Delhi District Court
State vs . Sarfraz on 19 November, 2013
1
FIR No. 209/11
PS - Kanjhawala
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 146/13
Unique ID No. : 02404R0299632011
State Vs. Sarfraz
S/o Shri Nissar
R/o G856. J. J. Colony,
Sawada, Delhi.
FIR No. : 209/11
Police Station : Kanjhawala
Under Sections : 376/506 IPC
Date of committal to session Court : 12/10/2011
Date on which judgment reserved : 30/10/2013
Date on which judgment announced : 19/11/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 99 2 FIR No. 209/11 PS - Kanjhawala That on 31/08/2011, on receipt of DD no. 32A, SI Rajesh Kumar reached at the spot and where he met the prosecutrix (name withheld being a case u/s 376 IPC) D/o Manzoor Alam R/o B999, J. J. Colony, Sawada, Delhi who stated of having being committed 'galat kaam' with her. On which SI Rajesh alongwith the prosecutrix and her mother came at the Police Station where after calling NGO Anuradha, the prosecutrix was also counselled and her statement was recorded. Prosecutrix made the statement which is to the effect that, she lives with her family at the th above mentioned address and studies in 7 class. Today, on 30/08/2011, at about 3:00 a.m. in the night, when she was going from her house for toilet to the public lavatory (sarvajanik shouchalaya) and had reached a little distance away then she was caught by one person from back and after pressing her mouth he took her to one house and after entering into the house, he after pushing made her fall on the floor and closed the door and during this, she saw that the person who after catching hold (daboch kar) had pushed her is, Sarfraz whom she knows previously as the house in which she was taken is the house of his jija which usually remains closed and Sarfraz used to visit this house for this reason she knows him (Aaj Dinank 30/08/2011 Ko Waqt Kareeb 3:00 Baje Raat Jab Main Apne 2 of 99 3 FIR No. 209/11 PS - Kanjhawala Ghar Se Toilet Karne Ke Liye Sarvjanik Shauchalaya Ja Rahi Thi Ki Jab Main Ghar Se Kuch Door Pahunchi To Mujhe Ek Shakhs Ne Peeche Se Pakad Liya Aur Mera Muh Daba Kar Mujhe Ek Ghar Mei Le Gaya Aur Ander Jate Hi Mujhe Dhakka De Kar Farsh Par Gira Diya Va Darwaze Ko Band Kar Diya Jo Issi Dauraan Maine Dekha Ki Jis Shakhs Ne Mujhe Daboch Kar Dhakka Mara Hai Weh Sarfraz Hai Jise Main Pehle Se Jaanti Hoon Kyonki Weh Mujhe Jis ghar Mei Le Gaya Tha Weh Uske Jija Ka Ghar Hai Jo Aksar Band Rehta Hai Va Sarfraz Is Ghar Par Aata Rehta Hai Isliye Mai Use Jaanti Hu). During this time, Sarfraz committed galat kaam with her without her consent. When she in order to save herself from him and started screaming on which he while threatening her pressed her mouth and during this for some moment, she became unconscious and when she regained consciousness, then she after pushing him, fled towards outside and came in the gali (Sarfraz Ne Issi Dauran Mere Sath Meri Marzi Ke Khilaaf Galat Kaam Kiya Va Jab Main Us Se Bachne Ki Koshish Karne Ke Liye Chillane Lagi To Usne Mujhe Dhamki Dete Huae Mera Muh Daba Liya Jo Issi Dauraan Main Kuch Pal Ke Liye Behosh Ho Gai Thi Jab Mujhe Hosh Aaya To Main Use Dhakka De Kar Bahar Ki Or Bhagi Va Gali Mei Aa Gai), where her 3 of 99 4 FIR No. 209/11 PS - Kanjhawala father met who was searching for her. In the morning, due to the fear of prestige (Izzat Ke Dar Se) she did not disclose about the galat kaam committed with her to her father and had only disclosed about the quarrel and for this reason her papa had sent back the Police without wanting any Police action but as the time passed and when the pain in her body had increased, then in the evening, she disclosed about the galat kaam committed with her to her mother and father, who telephoned the Police on which the Police reached at her house and she alongwith her mother has come to the Police Station where one madam has also talked to her. Sarfraz who lives in GBlock, after criminally intimidating her and after threatening her to kill has committed galat kaam with her against her consent. Legal action be taken against him. She has heard her statement and is correct. Thereafter, prosecutrix was got medically examined at SGM Hospital through Lady Constable Suman vide MLC No. 12084/11 and the sealed exhibits handed over by the doctor after her medical examination were taken into Police possession and were deposited in the Malkhana. On the basis of the statement, from the inspection of the MLC and the circumstances on finding that offences u/s 376/506 IPC appeared to have been committed, the case was got 4 of 99 5 FIR No. 209/11 PS - Kanjhawala registered and the investigation was proceeded with. At the instance of prosecutrix site plan of the place of incident was prepared. On the pointing out of the prosecutrix accused Sarfraz was arrested and he was got medically examined and the sealed exhibits handed over by the doctor after his medical examination were taken into police possession and were deposited in the Malkhana. Statements of the witnesses were recorded. Sealed exhibits were sent to the FSL.
Upon completion of the necessary further investigation, Challan for the offences u/s 376/506 IPC was prepared against accused Sarfraz and was sent to the Court for trial.
2. Since the offence u/s 376 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 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 376/506 IPC was made out 5 of 99 6 FIR No. 209/11 PS - Kanjhawala against accused Sarfraz. Charge was framed accordingly which was read over and explained to accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 15 witnesses. PW1 - Prosecutrix, PW2 - Shamsha Khatoon, PW3 - Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri, Delhi, PW4 - SI Ashwani Kumar, PW5 - Indresh Kumar Mishra, Senior Scientific Officer, Biology, FSL, Rohini, Delhi, PW6 - Constable Kuldeep Kumar, PW7 - Constable Manoj, PW8 - Sh. Manjoor Alam, PW9 - Dr. Hena Kausar, Senior Resident, SGM Hospital, Delhi, PW10 - Sh. Sunil Gupta, Learned MM, NorthEast, Karkardooma Courts, Delhi, PW11 - Constable G. K. Siddaiah, PW12 - W/Constable Suman, PW13
- SI Rajesh, PW14 - Shyam Sunder Verma, Principal, Govt. Coed. S. V. Swada (Ghevra) Colony, A - Block, Delhi - 110081 and PW15 - HC Rajbir.
5. In brief the witnessography of the prosecution witnesses is as under : 6 of 99 7 FIR No. 209/11 PS - Kanjhawala PW1 Prosecutrix, is the victim who deposed regarding the incident and proved her complaint made to the police Ex. PW1/A signed by her at point 'A', her statement recorded u/s 164 Cr.P.C. Ex. PW1/B signed by her at point 'A' and also identified and proved her clothes, lady shirt and salwar Ex. P1 & P2 respectively.
PW2 Shamsha Khatoon is the mother of the prosecutrix who deposed about missing and searching of her daughter/prosecutrix and deposed regarding the incident as was disclosed to her by her daughter/prosecutrix and also deposed on the investigational aspects which she joined and observed and identified the accused Sarfraz in the Court.
PW3 Dr. Mahipal Singh, CMO SGM Hospital, Delhi who medically examined patient/accused Sarfraz and deposed that he examined patient Sarfraz on 31/08/2011 at about 3:05 a.m. brought by Constable Manoj with the alleged history of sexual assault (accused point of view). He had examined sexual organs of the patient Sarfraz and as per his opinion there is nothing to suggest that person cannot 7 of 99 8 FIR No. 209/11 PS - Kanjhawala perform sexual act. Blood sample and undergarments of Sarfraz were sealed and handed over to the IO. The MLC is Ex. PW3/A signed by him at point 'A'.
PW4 SI Ashwani Kumar, is the duty officer who deposed that on the intervening night of 30/08/2011, at about 12:10 night, SI Rajesh Kumar gave a rukka on the basis of which, he got recorded the FIR from the computer operator and proved the computerized copy of the FIR Ex. PW4/A signed by him at point 'A' and also proved his endorsement Ex. PW4/B on the rukka signed by him at point 'A' and further deposed that he also recorded Kaymai DD No. 2A regarding the registration of FIR.
PW5 Indresh Kumar Mishra, SSO, Biology, FSL, Rohini who proved the biological and serological reports Ex. PW5/A and Ex. PW5/B respectively signed by him at point 'A'.
PW6 Constable Kuldeep Kumar, who on the direction of the duty officer handed over the copy of the FIR and the original rukka 8 of 99 9 FIR No. 209/11 PS - Kanjhawala to IO, SI Rajesh Kumar and deposed that on the intervening night of 3031/08/2011, he was called by the duty officer and was given the copy of the FIR and original rukka for handing over the same to IO, at B Block, J. J. Colony, Sawada and he went there handed over the copy of the FIR and the original rukka to IO, SI Rajesh Kumar.
