Delhi District Court
State vs . Rajesh on 19 January, 2013
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FIR No. 172/2009
PS Kanjhawala
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACT
COURT : NORTHWEST & OUTER DISTRICT : DELHI
SESSIONS CASE NO. : 96/13
Unique ID No. : 02404R0334722009
STATE VS. RAJESH
S/O SH. RAVI HALDER
R/O H. NO. C 194, J. J. COLONY,
SAWDA, DELHI 110081.
FIR No. : 172/2009
Police Station : Kanjhawala
Under Sections : U/S 376/457/506 IPC
Date of committal to session Court : 21/01/2010
Date on which judgment reserved : 03/01/2013
Date of which judgment announced : 19/01/2013
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FIR No. 172/2009
PS Kanjhawala
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 03/10/2009 on receipt of DD No. 8B SI Puran Mal alongwith Constable Shashi, Lady Constable Sheela reached at the house of Tara Haldar S/o Adhar Haldar, R/o C267, J. J. Colony, Savda where Tara Haldar met them and made a statement which is to the effect that, he lives at the given address and works as a labourer. He is having two sons and one daughter. Her daughter, the prosecutrix (named withheld being a case u/s 376 IPC) since child sleeps with him and is handicapped and today night also she was sleeping with him. At about 1:00 a.m. in the night the foot of her daughter started striking with force with his foot due to which he was awakened and he saw that her daughter was very frightened and was in naked condition and he asked his daughter on which she made a gesture towards the curtain hanging on the window and when he saw after removing the curtain there his neighbour Rajesh S/o Ravi Haldar was found standing and when he (Tara Haldar) tried to catch him but he (Rajesh) fled from there. As they were frightened too much so they could not go anywhere in the night.
2 of 57 3 FIR No. 172/2009 PS Kanjhawala Therefore, in the today morning he phoned at number 100 on which now the police has come. He took the police to the house of Rajesh where at his pointing out Rajesh has been apprehended from his house. As Rajesh has done 'galat kam' with her daughter (name withheld). Legal action be taken against him. On finding from the statement of Tara Haldar and on inspection of the MLC offence u/s 376 IPC appeared to have been committed. Tehrir was sent through Ct. Shashi for the registration of the case and further investigation was carried out. During the course of investigation site plan of the spot was prepared. Medical examination of the prosecutrix and accused Rajesh was got conducted and the sealed pullindas handed over by the doctor after their medical examinations were taken into police possession and deposited in the malkhana. After finding sufficient evidence has come against accused Rajesh, he was arrested. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded and the exhibits were sent to FSL.
Upon completion of necessary further investigation challan u/s 376/457/506 IPC was prepared against accused Rajesh and was sent to the court for trial.
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2. Since the offence u/s 376 IPC is 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 u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing on charge prima facie a case u/s 376/457/506 (II) IPC was made out against accused. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In Support of its case prosecution produced and examined 15 witnesses. PW1 The prosecutrix, PW2 Ms. Geeta Haider (Haldar), PW3 Tara Haldar, PW4 Smt Anuradha, PW5 Constable Shashi Kumar, PW6 Lady constable Sheela Devi, PW7 Constable Joginder, PW8 Dr. Mgha Khard Senior Resident, SGM Hospital, Mangolpuri Delhi, PW9 Sh.Naveen Gupta, MM Delhi, PW10 W/HC Krishna, PW11 - Sh. Rakesh Saxena, Sub Registrar, Death and Birth Department, City Zone, Asaf Ali Road Delhi, PW12 - Dr. Sumit Sural, Professor Orthopaedics, Maulana Azad Medical College and Lok Nayak Hospital Delhi, PW13 Dr. Manoj Dhingra MOIC, SGM Hospital, PW14 HC Surender Singh and PW15 SI Puran Lal.
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5. In brief the witnessography of the prosecution witnesses is as under:
PW1 the prosecutrix, is the victim who deposed regarding the incident and proved the proceedings and her statement under section 164 Cr.P.C Ex. PW1/A and Ex. PW1/B respectively bearing her thumb impressions at points A and B. PW2 Ms. Geeta Haldar is the mother of the prosecutrix who deposed regarding the incident.
PW3 Tara Halder is the father of the prosecutrix who deposed regarding the incident and proved his statement made to the police Ex. PW3/A bearing his thumb impression at point 'A' and also proved the arrest memo (Ex. PW5/A) and the personal search memo of the accused Ex. PW3/B which bears his thumb impression at points 'A' and also deposed regarding the investigational aspects which he joined.
PW4 - Smt. Anuradha is the worker of Nav Shristhi Sanstha 5 of 57 6 FIR No. 172/2009 PS Kanjhawala NGO Branch Office at Nangloi, Delhi who deposed as to how the prosecutrix met her and how the police was approached and regarding the registration of the FIR.
PW5 Constable Shashi Kumar who joined investigation and deposed on the investigational aspects and proved the arrest memo of accused Ex. PW5/A, his personal search memo Ex.PW3/B, his disclosure statement Ex. PW5/B, seizure memo of the pullindas handed over by the doctor after the medical examination of accused Rajesh Ex. PW5/C signed by him at point 'A'.
PW6 Lady constable Sheela who joined investigation and deposed on the investigational aspects and deposed that she accompanied prosecutrix to SGM Hospital where she was medically examined and after the medical examination the sealed pullindas were handed over by the doctor were taken into police possession vide seizure memo Ex. PW6/A signed by her at point 'A'.
PW7 - Constable Joginder who deposed that on 27/11/2009 6 of 57 7 FIR No. 172/2009 PS Kanjhawala after taking the sealed pullindas from MHC(M) deposited the same in the FSL Rohini vide Road Certificate No. 7/21/09 and after depositing the same handed over the acknowledgment of pullindas to MHC(M).
PW8 - Dr. Megha Khard who gynaecologically examined the prosecutrix and proved her gynaecological examination at point 'A' of the MLC Ex. PW8/A signed by her at point 'B'.
PW9 - Sh. Naveen Gupta, MM who recorded the statement of the prosecutrix under section 164 Cr.P.C Ex.PW1/A signed by him at point X1 and also proved the certificate regarding the true and correctness of the statement signed by him at point X2 and deposed that vide endorsement at point X3 a copy of the statement was supplied to the IO on his application Ex. PW9/A. PW10 WHC Krishna is a duty officer who proved the computerized copy of the FIR Ex. PW10/A signed by her at point 'A' and also proved endorsement Ex. PW10/B signed by her at point 'B' regarding registration of the FIR vide DD No. 11A on the rukka.
