Delhi District Court
State vs Javed on 30 November, 2017
IN THE COURT OF
SHRI BALWANT RAI BANSAL
ADDITIONAL SESSIONS JUDGE01, SPECIAL COURT
(POCSO), SOUTH, NEW DELHI
CIS SC No.7400/16
FIR No.447/11
PS: Malviya Nagar
In the matter of:
State
versus
Javed
S/o: late Babuddin
R/o: T5B, Begum Pur,
Malviya Nagar, New Delhi.
............ Accused
Date of Institution : 14.02.2012.
Date of Reserving Judgment : 24.11.2017.
Date of Pronouncement : 30.11.2017.
JUDGMENT
[1]. This is a case where accused Javed S/o late Babuddin, has faced trial for having committed the offences punishable under section 376 of the Indian Penal Code (IPC), on the allegations that he CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 1 of 70 took a 17 years old girl child PW2 (the prosecutrix), namely, 'S' (real name withheld in order to conceal her identity and hereinafter referred to as 'the prosecutrix'), in his car and thereafter committed rape upon her besides threatening to kill her family members. [2]. The brief facts of the case are that on 09.11.2011, the complainant/prosecutrix, namely, 'S' came to the PSMalviya Nagar alongwith her father and gave a complaint to the police that "she is studying in class 10th. One boy, namely, Javed used to reside in her neighbourhood, who was eveteasing her for the last seveneight months and he had also proposed her and she had friendship with him. On 09.11.2011, when she was present at her home, Javed called her on her mobile number 9654477559 from his mobile number 9958988178 at about 07:15 pm and told her that he wanted to meet her, but she refused him, however, he insisted her to come down saying that he wanted to meet her for two minutes. At that time, Javed had come there with a car and he stopped the said car near the kudedaan (dustbin). The prosecutrix further alleged that when she CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 2 of 70 went to Javed, he opened the window of his car and made her seated inside the car and immediately closed the window of the car. He drove the car for some distance and started misbehaving with her. He threatened her that if she would make noise, he will kill her, due to which she got frightened and Javed forcibly removed her wearing clothes and committed sexual intercourse with her forcefully. She started weeping and for some time, he kept on threatening her that if she would disclose about the incident to anyone, he will not let her family alive. Due to the threats given by the accused Javed and to save the life of her family members and to protect their reputation, she did not tell about the rape committed by Javed, to anyone. However, she was feeling severe pain in her stomach and due to this, she narrated the incident to her family members. Her father took her to the police station. She further alleged that when the accused Javed was committing rape upon her, at that time, her earring fell in the said car".
[3]. Thereafter, on the basis of the aforesaid statement of the CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 3 of 70 prosecutrix, SI Madhav Krishan prepared a tehrir (rukka) under section 376 and 506 IPC and got registered the present case FIR. He also got conducted the medical examination of the prosecutrix and seized all the exhibits. SI Madhav Krishan also prepared the site plan of the place of occurrence, on the pointing out of the prosecutrix. On 10.11.2011, the investigation of the present case was handed over to W/SI Santosh Chauhan (IO) and during the investigation, on the pointing out of the prosecutrix, she arrested the accused Javed in the present case and the information of his arrest was given to his family members by the IO. Exhibits were seized by the IO and on the pointing out of the accused, the Maruti Car bearing No. DL3CM 1228 was recovered and from inside the said car, the earring of the prosecutrix was recovered and the same was identified by the complainant.
[4]. During the investigation, the hair sample and photographs of the complainant were obtained by the IO and the same were seized. The IO also collected the age proof certificate of the prosecutrix CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 4 of 70 from her school, as per which the date of birth of the prosecutrix is 08.10.1994. After concluding the investigation, the chargesheet against accused Javed was prepared by the IO, for the offences punishable under sections 376 and 506 of the IPC, and filed before the court.
[5]. On 16.04.2012, charge was framed against the accused for his having committed offence punishable under section 376 of IPC, and the same was read over and explained to the accused, to which, he pleaded notguilty and claimed trial.
[6]. In support of its case, 18 witnesses have been examined by the prosecution, including the prosecutrix as PW2. [7]. PW1 is Smt. Babita Mehra, Head Mistress Arya Public School, Malviya Nagar, New Delhi, who produced the record pertaining to the student, namely, the prosecutrix 'S', as per which, the date of birth of the prosecutrix is 08.10.1994. The witness deposed that the said girl child, namely, 'S' was admitted in their school at 'K.G.' class and studied upto 8th standard. PW1 proved the date of birth CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 5 of 70 certificate issued by her as Ex.PW1/A and further deposed that the said date of birth was entered in the school record on the basis of the affidavit given by the father of the said girl child. [8]. PW2 is the prosecutrix and is the main witness of the prosecution. She deposed that at the time of the incident, she was residing in Begumpur, New Delhi (full address of the prosecutrix is withheld in order to conceal her identity), and accused Javed used to reside near her house at a distance of about three houses. Accused Javed is the elder brother of her friend Sanjida and in this connection, she used to have occasional talks with him. She was in talking terms with him for about twothree months. Once he proposed her, and she told him that as he was married, so she could not get married with him. After about one month of this proposal, accused Javed met her at Hauz Rani, where she used to take tuition and there, he came on his motorcycle, and even on that day, the prosecutrix told him that she did not want to have any relation with him and he was only a brother of her friend for her, and thereafter, the accused did not meet her. The CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 6 of 70 prosecutrix further deposed that suddenly, on 09.11.2011 at about 06:30 pm, she was giving tuitions to a small child at her home and when it became dark due to electricity failure in the area and even the light near the park outside her house went off, at that time, when the tuition was over, that child requested her to drop him to some distance as there was dark outside. At this juncture, she received a call from the accused and she was asked by the accused to meet him and she considered that he was under tension by his voice and he insisted her to meet him. Pursuant to this, she told him that she was not interested to meet him and she also told him that her brother had also asked her not to meet him and thereafter, the call was disconnected. [9]. PW2, the prosecutrix further deposed that therefore, she left her house to drop the child at some distance and when she was coming back after seeing the child off, the accused met her on the way as he was driving a car and he blew horn behind her. The accused stopped his car a little ahead of her and thereafter pulled her inside the vehicle by opening the door. Thereafter, the accused drove the car, CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 7 of 70 took a round of temple and thereafter parked his vehicle near cremation ground between two other big vehicles, which were perhaps trucks. Thereafter, the accused asked her as to why she was not ready to talk to him and not picking up his phone calls and she tried to convinced him that since he was married so there was no possibility of a relationship between them. Upon this, the accused told her that he was not in good terms with his wife and he could leave his wife for the prosecutrix. Thereafter, the accused started misbehaving with her physically as he caught hold of her hand and opened her shirt forcibly and he also slapped her twice and forcibly removed her jeans. Prior to this, he forcibly removed her shirt and also her undergarments (sapgety), which she was wearing under the shirt. Thereafter, he pushed back the seat of the car and came over her and he also removed his own shirt and opened his pant and she could notice that he was wearing any underwear. Thereafter, the accused forcibly caught hold of her both the hands by taking the same over her head and penetrated his private part into her private part. Thereafter, the accused continued with the sexual activity for quite some time and CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 8 of 70 withdrew. Again he started having sex with her after some time. The prosecutrix was bleeding from her private part and was feeling giddiness (chakkar aa rahe the). She kept on telling the accused that her parents will not leave him and he was doing a bad and wrong act with her, upon which, the accused used bad words for her brother and father and told her that they were not able to do anything with him. Thereafter, the accused tied her hair and made her wear her shirt and jeans and subsequently, the accused started his vehicle, drove it very fast and threw her off near the park.