PW7 Constable Manoj, who on 31/08/2011 joined investigation with IO, SI Rajesh and deposed that on 31/08/2011, he was posted as Constable in PS - Kanjahawala. On that day in the night at about 12:10 a.m., he alongwith IO SI Rajesh, Complainant/prosecutrix (name withheld) and her mother reached near House No. B999, J. J. Colony and there, IO prepared the site plan at the instance of the complainant. Thereafter, they reached G - Block, J. J. Colony in search of accused Sarfraz where large number of crowd was found in the Gali due to festival of Eid. IO made inquiries about the accused Sarfraz and they came to know that Sarfraz is the son of Nissar Kabadi. He being the Beat Constable of the area knew the house of Nissar Kabadi. They reached at the house of Nissar Kabadi in the G - Block, J. J. Colony and there at the instance of complainant apprehended accused Sarfaraz 9 of 99 10 FIR No. 209/11 PS - Kanjhawala present in the Court and was arrested vide arrest memo Ex. PW7/A, his personal search was conducted vide memo Ex. PW7/B bearing his (PW7) signatures at point 'A'. Complainant and her mother were set free. Thereafter, accused was taken to Sanjay Gandhi Hospital for medical examination. After medical examination Doctor handed over sealed pullinda containing the exhibits alongwith sample seal, the same were seized vide memo Ex. PW7/C bearing his (PW7) signature at point 'A'. After completing the investigation the accused was sent to police lockup and the case property was deposited in Malkhana.
PW8 Manjoor Alam is the father of the prosecutrix, who deposed about missing and searching of his daughter/prosecutrix and deposed regarding the incident as was disclosed to him by his daughter/prosecutrix and also deposed on the investigational aspects which he joined and observed and identified the accused Sarfraz in the Court.
PW9 Dr. Hena Kausar, S.R., SGM Hospital, Delhi, who deposed that as per the MLC no. 12084/11 on 30/08/2011, 10 of 99 11 FIR No. 209/11 PS - Kanjhawala patient/prosecutrix was brought in the hospital through W/Constable Suman and she was initially examined by CMO on duty and thereafter, patient was referred to S.R., Gynae where she was examined by Dr. Pooja and proved the gyanecological examination of the prosecutrix vide MLC Ex. PW9/A as was conducted by Dr. Pooja signed by Dr. Pooja at point 'A'.
PW10 Sh. Sunil Gupta, MM, Karkardooma Courts, Delhi who recorded the statement of the prosecutrix u/s 164 Cr.P.C. and deposed that prosecutrix was duly identified by IO SI Rajesh Kumar vide Ex. PW10/A, signed by him (PW10) at point 'A' and proved the statement u/s 164 Cr.P.C. of the prosecutrix Ex. PW1/B signed by him at point 'C' and 'D' and also proved his certificate regarding the correctness of the proceedings Ex. PW10/B signed by him at point 'A' and also proved his endorsement at point 'A' for supply of the copy of the statement on the application Ex PW10/C moved by IO.
PW11 Constable G. K. Siddaiah, who deposited sealed pullindas in FSL and deposed that on 08/09/2011, he was posted as 11 of 99 12 FIR No. 209/11 PS - Kanjhawala Constable in PS - Kanjhawala. On that day, on the instructions of the IO he took three sealed pullindas alongwith FSL Form from the MHC(M) for depositing in FSL, Rohini vide RC no. 143/21/11. He deposited the pullindas with the FSL and thereafter deposited the acknowledgment receipt with the MHC(M). The sealed pullinda remained intact during his custody.
PW12 W/Constable Suman who on 30/08/2011 joined investigation with IO SI Rajesh, and deposed that on 30/08/2011 she was posted as Constable in PS Kanjhawla. On that day IO SI Rajesh received DD No. 32A and thereafter, she alongwith him reached at the spot i.e. J. J. Colony, Sawda where they met complainant/prosecutrix (name withheld). IO made inquiries from her and she told that rape has been committed upon her. Thereafter they brought prosecutrix (name withheld) in the Police Station. NGO Anuradha was called and she did the counselling of prosecutrix (name withheld). IO recorded statement of prosecutrix (name withheld) and thereafter they took her in Sanjay Gandhi Hospital for medical examination. She (prosecutrix) was medically examined and after medical examination Doctor handed over 12 of 99 13 FIR No. 209/11 PS - Kanjhawala pullinda containing the exhibits and the same were seized vide memo Ex. PW12/A bearing her signature at point 'A'.
PW13 SI Rajesh, is the Investigating Officer (I.O.), who deposed that on 30/08/2011 he was posted as SI at PS Kanjhawla. On that day at about 5:50 p.m. he received DD No. 32A copy of which is Ex. PW13/A and thereafter he alongwith Lady Constable Suman reached at House No. B999, J. J. Colony, Sawda where they met complainant/prosecutrix (name withheld), aged about 15 years, alongwith her mother Shamsha and her father Manzoor Alam. He made inquiries from them and he came to know that rape has been committed upon prosecutrix (name withheld). Thereafter, they brought prosecutrix (name withheld) alongwith her mother to the Police Station. NGO Anuradha was called and she did the counselling of prosecutrix (name withheld). He recorded statement of prosecutrix (name withheld) which is already Ex. PW1/A and attested her signature at point 'A' and bearing his signature at point 'B' and of Anuradha NGO at point 'C'. Thereafter they took Heena to Sanjay Gandhi Hospital for medical examination. She was medically examined and after medical examination, Doctor 13 of 99 14 FIR No. 209/11 PS - Kanjhawala handed over the pullinda containing exhibits alongwith sample seal. They came back to Police Station and the said sealed pullindas were seized vide seizure memo Ex. PW12/A bearing his signature at point 'X'. He prepared rukka Ex. PW13/B bearing his signature at point 'A' and same was handed over to Duty officer for registration of the FIR. Thereafter, he alongwith Constable Manoj, prosecutrix (name withheld) and her mother reached at House No. B999, J. J. Colony, he prepared the site plan of the spot, of house no. B995 at the instance of prosecutrix (name withheld) which is Ex. PW13/C bearing his signature at point 'A'. He came to know that accused Sarfraz is the resident of GBlock and thereafter, he alongwith complainant/prosecutrix (name withheld) and her mother and Constable Manoj reached in GBlock, J. J. Colony. Constable Manoj who was the beat Constable of the area was knowing the house of accused Sarfraz as he is the son of Nisar Kabadi, they reached at the house of Nisar Kabadi in GBlock and from there at the instance of complainant apprehended accused Sarfaraz present in the Court. He (accused) was interrogated and arrested vide arrest memo Ex. PW7/A, his personal search was conducted vide memo Ex. PW7/B both bearing his (PW13) signatures at point 'B'. Complainant and her mother 14 of 99 15 FIR No. 209/11 PS - Kanjhawala were set free. Thereafter they took accused Sarfraz in Sanjay Gandhi Hospital for medical examination, where he was medically examined and after medical examination Doctor handed over the exhibits which were seized vide memo Ex. PW7/C bearing his signature at point 'B'. Case property was deposited in Malkhana and accused was sent to police lock up. On 31/08/2011 accused Sarfraz was produced in the Court and was sent to J/C. On 02/09/2011 he moved an application for recording the statement of the prosecutrix under Section 164 Cr.P.C. and the application is Ex. PW13/D bearing his signature at point 'A' and thereafter her statement was got recorded. He moved an application Ex. PW13/E for obtaining the copy of the statement under Section 164 Cr.P.C. bearing his signature at point 'A'. The statement under section 164 Cr.P.C. is already Ex. PW1/B. On 08/09/2011 the exhibits were sent to FSL through Constable G. K. Siddaiah. He also obtained the age proof documents of the prosecutrix showing her date of birth as 12/03/1997 from Govt. CoEd. S. V. Sawada (Ghevra) Colony, A Block, Delhi - 110081. The photo copy of the same is Ex. PW13/F bearing the signatures and seal of the Vice Principal of the School at point 'A'. After completing the investigation challan was prepared and filed in the Court.
15 of 99 16 FIR No. 209/11 PS - Kanjhawala Later on FSL result was collected and filed in the Court and the same is already Ex. PW5/A and Ex. PW5/B. Accused Sarfraz is present in the Court (Correctly identified by the witness).
PW14 - Sh. Shyam Sunder Verma, Principal, Govt. Coed. S. V. Swada (Ghevra) Colony, A - Block, Delhi - 110081 who produced the School record of the student/prosecutrix and deposed that as per their record, one child prosecutrix (name withheld) D/o Mohd. Manjoor and Jamiral was admitted in their School on 02/04/2010 in class VI vide admission no. 629. She was admitted in their School on the basis of SLC issued by Principal, MC Primary School, J. J. Swada, B - Block, New Delhi - 110081. He proved the copy of the admission register as Ex. PW14/A and copy of the SLC of Previous School as Ex. PW14/B and further deposed that as per their record, the date of birth of prosecutrix (name withheld) is 12/03/1997.