7 of 57 8 FIR No. 172/2009 PS Kanjhawala PW11 Sh. Rakesh Saxena, who proved the copy of the birth certificate with date of birth as 25/09/1995 of the prosecutrix issued by their office Ex. PW11/A and also proved the copy of the entry in the register at Registration No. 3748 Ex. PW11/B. PW12 - Dr. Sumit Sural who proved the medical certificate of the prosecutrix issued on 27/09/2005 of her suffering from cerebral palsy and her disability above 40% issued by Dr. Manju Dave as Ex. PW12/A signed by him at point 'A' and by Dr. Manju Dave at point 'B' and also proved the copy of the functional evaluation sheet of the patient/prosecutrix Ex. PW12/B. PW13 Dr. Manoj Dhingra who proved the medical examination of accused Rajesh as was conducted by Dr. Ish vide MLC Ex. PW13/A bearing signature of Dr. Ish at point 'A' and further deposed that as per the MLC Ex. PW13/A there is nothing to suggest that the patient Rajesh is not capable of performing sexual intercourse. He further proved the medical examination of the prosecutrix as was conducted by Dr. Ish CMO as Ex. PW13/B encircled red signed by Dr. Ish at point 'A' (on the MLC Ex.
8 of 57 9 FIR No. 172/2009 PS Kanjhawala PW8/A).
PW14 HC Surender Singh is the MHC(M) who proved the relevant entry of the register No. 19 as Ex. PW14/A and also proved the copy of the road certificate No. 71/21/2009 as Ex. PW14/B and the copy of the acknowledgment of FSL as Ex. PW14/C. PW15 SI Puran Mal is the investigating officer (IO) who deposed on the investigational aspects and besides proving the other memos also proved DD No. 8B dated 03/10/2009 Ex. PW15/A, his endorsement Ex. PW15/B signed by him at point 'X' on the statement of father of the prosecutrix Tara Haldev Ex. PW3/A; site plan Ex. PW15/C and FSL Report Ex. PW15/X and Ex. PW15/Y. The testimonies of the material prosecution witnesses shall be dealt with in detail during the course of the appreciation of the evidence.
6. Statement of accused Rajesh was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. He opted to lead defence evidence and in his defence examined one witness namely DW1 9 of 57 10 FIR No. 172/2009 PS Kanjhawala Mohd. Kalam.
DW1 Mohd. Kalam, is the friend of the accused Rajesh who deposed that he knows Rakesh S/o Ravi Haldev from last six years. Rajesh used to visit the house of prosecutrix (name withheld) frequently. Father of the prosecutrix and her brother frequently used to visit accused's house. They generally used to ask for help to accused Rakesh and his family members. They are from same caste. There was a news in the locality that Tara Haldar wants to get married his daughter prosecutrix (name withheld) with accused Rajesh but accused Rajesh refused for the same. Tara Haldar threatened the accused Rajesh to implicate in false case, if he refused to marry with his daughter. Accused Rajesh refused to marry prosecutrix (name withheld) as she has some problem in walking straight and she is also not mentally fit. On 03/10/2009 he came to know that Rajesh has been apprehended by the Police on the complaint of said Tara Haldar. He is sure that accused Rajesh was falsely implicated by the father of prosecutrix (name withheld) as he is not that kind of boy. Accused was apprehended from his house. On 02/10/2009, it was a holiday and he (DW1) was at home and had slept at about 1:00 a.m. midnight. He did not come across any incident 10 of 57 11 FIR No. 172/2009 PS Kanjhawala happened in his colony. His house is only ten paces away from the house of the accused and the house of Tara Haldar is two streets away from his house. Accused Rajesh is man of good character.
The testimony of defence witness shall be dealt with in detail during the course of the appreciation of the evidence.
7. Ld. Counsel for the accused submitted that accused is innocent and has been falsely implicated in the case by the complainant PW1 Prosecutrix (name withheld) at the behest of her parents i.e. PW2 and PW3 by misusing the process of law and by misguiding the Police officials. He further submitted that it is very difficult to digest that when the prosecutrix was sleeping in her house, alongwith her father in the same room and that near to her father that touching of her leg awoke the father from his sleep, could be raped by any person and her father only got knowledge when incident was already happened. Ld. Counsel for the accused further submitted that how the accused and his alleged accomplice entered into the house of the complainant at mid night. He further submitted that why did not anybody woke up if any lock was broken to enter the house and when the 11 of 57 12 FIR No. 172/2009 PS Kanjhawala alleged act was done? (When the act complained of is of highly populated J. J. Cluster and was done in the same room where father of the prosecutrix himself was sleeping very near to her). Ld. Counsel for the accused further submitted that allegations are that accused gagged her mouth, hold her both hands, pressed her breast and removed her clothes.....How can a person can do all these things, with two hands and that too without making any noise so that even a person sleeping inches away from the victim can not hear anything? Ld. Counsel for the accused further submitted that neither any broken lock was produced before the Court nor any such broken door was got photographed by the IO of the case. He further submitted that why did not IO make efforts to nab the alleged accomplice of the accused Rajesh. Ld. Counsel for the accused further submitted that why the Police was not informed/called at night when the PW3 - has seen the accused running from the house and tried to caught him? Ld. Counsel for the accused further submitted that it is a natural conduct of the culprit that he try to hide himself if his act is revealed and normally run away from the house, whereas, accused Rajesh was arrested from his house only and on the very next morning of the alleged incident. Ld. Counsel for the accused further submitted that unnatural behaviour of PW2 - Geeta Halder i.e. mother of the 12 of 57 13 FIR No. 172/2009 PS Kanjhawala prosecutrix suggests that she was taking the incident very lightly, as during her examinationinchief she states that "Next morning as usual I left for my work place and in my absence Police official came and arrested the accused". How can a lady whose daughter had been raped on the preceding night, can go to her work place. Her natural behaviour should be that she should stay with the victim to console her and to help her to overcome the trauma faced by her.