[10]. PW2, the prosecutrix further deposed that she was residing on the first floor at the time of the incident and a boy, namely, Robin Raturi, who used to reside on the second floor in the same building, noticed her as he was present near the park. Robin asked her as to what happened by calling her nick name 'Munni'. She requested Robin that the best he could do was to help her in reaching home. She was not able to walk, so Robin helped her to get up as she was feeling extremely weak and he took her to her home. Upon seeing her, her CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 9 of 70 mother started crying and Robin helped her with some water. Thereafter, her sister, namely, 'A' made a call to her father informing him that she reached home as her father was away to lodge a complaint since she was not traceable. Thereafter, her father and brother reached home and her father insisted to reveal everything to him as she was continuously weeping. She was feeling terrible pain in her stomach and had a feeling of vomiting and her father kept on asking her as to what has happened As she was very much disturbed so she only told her father that she was kidnapped by somebody. Upon this, her father asked her if she would go to police station alongwith him for which she agreed.
[11]. PW2, the prosecutrix further deposed that thereafter, they reached Malviya Nagar Police Station, where her statement Ex.PW2/A was recorded and the same was signed by her. She narrated the incident to the police official, namely, Madhav Krishan, who talked to her in isolation by sending her father and brother outside. Thereafter, she was medically examined, and later on, her statement CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 10 of 70 Ex.PW2/B was recorded in the court u/s 164 of Cr.P.C. She deposed that the accused was also arrested in her presence from his house by the police vide arrest memo Ex.PW2/C and his personal search was conducted vide memo Ex.PW2/D and his disclosure statement was recorded by the police vide Ex.PW2/E. The mobile phone, make, Nokia was also seized from him by the police vide memo Ex.PW2/F. PW2 (the prosecutrix) further deposed that one of her earring was later on recovered from the car of the accused vide memo Ex.PW2/G and her hair samples were also taken vide memo Ex.PW2/H alongwith her photographs vide memo Ex.PW2/I. She deposed that in the said photographs Ex.PH1 and Ex.PH2, she was wearing the same shirt and jeans, which she was wearing at the time of the incident. She saw the mobile phone in the court during her evidence, but she could not identify the same as she was not able to see that mobile phone properly at the time of recovery. PW2 has also identified her clothes, that is, her shirt (Ex.P1), Her spegati (Ex.P2), her bra (Ex.P3), her underwear (Ex.P4), which she was wearing at the time of the incident. She also identified her pink colour earring/top without CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 11 of 70 stopper Ex.G1, and her pink colour earring/top with stopper as Ex.G2. The prosecutrix has also identified the accused Javed in the court during her evidence.
[12]. PW3 is Ms. Sunita Suman, Sr. Scientific Officer (Biology), FSL, Rohini, Delhi. She deposed that on 20.12.2011, she alongwith her team had examined Maruti Car (800) bearing No. DL 3CM 1228 in connection with present case FIR No.447/11, u/s 376/506 IPC, PS Malviya Nagar, before the concerned IO. The said car was thoroughly examined for the presence of biological fluids. Blood could not be detected on the said car, however, some dirty stains were visible on the seat cover and on the cloth piece. The cutting of the dirty stains from the seat cover and the cloth piece alongwith hairs and one earring, found from the said car, were handed over to the concerned IO, and PW3 prepared her detailed report Ex.PW3/A in this regard.
[13]. PW4, namely, 'B' is the father of the prosecutrix, who deposed that on 09.11.2011, he received a call from his wife that his CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 12 of 70 daughter was not at home, pursuant to which, he reached there. His daughter returned at about 09:00/09:30 pm. He took her to the police station, where her statement was recorded and she was medically examined. He came to know that rape was committed upon his daughter by accused Javed, who was arrested from Begumpur and the witness signed the arrest memo of the accused. He further deposed that one earring was recovered from the car which was used by the accused and the said earring was seized by the IO vide memo Ex.PW2/G and the said car was seized vide memo Ex.PW2/K. He also deposed that hair of his daughter were taken vide Ex.PW2/H and the mobile phone of the accused was seized vide memo Ex.PW2/F. [14]. PW5, namely, 'A' is the brother of the prosecutrix, who deposed that on 12.12.2011, he alongwith his father PW4, visited PS Malviya Nagar and he handed over to the IO two photographs Ex.PH1 and Ex.PH2, of his sister alongwith her ageproof Ex.PW1/A issued from Arya Public School, as per which the date of birth of his sister is 08.10.1994. He deposed that the photographs are CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 13 of 70 depicting the picture of his missing sister, and his sister was wearing the same dress, which was worn by her at the time of missing from the house.
[15]. PW6 is Amit Sharma, who deposed that he is the registered owner of Maruti 800 car, the registration number of which, he did not remember. He deposed that the accused Javed, who is his neighbour, took this car from him, by telling him that there was some emergency. Accused Javed borrowed this car for half an hour and after about half an hour he met him (PW6) at the same place and PW6 took back the car with him. He deposed that this vehicle was stolen at a later day for which he registered an FIR, and later on, he came to know that some rape incident took place inside the said vehicle, involving the girl friend of accused Javed and this fact he came to know from the police. He could not produce the car since the same had been stolen. The witness had seen the sale documents Ex.PW6/A of the said vehicle and the same were in his favour as he had bought this vehicle from one Tej Prakash Bajaj. He produced the documents CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 14 of 70 to the police alongwith the keys of the vehicle vide memos Ex.PW6/B, Ex.PW6/C and Ex.PW6/D. [16]. PW7 is Robin, who deposed that on 09.11.2011, he was going towards the market while talking on his mobile phone and came back to his house. He noticed that the prosecutrix, namely, 'S' who was standing near the park and she asked him to take her to her house. Thereafter, he dropped her to her home. He deposed that perhaps the family members of the prosecutrix 'S' were looking for her, but he did not know where victim girl had gone prior to the time when she met him, and he did not remember if she looked disturbed. [17]. PW8 is Ct. Sushil Dan, who alongwith Ct. Dinesh, had taken the accused to AIIMS hospital on 10.11.2011 and got him medically examined and Ct. Dinesh collected the medical exhibits from the doctor and gave the same to the IO.
[18]. PW9 is Ct. Chanchal, who got the prosecutrix girl medically examined as per the directions of the IO and collected her medical exhibits which were seized by the IO vide memo Ex.PW4/A. CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 15 of 70 [19]. PW10 is Dr. Sujata Rawat, Sr. Resident, AIIMS hospital, New Delhi, proved the MLC report of the prosecutrix Ex.PW10/A, on behalf of Dr. S. Murali, who had prepared the same but had left the services of the hospital.
[20]. PW11 is Ct. Ravi Shekhar, who took the case property from the MHC (M) and deposited the same with the FSL Rohini on 20.12.2011 and the acknowledgement of the same was given back to MHC(M).
[21]. PW12 is Dr. Shashank Pooniya, Sr. Resident, AIIMS Hospital, proved the MLC report of the accused Ex.PW12/A, on behalf of Dr. Akhilesh Raj, who had prepared the same but had left the services of the hospital.