PW15 - HC Rajbir is the MHC(M) who proved the relevant entries of the register no. 19 and deposed that on 30/08/2011 SI Rajesh deposited one sealed pullinda alongwith sample seal in the Malkhana.
16 of 99 17 FIR No. 209/11 PS - Kanjhawala He made entry at serial no. 1779 in register no. 19. He further deposed that on 31/08/2011, SI Rajesh has deposited two sealed pullindas alongwith one sample seal in the Malkhana and he (PW15) made entry at serial no. 1780 of register no. 19. He further deposed that on 08/09/2011, on the instructions of IO, three sealed pullindas alongwith two sample seal were handed over to Constable G. K. Siddiah for depositing in the FSL, Rohini vide RC No. 143/21/11. After depositing the same in FSL, he had deposited the acknowledgment receipt of the pullinda with him (PW15). He proved the copies of relevant entries of register no. 19 as Ex. PW15/A (colly.), the relevant entry of register no. 21 as Ex. PW15/B and the acknowledgment receipt of FSL as Ex. PW15/C. He further deposed that so long as sealed pullindas remained in his custody the same were not tampered with.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Sarfraz was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and opted to lead 17 of 99 18 FIR No. 209/11 PS - Kanjhawala defence evidence and in his defence examined three defence witnesses namely DW1 - Sharafat Ali S/o Mehmood Khan, Age - 51 years, R/o B983, Savda, Delhi 110081, DW2 - Shokeen Mohammad S/o Rahim Baksh, Age - 32 years, R/o B995, Savda, Delhi - 110081 and DW3 - Nisar S/o Munshi, Age - 50 years, R/o G856, J. J. Colony, Savda, Delhi
- 110081.
DW1 - Sharafat Ali S/o Mehmood Khan, Age - 51 years, R/o B983, Savda, Delhi 110081 deposed that he knows Sarfraz and Manzoor, the father of prosecutrix (name withheld), being his neighbours. Again said : Sarfraz used to reside in EBlock. Altercation used to take place between Sarfraz and his Behnoi on the issue of tanker. Again said : The quarrel used to take place between accused Sarfraz and Manzoor. Manzoor had threatened Sarfraz that he will get him implicated in such a case, that he will not come out from the jail. The altercation used to take place on the issue of parking of water tanker. Manzoor used to reside there on a tenanted premises, which now he has vacated. The occurrence of threatening had taken place around two years back. He (DW1) had intervened into the matter after pacifying them. PCR van had come and had left later on.
18 of 99 19 FIR No. 209/11 PS - Kanjhawala DW2 - Shokeen Mohammad S/o Rahim Baksh, Age - 32 years, R/o B995, Savda, Delhi - 110081 deposed that he is brotherin law of Sarfraz. He has been residing at the above stated address for around four/five months, prior to the arrest of accused in this case with family. The quarrel used to take place between Sarfraz and Manzoor on the issue of water tanker etc. Manzoor had extended threat to Sarfraz that he will get him implicated in serious case. He (DW2) was present in his house at the time of arrest of accused Sarfraz and on the previous night also with family. Sarfraz used to not reside in the night at his (DW2) house and on the day of his arrest and also on its previous night, he had not stayed there. The occurrence of the incident of rape had not taken place, as alleged.
DW3 - Nisar S/o Munshi, Age - 50 years, R/o G856, J. J. Colony, Savda, Delhi - 110081 deposed that he is father of accused Sarfraz. Sarfraz used to reside with him even in the night. Sarfraz was sleeping at his house, one day prior to his arrest. He got awaken in normal course at about 7:00/8:00 a.m. Accused Sarfraz has been falsely 19 of 99 20 FIR No. 209/11 PS - Kanjhawala implicated in this case due to some ulterior motive.
The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. Learned Counsel for the accused submitted that the crucial time of alleged occurrence is 3:00 a.m. which is dark time in any season. A young girl just after taking meal went for nature call alone for such a long distance especially when there were so many adult members present in the house at that time. PW8 - Manjoor Alam, father of the victim stated in his crossexamination that the School of his daughter/prosecutrix is at walking distance of 810 minutes and she was used to be escorted by some times by PW8, sometimes by his wife and sometimes by his other children.
Learned Counsel for accused further submitted that the other important thing is how accused met her in the gali when accused is resident of another place and is about 1 k.m. from that place. This creates a serious doubt. Either the story of going of victim to sauchalya 20 of 99 21 FIR No. 209/11 PS - Kanjhawala at that time is false or accused had prior knowledge about coming of prosecutrix that she will come there at 3:00 a.m. and if he had such knowledge it means they had setting of the time and place to meet with each other and perhaps this is why nobody heard any noise prior or after the alleged incident although the gali/area was dense populated.
Learned Counsel for accused further submitted that as stated in the FIR victim knew accused prior to the incident.
Learned Counsel for accused further submitted that another important thing is she neither cried nor complained against this incident to any person either to her neighbour or even her parents within 14 hours of the incident.
Learned Counsel for accused further submitted that in statement of 164 Cr.P.C. she had stated that when she returned home she stated whole thing to his father. PW8 has admitted in his cross that he knew about the incident at 3:00 a.m. The information about the incident of rape was given to Police at about 5:50 p.m. that is after about 15 hours 21 of 99 22 FIR No. 209/11 PS - Kanjhawala of incident.
Learned Counsel for accused further submitted that the FIR was registered after about 21 hours of the alleged incident. Especially, there were all opportunities for this complaint, when PCR came in morning and returned back without any fruitful action. In the FIR, she complained about the rape only when pain increased in her body. It is quite impossible that the pain increased after 14 hours of the alleged incident and then only she complained of it. The next PCR call is at 5:50 in the evening. Neither the Police men of first PCR nor the second PCR were examined by prosecution.
Learned Counsel for accused further submitted that there is no injury in MLC, no mark of any scuffle on body of victim or accused. Even hymen torn (old tear) P/V/2 finger easily. This would easily means that she was of easy virtue.
Learned Counsel for accused further submitted that in FIR victim stated that accused did 'galat kaam' then she became unconscious 22 of 99 23 FIR No. 209/11 PS - Kanjhawala but in her statement u/s 164 Cr.P.C. when her eyes were open she sees her salwar was open. It means what happened with her she could not know. In examinationinchief before Court she told "I became unconscious after sometime, I regained consciousness I found that my salwar was put off and galat kaam was done with me' she did not state to her father about the rape. In FIR she told that she did not disclose about rape due to prestige and told about rape in evening when the pain increased. In statement u/s 164 Cr.P.C., she told everything to her father, in examinationinchief before Court she said "I was in perplexed condition. When my condition become well I narrated the incident to my mother". Thus the victim changes her statements throughout. In the FIR when the wrong was done with her she was in conscious and she cried also. In 164 Cr.P.C. statement she couldn't cried. Here she became unconscious and what happened after she being unconscious, she couldn't explain. In examinationinchief before the Court she also became unconscious and what happened with her was in unconscious stage only. While she cried why nobody heard her cry when the area is thickly populated. When she was going nobody seen her, when she was coming nobody see her. It creates a serious doubt about the story of 23 of 99 24 FIR No. 209/11 PS - Kanjhawala prosecution. In crossexamination she told Police had reached at about 4:00 a.m. then she disclosed about the incidence to her father but not the complete fact. It is important that why she didn't disclose the incidence of rape with her to the father when the Police was present there.
Learned Counsel for accused further submitted that PW8 - Sh. Manjoor Alam is the father of the victim stated in his cross examination that he came to know about the incident at about 3:00 a.m. on 30/08/2011. Then why he didn't disclose this matter before the Police in the morning and why FIR was lodged 21 hours after the incident.
Learned Counsel for accused further submitted that in FIR, she has stated that that person who pushed her was Sarfaraj whom she knew prior to the incidence because where he took her was the house of his Jija. In 164 Cr.P.C. statement she had told that she doesn't know Sarfraz but further she had stated there is a house of his Jija in his gali where he used to visit. She had seen him only two or three times but not knowing his name which is quite contradictory from, FIR where she has stated the name of the accused. In examinationinchief she had also 24 of 99 25 FIR No. 209/11 PS - Kanjhawala stated that she was knowing Sarfraz who used to come to the house of his Jija in the same gali. Thus it is clear that victim was well knowing Sarfraz. This is why Sarfraz met victim 3:00 a.m. and it was not by chance. If victim was stating true then there must be TIP.
Learned Counsel for accused further submitted that the first information about the incidence DD No. 32A stated the age of the victim as 16 years. In FIR she has stated her age is 15 years and in 164 Cr.P.C. statement it is 15 years but when she deposed before the Court after about one and half year she has stated her age as 14 years in place of 16.5 years. There is no horoscope or birth certificate on record but there is a School certificate stating the age of the victim is also not true. In the School register/certificate name of mother is 'Jamiran' whereas her mother is PW2 and here her name is 'Shamasha Khatoon'. PW8 - father of the victim stated in his crossexamination that it is correct that in the School the date of birth of prosecutrix was entered as to what he had told to the School Authority. Thus the age of the prosecutrix entered in the School was based on oral statement made by her father and not based on any document or certificate. It is quite possible that father of the victim 25 of 99 26 FIR No. 209/11 PS - Kanjhawala stated the age of the victim in School by reducing her 23 years. There is no ossification test to confirm the age of the victim.