Ld. Counsel for the accused further submitted that medical of the prosecutrix show there was no fresh injury on her person moreover, FSL Result also has nothing substantial, which may raise finger on the accused. As per FSL report, semen was detected on Ex. 8 only but there is no evidence on record to connect the accused with crime and further submitted that on the MLC of the prosecutrix (name withheld), has given specific remark that "prosecutrix is not giving proper History and appear confused"
and furthermore in the examination of PW12, medical papers Ex. PW12/B shows the remarks as "Child is moderately mentally retarded, her speech is not clear and needs help for bathing, dressing and even eating". All this show that PW1 cannot even be considered as a competent witness and considering her mental status she cannot be safely believed. Even her
13 of 57 14 FIR No. 172/2009 PS Kanjhawala tutoring for some oblique motives of her parents can not be ruled out. Ld. Counsel for the accused further submitted that moreover, FSL Report says that pubic hair collected during the medicals of the prosecutrix and the accused are dissimilar and further stated that no independent witness was examined by the prosecution, whereas during the crossexamination of PW3
- Tara Halder he said that "I told about the incident in the night to my neighbour Tulsi Ram". Whereas, neither there is any reference of Tulsi Ram in the chargesheet nor he was cited as witness in the list of witnesses. Moreover, there is no reference of said Tulsi Ram in the testimony of PW2 - Geeta Halder. Even in the statements made before the Police, PW3 - Tara Halder did not utter anything in this regard. Ld. Counsel for the accused further submitted that DW1 - Mohd. Kalam was examined as defence witness who deposed regarding the false implication in the present case and the motive of the complainant behind false implication. He was cross examined by the Ld. Addl. PP at length but his testimony remained unshaken.
Ld. Counsel for the accused further submitted that there are material contradictions in the testimonies of PW1, 2 & 3, who are star witnesses of the prosecution. As during her crossexamination PW1 when 14 of 57 15 FIR No. 172/2009 PS Kanjhawala asked about the availability of her family member at the time of incident she says "None was present near me at that time." Whereas PW2 says in her examinationinchief that "I was sleeping alongwith my husband, daughter (Posecutrix name withheld) and two other children" Whereas PW3 says "My daughter used to sleep with me in night who is handicap person..." PW2 says in her examinationinchief that the accused was apprehended by my husband? and further said that the accused also threatened that he will assault and cause injury by blade but neither this fact mentioned in the testimonies of PW1 & PW3 nor in the statements of any witnesses recorded by the Investigating Officer. He further submitted that in the circumstances, charges against the accused is highly doubtful and prosecution has failed to prove the guilt of the accused beyond reasonable doubts and the accused deserves acquittal from the charges levelled against him.
8. While the Ld. 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.
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9. I have heard Sh. A. K. Gupta, Ld. Addl. PP for the State and Sh. Deepak Sharma, Ld. Amicus Curiae for the accused and have also carefully perused the entire record.
10. The charge for the offences u/s 457/376/506(II) IPC against the accused Rajesh is that in the intervening night of 0203/10/2009 at about 1:00 a.m he committed the offence of lurking house trespass at night by entering into the house no. C267, J. J. colony, Savda, Delhi110081 for the purpose of committing an offence of rape punishable with imprisonment after having taken precautions to conceal such house trespass and that he committed rape on the person of prosecutrix and that he criminally intimidated prosecutrix by threatening to kill her, with intent to cause alarm to her.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of 16 of 57 17 FIR No. 172/2009 PS Kanjhawala justice.
AGE OF THE PROSECUTRIX:
12. PW2 Geeta Halder, mother of the prosecutrix in her examinationinchief has deposed that : "At that time my daughter, the prosecutrix (named withheld) was around 15 years of age. My daughter horroscope (horoscope) was made by me and as per the horroscope (horoscope), the prosecutrix (named withheld) become of age of 15 years in the month of September 2009. I do not know the exact date of birth of my daughter nor I have brought any certificate today. I was blessed with the prosecutrix (named withheld) in the house at Laxmi Nagar."
PW3 Tara Halder, father of the prosecutrix, during his cross examination has deposed that his son Deepak is aged about 20 years at present. Her daughter/prosecutrix is 5 years younger to his son Deepak. He got prepared janampatri of his children. He is illiterate.
The testimonies of PW2 Geetal Halder and PW3 Tara Halder have been corroborated by PW11 Sh. Rakesh Saxena, SubRegistrar, Death and Birth Department, City Zone, Asaf Ali Road, Delhi, who in his 17 of 57 18 FIR No. 172/2009 PS Kanjhawala examinationinchief has deposed which is reproduced and reads as under : "I have brought the birth register of birth of all the children in the City Zone Area of the year 1995. In the register at registration No. 3748 a female child born on 25/09/1995 and her registration was made on 04/10/1995 by LNJP Hospital and the name of mother of the child was Geeta and name of the father was Tara residing at A126, J. J. Colony, Laxmi Nagar, Delhi. The birth certificate of this child was also issued by our office as per the record and the photocopy of the same is Ex. PW11/A and the copy of the entry in the register at registration No. 3748 is Ex. PW11/B (OSR)".
From the aforesaid narration of PW11 Rakesh Saxena, it is clearly indicated that as per the record the date of birth of the prosecutrix is 25/09/1995.
There is nothing in the crossexamination of the said PWs so as to impeach their creditworthiness. From the testimony of PW11 Rakesh Saxena it stands proved that the date of birth of prosecutrix is 25/09/1995. As the date of incident is 03/10/2009 and the date of birth of the prosecutrix is 25/09/1995, on simple arithmetical calculation, the age of prosecutrix comes to 14 years and 8 days as on the date of incident on 03/10/2009.
18 of 57 19 FIR No. 172/2009 PS Kanjhawala In view of above and in the circumstances, it stands established on record that PW1 Prosecutrix was aged 14 years and 8 days on the date of alleged incident on 03/10/2009.
PHYSICAL AND MENTAL HEALTH OF THE PROSECUTRIX
13. PW3 Tara Halder in his examinationinchief has deposed that his daughter/prosecutrix is a handicapped person as she cannot eat her food on her own and cannot do any of her work herself.
During his crossexamination PW3 Tara Halder has deposed that the prosecutrix can speak but stammers. She cannot walk on her own.
PW1 Prosecutrix in her examinationinchief has deposed that she is physically handicapped.
During her crossexamination PW1 Prosecutrix has deposed that she is handicapped since her childhood.
19 of 57 20 FIR No. 172/2009 PS Kanjhawala The testimonies of PW1 Prosecutrix and PW3 Tara Halder have been corroborated by PW12 Dr. Sumit Sural, Prof. Orthopaedics, Maulana Azad Medical College & Lok Nayak Hospital, Delhi, who has proved the medical certificate of prosecutrix issued on 27/09/2005 Ex. PW12/A signed by him at PointA and signed by Dr. Manju Dave at Point 'B' as she was suffering from cerebral palsy and her disability was above 40% (Forty percent). He also proved the functional evaluation sheet of the patient/prosecutrix Ex. PW12/B. Inspite of incisive crossexamination, of PW1 Prosecutrix, PW2 Tara Halder and PW12 Dr. Sumit Sural nothing has been brought out on the record so as to discredit the testimony of the said witnesses.