[22]. PW13 HC Manoj Kumar, is the Duty Officer, who deposed that on 09.11.2011, when he was working as Duty Officer from 04:00 pm to 12:00 midnight, during that period, at about 11:35 pm, he received a rukka given by SI Madhav Krishan in the police station. On the basis of the rukka (Ex.PW13/B), he got registered the CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 16 of 70 present FIR No.447/11, copy of which is Ex.PW13/A. [23]. PW14 is Ct. Dinesh Kumar, who deposed that on 10.11.2011, he alongwith the IO and the prosecutrix, namely, 'S' went to Begumpur at House No. T5B in search of the accused, where one boy met there and he was identified by the complainant to be the same boy, who committed the offences against her. The IO made inquiry from the said boy, whose name was revealed after inquiry as Javed. The IO arrested the accused in this case vide arrest memo Ex.PW2/C. The IO also conducted the personal search of accused Javed vide memo Ex.PW2/D and recovered a mobile phone make 'Nokia' from his possession. The IO also interrogated the accused and recorded his disclosure statement Ex.PW2/E and pursuant to the disclosure statement, the accused led them to a park, situated near his house, and he pointed out one white colour Maruti 800 car, bearing registration No.DL 3CM 1228. The prosecutrix identified the said car, wherein rape upon her was stated to have committed by the accused. The IO made the search of the car and found one piece of pink colour earring. CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 17 of 70 The complainant identified the said tops as the same belonging to her. The IO sealed the said earring in a cloth pullanda with the seal of SC and seized the same vide seizure memo Ex.PW2/G. The IO also seized the said car vide seizure memo Ex.PW2/J and the Nokia mobile phone vide seizure memo Ex.PW2/F, and thereafter the car was brought to the police station with the help of crane. The accused was also brought in the police station, and subsequently, PW14 alongwith Ct. Sushil Dan, took the accused to the AIIMS hospital and he was medically examined there. The exhibits handed over by the doctor after the medical examination of the accused, were seized by the IO vide seizure memo Ex.PW14/A. [24]. PW15 is the Metropolitan Magistrate, Ms. Mona Tardi Kerketta, who conducted the proceedings under section 164 of Cr.P.C. (Ex.PW15/A) on 11.11.2011 in respect of the recording of the statement (Ex.PW2/B) of the prosecutrix u/s 164 of Cr.P.C. [25]. PW16 is SI Madhav Krishna, the initial IO of the case, who deposed that on 09.11.2011, in the evening at about 09:00/10:00 CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 18 of 70 pm, the complainant, namely, 'S' came to the police station alongwith her father and gave her statement Ex.PW2/A, which PW16 recorded in the presence of a lady Constable. PW16 made his endorsement Ex.PW16/A on the said statement of the prosecutrix and got registered the FIR on the basis of the said statement. Thereafter, he alongwith Ct. Chanchal took the complainant alongwith her father to the AIIMS Hospital for her medical examination and after her medical examination, the doctor gave him the exhibits of the prosecutrix in sealed condition and he seized the same through the seizure memo Ex.PW4/A. Thereafter, he alongwith the prosecutrix and her father and Ct. Chanchal went to Begumpur, where the complainant had pointed out the place of occurrence at near a park at Begumpur, and PW16 prepared the site map Ex.PW16/B of the said place of occurrence. He had shown the exact place, where the Maruti car was parked and in which the offence was committed and the said point of place is marked in the site map at serial no.03. Thereafter, he alongwith Ct. Chanchal returned to the police station and further investigation was assigned to W/SI Santosh Chauhan, and PW16 SI CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 19 of 70 Madhav Krishna handed over all the documents pertaining to the case to her.
[26]. PW17 is W/SI Santosh Chauhan, the main IO of the case, who deposed that on 10.11.2011, pursuant to the direction of the SHO, she took over the investigation of the present case and on the same day, she alongwith Ct. Dinesh, the prosecutrix and her father went to the house of the accused Javed and on the pointing out of the prosecutrix, she apprehended the accused Javed and arrested in this case vide his arrest memo Ex.PW2/C, and also conducted his personal search and recorded his disclosure statement vide Ex.PW2/D and Ex.PW2/E respectively. She also seized the mobile phone, make, Nokia of the accused vide seizure memo Ex.PW2/F [27]. Thereafter, IO/PW17 SI Santosh Chauhan took the accused to the spot i.e. a Park at Begumpur and from there a Maruti car bearing No.1228 was seized at the instance of the accused as the offence of rape was stated to have committed in the said car, vide seizure memo Ex.PW2/J. One tops, that is, earring was recovered CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 20 of 70 from the car and the same was belonging to the prosecutrix and the IO/PW17 SI Santosh Chauhan seized the said tops through a separate seizure memo Ex.PW2/G, and she also got recorded the statement of the prosecutrix under section 164 of Cr.P.C. She also collected the sample of scalp hair of the prosecutrix through the seizure memo Ex.PW2/H and also collected one old photograph of the prosecutrix in which the tops, which was recovered from the car, was depicting, and she seized the said photograph vide seizure memo Ex.PW2/I. After the arrest of the accused, he was got medically examined and the doctor gave the exhibits pertaining to the accused in sealed condition and she seized the same through the seizure memo Ex. PW14/A. IO/PW17 SI Santosh Chauhan took the aforesaid Maruti car with the FSL, Rohini for inspection and during the inspection, the expert had collected some hairs and some parts of seat cover and one piece of cloth lying in the car, and the expert prepared his report Ex.PW3/A in this regard. The expert gave her the said exhibits collected from the car and she seized the same through the seizure memo Ex.PW17/A. CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 21 of 70 [28]. PW17 IO/SI Santosh Chauhan further deposed that during the investigation, it was revealed that the said Maruti car was registered in the name of Tej Prakash Bajaj, but during interrogation from accused Javed it was revealed that the said car was in the possession of Amit Sharma. IO/PW17 SI Santosh Chauhan called Amit Sharma and he told her that he had purchased the said car from Tej Prakash Bajaj, but he could not get it transferred in his name. She seized the RC of the said car from Amit Sharma through the seizure memo Ex. PW6/B, and also seized the transfer form no. 29 and 30 pertaining to the said Maruti car through the seizure memo Ex. PW6/C. The key of the car was also seized from Amit Sharma through the seizure memo Ex. PW1/D and the original registration certificate of the said car is Ex.PW17/B. Form no. 29 and 30 are comprising in two sheets is Ex. PW6/A (colly.). She also collected the birth certificate Ex.PW1/A of the prosecutrix from her school. All the exhibits were sent to the FSL, Rohini for examination. The FSL report in respect of the ear tops was obtained and the same was filed in the court. The said report is Ex.PW17/C, which was prepared on CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 22 of 70 27.02.2012 by Parshuram Singh, Senior Scientific Officer (Physics), FSL, Rohini. The FSL reports Ex.PW17/D and Ex.PW17/D in respect of many exhibits were obtained later on alongwith the forwarding letter and the said reports were prepared on 28.5.2012 by L. Babyto Devi, Senior Scientific Officer (Biology), FSL, Rohini. [29]. Thereafter, IO/PW17 SI Santosh Chauhan recorded the statements of the various witnesses under section 161 of Cr.P.C. and after completing the investigation, the charge sheet was prepared and produced before the court. IO/PW17 SI Santosh Chauhan identified accused Javed in the court during her examination and also identified the case property, that is, Maruti car bearing no. 1228, one ear tops, mobile phone make Nokia, two pieces of seat cover of the car and one piece of cloth, however, she could not identify scalp hairs. [30]. PW18 is ASI Ashok Kumar, who got recorded the FIR No.256/13 under section 379 of IPC regarding the stolen car in the present case. He deposed that on 04.05.2013, he was working as Duty officer from 04:00 pm to 12:00 midnight, and on that day at about CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 23 of 70 09:20 pm, SI Gopal came to him in the DO room and gave rukka to him in this case for registration of the FIR. Accordingly, on receipt of the rukka, he got recorded the FIR No.256/13 (Ex.PW18/A) under section 379 of IPC, and thereafter a copy of the same alongwith the original rukka was handed over by him to HC Santosh for further investigation as per the directions of the SHO concerned. [31]. Thereafter, the prosecution evidence was closed on 09.10.2017. On 16.11.2017, the accused Javed was examined under section 313 of Cr.P.C. and his statement was recorded. During his examination under section 313 of Cr.P.C., the accused denied the correctness of the incriminating evidence appearing against him during the prosecution evidence. The accused further stated that the prosecutrix made false statement at the instance of her parents and the FIR was registered against him to falsely implicate him. The accused further stated that the prosecutrix was the consenting party and she had given call to him and in between 1 st of November 2011 to 9th of November 2011, she gave him 75 calls. The accused further stated CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 24 of 70 that because of threatening of her father, she had levelled false allegations against him and the IO did not investigate the case properly and the IO, in fact, investigated the matter in the manner to falsely implicate him in the present case and all the evidence was planted in the case to falsely implicate him. The accused further stated that the prosecutrix has correctly identified him but he did not do any wrong with her against her wishes. The accused further stated that he is innocent and he has been falsely implicated in this case, and the prosecutrix was under the pressure of her parents. The accused further stated that since the parents of the prosecutrix were against their relationship and they did not want her to meet with him or to have talking terms with him, therefore, under the pressure of her parents, the prosecutrix made false allegations against him. [32]. The Ld. Additional Public Prosecutor for the State has drawn my attention on the testimonies of the prosecutrix and of the other witnesses examined by the prosecution to prove its case and the documents exhibited during the examination of the prosecution CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 25 of 70 witness, and submitted that there is sufficient material on record to convict the accused for the commission of the offence punishable under section 376 of IPC.