PW13 - SI Rajesh Kumar is the IO of this case and hasn't investigated the case in proper manner. In crossexamination IO accepted that he did not make any inquiry from 2 PCR officials (First in morning time and second in evening time), he didn't inquire from any neighbours in the gali, he didn't inquire the owner of the house where the alleged incidence had taken place, no public person was asked to join the proceedings. No other members of the prosecutrix family was inquired into except her parents. He didn't record the statement of Anuradha belonging to the NGO who made counseling to the victim. He had not gone inside the room of the place of incidence. If he had gone in the room there might be possibility to get some evidence regarding the incidence.
Learned Counsel for accused further submitted that as per MLC and FSL Report also there is no sign of any rape as alleged. There is neither injury on private part or other part of victim nor on body of accused.
26 of 99 27 FIR No. 209/11 PS - Kanjhawala At the time of alleged incident age of accused was about 19 years only as per School Certificate placed on record.
Learned Counsel for accused further submitted that DW1 Sharafat Ali the resident of the same area who has clearly sated that there was a quarrel/enmity between accused and father of victim who had threatened accused that he will send him to Jail for long time. In his crossexamination also he stated about the quarrel between accused and Manjoor, father of victim. He also told that sister of accused was present at the time. This incident was just a few day before the arrest of accused in this rape case.
Learned Counsel for accused further submitted that DW2 Shokeen Mohammad is the Jija of accused and the owner of the house where the alleged incident of rape was committed. His house is constructed in 12.5 Sq. Mtr. one room in each floor. Before the alleged incidence, he was residing in the same house with his family on ground floor and construction work of other floors was going on. There is no possibility at all that the incidence of rape as alleged could happen in the 27 of 99 28 FIR No. 209/11 PS - Kanjhawala said house when family of DW2 was living especially there was a single room on the ground floor. DW2 also accepted the quarrel between Sarfraz (accused) and Manjoor (father of victim). He has stated that accused never resided in the night.
Learned Counsel for accused further submitted that DW3 Nissar, father of accused Sarfraz who stated accused used to reside with him in night and at the date of the alleged incidence he was also residing in the same house.
Learned Counsel for the accused referred to the cases and are reported as 'State Vs. Anwar Hussain', 2012 (4) LRC 310 (Delhi), 'Ram Babu Vs. State', 2013(4) LRC191 (Delhi), 'Ashok Narang Vs. State', 2012(2) LRC 287 (Delhi), 'Rai Sandeep @ Deepu Vs. State', 2012(8) LRC 210 (SC), 'Div Samal Vs. State', 2012(1) LRC 240 (Delhi) and 'Kamal Vs. State of Haryana', 2013 (6) LRC (P&H).
Learned Counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubts and prayed for 28 of 99 29 FIR No. 209/11 PS - Kanjhawala acquittal of accused from all charges.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. S. D. Saran, Learned Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 376/506 IPC against the accused Sarfraz is that on 30/08/2011, at about 3:00 a.m. (night) while the prosecutrix aged about 15 years was going to the public toilet from her house no. B999, J. J. Colony, Shawda, PS - Kanjhawala, Delhi he caught hold of her from behind and pressed her mouth after which he took her to a house and closed the door and thereafter forcibly 29 of 99 30 FIR No. 209/11 PS - Kanjhawala raped the prosecutrix against her wishes and without her consent and when she tried to raise noise, he also criminally intimidated 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 justice.
AGE OF THE PROSECUTRIX
12. PW8 - Sh. Manjoor Alam, father of the prosecutrix in his examinationinchief has deposed that his daughter/prosecutrix was aged about 14 years.
During his crossexamination, PW8 - Manjoor Alam negated the suggestions that he has not stated the correct date of birth in the School of the prosecutrix or that the date of birth by making it less by three years was told by him in the School or that the age of prosecutrix was about 17 years at the time of alleged incident.
PW1 - prosecutrix in her examinationinchief has deposed 30 of 99 31 FIR No. 209/11 PS - Kanjhawala th that at the time of incident, she studied in 7 class in Government Coed. SSS Swada, Ghewra, A - Block School, Delhi - 110081. Her date of birth is of the year 1997 but she does not know the exact date and month.
PW13 - SI Rajesh during his examinationinchief has deposed that he obtained the age proof document of the prosecutrix showing her date of birth as 12/03/1997 from Government CoEd. S.V. Sawada, (Ghevra) Colony, A - Block, Delhi - 110081. The photocopy of the same is Ex. PW13/F bearing the signatures and the seal of the Vice Principal of School at point 'A'.
There is nothing in the crossexamination of PW1 - prosecutrix, PW8 - Manjoor Alam and PW13 - SI Rajesh so as to impeach their creditworthiness.
PW14 - Sh. Shyam Sunder Verma, Principal, Govt. Coed. S. V. Swada (Ghevra) Colony, A - Block, Delhi - 110081 who produced the School record of the student/prosecutrix and deposed that as per their record, one child prosecutrix (name withheld) D/o Mohd. Manjoor and Jamiral was admitted in their School on 02/04/2010 in class VI vide admission no. 629. She was admitted in their School on the basis of SLC issued by Principal, MC Primary School, J. J. Swada, B - Block, 31 of 99 32 FIR No. 209/11 PS - Kanjhawala New Delhi - 110081. He proved the copy of the admission register as Ex. PW14/A and copy of the SLC of Previous School as Ex. PW14/B and further deposed that as per their record, the date of birth of prosecutrix (name withheld) is 12/03/1997.
Despite grant of opportunity, PW14 - Sh. Shyam Sunder Verma was not crossexamined on behalf of accused. Nor any evidence to the contrary has been produced or led on the record on behalf of the accused.
In the circumstances, it stands established on the record that the date of birth of PW1 prosecutrix is 12/03/1997.
As the date of alleged incident is 30/08/2011 and the date of birth of prosecutrix is 12/03/1997, on simple arithmetical calculation, the age of prosecutrix comes to 14 years 05 months and 18 days as on the date of incident on 30/08/2011.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 14 years 05 months and 18 days as on the date of incident on 30/08/2011.
32 of 99 33 FIR No. 209/11 PS - Kanjhawala
13. Learned Counsel for accused submitted that the first information about the incidence DD No. 32A stated the age of the victim as 16 years. In FIR she has stated her age is 15 years and in 164 Cr.P.C. statement it is 15 years but when she deposed before the Court after about one and half year she has stated her age as 14 years in place of 16.5 years. There is no horoscope or birth certificate on record but there is a School certificate stating the age of the victim is also not true. In the School register/certificate name of mother is 'Jamiran' whereas her mother is PW2 and here her name is 'Shamasha Khatoon'. PW8 - father of the victim stated in his crossexamination that it is correct that in the School the date of birth of prosecutrix was entered as to what he had told to the School Authority. Thus the age of the prosecutrix entered in the School was based on oral statement made by her father and not based on any document or certificate. It is quite possible that father of the victim stated the age of the victim in School by reducing her 23 years. There is no ossification test to confirm the age of the victim. At the time of alleged incident age of accused was about 19 years only as per School Certificate placed on record.
I have carefully perused and analysed the evidence on 33 of 99 34 FIR No. 209/11 PS - Kanjhawala record.
In view of as to what has been discussed and analysed here inabove whereby it stands clearly established on the record that PW1 - prosecutrix was aged 14 years 05 months and 18 days as on the date of incident on 30/08/2011, no further discussion is called for on the plea so raised.
The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of 34 of 99 35 FIR No. 209/11 PS - Kanjhawala admission documents are to be produced as regards the age of the student....."
As regards that name of mother of PW1 - prosecutrix has been shown as Jamiran in School register Ex. PW14/A and in School Leaving Certificate Ex. PW14/B while her mother's name is Shamsha Khatoon who has been examined as PW2. It was for the accused to elicit information either from PW2 - Shamsha Khatoon, mother of prosecutrix or from PW8 - Manjoor Alam, father of prosecutrix on this aspect. For such failure accused is to blame none else except for himself. Moreover, no any evidence to the contrary has been produced or proved on the record by the accused that PW1 - prosecutrix is not the daughter of PW2 Shamsha Khatoon & PW8 Manjoor Alam or that the said School documents do not pertain to PW1 - prosecutrix. Further, it is not disputed by the accused that the name of prosecutrix and her father's name are correctly mentioned in School register Ex. PW14/A as well as School Leaving Certificate Ex. PW14/B. In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
35 of 99 36 FIR No. 209/11 PS - Kanjhawala MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW9 Dr. Hena Kausar, S.R., SGM Hospital, Delhi, who deposed that as per the MLC no. 12084/11 on 30.08.2011, patient/prosecutrix was brought in the hospital through W Ct. Suman and she was initially examined by CMO on duty and thereafter, patient was referred to S.R., Gynae where she was examined by Dr. Pooja and proved the gyanecological examination of the prosecutrix vide MLC Ex. PW9/A as was conducted by Dr. Pooja signed by Dr. Pooja at point A. It is pertinent to reproduce the testimony of PW9 - Dr. Hena Kausar which reads as under : "I have been deputed by the MS of the hospital to depose on behalf of Dr. Pooja who has since left the services of SGM Hospital and her present whereabouts are not known. I am acquainted with the handwriting and signatures of Dr. Pooja as I have seen her signing and writing during the official course of the duties. As per the MLC No. 12084/11, on 30/08/11 patient/prosecutrix (name withheld) was brought in the hospital through W/Constable Suman. She was initially examined by CMO on duty and thereafter patient was referred to S.R. Gynae. where she was examined by Dr. Pooja.