In the circumstances, it stands established on the record that PW1 Prosecutrix is a handicapped person, suffering from cerebral palsy with more than 40% (Forty Percent) disability.
14. Ld. Counsel for the accused has raised the plea that on the MLC of the prosecutrix (name withheld), has given specific remark that 20 of 57 21 FIR No. 172/2009 PS Kanjhawala "prosecutrix is not giving proper History and appear confused" and furthermore in the examination of PW12, medical papers Ex. PW12/B shows the remarks as "Child is moderately mentally retarded, her speech is not clear and needs help for bathing, dressing and even eating". All this show that PW1 cannot even be considered as a competent witness and considering her mental status she cannot be safely believed. Even her tutoring for some oblique motives of her parents can not be ruled out.
I have carefully perused and analysed the evidence on record. Section 118 of Indian Evidence Act, 1872 provides for as to, who may testify. It reads as :
118. "Who may testify - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of same kind.
Explanation - Alunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
21 of 57 22 FIR No. 172/2009 PS Kanjhawala Section 119 of the Indian Evidence Act, 1872, provides for, dumb witness. It reads as : "119. Dumb witness A witness who is unable to speak may give his evidence in any manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.
From the above, it is clearly indicated about the competency of the witness as to who may testify. Even dumb witnesses can give the evidence. Evidence relating to the physical and mental health of the prosecutrix has been discussed hereinabove. Perusal of record shows that the testimony of PW1 - Prosecutrix was recorded in the Court on 11/08/2010 in Camera Proceedings, on oath by the Ld. Predecessor Court after being satisfied of her competency to depose and before recording her statement, it was specifically mentioned that "the witness though is stammering, but is able to speak". She was also crossexamined by the Ld. Counsel for the accused at length and she gave the rational answers to those questions put to her during her crossexamination. Moreover, it is not the case of the accused that at the time of recording of the evidence of PW1 - Prosecutrix in the Court, any plea was raised before the Ld. Predecessor Court regarding the 22 of 57 23 FIR No. 172/2009 PS Kanjhawala competency of PW1 - Prosecutrix to depose in the Court.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
MEDICAL EVIDENCE
15. PW 13 Dr. Manoj Dhingra, MOIC, SGM Hospital, Delhi has proved the medical examination of prosecutrix at SGM Hospital as was conducted by Dr. Ish on 03/10/2009 as Ex. PW13/B encircled red signed by Dr. Ish at Point 'A' on the MLC Ex. PW8/A. PW8 Dr. Megha Khard, Senior Resident, SGM Hospital, Mangolpuri, Delhi in her examinationinchief has deposed that on 03/10/2009 she examined the patient/prosecutrix with the alleged history of sexual assault. On examination patient was not giving proper history and appeared confused. Her LMP was 19/09/2009. On local examination hymen was torn. No fresh bleeding, no external injuries were found and proved her examination at Point 'A' of MLC Ex. PW8/A signed by her at Point 'B'. She further deposed that after examination she sealed her (prosecutrix) 23 of 57 24 FIR No. 172/2009 PS Kanjhawala undergarments worn at the time of sexual assault, vaginal swab, perineal swab, pubic hairs, nail clippings of right and left hand and blood sample in different pullindas and handed over to the investigating officer.
During her crossexamination PW8 Dr. Megha Khard negated the suggestion that in the alleged history of sexual assault, the name of Rajesh was only told by the father of the patient and not by the patient herself also.
I have carefully gone through the gynaecological examination at Point 'A' on MLC Ex. PW8/A. On perusal of the same I find that the alleged history of sexual assault by Rajesh at 1:00 a.m. on 03/10/2009 has been told by patient herself and father.
In the circumstances, the testimony of PW8 Dr. Megha is in consonance with the record. She has deposed candidly all the facts. Her testimony is cogent and convincing. There is nothing in her cross examination so as to impeach her creditworthiness.
24 of 57 25 FIR No. 172/2009 PS Kanjhawala In view of above and in the circumstances, it stands established on the record that on 03/10/2009 prosecutrix was medically examined vide portion encircled red Ex. PW13/B on the MLC Ex. PW8/A and her gynaecological examination at Sanjay Gandhi Hospital was conducted by PW8 Dr. Megha Khard, before whom prosecutrix and her father told about sexual assault by Rajesh at 1:00 a.m. on 03/10/2009. VIRILITY OF ACCUSED RAJESH
16. PW13 Dr. Manoj Dhingra, MOIC, SGM Hospital, Delhi has proved that on 03.10.2009 patient/accused Rajesh was medically examined at Sanjay Gandhi Hospital by Dr. Ish vide MLC Ext. PW13/A signed by Dr. Ish at PointA and as per MLC there is nothing to suggest that the patient Rajesh is not capable of performing the act of sexual intercourse.
Despite grant of opportunity PW13 Dr. Manoj Dhingra was not crossexamined by the accused.
In the circumstances, it stands established on the record that 25 of 57 26 FIR No. 172/2009 PS Kanjhawala accused Rajesh was capable of performing the sexual intercourse. BIOLOGICAL AND SEROLOGICAL EVIDENCE
17. As per FSL report Ex. PW15/X the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '1'.
Exhibit '1' : One nikkar.
Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH
GOVT OF NCT DELHI" containing exhibit '2'.
Exhibit '2' : Bunch of hairs.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SGMH
GOVT OF NCT DELHI" containing exhibit '3', kept in a tube.
Exhibit '3' : Cotton wool swab on a wooden stick. Parcel '4' : One sealed cloth parcel sealed with the seal of "SGMH GOVT OF NCT DELHI" containing exhibit '4', kept in a 26 of 57 27 FIR No. 172/2009 PS Kanjhawala vial.
Exhibit '4' : Dark brown foul smelling liquid described as 'Blood sample'. Parcel '6' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '6', kept in a tube. Exhibit '6' : Cotton wool swab on a wooden stick. Parcel '7' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '7', kept in a tube. Exhibit '7' : Cotton wool swab on a wooden stick. Parcel '8' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '8', kept in a tube. Exhibit '8' : Cotton wool swab on a wooden stick. Parcel '9' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '9', kept in a tube. Exhibit '9' : Cotton wool swab on a wooden stick. Parcel '10' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '10', kept in a tube. Exhibit '10' : Cotton wool swab on a wooden stick. Parcel '11' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '11', kept in a tube. Exhibit '11' : Cotton wool swab on a wooden stick. Parcel '12' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibits '12a' and '12b' kept in 27 of 57 28 FIR No. 172/2009 PS Kanjhawala separate injection vials.
