Narender was not arrested in the manner as mentioned in my examinationinchief or that he himself surrendered in the police station as his father was in the Police Station. It is wrong to suggest that accused Narender was not apprehended on the pointing out of the prosecutrix (name withheld). It is wrong to suggest that accused Narender did not make any disclosure statement or that the accused Narender has been falsely implicated in this case."

"At about 2:00 p.m. secret informer met IO and informed about the presence of accused Tek Ram and at that time I was present with the IO. Accused Tek (Tek Ram) was arrested from Gali No.15, Gautam Colony, Narela Delhi near DAV School. I do not remember exactly but accused Tek Ram was arrested during the day time at about 2:00 p.m. I had conveyed information regarding arrest of accused Tek Ram to his father on telephone but I do not remember its number."

"Accused Vikram was arrested at about 11:00 a.m. and at that time ASI Raj Bala and Constable Hardesh were with me. Vol. the prosecutrix (name withheld) was also present alongwith her mother. It is wrong to suggest that accused Vikram was not arrested in the manner I have stated or that he was arrested from the house of his maternal uncle from Village Bhayyapur, Distt. Sonepat, Haryana."

PW11 - Constable Hardesh in his examinationinchief recorded on 25/10/2012 has deposed that : 173 of 187 174 FIR No. 21/10 PS - Narela "On 17/01/2010, I was posted at PS Narela. On that day, I alongwith ASI Raj Bala and Constable Gunwant reached at Gautam Colony and at the instance of prosecutrix (name withheld) accused Narender was arrested. His personal search was taken.

On 18/01/2010 I joined the investigation with ASI Raj Bala and Constable Gunwant and reached at Gautam Colony, Narela where prosecutrix (name withheld) met us and at the instance of prosecutrix (name withheld) accused Vikram @ Aman was arrested from near the DDA Gas Godown, Mamurpur Flats. His personal search was taken."

"On 20/01/2010 I also joined the investigation with ASI Raj Bala and Constable Gunwant and reached at Gali No. 15 Gautam Colony and at the instance of prosecutrix (name withheld), accused Tek Ram was taken into custody vide Ex. PW11/B which bears my signatures at point 'A'. His personal search was taken vide Ex. PW11/C which bears my signatures at point 'A'. Accused Narender, Vikram and Tek Ram are present in the Court today and witness correctly identified the accused persons."

PW11 - Constable Hardesh in his crossexamination recorded on 25/10/2012 has deposed that : "It is wrong to suggest that accused Narender was not arrested in the manner as mentioned in my examinationinchief or that he himself surrendered in the police station as his father was in the Police Station."

174 of 187 175 FIR No. 21/10 PS - Narela "It is wrong to suggest that accused Tek Ram was not arrested in my presence or that he has been falsely implicated in the present case."

"Accused Vikram was arrested at about 11:00 a.m. and at that time ASI Raj Bala and Constable Gunwant were with me. Vol. the prosecutrix (name withheld) was also present alongwith her mother. It is wrong to suggest that accused Vikram was not arrested in the manner I have stated or that he was arrested from the house of his maternal uncle from Village Bhayyapur, Distt. Sonepat, Haryana."

On careful perusal and analysis, the testimonies of PW14 - Constable Gunwant and PW11 - Constable Hardesh are found to be clear, cogent, convincing and inspiring confidence. There is nothing in their crossexamination so as to impeach their creditworthiness. The said PWs have deposed regarding the facts as to what they acted, perceived and observed. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.

It is also to be noticed that during the crossexamination of PW14 Constable Gunwant, PW11 Constable Hardesh and PW17 ASI Rajbala, IO it was suggested to them by the Learned Counsel for the 175 of 187 176 FIR No. 21/10 PS - Narela accused, which they negated that, accused Narender himself had surrendered in the Police Station as his father was detained in the Police Station on suspicion.

The said Theory, so propounded by the Learned Counsel for the accused that, "accused Narender himself had surrendered in the Police Station as his father was detained in the Police Station on suspicion," has not at all been made probable much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded was put to PW16 Prosecutrix during her entire incisive and lengthy crossexamination.

In the circumstances, the said theory so propounded is found to have no substance and falls flat on the on ground.

So far as the plea raised by Learned Counsel for the accused Narender that, PW12 - Mrs. Suman in her crossexamination admitted it to be correct that her daughter did not identify any of the accused in her presence, is concerned, PW12 - Mrs. Suman has deposed regarding the facts as to what she perceived, observed and experienced.