36 of 99 37 FIR No. 209/11 PS - Kanjhawala As per MLC, patient was brought to the hospital with alleged history of sexual assault by neighbourer at 3:00 a.m. on 30/08/2011. On examination there is no bleeding from vagina , after the incident she has changed her clothes and has urinated, at the time of incident she was wearing black salwar and Kurta and bra. She was not wearing panty at the time of incident. After the incidence, she has taken bath.
On examination, her general condition was stable, Afebrile, pulse 74/per minute, BP 110/70, perineal examination no bleeding per vagina hymen torn + (Old tear), per vagina admits two finger easily, Uterus size could not be assessed because patient was not cooperative. MLC completed at 11:00 p.m. on 30/08/2011.
Patient was advised UPT, LMP15/08/2011.
The following samples were taken :
1. pubic hairs
2. first vulval swab
3. second vulval swab
4. anterior vaginal wall swab 37 of 99 38 FIR No. 209/11 PS - Kanjhawala
5. posterior vaginal wall swab
6. left lateral vaginal wall swab
7. right lateral vaginal wall swab
8. right nail scrapings
9. left nail scrapings
10. right hand nails
11. left hand nail cuttings
12. EDTA blood samples, for blood group
13. Plain blood sample for drugs and alcohol
14. Black salwar and kurta
15. vaginal smears
16. Hospital samples sealed with card The findings of Dr. Pooja on MLC is Ex. PW9/A, bearing the signatures of Dr. Pooja at point A."
During her crossexamination PW9 - Dr. Hena Kausar has deposed that, "it is correct that MLC was not prepared in my presence".
There is nothing in the crossexamination of PW9 - Dr. Hena Kausar so as to impeach her creditworthiness. She has proved the 38 of 99 39 FIR No. 209/11 PS - Kanjhawala gynaecological examination of the patient/prosecutrix as was conduced by Dr. Pooja being acquainted with the handwriting and signatures of Dr. Pooja.
In view of above and in the circumstances, the medical/gynaecological examination of PW1 - prosecutrix vide MLC Ex. PW9/A stands proved on the record.
VIRILITY OF THE ACCUSED SARFRAZ
15. PW3 Dr. Mahipal Singh, CMO SGM Hospital, Delhi who medically examined patient/accused Sarfraz and deposed that he examined patient Sarfraz on 31/08/2011 at about 3:05 a.m. brought by Constable Manoj with the alleged history of sexual assault (accused point of view). He had examined sexual organs of the patient Sarfraz and as per his opinion there is nothing to suggest that person cannot perform sexual act. Blood sample and undergarments of Sarfraz were sealed and handed over to the IO. The MLC is Ex. PW3/A signed by him at point 'A'.
Despite grant of opportunity, PW3 - Dr. Mahipal Singh was not crossexamined on behalf of accused.
39 of 99 40 FIR No. 209/11 PS - Kanjhawala In view of above and in the circumstances, it stands proved on the record that accused Sarfraz was capable to perform sexual act.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW5 Indresh Kumar Mishra, SSO, Biology, FSL, Rohini who proved the biological and serological reports Ex. PW5/A and Ex. PW5/B respectively signed by him at point 'A'.
As per biological report Ex. PW5/A the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed envelope sealed with the seal of "SGMH GNCT DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m', '1n(i)', '1n(ii)', '1o(i)' and '1o(ii)'. Exhibit '1a' : Few strands of hairs labelled as pubic hair kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in an envelope.
Exhibit '1b' : Cotton wool swab on a wooden stick labelled as Ist vulval swab kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT 40 of 99 41 FIR No. 209/11 PS - Kanjhawala DELHI" in turn kept in a plastic tube.
Exhibit '1c' : Cotton wool swab on a wooden stick labelled as IInd vulval swab kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in a plastic tube.
Exhibit '1d' : Cotton wool swab on a plastic stick labelled as Anterior vaginal wall kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in a plastic tube.
Exhibit '1e' : Cotton wool swab on a plastic stick labelled as Posterior vaginal wall kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in a plastic tube.
Exhibit '1f' : Cotton wool swab on a plastic stick labelled as Left lateral vaginal wall kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in a plastic tube.
Exhibit '1g' : Cotton wool swab on a plastic stick labelled as Right lateral vaginal wall kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in a plastic tube.
Exhibit '1h' : Cotton wool swab on a plastic stick labelled as Right nail scrapping kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in a plastic tube.
Exhibit '1i' : Cotton wool swab on a plastic stick labelled as Left nail scrapping kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in a plastic tube.
41 of 99 42 FIR No. 209/11 PS - Kanjhawala Exhibit '1j' : Few nail clippings labelled as Right hand nails kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in an envelope.
Exhibit '1k' : Few nail clippings labelled as Left hand nails kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in an envelope.
Exhibit '1l' : Dark brown foul smelling liquid labelled as 'EDTA Blood sample' kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in a tube.
Exhibit '1m' : Dark brown foul smelling liquid labelled as 'Plain Blood sample' kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" in turn kept in a tube.
Exhibit '1n(i)' : One lady's shirt kept in a sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI".
Exhibit '1n(ii)' : One One salwar kept in the above sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI".
Exhibit '1o(i)' : Two microslides labelled as 'Vaginal smear' & '1o(ii)' kept in a sealed cloth parcel with the seal of "SGMH GNCT DELHI".
Parcel '3' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibits '3', kept in a tube.
42 of 99 43 FIR No. 209/11 PS - Kanjhawala Exhibit '3' : Dark brown foul smelling liquid described as 'Blood sample'.
Parcel '4' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibits '4'.
Exhibit '4' : One underwear.
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1l', '1m' and '3'.
2. Blood could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1n(i)', '1n(ii)' and '4'.
3. Human semen was detected on exhibits '1n(ii) and '4'.
4. Semen could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1n(i)', '1o(i)' and '1o(ii)'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'IKM FSL DELHI'.
The serological report Ex. PW5/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood Stains: '1l' Blood sample Sample was putrefied hence no opinion 43 of 99 44 FIR No. 209/11 PS - Kanjhawala '1m' Blood sample Sample was putrefied hence no opinion '3' Blood sample Sample was putrefied hence no opinion Semen Stains: '1n(ii)' Salwar No reaction '4' Underwear No reaction On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that Human semen was detected on exhibit '1n(ii) (salwar of the prosecutrix) and exhibit '4' (underwear of accused Sarfraz).
On a conjoint reading of the medical/gynaecological examination of the prosecutrix vide MLC Ex. PW9/A as was conducted by Dr. Pooja, SR Gynae bearing her signature at point 'A' and proved by PW9 Dr. Hena Kausar, SR, Gynae together with the MLC of accused Sarfraz Ex. PW3/A in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the 44 of 99 45 FIR No. 209/11 PS - Kanjhawala record that sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW5/A with regard to the description of the articles contained in the parcels, it is noticed that, Parcel No. 1 belongs to PW1 - prosecutrix which was seized vide seizure memo Ex. PW12/A dated 30/08/2011 and parcel no. 3 & 4 belongs to accused Sarfraz which were seized vide seizure memo Ex. PW7/C dated 31/08/2011.
It is also to be noticed that as per gynaecological examination of the prosecutrix vide MLC Ex. PW9/A, it is mentioned therein, that after the incident, the prosecutrix had changed her clothes and has urinated, at the time of incident, she was wearing black salwar and kurta and bra. She was not wearing panty at the time of incident. After the incidence prosecutrix had taken bath. Since, PW1 - prosecutrix had changed her clothes, has urinated and had taken bath after the incidence, in the circumstance, it appears that it could be the reason of nondetection of semen on exhibits '1a' (Pubic hair of prosecutrix), '1b' (Ist vulval 45 of 99 46 FIR No. 209/11 PS - Kanjhawala swab of prosecutrix), '1c' (IInd vulval swab of prosecutrix), '1d' (Anterior vaginal wall of prosecutrix), '1e' (Posterior vaginal wall of prosecutrix), '1f' (Left lateral vaginal of prosecutrix), '1g' (Right lateral vaginal of prosecutrix), '1h' (Right nail scrapping of prosecutrix), '1i' (Left nail scrapping of prosecutrix), '1j' (Right hand nails of prosecutrix), '1k' (Left hand nails of prosecutrix), '1n(i)' (lady's shirt of prosecutrix), '1o(i)' & '1o(ii)' (both containing vaginal smear of prosecutrix).