Exhibits '12a' & '12b' : Dark brown foul smelling liquids described as 'Blood sample'. Parcel '13' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '13'.
Exhibit '13' : Few nail clippings.
Parcel '14' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibit '14'.
Exhibit '14' : Strands of hair.
Parcel '15' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibits '15a', '15b', '15c' and '15d'.
Exhibit '15a' : One Tshirt.
Exhibit '15b' : One chimese.
Exhibit '15c' : One pants.
Exhibit '15d' : One underwear.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '4', '12a' and '12b'.
2. Blood could not be detected on exhibits '1','2', '3', '6', '7', '8', '9', '10', '11', '13', '14', '15', '15b', '15c' and '15d'.
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3. Human semen was detected on exhibit '8'.
4. Semen could not be detected on exhibits '1', '2', '3', '6', '7', '9', '10', '11', '14', '15a', '15b', '15c' and '15d'.
*On morphological and microscopical studies from random sampling of the hairs found in exhibit '2' i.e Bunch of hairs and exhibit '14' i.e Strands of hair, were found to be HUMAN in origin. However, the hairs found in exhibit '2' were found to be dissimilar in most of their morphological and microscopical characteristics with that of the hairs found in exhibit '14'.
5. Report of serological analysis in original is attached herewith.
As per FSL Report Ex. PW15/Y, the result of serological analysis reads as : Exhibits Species of Origin ABO Grouping/Remarks Blood Stains '4' Blood Sample Sample blood was putrefied hence no opinion '12a' Blood Sample Sample blood was putrefied hence no opinion '12b' Blood Sample Sample blood was putrefied hence no opinion Semen Stains No Reaction '8' Cotton Wool Swab 29 of 57 30 FIR No. 172/2009 PS Kanjhawala At the outset, it is to be mentioned that in the biological report Ex. PW15/X, there is no mentioning of any parcel '5'. Otherwise analysis of total 14 parcels has been detailed therein.
On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected in exhibit '4' (Blood Sample of accused Rajesh) and on exhibits 12a and 12b (Blood Samples of the PW1 Prosecutrix) and that human semen was detected on exhibit '8' (cotton wool swab of the prosecutrix).
On a conjoint reading of the medical evidence, the gynaecological examination at point 'A' of MLC Ex. PW8/A of the prosecutrix, together with the MLC of accused Rajesh Ex. PW13/A, in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of recent sexual intercourse activity.
In the circumstances, it stands clearly established on the record that recent sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW15/X with regard to the 30 of 57 31 FIR No. 172/2009 PS Kanjhawala description of the articles contained in the parcels, it is noticed that, Parcel No. 1 to Parcel No. 4 belong to accused Rajesh which were seized vide seizure memo Ex. PW5/C and Parcels No. 6 to Parcel No. 15 belong to PW1
- Prosecutrix which were seized vide seizure memo Ex. PW6/A. As per the biological report Ex. PW15/X, prosecution has discharged its initial burden of proving the presence of human semen on exhibit '8', cotton wool swab (of the prosecutrix seized vide seizure memo Ex. PW6/A). Accused was under an obligation to explain how and under what circumstances, the human semen came to be present on the said exhibit '8'.
The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
In the circumstances, there is no substance in the plea raised by the Ld. Counsel for accused that FSL result has nothing substantial, which may raise finger on the accused and that as per FSL report semen was detected on exhibit '8' only but there is no evidence on record to connect the accused with crime.
31 of 57 32 FIR No. 172/2009 PS Kanjhawala As far as the plea of the Ld. Counsel for the accused that pubic hair collected during the medicals of the prosecutrix and the accused are dissimilar, is concerned, I have carefully perused and analysed the evidence on record.
At the cost of repetition, in the biological report Ex. PW15/X, in the results of analysis it is clearly mentioned with regard to bunch of hairs/strands of hair which is reproduced and reads as : "*On morphological and microscopical studies from random sampling of the hairs found in exhibit '2' i.e Bunch of hairs and exhibit '14' i.e Strands of hair, were found to be HUMAN in origin. However, the hairs found in exhibit '2' were found to be dissimilar in most of their morphological and microscopical characteristics with that of the hairs found in exhibit '14'."
Ld. Counsel for the accused failed to show as to what benefit he intends to reap by raising the said plea. On the aspect of dissimilarity of hair when undisputably the bunch of hairs in exhibit '2' and the strands of hair in exhibit '14' were found to be of HUMAN in origin.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
32 of 57 33 FIR No. 172/2009 PS Kanjhawala
18. Now let the testimonies of PW1 Prosecutrix, PW2 Geeta Halder and PW3 Tara Halder be perused and analysed.
PW1 Prosecutrix in her examinationinchief has deposed that : "I reside at the the above address (C267, JJ Colony, Savda, Delhi81) alongwith my family and I am physically handicapped. On the fateful night, accused present in the court today, Rajesh (correctly identified) came in my jhuggi. He gagged my mouth. Caught hold my hands and threatened me to cut my neck with blade and to kill my father, mother and brother. He removed my clothes and forcibly committed sexual intercourse with me and pressed my breast. One more unknown person was with accused Rajesh on that night and he did nothing with me but, asked Rajesh "jaldi kar".
She also proved the proceedings and her statement u/s 164 Cr.P.C Ext. PW1/A, Ext. PW1/B respectively bearing her thumb impressions at Points A & B. From the aforesaid narration of PW1 Prosecutrix, it is clearly indicated that she is a physically handicapped person. On the date of 33 of 57 34 FIR No. 172/2009 PS Kanjhawala incident accused Rajesh came in her jhuggi and gagged her mouth and caught hold her hands and threatened her to cut her neck with blade and to kill her father, mother and brother. He removed her clothes and forcibly committed sexual intercourse with her and pressed her breast. At that time accused was also kept alert by some unknown person to perform the act of sexual intercourse speedily by asking him (accused) "jaldi kar".
During her crossexamination PW1 Prosecutrix has deposed "I reside at the address I had already told. I am handicapped since my childhood. I cannot tell that in years. It is correct that accused had also threatened me. I reside with my family consisting of my mother, father and brother. None was present near me at that time."
There is nothing in her crossexamination so as to impeach her creditworthiness. She negated the suggestion that she is deposing falsely at the instance of her parents or that the accused was falsely implicated in this case because initially he used to provide liquor and money to her father and later on he stopped the same.