176 of 187 177 FIR No. 21/10 PS - Narela Moreover as to what has been discussed and analysed hereinabove and in view of the specific testimony of PW16 - prosecutrix, it does not falsify the case of the prosecution, which is otherwise proved on record by clear, cogent and convincing evidence.

As regards the plea raised by Learned Counsel for accused Narender that PW17 - ASI Raj Bala IO has deposed that she did not recollect if she had mentioned this fact that prosecutrix informed her that the accused Narender had come from the Gautam Colony side in the case diary or in her statement and that she did not make any DD Entry while starting from the PS and did not prepare any pointing out memo showing that accused Narender had been arrested on the pointing out of the prosecutrix. She further stated that she had not recorded any statement of the prosecutrix that she was a witness to the arrest of accused Narender or that she had signed the arrest memo, is concerned, the said lapses/irregularities reflect on the investigation but do not reflect upon the substantive evidence and the probative value of statements made on material and relevant aspects. Nor do they dislodge the substratum of the prosecution case and despite their existence the 177 of 187 178 FIR No. 21/10 PS - Narela clear, cogent, convincing, reliable and trustworthy evidence proved on record bears out the case of the prosecution.

So far as the plea raised by the Learned Counsel for accused Narender and Vikram that prosecution has not been able to establish the identity of accused Narender and Vikram, is concerned, on careful perusal and analysis of the evidence on record, the same is found to have no substance in view of the categorical deposition of PW16 prosecutrix, PW14 - Constable Gunwant and PW11 - Constable Hardesh as reproduced hereinabove. There is nothing in their cross examination so as to impeach their creditworthiness. There is also nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.

So far as the plea raised by the Learned Counsel for accused Narender that, in her examinationinchief PW16 Prosecutrix stated that accused Narender was arrested by the police on her pointing out on 17/01/2010 in morning time, whereas according to his alleged arrest memo Ex. PW14/A, he is shown to have been arrested on 178 of 187 179 FIR No. 21/10 PS - Narela 17/01/2010 at 7:00 p.m., is concerned, the said discrepancy reflect on the investigation but does not reflect upon the substantive evidence and the probative value of the statement of PW16 Prosecutrix made on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW16 Prosecutrix on the core spectrum of crime has remained intact.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

34. Learned Counsel for the accused submitted that prosecution has failed to prove the alleged place of occurrence and site plan Ex. PW16/B. I have carefully perused and analysed the evidence on record.

During her crossexamination by the Learned Counsel for the accused, PW16 - prosecutrix has candidly deposed that : 179 of 187 180 FIR No. 21/10 PS - Narela "I did not try to jump from the motorcycle when I was taken to Red Quarters, nor I raised any alarm on the way or when I was taken to the 3rd Floor of the Red Quarters. There was also a 4th Floor in the said quarters. I cannot tell if all the flats on the sides and on the Ground Floor of the said flat on the 3rd Floor were occupied. Vol. I did not find any person there. It is correct that I could only show the place where the Red Quarters were situated but not the exact flat where I was taken. It is correct that there was a large number of quarters. I cannot tell if the number of flats in the area were around 500. Vol. They could be more or less the same. It is correct that there was a boundary wall around the flats."

From the aforesaid narration of PW16 - prosecutrix, it is clearly indicated that she has given the description of the place of occurrence what she could capture during the time made available to her by the accused when she was taken to the place of occurrence at the 3rd Floor of the Red Quarters for the committal of the sexual assault upon her. The sight cannot be lost of the fact that PW16 - prosecutrix who was under the total dominance, control, threat and intimidation of the accused, when was overtaken by the events, one is left wandering as to how, in such adverse circumstances, she could be expected to have anticipated the occurrence having an element of surprise and as to how her mental faculties could be expected to be attuned to 180 of 187 181 FIR No. 21/10 PS - Narela absorb the details regarding the particulars of the place of incident. She was not taken by the accused for the survey of the locality where the place of occurrence was situated.

PW14 - Constable Gunwant in his examinationinchief has specifically deposed that the disclosure statement of accused Narender was recorded vide Ex. PW14/C which bears his signature at point 'A' and he (accused Narender) also pointed out the place of incident vide Ex. PW14/D which bears his signature at point 'A'. The disclosure statement of accused Vikram was recorded vide Ex. PW14/G which bears his signature at point 'A' and he (accused Vikram) also pointed out the place of incident vide Ex. PW14/H which bears his signature at point 'A'.