As per the biological report Ex. PW5/A, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1n(ii) (salwar of the prosecutrix seized vide seizure memo Ex. PW12/A) and exhibit '4' (underwear of accused Sarfraz seized vide seizure memo Ex. PW7/C). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1n(ii) and '4' as detailed hereinabove. 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 46 of 99 47 FIR No. 209/11 PS - Kanjhawala additional link in the prosecution case.
17. Now let the testimonies of PW1 - Prosecutrix, PW2 - Shamsha Khatoon, her mother and PW8 - Manjoor Alam, her father be perused and analysed.
PW1 - prosecutrix (name withheld) D/o Manjoor Alam R/o 999, B - Block, Sawada, Ghevra, J. J. Colony, Delhi, in her examination inchief has deposed which is reproduced and reads as under : "I am residing at the above stated address since five year with my parents and four other brothers and sisters. Accused Sarfraj used to come to the house of his brother in law (Jija) whose residence is in the same gali in which our house is situated. I know accused Sarfraj by face. I never talk to him prior to the incident.
On 30/08/2011 early in the morning at about 3:00 a.m. when I going for easing myself to the public shauchalaya (toilet) situated near my house. On the way to shauchalaya (toilet) accused Sarfraj caught hold of me from behind and pressed my mouth and took me to the house of his brother in law and made me lie down on the floor and also closed the door by pushing it in a hurried manner and when I tried to get up he again pushed me down to the floor and was also pressing my mouth and was also murmuring giving the threatening. Because of the hard pressing of my mouth I became unconscious. After sometime I regained consciousness I found that my salwar was put off and galatkam (wrong act) was done with me by Sarfraj. Galatkam I mean rape and Sarfraj was also not present inside the room when I regained consciousness. I 47 of 99 48 FIR No. 209/11 PS - Kanjhawala immediately got up from the floor and as the room was unlocked I ran away from there towards my house. My father met me outside my house. I tried to speak to him but I was not able to speak properly because of the hard pressing of my mouth by the Sarfraj but could communicate very little to my father. My father had seen me coming out from the house of brother in law of accused Sarfraj and as I was in perplexed condition and was also weeping. My father made a call at No. 100 to the police. Police had come within about half an hour. In the meantime when my condition become better I narrated the incident to my mother then I along with my parents went to the PS. Police recorded my statement in between 10:00 to 11:00 p.m. in the night, the same is Ex. PW1/A signed by me at point 'A'. Police got me medically examined on the same night and the concerned doctor had seized my clothes which I wearing at the time of the incident. Police also got recorded my statement U/s 164 Cr. PC in Rohini Courts.
At this stage a sealed envelop sealed with the seal of 'SG' is opened. From which the proceedings and the statement U/S 164 Cr.P.C. is taken out. Statement u/s 164 Cr.P.C. is shown to the witness who stated of having made the same. My statement u/s 164 Cr.P.C. is Ex. PW1/B signed by me at point 'A' & 'B'.
th At the time of incident I studied in 7 class in Govt. Coed, S.S.S. Swada Ghewra ABlock school, Delhi81. My date of birth is of the year, 1997 but I do not know the exact date and month."
From the aforesaid narration of PW1 - prosecutrix, it is clear that she is residing at the above stated address since five years with her parents and four other brothers and sisters. Accused Sarfraj used to 48 of 99 49 FIR No. 209/11 PS - Kanjhawala come to the house of his brotherinlaw (Jija) whose residence is in the same gali in which their house is situated. She knows accused Sarfraj by face. She never talked to him prior to the incident.
On 30/08/2011 early in the morning at about 3:00 a.m. when she was going for easing herself to the public shauchalaya (toilet) situated near her house. On the way to shauchalaya (toilet) accused Sarfraj caught hold of her from behind and pressed her mouth and took her to the house of his brotherinlaw and made her lie down on the floor and also closed the door by pushing it in a hurried manner and when she tried to get up he again pushed her down to the floor and was also pressing her mouth and was also murmuring giving the threatening and because of the hard pressing of her mouth she became unconscious. After sometime when she regained consciousness she found that her salwar was put off and galat kaam (wrong act) was done with her by Sarfraz. By galat kaam she means rape and Sarfaraj was also not present inside the room when she regained consciousness. She immediately got up from the floor and as the room was unlocked she ran away from there towards her house. Her father met her outside her house. She tried to speak to him but she was unable to speak properly because of the hard 49 of 99 50 FIR No. 209/11 PS - Kanjhawala pressing of her mouth by the Sarfaraj but could communicate very little to her father. Her father had seen her coming out from the house of brotherinlaw of accused Sarfaraj and as she was in perplexed condition and was also weeping her father made a call at No. 100 to the Police. Police had come within about half an hour. In the meantime, when her condition became better she narrated the incident to her mother and then she alongwith her parents went to the Police Station. Police recorded her statement in between 10:00 p.m. to 11:00 p.m. in the night which is Ex. PW1/A signed by her at point 'A'. Police got her medically examined on the same night and the concerned doctor had seized her clothes which she was wearing at the time of the incident. Police also got recorded her statement U/s 164 Cr.P.C. in Rohini Courts.
She also proved her statement u/s 164 Cr.P.C. Ex. PW1/B which is signed by her at points 'A' & 'B'.
th At the time of incident she studied in 7 class in Govt. Co ed, S.S.S. Swada Ghewra ABlock school, Delhi81. Her date of birth is of the year, 1997 but she does not know the exact date and month.
PW1 - Prosecutrix during her crossexamination has 50 of 99 51 FIR No. 209/11 PS - Kanjhawala negated the suggestions that there was no moonlight at all on the date of incident or that her age on the date of incident was between 16 to 17 years or that she was having friendship with accused Sarfraz or that the fact of her having friendship with accused was known to her family members or that due to of her having friendship with accused Sarfraz, she had been pressurized by her family members to implicate accused Sarfraz in this false case or that no alleged incident as deposed by her ever occurred or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - Prosecutrix, nothing material has been brought out so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The version of this witness on the core spectrum of crime has remained intact. The testimony of PW1 - prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had an animus against the accused Sarfraz to falsely implicate him in the case.
51 of 99 52 FIR No. 209/11 PS - Kanjhawala The testimony of PW1 - Prosecutrix is found to be also corroborated by the medical evidence as well as the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement Ex. PW1/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW1/B. The testimony of PW1 - Prosecutrix is also found to be corroborated by PW2 - Shamsha Khatoon, mother of the prosecutrix and PW8 - Manjoor Alam, father of the prosecutrix, to whom prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW2 - Shamsha Khatoon in her examinationinchief has deposed that : "I do not know the date, month and year but it was the incident of the moon night (chand ki rat) of the last roja. After taking sargi (roja food) by my daughter/prosecutrix (name withheld) she stated that she is to go to sochalya (toilet). My daughter/prosecutrix (name 52 of 99 53 FIR No. 209/11 PS - Kanjhawala withheld) went to sochalya but she did not return for a long time, therefore, I went out in search of my daughter but could not find her at the sochalya. I also went to the bus stand to search my daughter but couldn't find her there also. We all family members were searching prosecutrix (name withheld). I also went to the jungle for searching my daughter and when I returned I saw that my husband was standing outside the house and I was informed that my daughter has returned and is in the house. I went inside the house and on seeing my daughter/prosecutrix (name withheld) I started weeping. After some time police arrived at the spot. My daughter/prosecutrix (name withheld) narrated the incident which happened to her committed upon her by Sarfraj to me. My daughter along with me and my husband went to the Police Station and then she was also taken to the hospital for medical examination. Sarfraj used to come in the gali where our house is situated to visit the house of his brother in law (Jija). Because of his (Sarfraj) visit in the gali in the house of his Jija I started recognising him prior to that we were not knowing him. Accused Sarfraj lives at another place. I can identify accused Sarfraj if shown to me. Accused Sarfraj is present in the court today (correctly identified)."
From the aforesaid narration of PW2 - Shamsha Khatoon, mother of PW1 prosecutrix it is clear that the she does not know the date, month and year but it was the incident of the moon night (chand ki rat) of the last roja. After taking sargi (roja food) by her daughter/prosecutrix she stated that she is to go to sochalya (toilet). Her 53 of 99 54 FIR No. 209/11 PS - Kanjhawala daughter/prosecutrix went to sochalya but she did not return for a long time, therefore, she went out in search of her daughter but could not find her at the sochalya. She also went to the bus stand to search her daughter but couldn't find her there also. They all family members were searching the prosecutrix. She also went to the jungle for searching her daughter and when she returned she saw that her husband was standing outside the house and she was informed that her daughter has returned and is in the house. She went inside the house and on seeing her daughter/prosecutrix she started weeping. After some time Police arrived at the spot. Her daughter/prosecutrix narrated the incident which was committed upon her by Sarfraj to her (PW2 - Shamsha Khatoon). Her daughter alongwith her and her husband went to the Police Station and then she was also taken to the Hospital for medical examination. Sarfaraj used to come in the gali where their house is situated to visit the house of his brotherin law (Jija). Because of his (Sarfaraj) visit in the gali in the house of his Jija she (PW2) started recognising him prior to that they were not knowing him. Accused Sarfaraj lives at another place and she correctly identified the accused Sarfraz in the Court.