Her testimony is clear, natural, cogent, convincing, trustworthy 34 of 57 35 FIR No. 172/2009 PS Kanjhawala and inspires confidence. In the witness box she has withstood the text of crossexamination and her testimony is consistent throughout. The testimony of PW1 - Prosecutrix on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW1 - Prosecutrix besides being in consonance with her precise brief and concise statement u/s 164 Cr.P.C is also been corroborated by PW3 Tara Halder, her father and PW2 Geeta Halder, her mother, to whom PW1 Prosecutrix had disclosed/gestured the facts relating to crime immediately after the incident being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.
PW3 Tara Halder in his examinationinchief has deposed which is reproduced and reads as under: "I am a labourer. I have got 2 sons and one daughter (named withheld being a case u/s 376 IPC). My daughter used to sleep with me in night who is a handicapped person as she cannot eat her food on her own and cannot do any of her work herself. I do not remember the date today, around 2 years back, it was around winter time. It was around 1:00 am, the foot of my daughter touched my body and I awoke. I asked my daughter what had happened. She made gesture by putting her hand on the mouth. She pointed 35 of 57 36 FIR No. 172/2009 PS Kanjhawala out towards the curtain of window. I went there and saw my neighbour Rajesh (accused present in the court today). I tried to catch him but he run away. I became afraid so I could made a call to police. In the morning at around 6:00 am I made a call to the police and police reached my house. I took police to the house of accused Rajesh. Police apprehended accused Rajesh from his house on my pointing out. In the night when I awoke I noticed that my daughter was naked from the lower half from the body. My daughter (named withheld being a case u/s 376 IPC), through gestures told me that accused Rajesh had committed wrong act with her. Police recorded my statement EX PW3/A and obtained my thumb impression at pt A. Police took my daughter to the hospital and she was got medically examined. Police prepared site plan of the place of occurance (occurrence) at my instance. Accused was arrested in the present case and his personal search memo EX PW 3/B was prepared which bear my thumb impression at pt A. At the time of medical examination of my daughter her underwear was also seized.
At this stage, Ld. APP submits that he wants to ask some leading questions from the witness.
Considered. Allowed.
It is correct that date of incident was 03/10/2009. It is correct that statement of my daughter u/s 164 Cr.P.C was also got recorded. It is correct that my daughter told me that accused put his hand on her mouth and caught hold her both hands and said not to raise any alarm otherwise he will caused injury on her mouth and if she tell about the said fact to her father he will kill her father. It is also correct that my daughter told me that accused had committed rape with her. I forgot aforesaid facts due to lapse of time. I can identify the clothes of my daughter which were seized by the doctor."
36 of 57 37 FIR No. 172/2009 PS Kanjhawala During his crossexamination PW3 Tara Halder negated the suggestions that theft had taken place or that he used to take liquor or that he was on enemical terms with the accused or that he is deposing falsely or that a theft had taken place at his house however the thief escaped and accused is (has been) falsely implicated.
The testimony of PW3 Tara Halder has been corroborated by his wife PW2 Geeta Halder in material particulars.
PW2 - Geeta Harder in her examinationinchief has deposed that in the month of October, 2009, date she does not remember, she was sleeping alongwith her husband, daughter (the prosecutrix name withheld) and two other children. She remained sleeping upto 1:00 a.m. (night) as one of their issue was undergoing fever and at about 1:00 a.m., the accused entered in their house after broke open the lock and raped her daughter forcibly. The accused was apprehended by her husband. She has further stated that accused was only wearing shorts and other clothes were not on his 37 of 57 38 FIR No. 172/2009 PS Kanjhawala body who also threatened that he will assault and caused injury by blade and in the mean time he ran away from their house. She further stated that her husband rang to the Police at 100 number on the next morning. Next morning as usual she left for her work place and in her absence, the Police officials came and arrested the accused. She identified the accused in the Court as she knew him because he was residing in a gali next to their lane where her house is situated.
During her crossexamination PW2 Geeta Halder negated the suggestions that the accused did not commit the alleged offence upon her daughter or that he has been falsely implicated in this case.
Inspite of incisive crossexamination of PW3 Tara Halder nothing material has been brought out so as to impeach his creditworthiness. He has withstood the rigors of crossexamination without being shaken. PW2 Geeta Halder was not crossexamined on behalf of accused except putting suggestions that the accused did not commit the alleged offence upon her daughter or that he has been falsely implicated in this case, which were negated by her. The testimonies of PW2 - Geeta Harder and PW3 - Tara 38 of 57 39 FIR No. 172/2009 PS Kanjhawala Harder, on perusal and analysis are found to be natural, reliable and have ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
19. While analysing the testimony of PW1 - Prosecutrix, PW2 - Geeta Halder, her mother and PW3 - Tar Harder, her father as discussed hereinabove, inspite of incisive crossexamination nothing has come out in the statements of PW1 - Prosecutrix, PW2 - Geeta Harder and PW3 - Tara Halder which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions by defence to PW1 - Prosecutrix that she is deposing falsely at the instance of her parents or that the accused was falsely implicated in this case because initially he used to provide liquor and money to her father and later on he stopped the same and the suggestion to PW2 - Geeta Harder that the accused did not commit the alleged offence upon her daughter or that he is falsely implicated in this case and the suggestions to PW3 - Tara Harder that theft had taken place or that he used to take liquor or that he was on enemical terms with the accused or that he is deposing falsely or that a theft had taken place at his house however, the thief escaped and the accused is (has been) falsely implicated, were put, which 39 of 57 40 FIR No. 172/2009 PS Kanjhawala were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence.
However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examination of DW1, Mohd. Kalam, his friend.
DW1 - Mohd. Kalam in his examinationinchief has deposed that he knows Rakesh S/o Ravi Haldev from last six years. Rajesh used to visit the house of prosecutrix (name withheld) frequently. Father of the prosecutrix and her brother frequently used to visit accused's house. They generally used to ask for help to accused Rakesh and his family members. They are from same caste. There was a news in the locality that Tara Haldar wants to get married his daughter prosecutrix (name withheld) with accused Rajesh but accused Rajesh refused for the same. Tara Haldar threatened the accused Rajesh to implicate in false case, if he refused to marry with his daughter. Accused Rajesh refused to marry prosecutrix (name withheld) as she has some problem in walking straight and she is also not mentally fit. On 03/10/2009 he came to know that Rajesh has been apprehended by the Police on the complaint of said Tara Haldar. He is sure that accused Rajesh was falsely implicated by the father of prosecutrix (name withheld) as he is not 40 of 57 41 FIR No. 172/2009 PS Kanjhawala that kind of boy. Accused was apprehended from his house. On 02/10/2009, it was a holiday and he (DW1) was at home and had slept at about 1:00 a.m. midnight. He did not come across any incident happened in his colony. His house is only ten paces away from the house of the accused and the house of Tara Haldar is two streets away from his house. Accused Rajesh is man of good character.