During her reply to a leading question put by Learned Addl. PP for the State, PW17 - ASI Raj Bala IO has specifically deposed that : "It is correct that after the accused Narender was apprehended and he made his disclosure statement, he also pointed out the place of incident i.e. Flat No. 427, 3rd Floor, Sector V4, Pocket - III, Janta Flats, Narela, after which I prepared the pointing out memo which 181 of 187 182 FIR No. 21/10 PS - Narela is already Ex. PW14/D bearing my endorsement at point 'B'. It is also correct that on 18/01/2010 after I interrogated the accused Vikram he also pointed out the place of the incident i.e. Flat No. 427, 3rd floor Sector B4, PocketIII, Janta Flats, Narela after which I prepared the pointing out memo which is already Ex. PW14/H bearing my endorsement at point 'B'."

PW17 - ASI Raj Bala IO in her examinationinchief has deposed that : "We then accompanied the prosecutrix to the spot of the incident. The prosecutrix took us to the Janta Flat, Lal Quarter, DDA Flats, Narela where she pointed out Flat No. 487, 3rd Floor as the place where the incident took place. I prepared the site plan which is already Ex. PW16/B which bears my signature at point 'A' which I identify."

In view of above and in the circumstances, it stands established on the record that on the basis of the information disclosed by the prosecutrix, coupled with the information gathered from the pointing out of the place of occurrence by the accused, the site plan Ex. PW16/B was prepared.

It is also evident from the record that during the cross 182 of 187 183 FIR No. 21/10 PS - Narela examination of PW17 - ASI Raj Bala, IO none of the said accused voiced their concerns or confronted her with the aforesaid part of the deposition of PW16 - prosecutrix as reproduced hereinabove that, "she could only show the place where the Red Quarters were situated but not the exact place where she was taken". She (PW17 - ASI Raj Bala) 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 themselves and none else.

At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

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 183 of 187 184 FIR No. 21/10 PS - Narela fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

35. Learned Counsel for accused Vikram submitted that accused Vikram was examined for ossification test and his age has been mentioned between 17 to 18 as on 02/02/2010 i.e. the time of offence which was Ex. CW2/A before JJB - 1.

I have carefully perused and analysed the evidence on record.

With due respect, Learned Counsel for the accused appears to have concealed the order dated 06/05/2011 passed by PM/JJBI whereby accused Vikram was declared adult.

Since vide order dated 06/05/2011, accused Vikram was declared as adult, that is above 18 years of age at the time of offence by 184 of 187 185 FIR No. 21/10 PS - Narela the Court of PM/JJBI, in the circumstances, the plea so raised by Learned Counsel is found to be devoid of substance.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

36. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 15/01/2010, at about 1:30 p.m., at the gate of Sarvodaya Kanya Vidhalaya No. 2, Narela, Delhi accused Vikram @ Aman in furtherance of common intention with accused Tek Ram @ Tinku @ Aman and accused Narender, kidnapped PW16 - prosecutrix aged around 14 years (to be exact 14 years 01 month and 03 days) by catching hold of her hand and by forcibly making her to sit on the motorcycle bearing no. DL7SH5088 (Ex. P1), from the lawful guardianship without the consent of her parents with intent that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse and in furtherance of their common intention took her to DDA Flat No. 427, third floor, Sector B4, Pocket -

185 of 187 186 FIR No. 21/10 PS - Narela III, Janta Flats, Narela, Delhi and locked her there and thereafter, accused Tek Ram @ Tinku @ Aman and accused Vikram @ Aman in furtherance of their common intention came inside the room and forcibly committed sexual intercourse with the prosecutrix without her consent and against her will and accused Narender acting in furtherance of their common intention remained outside the room.

I accordingly hold accused Tek Ram @ Tinku @ Aman, Vikram @ Aman and Narender guilty for the offences punishable u/s 363/34 IPC, u/s 366/34 IPC and u/s 376(2)(g) IPC and convict them thereunder.

37. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Tek Ram @ Tinku @ Aman, Vikram @ Aman and Narender in the commission of the offences u/s 363/34 IPC, u/s 366/34 IPC and u/s 376(2)(g) IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Tek Ram @ Tinku @ Aman, Vikram @ Aman and Narender beyond shadows of all reasonable doubts and there is no room 186 of 187 187 FIR No. 21/10 PS - Narela for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Tek Ram @ Tinku @ Aman, Vikram @ Aman and Narender guilty for the offences punishable u/s 363/34 IPC, u/s 366/34 IPC and u/s 376(2)(g) IPC and convict them thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 22nd Day of May, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 187 of 187

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Delhi District Court

State vs . 1. Narender on 22 May, 2015