[33]. On the other hand, Ld. Counsel for the accused submitted that the accused has not committed any offence as alleged against him and he has been falsely implicated in this case by the prosecutrix under the pressure of her parents, and in fact, she was a consenting party. He further argued that the prosecutrix was in relationship with the accused and used to meet him. He admitted that on the date of the incident, she had gone with him with her own consent and had consensual sexual relationship. When she was coming out of the car, she was seen by her family members and thereafter, to implicate the accused, the entire story was concocted. He strenuously argued that had the prosecutrix not been a consenting party, it was not even feasible to have sex in a car with a fully grown up adult lady. Ld. Counsel for the accused argued that keeping in view the testimonies of the witnesses and the statement of the accused recorded under section CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 26 of 70 313 of Cr.P.C., the prosecution has failed to prove its case beyond reasonable doubt, and therefore, the accused is entitled to be acquitted. [34]. I have considered the submissions made by the Ld. Additional Public Prosecutor and Ld. Counsel for the accused and have gone through the record of the case carefully. [35]. Section 376 of the Indian Penal Code, which prescribes punishment for rape, prior to amendment by Act 13 of 2013, read as follows:
376. Punishment for rape.--(1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 27 of 70 a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1.Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub section.
Explanation 2."women's or children's institution"
means an institution, whether called and orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3."hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation. [36]. Section 375 of the Indian Penal Code, which defines CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 28 of 70 'rape', prior to amendment by Act 13 of 2013, read as follows:
375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First.Against her will.
Secondly.Without her consent.
Thirdly.With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.With or without her consent, when she is under sixteen years of age.
Explanation.Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. [37]. In the light of the charge framed against the accused, the first point for determination is that: What was the age of the prosecutrix on the date of the incident?
[38]. The determination of age of the prosecutrix also assumes significance in the light of the arguments advanced by the Ld. Defence CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 29 of 70 Counsel that the prosecutrix was major and a consenting party. [39]. The prosecution in order to prove the age of the prosecutrix has relied upon the certificate Ex.PW1/A issued by the school. In this regard, prosecution has examined PW1 Smt. Babita Mehra who is Head Mistress, Arya Public School. She has brought the record pertaining to prosecutrix. She deposed that as per the school record, her date of birth is registered as 08.10.1994 and she was admitted in Class 'KG' and studied upto 8th Standard. She also deposed that the date of birth of the prosecutrix was entered on the basis of affidavit given by her father.
[40]. In the crossexamination, she categorically stated that besides the affidavit, copy of one 'jachha baccha raksha card' was also enclosed in which, the date of birth is given as 08.10.1994. She admitted that photocopy on record is not attested one. She admitted that except the 'jaccha baccha raksha card' and the affidavit, no proof was given by the parents of student.
[41]. Perusal of Ex.PW1/A reveals that the same is a certificate CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 30 of 70 issued by Arya Public School and as per their school record, the date of birth of the prosecutrix is 08.10.1994, however, the said Head Mistress from the school has not produced the affidavit on the basis of which the said date of birth was recorded in their school. Moreover, the only reliance was placed on 'jachcha bachcha raksha card' but the same is also not on record. Even the prosecution has not been able to prove that any such affidavit as stated by the witness was given by the parents of the prosecutrix. The PW4, who is the father of the prosecutrix, has not made a whisper in his evidence about the age of the prosecutrix or any such affidavit given at the time of her admission in the school. Therefore, the reliance cannot be placed upon the certificate Ex.PW1/A. Moreover, the prosecutrix during her cross examination has categorically stated that "it is correct that at the time of admission in school my parents had given the affidavit stating there my age less than two years of actual age". If the aforesaid statement of the prosecutrix is taken into account, then at the time of commission of offfence on 09.11.2011, the prosecutrix was aged about 19 years. Even if the version of the prosecution is accepted and CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 31 of 70 certificate Ex.PW1/A is relied upon which shows the date of birth of the prosecutrix as 08.10.1994, still the prosecutrix was 16 years 11 months of age approximately, on the date of alleged commission of offence, that is, on 09.11.2011.
[42]. In view of the aforesaid discussion, the prosecutrix was of the age of consent because prior to amendment by Act 13 of 2013, age of consent was 16 years of age and as per the own case of the prosecution, the prosecutrix was more than 16 years of age at the time of commission of offence, though the same has not been proved and rather from the testimony of prosecutrix, her age was 19 years at the time of commission of alleged offence.
[43]. The second point for determination is that: Whether the accused raped the prosecutrix or she was consenting party and sexual intercourse took place with the consent of the prosecutrix? [44]. The criminal law was set into motion on the complaint of the prosecutrix Ex.PW2/A dated 09.11.2011 as noted herein above. [45]. Thereafter, the statement of the prosecutrix u/s 164 of CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 32 of 70 Cr.P.C. was recorded on 11.11.2011, in which she, inter alia, stated that on 09.11.2011 at about 06:15pm, she was giving tuition to a child at her house. At that time, she received a phone call on her mobile phone but as her mobile phone was on 'vibration mode' therefore she could not attend the call. Thereafter, at about 06:45, she checked her mobile phone and saw that there was a missed call. She found that the said number was of Javed. She called back and Javed expressed willingness to meet her. She refused and disconnected the call. Thereafter, she left to drop the said child upto his street as the child was small (minor) and it was dark at that time.