During his crossexamination by the Ld. Addl. PP for the State DW1 - Mohd. Kalam has deposed that he had not made any written complaint of apprehending accused Rajesh in a false case after his apprehension by the Police and voluntarily stated that he had visited the PS but Police had not given any heed on his oral complaint and he does not recollect the name of the Police official.
On careful perusal and analysis of the testimony of DW1 - Mohd. Kalam, it is found that, a new theory of "refusal to marriage with Prosecutrix by accused Rajesh" has been propounded by the said witness. During his examinationinchief DW1 Mohd. Kalam has deposed that : "There was a news in the locality that Tara Halder wants to get married his daughter i.e. the Prosecutrix (name withheld) with accused 41 of 57 42 FIR No. 172/2009 PS Kanjhawala Rajesh but accused Rajesh refused for the same. Tara Halder threatened the accused Rajesh to implicate in false case, if he refused to marry with his daughter. Accused Rajesh refused to marry the Prosecutrix (name withheld) as she has some problem in walking straight and she is also not mentally fit"
On the said aspect so deposed by DW1 - Mohd. Kalam, as reproduced hereinabove, undisputably no suggestion has been put to PW3 - Tara Halder during his crossexamination nor have been put either to PW1 - Prosecutrix or PW2 - Geeta Halder during the course of their cross examination.
In the circumstances, the "Theory of refusal to marriage with prosecutrix by accused Rajesh" so propounded is mere an afterthought and falls flat on the ground.
Further, DW1 Mohd. Kalam in his examinationinchief has deposed that on 03/10/2009, he came to know that accused Rajesh has been apprehended by the Police on the complaint of Tara Halder and he was sure that accused Rajesh was falsely implicated by the father of the prosecutrix as he is not that kind of boy.
During his crossexamination by the Ld. Addl. PP, DW1 - Mohd. Kalam stated that he had not made any written complaint of
42 of 57 43 FIR No. 172/2009 PS Kanjhawala apprehending of accused Rajesh in a false case after his apprehension by the Police.
If DW1 - Mohd. Kalam is the friend of accused Rajesh and was in the know that he has been falsely implicated by Tara Halder, the father of the prosecutrix, then why he did not lodge a complaint with the Police against this. Nonlodging of any such complaint speaks volume.
In view of above and in the circumstance, it is clearly indicated that DW1 Mohd. Kalam is a procured witness and his testimony does not inspire confidence.
20. It is to be noticed, the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads thus :
"Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime 43 of 57 44 FIR No. 172/2009 PS Kanjhawala 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."
On analysing the testimony of PW1 - Prosecutrix in the light of medical evidence, biological and serological evidence, gynaecological examination at point 'A' of MLC Ex. PW8/A of the prosecutrix and MLC of accused Rajesh Ex. PW13/A, as discussed hereinbefore, the act of 44 of 57 45 FIR No. 172/2009 PS Kanjhawala performing of recent sexual intercourse activity by complete penetration of the 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 Rajesh with PW1 - Prosecutrix without her consent.
21. Ld. Counsel for the accused submitted that it is very difficult to digest that when the prosecutrix was sleeping in her house, alongwith her father in the same room and that near to her father that touching of her leg awoke the father from his sleep, could be raped by any person and her father only got knowledge when incident was already happened. He further submitted that allegations are that accused gagged her mouth, hold her both hands, pressed her breast and removed her clothes.....How can a person can do all these things, with two hands and that too without making any noise so that even a person sleeping inches away from the victim can not hear anything?
45 of 57 46 FIR No. 172/2009 PS Kanjhawala I have carefully perused and analysed the evidence on record. It is proved on record that PW1 - Prosecutrix is a physically handicapped person, as discussed hereinbefore. Nor the said factum of PW1 - Prosecutrix being a physically handicapped person has been denied by DW1
- Mohd. Kalam who in his examinationinchief has deposed that she has some problem in walking straight and she is also not mentally fit. It is also deposed by DW1 - Mohd. Kalam that accused Rajesh used to visit the house of prosecutrix frequently.
In the circumstances, accused Rajesh knowing the topography of the jhuggi of prosecutrix and being aware about the mental health of the prosecutrix and regarding her physical handicappedness cannot be ruled out.
Against this backdrop, let the testimonies of PW1 - Prosecutrix and PW3 - Tara Halder be revisited.
As discussed hereinabove, PW1 - Prosecutrix has made a very clear and categorical testimony regarding the incident. Her testimony is natural, cogent, reliable, convincing, trustworthy and inspires confidence.
At the cost of repetition, it is pertinent to reproduce the examinationinchief of PW1 - Prosecutrix which reads as under : 46 of 57 47 FIR No. 172/2009 PS Kanjhawala "I reside at the above said address alongwith my family and I am physically handicapped. On the fateful night, accused present in the Court today, Rajesh (correctly identified) came in my jhuggi. He gagged my mouth. Caught hold my hands and threatened me to cut my neck with blade and to kill my father, mother and brother. He removed my clothes and forcibly committed sexual intercourse with me and pressed my breast. One more unknown person was with accused Rajesh on that night and he did nothing with me but, asked Rajesh, "jaldi kar".
From the above narration of PW1 - Prosecutrix, it is clearly indicated as how and in what manner, PW1 - Prosecutrix, a physically handicapped girl was ravished by the accused Rajesh, in such a hurry up (Jaldi Kar) operation knowing fully well about the topography of the jhuggi of the prosecutrix as the same was frequently visited by him regarding which has been deposed by DW1 - Mohd. Kalam, as discussed hereinabove.
PW3 - Tara Halder, father of the prosecutrix, in his examinationinchief has very categorically deposed that : "It was around 1:00 a.m., the foot of my daughter touched my body and I awoke. I asked my daughter what had happened. She made gesture by putting her hand on the mouth. She pointed out towards the curtain of window".
47 of 57 48 FIR No. 172/2009 PS Kanjhawala Nothing could be elicited during the incisive crossexamination of PW3 - Tara Halder, so as to impeach his creditworthiness. He withstood the rigors of crossexamination without being shaken. It is not the case of the accused that either PW1 - Prosecutrix or PW3 - Tara Halder or PW2 - Geeta Halder were crossexamined on the aspect of, dimension of Jhuggi, the dimensions of sleeping place in the jhuggi, the manner of sleeping in the jhuggi, the number of doors and windows in jhuggi etc. For this accused is not to blame anyone else except himself. He is to drink what he has brewed.