54 of 99 55 FIR No. 209/11 PS - Kanjhawala During her crossexamination PW2 - Shamsha Khatoon has negated the suggestion that she is deposing falsely.
PW8 - Manjoor Alam in his examinationinchief has deposed that : "On 30/08/11 it was the month of Ramzan . At about 3:00 a.m. my daughter/prosecutrix (name withheld) aged about 14 years after eating Sargi (roja food) went out for public toilet. When she did not return for about half an hour. Thereafter I alongwith my wife and family members started searching prosecutrix (name withheld). When I reached out side the house no. B995 which is the house of Jija of accused Sarfraj, prosecutrix (name withheld) came out from the house while weeping. I made inquiries from her and she told me about the quarrel, so I made telephone call to the police regarding quarrel. Sarfraj was apprehended from his house. Police came there but the respectable persons of the locality asked me that they will get compromised the matter and did not ask me to take the police action. Police went from the spot. In the evening at about 3:00 p.m. prosecutrix (name withheld) told me and my wife that accused Sarfraj committed rape upon her forcibly. Thereafter I again made telephone call to the police at no. 100 from mobile no. 8800966782 which was in the name of my son but I (was) using that mobile phone. Police came there alongwith lady police and took us in the police station. Statement of my daughter was recorded and she was taken to hospital where she was medically examined . Accused Sarfraj is present in the court today, correctly identified."
55 of 99 56 FIR No. 209/11 PS - Kanjhawala From the aforesaid narration of PW8 - Manjoor Alam, father of the prosecutrix, it is clear that on 30/08/11 it was the month of Ramzan. At about 3:00 a.m. his daughter/prosecutrix aged about 14 years after eating Sargi (roja food) went out for public toilet. When she did not return for about half an hour. Thereafter he alongwith his wife and family members started searching her. When he reached out side the house no. B995 which is the house of Jija of accused Sarfraj, prosecutrix came out from the house while weeping. He made inquiries from her and she told him about the quarrel, so he made telephone call to the Police regarding quarrel. Sarfaraj was apprehended from his house. Police came there but the respectable persons of the locality asked him that they will get compromised the matter and did not ask him to take the Police action. Police went from the spot. In the evening at about 3:00 p.m. prosecutrix told him and his wife that accused Sarfaraj committed rape upon her forcibly. Thereafter, he again made telephone call to the police at no. 100 from mobile no. 8800966782 which was in the name of his son but he (was) using that mobile phone. Police came there alongwith lady police and took them in the Police Station where statement of his daughter was recorded and she was taken to hospital 56 of 99 57 FIR No. 209/11 PS - Kanjhawala where she was medically examined. He also correctly identified the accused Sarfaraj present in the Court.
During his crossexamination PW8 - Manjoor Alam has negated the suggestions that he has not stated the correct date of birth in the school of prosecutrix or that the date of birth by making it less by three years was told by him in the school or that age of his daughter/prosecutrix was about seventeen years at the time of alleged incident or that prosecutrix (name withheld) met with her mother before the arrival of the Police Vol. Her mother was at far place in the fields (Kheto Main) or that meeting of prosecutrix (name withheld) with accused Sarfraz was not like (liked) by them Vol. He (PW8) was even not knowing accused Sarfraz or that for his (PW8) not liking of meeting of prosecutrix with accused Sarfraz, for this reason he (PW8) pressurized his daughter/prosecutrix to make a false complaint against accused Sarfraz or that no incident has taken place as he deposed or that he is deposing falsely.
There is nothing in the crossexamination of PW2 -
57 of 99 58 FIR No. 209/11 PS - Kanjhawala Shamsha Khatoon and PW8 - Manjoor Alam so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] their testimonies are found to be natural, clear, reliable and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
18. While analysing the testimony of PW1 Prosecutrix, PW2 - Shamsha Khatoon, mother of the prosecutrix and PW8 - Manjoor Alam, father of the prosecutrix as discussed hereinabove inspite of incisive crossexamination of PW1 Prosecutrix, PW2 - Shamsha Khatoon and PW8 - Manjoor Alam, nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by the defence to PW1 - prosecutrix that there was no moonlight at all on the date of incident or that her age on the date of incident was between 16 to 17 years or that she was having friendship with accused Sarfraz or that the fact of her having 58 of 99 59 FIR No. 209/11 PS - Kanjhawala friendship with accused was known to her family members or that due to of her having friendship with accused Sarfraz, she had been pressurized by her family members to implicate accused Sarfraz in this false case or that no alleged incident as deposed by her ever occurred or that she is deposing falsely and the suggestion to PW2 - Shamsha Khatoon that she is deposing falsely and the suggestions to PW8 - Manjoor Alam that he has not stated the correct date of birth in the school of prosecutrix or that the date of birth by making it less by three years was told by him in the school or that age of his daughter/prosecutrix was about seventeen years at the time of alleged incident or that prosecutrix (name withheld) met with her mother before the arrival of the Police Vol. Her mother was at far place in the fields (Kheto Main) or that meeting of prosecutrix (name withheld) with accused Sarfraz was not like (liked) by them Vol. He (PW8) was even not knowing accused Sarfraz or that for his (PW8) not liking of meeting of prosecutrix with accused Sarfraz, for this reason he (PW8) pressurized his daughter/prosecutrix to make a false complaint against accused Sarfraz or that no incident has taken place as he deposed or that he is deposing falsely were put, which were negated by the said PWs but the same have not at all being made probable much 59 of 99 60 FIR No. 209/11 PS - Kanjhawala established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
At the cost of repetition, from the suggestions put to PW1 - prosecutrix and PW8 - Manjoor Alam as detailed hereinabove, by the accused Sarfraz, it is to be noticed that a futile attempt has been made by accused Sarfraz to save his skin from the clutches of law by floating every possible theory. The theories floated by accused Sarfraz are : The Theory that, "the fact of her (prosecutrix) having friendship with accused was known to her family members".
The Theory that, "due to her (prosecutrix) having friendship with accused Sarfraz, she had been pressurized by her family members to implicate accused Sarfraz in this false case".
AND The Theory that, "for his (PW8 - Manjoor Alam) not liking of meeting of prosecutrix with accused Sarfraz, for this reason, he (PW8 - Manjoor Alam) pressurized his daughter/prosecutrix to make a false complaint against accused 60 of 99 61 FIR No. 209/11 PS - Kanjhawala Sarfraz".
On careful perusal and analysis of the entire evidence on record, the said theories so propounded by accused Sarfraz are found, not only contradictory with the defence evidence led by him but the same have also not at all being made probable much established by any cogent evidence, therefore falls flat to the ground.
It is also to be noticed, the said theories, so propounded by the accused were not put/suggested to PW2 - Shamsha Khatoon, mother of the prosecutrix during the course of her cross examination. Nor even a single word regarding the said theories so propounded, was uttered by the accused during his statement u/s 313 Cr.P.C.
However, a futile attempt has been made by the accused Sarfraz to save his skin from the clutches of law by way of examination of three defence witnesses namely DW1 - Sharafat Ali S/o Mehmood Khan, Age - 51 years, R/o B983, Savda, Delhi 110081, DW2 - Shokeen Mohammad S/o Rahim Baksh, Age - 32 years, R/o B995, 61 of 99 62 FIR No. 209/11 PS - Kanjhawala Savda, Delhi - 110081 and DW3 - Nisar S/o Munshi, Age - 50 years, R/o G856, J. J. Colony, Savda, Delhi - 110081.
DW1 - Sharafat Ali S/o Mehmood Khan, Age - 51 years, R/o B983, Savda, Delhi 110081 deposed that he knows Sarfraz and Manzoor, the father of prosecutrix (name withheld), being his neighbours. Again said : Sarfraz used to reside in EBlock. Altercation used to take place between Sarfraz and his Behnoi on the issue of tanker. Again said : The quarrel used to take place between accused Sarfraz and Manzoor. Manzoor had threatened Sarfraz that he will get him implicated in such a case, that he will not come out from the jail. The altercation used to take place on the issue of parking of water tanker. Manzoor used to reside there on a tenanted premises, which now he has vacated. The occurrence of threatening had taken place around two years back. He (DW1) had intervened into the matter after pacifying them. PCR van had come and had left later on.
During his crossexamination, DW1 - Sharafat Ali has deposed that : "No complaint in writing was made to the Police for the false implication of accused Sarfraz. No Senior Police official was contacted to lodge a protest for the false implication of accused Sarfraz."