[46]. She further stated that when she was returning after dropping the said child and reached to an isolated place where some people were standing at that time. At the same time, one Maruti 800 car was coming from her backside and the driver of the said car was constantly blowing horn and despite having enough space, he was not passing the vehicle. When she turned back, the said driver stopped the car near her. The driver opened the window of the car, on which, she CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 33 of 70 came to know that the said driver was Javed. On seeing him, she started going ahead, but in the meantime, Javed opened the door of the car and forcefully dragged her inside the car and moved ahead. She also stated that at that time, threefour people were around there but she got perplexed as she was suddenly dragged by Javed inside the car, due to which, she could not do anything. She further alleged that thereafter, Javed took her in an isolated place, near Shamshaan Ghaat (Cremation Ground) and stopped the car a little ahead near the Kudedaan (dustbin). Thereafter, he started doing jabardasti (misbehaving) with her. She caught hold of her hands and legs and kissed on her neck. She pushed at the starring of the car, on which he got angry. When she refused him, he gagged her mouth and she started weeping but could not scream. Thereafter, Javed forcefully pushed her on the seat of the car due to which the seat got bent and he made her lie down on the seat and removed her wearing shirt and during the scuffle, her shirt got torn. The prosecutrix further stated in her said statement that accused Javed also tried to kiss her near her breasts and he also removed her spagetti and bra. Thereafter, he CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 34 of 70 gagged her mouth from his one hand and from his another hand he removed his clothes. Javed also removed the pant of the prosecutrix as well as his pant. When she started weeping, he threatened to kill her. Thereafter, he inserted his penis into her vagina and when she felt pain, she screamed and she also got bleeding. He forcefully committed sex with her for about one hour. She was feeling severe pain and became unconscious and she was not able to speak. Javed got tired while doing sex with her and released her, however, after a little while, he again committed sexual intercourse with her forcefully for about 1015 minutes. Thereafter, both of them wore the clothes and he pushed her outside the vehicle. Outside the vehicle, she saw her neighbour Robin, who used to reside on the second floor of the same building where the prosecutrix was residing and he asked her as to what happened, but she was not in a position to speak anything and was feeling giddiness. She requested the said Robin to drop her in her house and Robin took her to her house. After reaching home, her mother inquired but the prosecutrix did not tell anything. Her father and brother had gone in search of her. Her sister informed them that CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 35 of 70 she had reached home. They inquired from her but she could not tell anything, but after some time, she felt pain on her abdomen and on her vagina and then she narrated about the incident to them. She was taken to the police station by her family members and lodged the complaint. [47]. When the prosecutrix entered into the witnessbox as PW2, she stated that she used to have occasional talks with Javed. She was in talking terms with him for about twothree months. Once he proposed her and she told him that as he was married so she could not get married with him. She deposed that suddenly on 09.11.2011 at about 06:30 pm, she was giving tuitions to a small child at her home and when it became dark due to electricity failure in the area and even the light near the park outside her house went off, at this moment, when the tuition was over, that child requested her to drop him to some distance as there was dark outside. At this juncture, she received a call from accused Javed and she was asked by the accused to meet her and she considered that he was under tension by his voice and he insisted her to meet him. On this, the prosecutrix told him that she was CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 36 of 70 not interested to meet him and she also told him that her brother had also asked her not to meet him and thereafter, the call was disconnected. Therefore, she left her house to drop the child at some distance and when she was coming back after seeing the child off, the accused met her on the way as he was driving a car and he blew horn behind her. The accused stopped his car a little ahead of her and thereafter pulled her inside the vehicle by opening the door. Thereafter, the accused drove the car, took a round of temple and thereafter parked his vehicle near cremation ground between two other big vehicles, which were perhaps trucks.
[48]. Thereafter, the accused asked her as to why she was not ready to talk to him and not picking up his phone calls and she tried to convinced him that since he was married so there was no possibility of a relationship between him and her. Upon this, the accused told her that he was not in good terms with his wife and he could leave his wife for the prosecutrix. Thereafter, the accused started misbehaving with her physically as he caught hold of her hand and open her shirt CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 37 of 70 forcibly and he also slapped her twice and forcibly removed her jeans. Prior to this, he forcibly removed her shirt and also her undergarments (sapgety), which she was wearing under the shirt. Thereafter, he pushed back the seat of the car and came over her and he also removed his own shirt and opened his pant and she could notice that he was wearing any underwear. Thereafter, the accused forcibly caught hold of her both the hands by taking the same over her head and penetrated his private part into her private part. Thereafter, the accused continued with the sexual activity for quite some time and withdrew.
[49]. Again he started having sex with her after some time. the prosecutrix was bleeding from her private part and was feeling giddiness (chakkar aa rahe the). She kept on telling the accused that her parents will not leave him and he was doing a bad and wrong act with her, upon which, the accused used bad words for her brother and father and told her that they were not able to do anything with him. Thereafter, the accused tied her hair and made her wear her shirt and CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 38 of 70 jeans and subsequently, the accused started his vehicle, drove it very fast and threw her off near the park. PW2, the prosecutrix also deposed that she was residing on the first floor at the time of the incident and a boy, namely, Robin Raturi, who used to reside on the second floor in the same building, noticed her as he was present near the park. Robin asked her as to what happened by calling her nick name 'Munni'. She requested Robin that the best he could do was to help her in reaching home. She was not able to walk, so Robin helped her to get up as she was feeling extremely weak and he took her to her home. Upon seeing her, her mother started crying and Robin helped her with some water.
[50]. Thereafter, her sister, namely, 'A' made a call to her father informing him that she reached home as her father was away to lodge a complaint since she was not traceable. Thereafter, her father and brother reached home and her father insisted to reveal everything to him as she was continuously weeping. She was feeling terrible pain in her stomach and had a feeling of vomiting and her father kept on CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 39 of 70 asking her as to what has happened As she was very much disturbed so she only told her father that she was kidnapped by somebody. Upon this, her father asked her if she would go to police station alongwith him for which she agreed and thereafter, she was taken to Malviya Nagar Police Station, where her statement Ex.PW2/A was recorded and the same was signed by her.
[51]. The aforesaid statement of the prosecutrix recorded during the stage of the trial in the court reveals that the witness at the first instance in her statement dated 09.11.2011 (Ex.PW2/A) stated that she received the phone call of Javed at about 07:15pm and he asked her to meet him, but she refused him, however, he insisted her to come down by saying that he wanted to meet her for two minutes. At that time, Javed had come there in a car and he stopped the said car near the kudedaan. The prosecutrix went to Javed and he opened the window of his car and made her to sit inside the car and immediately closed the window of the car. He drove the car for some distance and started misbehaving with her. He threatened her that if she would CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 40 of 70 make noise, he will kill her, due to which she got frightened and Javed forcibly removed her wearing clothes and committed intercourse with her forcefully.
[52]. However, when the statement of the prosecutrix was recorded under section 164 of Cr.P.C., she made improvements by stating that on 09.11.2011, she was giving tuitions to a child at her home and she received a call which she checked at 06:45 pm and noticed the same to be of Javed. Thereafter, she called back and Javed expressed willingness to meet her. She refused and disconnected the call. Thereafter, when she was going to drop the child who was taking tuitions, upto his street as the child was small and it was dark at that time. She further stated that when she was returning after dropping the said child and reached to an isolated place, at that time, the accused Javed came there in a Maruti 800 car and forcefully dragged her inside the vehicle and committed rape upon her. The aforesaid facts that she was giving tuitions in her house or that she received missed call or that she refused to meet with the accused, are not found mentioned in her CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 41 of 70 initial statement/complainant Ex.PW2/A, rather in her statement Ex.PW2/A, it is revealed that she received call at about 07:15pm from accused Javed and he insisted her to meet him for two minutes and she went to meet him.
[53]. In her testimony, as noticed herein above, the prosecutrix states that she received the call at about 06:30pm and at that time she was giving tuition and when the tuition was over, she went to drop the said child to some distance as there was dark outside. At this juncture, she received a call from the accused Javed and she was asked by the accused to meet him. In her testimony, the timing when the call was received by her and she had conversation with the accused has changed that she had received the call at about 06:30pm, while in her statement Ex.PW2/A, she has stated that she received the call at about 07:15pm. Further, in her testimony, she has stated that the call was disconnected and she had told the accused that she did not want to meet him. But the said fact is in contradiction to her statement Ex.PW2/A, where there is no disinclination of the prosecutrix to meet CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 42 of 70 the accused. The said story that the prosecutrix was giving tuition and she had just gone to drop the child and she had refused to meet with accused Javed, assume significance because the said facts are not mentioned in her statement Ex.PW2/A on the basis of which the FIR in question was lodged. The fact that the prosecutrix has improved her version and concocted this story is further strengthened because the fact that she was giving tuition, is not substantiated and proved on record.