In the circumstances, there is absolutely no substance in the plea so raised by the Ld. Counsel for the accused.
22. Ld. Counsel for the accused submitted that why did not anybody woke up if any lock was broken to enter the house and when the alleged act was done? (When the act complained of is of highly populated J. J. Cluster and was done in the same room where father of the prosecutrix himself was sleeping very near to her).
I have carefully perused and analysed the evidence on record. Undisputably, no information has been elicited by the accused from PW2 -
48 of 57 49 FIR No. 172/2009 PS Kanjhawala Geeta Halder, mother of the prosecutrix and PW3 - Tara Halder, father of the prosecutrix during their entire incisive crossexamination on the aspect regarding which the plea has been raised. For this, accused is not to blame anyone else, except himself.
In the circumstances, it does not lie in the mouth of the accused to express strangeness.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
23. Ld. Counsel for the accused submitted that how can a lady whose daughter had been raped on the preceding night, can go to her work place. Her natural behaviour should be that she should stay with the victim to console her and to help her to overcome the trauma faced by her.
I have carefully perused and analysed the evidence on record. The testimony of PW3 - Geeta Halder is natural, cogent and has a ring of truth. Undisputably, no information has been elicited by the accused from PW3 - Geeta Halder during her entire crossexamination on the aspect regarding which the plea has been raised. For this accused is not to blame anyone else except himself.
49 of 57 50 FIR No. 172/2009 PS Kanjhawala In the circumstances, it does not lie in the mouth of the accused to express strangeness on the part of the testimony so made by PW3 - Geeta Halder.
Int he circumstance, there is no substance in the plea so raised by the Ld. Counsel for the accused.
24. Ld. Counsel for accused submitted that how the accused and his alleged accomplice entered into the house of the complainant at mid night.
I have carefully perused and analysed the evidence on record. The testimony of PW1 - Prosecutrix is natural, clear, cogent, convincing, trustworthy and inspires confidence. Undisputably, no information has been elicited by the accused from PW1 - Prosecutrix during the entire incisive crossexamination on the aspect regarding which the plea has been raised. In the circumstances, for this accused is not to blame anyone else except himself.
In the circumstances, there is no substance in the plea so raiased by the Ld. Counsel for the accused.
25. Ld. Counsel for the accused raised the plea that why did not IO 50 of 57 51 FIR No. 172/2009 PS Kanjhawala make efforts to nab the alleged accomplice of the accused Rajesh and further submitted that neither any broken lock was produced before the Court nor any such broken door was got photographed by the IO of the case.
I have carefully perused and analysed the evidence on record. The evidence of PW15 - Puran Mal is on the record. He withstood the test of crossexamination without being shaken. Undisputable, no information has been elicited by the accused from PW15 - SI Puran Mal during his incisive crossexamination on the aspect regarding which the plea has been raised. In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
26. Ld. Counsel for the accused raised the plea why the Police was not informed/called at night when the PW3 - has seen the accused running from the house and tried to caught him?
I have carefully perused and analysed the evidence on record. The testimony of PW3 - Tara Halder is natural, cogent, reliable and has a ring of truth. In his examinationinchief, PW3 - Tara Halder has very categorically deposed that : "I became afraid so I could made (make) a call to Police in the 51 of 57 52 FIR No. 172/2009 PS Kanjhawala morning at around 6:00 a.m. I made call to the Police and police reached my house".
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
27. Ld. Counsel for accused submitted that no independent witness was examined by the prosecution, whereas during the crossexamination of PW3 - Tara Halder he said that "I told about the incident in the night to my neighbour Tulsi Ram". Whereas, neither there is any reference of Tulsi Ram in the chargesheet nor he was cited as witness in the list of witnesses. Moreover, there is no reference of said Tulsi Ram in the testimony of PW2 - Geeta Halder. Even in the statements made before the Police, PW3 - Tara Halder did not utter anything in this regard.
I have carefully perused and analysed the evidence on record. Undisputably, no information has been elicited by the accused from PW3 - Tara Halder, PW2 - Geeta Halder, PW15 - SI Puran Mal (IO) during the course of their crossexamination on the aspect regarding whcih the plea has been raised. In the circumstances, for this accused is not to blame anyone 52 of 57 53 FIR No. 172/2009 PS Kanjhawala else except himself.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
28. Ld. Counsel for the accused submitted that there are material contradictions in the testimonies of PW1, 2 & 3, who are star witnesses of the prosecution. As during her crossexamination PW1 when asked about the availability of her family member at the time of incident she says "None was present near me at that time." Whereas PW2 says in her examinationin chief that "I was sleeping alongwith my husband, daughter (Posecutrix name withheld) and two other children" Whereas PW3 says "My daughter used to sleep with me in night who is handicap person..." PW2 says in her examinationinchief that the accused was apprehended by my husband? and further said that the accused also threatened that he will assault and cause injury by blade but neither this fact mention in the testimonies of PW1 & PW3 nor in the statements of any witnesses recorded by the Investigating Officer.
I have carefully perused and analysed the evidence on record. PW1 - Prosecutrix, PW2 - Geeta Halder, mother of the prosecutrix and PW3 53 of 57 54 FIR No. 172/2009 PS Kanjhawala
- Tara Halder, father of the prosecutrix clearly and in a natural manner deposed regarding the facts within their knowledge and what they observed and experienced. Nothing more can be read in the said parts of their testimonies. There are bound to be some discrepancies in the narration of witnesses when they speak out details. Moreover, these are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence and do not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such 54 of 57 55 FIR No. 172/2009 PS Kanjhawala discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
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 55 of 57 56 FIR No. 172/2009 PS Kanjhawala variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
29. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that in the intervening night of 0203/10/2009 at about 1:00 a.m PW1 prosecutrix a minor girl, aged about 14 years and 8 days was raped by accused Rajesh after committing lurking house trespass at night by entering into the house no. C267, J. J. Colony, Savda, Delhi110081 for the purpose of committing an offence of rape punishable with imprisonment after having taken precautions to conceal such house trespass and criminally intimidated by threatening to kill her (prosecutrix), with intent to cause alarm to her.
I accordingly, hold accused Rajesh guilty for the offences punishable u/s 457/376/506(II) IPC and convict him thereunder.
30. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Rajesh in the commission of the offences u/s 457/376/506(II) IPC is concerned, the same is sufficiently 56 of 57 57 FIR No. 172/2009 PS Kanjhawala 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 Rajesh beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Rajesh guilty for the offences punishable u/s 457/376/506(II) IPC, and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 19th Day of January, 2013 ASJ/Spl. FTC N/W & Outer District Rohini, Delhi 57 of 57