[54]. PW4, namely, 'BR' is the father of the prosecutrix, who stated in his crossexamination by way of a voluntary statement that the prosecutrix left for tuitions and went missing from there. He further stated that his wife knows the address, where the prosecutrix used to take the tuitions. As per the statement of PW4, the father of the prosecutrix, the prosecutrix had gone for taking tuition while the prosecutrix states that she was giving tuition to a boy at her house. PW4 (the father of the prosecutrix) or PW5, namely, 'AR' (the brother of the prosecutrix) do not say that the prosecutrix was giving tuition to CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 43 of 70 a boy at their house. Further, PW7 Robin, who was residing in the same building on the second floor, has stated in his crossexamination that to his knowledge, the prosecutrix 'S' did not use to give tuitions. For all these reasons, the version of the prosecutrix that she was giving tuition to a child at her house and she was returning back to her house after dropping the said child to the street and at that time on the way, the accused met her, is falsified and contradicted. This discussion further shows that the prosecutrix had gone to meet the accused after receiving the phone call and this will be further demonstrated during the further discussion in the later part of the judgment. [55]. The prosecutrix has not stated in her complaint/statement Ex.PW2/A that she was forcibly dragged into the car, but again she made improvement when her statement Ex.PW2/B u/s 164 of Cr.P.C. was recorded, in which the prosecutrix categorically stated that when she was returning after seeing off that child and reached an isolated place,where she found some people standing and at that time, one Maruti 800 car came and the driver of the said car was blowing horn CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 44 of 70 continuously. The said fact is not mentioned in her initial statement Ex.PW2/A. The prosecutrix also stated in her testimony before the court that the accused stopped his car a little ahead of her and thereafter, pulled her inside the car after opening the door of the vehicle.
[56]. In the crossexamination, the prosecutrix categorically stated that she did not raise alarm when accused Javed pulled her inside the car. The nonraising of the alarm by the prosecutrix goes to show that she was a consenting party, otherwise when there were some persons standing at the spot, where car was stopped by the accused and she was being dragged into the vehicle, then she could have certainly screamed for help, but she did not do so. The prosecutrix further stated in her crossexamination that it might be possible that the place of the incident is 100 feet road. She stated that "It is correct that there is a dhaba in front of the parking, where the accused had parked his vehicle. The place of incident is a crowded place. I used to talk with accused on phone. It is correct that the place CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 45 of 70 of incident is visible from the floor of my house. The distance between my house and the place of incident is 200 sq.yd. It is correct that there is electricity pole in the park and there was light".
[57]. PW7 Robin stated in his crossexamination that the people were moving around the area when the prosecutrix 'S' met him. PW16 SI Madhav Krishna (the initial IO of the case) stated in his crossexamination that there were residential houses near the spot. He also stated that he has not marked the said residential houses in the site map Ex.PW16/B, although he has shown the same. He also stated that the said houses are now encircled with red ink at point X. PW16/SI Madhav Krishna admitted that the eightstoreyed apartment situated near the Begumpur park has not been shown in the site map Ex.PW16/B. PW17IO/WSI Santosh Chauhan admitted in her cross examination that there were shops near the place, where the car was parked and was taken into possession by her.
[58]. The aforesaid statements of the prosecution witnesses clearly show that the spot where the prosecutrix was allegedly raped CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 46 of 70 by the accused was a crowded place; people were moving around there and there were shops, building and residential houses. It was a welllit area and it was not dark as stated by the prosecutrix in her crossexamination. There was also a dhaba in front of the parking where the accused parked his vehicle and committed rape. [59]. Therefore, it is not believable and plausible that unless the prosecutrix was a consenting party, the accused would be in a position to drag her inside the car forcibly, more so, singlehandedly and then commit rape upon her. Inasmuch as, when the place of incident is visible from the house of the prosecutrix then it does not seem plausible that the sexual intercourse between the prosecutrix and the accused would be feasible without her consent. It is also pertinent to note here that the photographs of the car which were seized by the IO, were not produced by the IO. In the crossexamination, the IO/PW17 WSI Santosh Chauhan stated that "It is correct that I had taken the photographs of the said car as well as the car was photographed by the FSL team but the said photographs of the car are CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 47 of 70 not available in the court file". She was suggested by the defence counsel that the same were withheld because the window panes of the car were not black, which suggestion was denied by her. [60]. However, if the photographs were taken by the IO then why the said photographs were not filed on record and the same has not been explained to. The IO has withheld the photographs of the car and the necessary inference which has to be drawn is that if the photographs would have been placed on record it would have exposed that the window panes of the car were not black. That being so, it again substantiates the contention of the Ld. Counsel for the accused that the prosecutrix was a consenting party, otherwise, the accused could not have raped the prosecutrix when the place of incident was a crowded place, people were moving around there; there were shops and dhaba and residential houses and the window panes of the car were not black and anything happening in the car was visible to the people moving around there.
[61]. The prosecutrix had also stated in her crossexamination CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 48 of 70 that she did not raise alarm when she came back to her house. It again substantiates the contention of the accused that had she been raped then at least when she was released by the accused, she could have screamed for help and would have raised hue and cry, but the same has not been done by the prosecutrix for the simple reason that she was a consenting party and when after having consensual relationship with the accused, she came out of the car, she was seen by her father and brother and therefore, she concocted the entire story at the behest of her parents.
[62]. The prosecutrix in her initial statement Ex.PW2/A has stated that she did not tell the incident because the accused had kept on threatening her that if she would disclose, he would kill her family members, but when she was feeling pain in her stomach then she told her family members after reaching home. The witness has made a contradictory version in her statement Ex.PW2/B, u/s 164 of Cr.P.C., that she had reached the home, she did not tell the incident to her sister, but later on when she was feeling extreme pain in her abdomen CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 49 of 70 and vaginal area, then she disclosed the entire incident. The similar statement has been made while appearing in the witnessbox, but the statement u/s 164 of Cr.P.C. and the deposition made in the court, are in contradiction with her initial statement Ex.PW2/A, wherein she has stated that she felt the pain immediately after the incident on the way and then she told the incident to her family members. [63]. The prosecutrix has stated that on the day of the incident she was wearing the jeans and the accused had removed her jeans pant and thereafter committed rape upon her. The police had seized her bra, spegati, shirt, but did not produce the jeans, which was so worn by the prosecutrix on the day of the incident.
[64]. Ld. Defence counsel has vehemently argued that the IO deliberately did not include the jeans pant of the prosecutrix in the list of the exhibits, so that the story projected by the prosecution that she was raped, would be exposed. Ld. Defence counsel has elaborated his argument that it was not feasible for a single person to remove the jeans pant forcibly without their being consent on the part of the CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 50 of 70 prosecutrix in such a compact area i.e. a car Maruti 800, which was visible from all sides in a public place and if there had been some resistance the jeans pant could not have been removed, and had the prosecution produced the said jeans pant, it would have exposed that it was of such a make and fit that it could not have been easily removed. [65]. PW17 IO/WSI Santosh Chauhan stated in her cross examination that "I do not remember if I had taken the jeans pant of the prosecutrix into possession". She denied the suggestion that the same is not shown in the list of exhibits intentionally. It has not been explained by the prosecution that when other clothes worn by the prosecutrix were taken into possession then why the jeans pant was not taken into possession. If the same was taken into possession, then why the same was not shown in the list of the seized exhibits and it again substantiates the contention of the accused that deliberately the said jeans pant has been withheld from the scrutiny of the court. I also find substance in the arguments of Ld. Defence counsel that in such a compact place i.e. Maruti 800 car, it would not have been feasible to CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 51 of 70 remove the jeans forcibly if there had been resistance on the part of the prosecutrix.
[66]. Ld. Defence counsel also pointed out that the prosecutrix has alleged that during the time when she was forcibly raped and she had put resistance, her shirt was torn, but the shirt produced on the record and identified by the prosecutrix as Ex.P1 is not found in a torn condition. There is nothing on record to show that the shirt produced by the MHC (M) Ex.P1 was in torn condition and it again falsifies the version of the prosecutrix that the shirt was torn in resisting the act of the accused.
[67]. The story of the prosecutrix is also not corroborated from the other testimonies on record. As per the prosecutrix she was raped for about one hour and thereafter the accused took break and again committed sex with her for about 1015 minutes. She further alleged that thereafter, she put on the clothes and thereafter, the accused threw her away from the car. If this version of the prosecutrix is relied upon then it must have taken at least one and a half hour since the time CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 52 of 70 when she was dragged by the accused inside the car and the time when she was let off by the accused.
[68]. While, PW6 Amit Sharma has stated in his evidence that the accused by telling him that there was some emergency, borrowed his car for half an hour and after about half an hour, the accused met him at the same place and he took back the car with him. From the testimony of PW6 Amit Sharma, it is clear that he had taken back the car from the accused after half an hour, therefore, the version of the prosecutrix that the accused had committed rape upon her for about one and a half hour, that is, one hour and again for 1520 minutes, becomes doubtful and is falsified. The Ld. Additional Public Prosecutor has not crossexamined the witness regarding the timing as to when he had given the vehicle to the accused and when he took the same back.
[69]. The another witness examined by the prosecution is PW7 Robin, who also does not corroborate the testimony of the prosecutrix. In his evidence, he stated that on 09.11.2011, he was going towards CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 53 of 70 the market while talking on his mobile phone and came back to his house. He noticed that the prosecutrix, namely, 'S' who was standing near the park, asked him to drop her to her house. Thereafter, he dropped her to her home. He deposed that perhaps the family members of the prosecutrix girl 'S' were looking for her, but he did not know where victim girl had gone prior to the time when she met him, and he did not remember if she looked disturbed.
[70]. In his crossexamination by the Ld. Additional Public Prosecutor, PW6 Robin stated that Amit also met him on that day and told him that Javed was having an affair with prosecutrix 'S'. He denied the suggestion that Amit also told him that the prosecutrix was being taken away by Javed in the car of Amit. He stated that he does not remember if the prosecutrix was in bad shape when she met him, and he denied the suggestion that the prosecutrix was in bad physical shape when she met and due to that reason he accompanied her to her home. He further stated that he came to know later on that Javed was caught by the police on the allegations of rape of the prosecutrix. CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 54 of 70 [71]. During his crossexamination by the Ld. Counsel for the accused, PW6 Robin stated that "people were moving around the area when the prosecutrix 'S' met him. I reside in the same building where the prosecutrix 'S' resides. It is correct that the prosecutrix did not tell me anything. It is correct that Amit asked me to inform 'A', who is brother of the prosecutrix 'S' about the affair between Javed and the prosecutrix 'S'. To my knowledge, the prosecutrix 'S' did not use to give tuitions". The said witness Robin was the first person who immediately met the prosecutrix after the alleged incident of rape. Therefore, had the prosecutrix been raped for about one and a half hour as alleged by her, then PW Robin must have noticed something unusual. However, in his evidence, he did not say that the prosecutrix was in a perplexed state of mind and her clothes were torn or she was so weak and hopeless that she was not able to move. From the testimony of the said witness also, the version of the prosecutrix is not corroborated.
[72]. The prosecutrix has stated that when she returned her CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 55 of 70 house, only her mother and sister were found, because her brother and father had gone to lodge the missing report of her. However, PW5, namely, 'AR', who is the brother of the prosecutrix, has stated in his evidence that "I and my father has just returned at our house when my sister returned to our house". He does not say anything in his evidence that he and his father had gone to lodge missing report of his sister (the prosecutrix). Similarly, PW4, namely, 'BR', who is the father of the prosecutrix, has nowhere stated that he had gone to lodge the missing report of his daughter (the prosecutrix). He stated in his statement that on 09.11.2011, he received a call from his wife that his daughter was not at home and he reached home. There is nothing in his testimony that he had gone to lodge the missing report of his daughter.
[73]. The medical evidence also does not support the case of the prosecutrix that she was forcibly raped. PW10, Dr. Sujata Rawat, Sr. Resident, AIIMS hospital, New Delhi, proved the MLC report of the prosecutrix Ex.PW10/A, on behalf of Dr. S. Murali, who had CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 56 of 70 prepared the same but had left the services of the hospital. As per the MLC report, the prosecutrix was medically examined on 10.11.2011 and it is found mentioned in the MLC report Ex.PW10/A of the prosecutrix that no injuries noted on face, arms, thigh, etc. Similarly, PW17 IO/WSI Santosh Chauhan stated that there was no injury on the person of the accused.
[74]. If the case as projected by the prosecution that the prosecutrix was forcibly dragged into the car and she was raped for about one and a half hour, then there must have been physical external injuries on the prosecutrix and the accused. It was not expected from a grownup girl of 19 years old, that she would not put any resistance when the accused was committing rape against her in a car, without her consent. I find substance in the contentions of the Ld. Defence counsel that if the prosecutrix had not been the consenting party, then the prosecutrix and the accused must have sustained some kind of external injuries on their bodies if the prosecutrix had put resistance because the place of incident was so small, that is, a Maruti 800 car, CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 57 of 70 however, there is not even scratch marks on the bodies of the prosecutrix and of the accused. As per the prosecutrix, she was raped for about one and a half hours in a Maruti 800 car, which is of a small size in which a person cannot lie down easily, and therefore, it is not believable that the prosecutrix and the accused would not sustain any injury marks on their bodies if the prosecutrix had put some kind of resistance. It again strengthens that the sexual intercourse between the accused and the prosecutrix took place with her consent. [75]. The Ld. Additional Public Prosecutor had submitted that the earring of the prosecutrix had fallen when she was trying to save herself in the car and was later on recovered. It shows that the prosecutrix had put resistance to the assault made by the accused. I am afraid to accept this contention. There is nothing in the testimony of the prosecutrix that she had put any resistance to the act of the accused. Though she has stated in her initial statement/complaint Ex.PW2/A that the accused committed rape upon her by threatening her to kill her but that is a feeble explanation and cannot be believed CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 58 of 70 because it is not the case of the prosecution that the accused was having any weapon and on the point of the weapon, he committed rape upon the prosecutrix. The prosecutrix did not say in her testimony that the accused had given any threat on the point of weapon while committing sexual intercourse with her.
[76]. So far the recovery of the earrings is concerned, the Ld. Defence counsel vehemently argued that the same have been planted by the police to falsely implicate the accused. As per PW17 IO/WSI Santosh Chauhan, the earring/top without stopper Ex.G1 was recovered by her from the Maruti car and the same belonged to the prosecutrix. The said earring was seized vide seizure memo Ex.PW2/G. As per the Ex.PW2/G which is the seizure memo of the earring, the same was seized from the car on 10.11.2011 and the witnesses of the said seizure memo were the prosecutrix, the father of the prosecutrix, and Ct. Dinesh. The recovery of the said earring on 10.11.2011 becomes doubtful because PW4 (the father of the prosecutrix) has stated in his statement that one earring was recovered CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 59 of 70 from the car which was used by the accused vide memo Ex.PW2/G which bears his signature at point B as witness. In his cross examination, PW4 categorically stated that after 09.11.2011, he did not go anywhere with the police. Therefore, it is not believable that if PW4 (the father of the prosecutrix) had not gone anywhere with the police after 09.11.2011, then how the earring was recovered on 10.11.2011 vide seizure memo Ex.PW2/G wherein the signature of PW4 also appears.
[77]. Further, in this case, the prosecution has claimed that the car remained parked on the spot and PW2 (the prosecutrix) stated in her crossexamination that the car was parked at the spot when the accused was arrested. PW17 IO/WSI Santosh Chauhan stated that the car was lying at the spot where the offence was committed when she took the same into possession. However, PW6 Amit, who is the owner of the said car, stated that he took the car back from the accused just after half an hour, therefore, the version of the IO that the car was parked at the spot, is belied. PW17IO/WSI Santosh Chauhan further CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 60 of 70 stated in her crossexamination that there were shops, near the place where the car in question was parked and was taken into possession by her. She also stated that she did not make any witness from the public, while taking the possession of the said car.
[78]. The PW17/IOWSI Santosh Chauhan also stated in her crossexamination that she does not remember if she got the photographs of the car at the time of the recovery of the same. She stated that the car was lying at the spot, where the offence was committed when she took the same into possession. She admitted that before sending the car to FSL, she had met with the prosecutrix. She also stated that she does not remember if the car was sent for the FSL examination through a constable or she herself had taken there for examination. The IO also stated that she does not remember if she had summoned the FSL team for examination of the car to the police station. She does not remember the date when the car was examined by the FSL team. She does not remember as to how many days the car remained parked in the police station before sending the same to the CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 61 of 70 FSL. The IO also stated that one ear top was taken into her possession by her on the day when the car was inspected by her. The another ear top was taken into the possession by the FSL team when the car was inspected by the FSL team, but she does not remember the date when the FSL team had inspected the said car.
[79]. From the aforesaid testimony of the IO, it is revealed that the IO did not make any public person as a witness at the time of the recovery of the car and seizing of the earring. It has also come on record that the car remained parked in the police station. I find substance in the contention of the Ld. Counsel for the accused that since the car remained parked in the police station and the seizure memo of the earring was not proved in view of the testimony of the father of the prosecutrix, therefore, the possibility of planting the earring cannot be ruled out. Furthermore, it may be noted that it has come on record that one earring Ex.G1 was found without stopper. It was not the case of the prosecution that the prosecutrix was wearing the earring without stopper. It has also come in evidence that one CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 62 of 70 another earring was recovered by the FSL team and in this regard PW17 IO/WSI Santosh Chauhan has stated that another earring was taken into possession by her on the day when the car was inspected by her. First of all, it is not understandable as to how the another earring could not be found out when the IO had allegedly traced out one earring and prepared the seizure memo Ex.PW2/G in this regard. [80]. Further, PW3 Sunita Suman, Sr. Scientific Officer (Biology), FSL, Rohini, Delhi, stated in her crossexamination that the car in question was brought in the FSL for inspection by SI Santosh Chauhan, and the earring was found on the footmat of the car, however, she did not remember whether it was in front of the car seat or back seat. She denied the suggestion that the earring was handed over to her by the IO. Therefore, this testimony of PW3 again creates a doubt whether the another earring was recovered at the time when the car was inspected by the FSL team because the said witness could not tell that from which seat the earring was traced out. It has not been explained as to why the FSL team was not called to inspect the car CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 63 of 70 where it was parked after the alleged commission of offence to rule out any possibility of tampering the evidence.
[81]. The IO has not been able to tell whether she has taken the car for inspection to FSL, and she did not remember if she had summoned the FSL team for examination of the car to the police station. Therefore, the testimony of PW17/the IO is shaky and unreliable and thus it cannot be said with certainty that the earrings were recovered from the car in question firstly by the IO and thereafter by the FSL team.
[82]. It is also the case of the prosecution that the two photographs of the prosecutrix Ex.PH1 and Ex.PH2 showed the earrings which the prosecutrix was wearing at the time of the incident and it goes to prove that the earrings which were recovered by the police and the FSL team, were the same earrings worn by the prosecutrix at the time of the incident. However, the defence of the accused through crossexamination of the prosecution witnesses, has been that the said photographs Ex.PH1 and Ex.PH2 were taken later CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 64 of 70 on after the incident. In this regard, PW5, who is the brother of the prosecutrix, though stated that on 12.12.2011, he alongwith his father had visited the PS Malviya Nagar and on that day, he had delivered two photographs Ex.PH1 and Ex.PH2 of his sister alongwith her ageproof to the IO. However, PW4, who is the father of the prosecutrix, has stated in his crossexamination that after 09.11.2011, he did not go anywhere with the police.
[83]. The prosecutrix has stated in her crossexamination that she had handed over the said photographs to the police after about one and a half month of the incident, and later on in the concluding part of her crossexamination, she contradicted her previous statement when she stated that she handed over the said photographs after about three days of the incident. The said statements are falsified because the said photographs Ex.PH1 and Ex.PH2 were seized by the IO on 12.12.2011 vide seizure memo Ex.PW2/I, therefore, it again creates a doubt whether the same were handed over to the IO or whether the same were taken after the incident or prior the incident. CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 65 of 70 [84]. In view of the aforesaid discussions, in my considered opinion, the prosecution has not been able to establish that during the time when the accused was committing rape upon the prosecutrix and in the process of resistance by the prosecutrix, her earring had fallen in the car, which were later on recovered, and rather, the accused has been able to demonstrate that the possibility of planting of the said earrings cannot be ruled out.
[85]. The defence of the accused has been that the prosecutrix and the accused were known to each other and they used to meet, and the prosecutrix used to call the accused and on the day of the incident, the prosecutrix herself called the accused, and with her consent, the sexual relationship took place in the car. The defence of the accused has also been that after the sexual relationship, when the prosecutrix was dropped from the car, she was seen by her father and brother and therefore, at their instance, a false story was concocted and he has been falsely implicated in this case.
[86]. The prosecutrix has admitted in her examinationinchief CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 66 of 70 that she was on talking terms with the accused for about twothree months. She further admitted in the crossexamination that earlier, her friendship was with Sajid and thereafter, accused Javed became her friend.
[87]. It has been observed herein above that the version of the prosecutrix that she was giving tuition to the child in her house and when she was returning home after dropping the said boy, the accused forcibly dragged her in the car, has not been found to be trustworthy. PW4, the father of the prosecutrix feigned ignorance that the prosecutrix was on friendly terms with accused Javed. PW7 Robin, who is the neighbour of the prosecutrix, categorically stated that the Amit met him on that day and told him that Javed was having an affair with the prosecutrix. He also admitted that Amit had asked him to inform the brother, namely, 'A' of the prosecutrix about the affair between Javed and the prosecutrix.
[88]. PW17IO/WSI Santosh Chauhan stated in her cross examination that the last digits of the telephone number of the accused CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 67 of 70 were 178 and that of the prosecutrix was 559, and she collected the record from the telephone authorities, wherein 53 calls were made from the telephone number 559 to telephone number 178 in between 01.11.2011 to 09.11.2011, and the said record is Ex.PW17/DX1, comprising two sheets.
[89]. The aforesaid evidence, clearly indicates that the accused and the prosecutrix were known to each other and they used to meet and used to talk with each other. It has also been demonstrated that during the period from 01.11.2011 to 09.11.2011, the prosecutrix made 53 calls to the accused, therefore, the defence of the accused appears to be plausible that the prosecutrix had come to meet with him and the consensual sexual relationship took place in the car and when the prosecutrix was seen by her father and brother, the false allegations were levelled against the accused.
[90]. In view of the aforesaid discussion, in my considered opinion, the testimony of the prosecutrix is not trustworthy and reliable. Her testimony is full of inconsistencies and improvements. CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 68 of 70 The testimonies of the prosecution witnesses are contradictory to each other. The testimony of the prosecutrix is not corroborated by any other evidence to secure the finding of the guilt against the accused. The prosecution has not been able to prove its case beyond reasonable doubt. Rather, in the light of the aforesaid discussion, it is established that the prosecutrix was a consenting party and the sexual relationship took place with her consent and there was no forceful rape by the accused upon the prosecutrix.
[91]. In the entirety of the facts and circumstances, the story of the prosecutrix does not inspire confidence and cannot be relied upon. There are contradictions, material improvements and when the evidence is read in its totality, the story projected by the prosecution seems so improbable that it cannot be believed. The patent infirmities in the genesis of the prosecution case strike at its very root and improbabilise the prosecution version as to commission of offence by the accused. I have no hesitation to hold that prosecution has miserably failed to prove the charge against the accused and therefore, CIS-Sessions Case No.7400/16 "State v. Javed" Page No. 69 of 70 the accused Javed is not found guilty of committing rape upon the prosecutrix and consequently he is acquitted of offence punishable under section 376 of the Indian Penal Code.
[92]. Bail bond under section 437A of Cr.P.C. in the sum of Rs.25,000/ with one surety of like amount, is executed and furnished. The same is accepted and shall remain in force for a period of six months.
[93]. File be consigned to Record Room after necessary compliance.
(Pronounced in the open court (Balwant Rai Bansal) th on 30 of November 2017) Additional Sessions Judge01 Special Court (POCSO), South District:Saket Courts:
New Delhi.
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