62 of 99 63 FIR No. 209/11 PS - Kanjhawala DW2 - Shokeen Mohammad S/o Rahim Baksh, Age - 32 years, R/o B995, Savda, Delhi - 110081 deposed that he is brotherin law of Sarfraz. He has been residing at the above stated address for around four/five months, prior to the arrest of accused in this case with family. The quarrel used to take place between Sarfraz and Manzoor on the issue of water tanker etc. Manzoor had extended threat to Sarfraz that he will get him implicated in serious case. He (DW2) was present in his house at the time of arrest of accused Sarfraz and on the previous night also with family. Sarfraz used to not reside in the night at his (DW2) house and on the day of his arrest and also on its previous night, he had not stayed there. The occurrence of the incident of rape had not taken place, as alleged.
During his crossexamination, DW2 - Shokeen Mohammad has deposed that : "I have not made any complaint in writing to the Senior Police Officer or any Court that accused Sarfraz has been implicated falsely."
DW3 - Nisar S/o Munshi, Age - 50 years, R/o G856, J. J.
63 of 99 64 FIR No. 209/11 PS - Kanjhawala Colony, Savda, Delhi - 110081 deposed that he is father of accused Sarfraz. Sarfraz used to reside with him even in the night. Sarfraz was sleeping at his house, one day prior to his arrest. He got awaken in normal course at about 7:00/8:00 a.m. Accused Sarfraz has been falsely implicated in this case due to some ulterior motive.
During his crossexamination, DW3 - Nisar has deposed that : "I have not made any complaint in writing to the Police/Senior Police Officer or any Court that accused Sarfraz has been falsely implicated in the present case."
From above, it is clearly indicated that DW1 - Sharafat Ali is the neighbour, DW2 - Shokeen Mohammad is the brotherinlaw (Jija) of accused Sarfraz and DW3 - Nisar is the father of accused Sarfraz. The said DWs bring the neighbour, brotherinlaw and father of the accused, in their crossexamination, as was conducted by Learned Addl. PP for the State as reproduced hereinabove, have clearly admitted that they did not make any complaint in writing to the Police/Senior Police Officer or any Court that accused Sarfraz has been falsely implicated in the present case. Why they did not make any complaint against the 64 of 99 65 FIR No. 209/11 PS - Kanjhawala alleged false implication of accused Sarfraz, the reasons for the same must be known to them. It clearly indicates that, Had accused Sarfraz been falsely implicated, the said DWs being the neighbour, brotherin law and father of accused Sarfraz must have made the complaint to the Police/Senior Police Officer or any Court against his false implication.
On careful perusal and analysis of the testimonies of the said DWs, it is found that DW1 - Sharafat Ali and DW2 - Shokeen Mohammad have floated a theory, that a quarrel used to take place between Sarfraz and Manjoor on the issue of parking of water tanker while DW3 - Nisar has floated a theory, that accused Sarfraz has been falsely implicated in this case due to some ulterior motive.
The said theories so floated by the said DWs have not at all being made probable much established by any cogent evidence, therefore falls flat to the ground.
Moreover, DW2 - Shokeen Mohammad during his cross examination has deposed that : "We had not reported the matter to the Police when the quarrel between Sarfraz and Manjoor was taken place on the pretext of water tanker."
The said part of crossexamination of DW2 Shokeen 65 of 99 66 FIR No. 209/11 PS - Kanjhawala Mohammad has knocked the bottom of the theory floated by DW2 Shokeen Mohammad and DW1 Sharafat Ali that a quarrel used to take place between Sarfraz and Manjoor on the issue of parking of water tanker. AS regards the theory floated by DW3 - Nisar that Sarfraz has been falsely implicated in this case due to some ulterior motive, on careful perusal and analysis it is found to be vague and totally bereft of material particulars and does not come to the rescue of the accused.
Further, the said theories, so floated by the said DWs were not put either to PW1 - prosecutrix or PW2 - Shamsha Khatoon, her mother or PW8 - Manjoor Alam, her father in their incisive and lengthy crossexamination. Nor even a single word regarding the said theories, so propounded by the said DWs, was uttered by the accused during his statement u/s 313 Cr.P.C. In the circumstances, the said theories, so floated, are merely an afterthought.
In view of above and in the circumstances, the testimonies of said defence witnesses do not inspire confidence and 66 of 99 67 FIR No. 209/11 PS - Kanjhawala they are the procured witnesses.
19. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
67 of 99 68 FIR No. 209/11 PS - Kanjhawala 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 biological and serological evidence, medical/gynaecological examination vide MLC Ex. PW9/A of the prosecutrix together with the MLC of accused Sarfraz Ex. PW3/A, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission, within labia majora or the vulva or pudenda stands proved.
68 of 99 69 FIR No. 209/11 PS - Kanjhawala In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Sarfraz with PW1 - Prosecutrix without her consent.
20. Learned Counsel for the accused submitted that the crucial time of alleged occurrence is 3:00 a.m. which is dark time in any season. A young girl just after taking meal went for nature call alone for such a long distance especially when there were so many adult members present in the house at that time. PW8 - Manjoor Alam, father of the victim stated in his crossexamination that the School of his daughter/prosecutrix is at walking distance of 810 minutes and she was used to be escorted by some times by PW8, sometimes by his wife and sometimes by his other children.
I have carefully perused and analysed the evidence on record.
It is not made clear as to what benefit the Learned Counsel for the accused intends to reap by raising the said plea. PW1 - prosecutrix in her examinationinchief has specifically deposed that on 30/08/2011, early in the morning, when she was going for easing herself 69 of 99 70 FIR No. 209/11 PS - Kanjhawala to the public sauchalya (toilet) situated near her house. On the way of sauchalaya (toilet), accused Sarfraz caught hold of her from behind and pressed her mouth and took her to the house of his brotherinlaw and committed crime upon her.
PW2 - Shamsha Khatoon, mother of the prosecutrix in her examinationinchief had deposed that she does not know the date, month and year but it was the incident of the moon night (chand ki raat) of the last Roza. After taking Sargi (Roza Food) by her daughter/prosecutrix (name withheld), she (prosecutrix) stated that she is to go to sauchalya (toilet). Her daughter/prosecutrix (name withheld) went to the sauchalya but she did not returned for a long time.
PW8 - Manjoor Alam, father of the prosecutrix in his examinationinchief has deposed that on 30/08/2011, in the month of Ramzaan at about 3:00 a.m., his daughter/prosecutrix (name withheld), aged about 14 years, after eating Sargi (Roza Food) went out for public toilet.
Inspite of incisive crossexamination of the said PWs, there is nothing in their crossexamination, so as to impeach their creditworthiness. The factum of PW1 - prosecutrix going out for 70 of 99 71 FIR No. 209/11 PS - Kanjhawala sauchalaya (toilet) has not been disputed in their entire lengthy cross examination.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for accused submitted that the other important thing is how accused met her in the gali when accused is resident of another place and is about 1 k.m. from that place. This creates a serious doubt. Either the story of going of victim to sauchalya at that time is false or accused had prior knowledge about coming of prosecutrix that she will come there at 3:00 a.m. and if he had such knowledge it means they had setting of the time and place to meet with each other and perhaps this is why nobody heard any noise prior or after the alleged incident although the gali/area was dense populated.
I have carefully perused and analysed the evidence on record.
As discussed hereinabove, it is nowhere been disputed by the accused of the factum of going to sauchalya (toilet) by PW1 - prosecutrix.
71 of 99 72 FIR No. 209/11 PS - Kanjhawala On careful perusal and analysis of the entire evidence on record, the theory of "Either the story of going of victim to sauchalya at that time is false or accused had prior knowledge about coming of prosecutrix that she will come there at 3:00 a.m. and if he had such knowledge it means they had setting of the time and place to meet with each other and perhaps this is why nobody heard any noise prior or after the alleged incident although the gali/area was dense populated" as propounded by the accused is found not only contradictory with the defence evidence led by him but the same has also not at all been made probable, much established by any cogent evidence. Therefore, falls flat to the ground. Moreover, the said theory so propounded by the accused was not put/suggested to PW1 - prosecutrix during her incisive and lengthy crossexamination. Nor even a single word regarding the said theory so propounded by the accused was uttered by him during his statement u/s 313 Cr.P.C. Further, it cannot be said that prosecution must meet each and every hypothesis put forward by the accused, however, farfetched and fanciful it may be.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
72 of 99 73 FIR No. 209/11 PS - Kanjhawala
22. Learned Counsel for accused submitted that another important thing is she neither cried nor complained against this incident to any person either to her neighbour or even her parents within 14 hours of the incident. Learned Counsel for accused further submitted that in statement of 164 Cr.P.C. she had stated that when she returned home she stated whole thing to his father. PW8 has admitted in his cross that he knew about the incident at 3:00 a.m. The information about the incident of rape was given to Police at about 5:50 p.m. that is after about 15 hours of incident. Learned Counsel for accused further submitted that the FIR was registered after about 21 hours of the alleged incident. Especially, there were all opportunities for this complaint, when PCR came in morning and returned back without any fruitful action. In the FIR, she complained about the rape only when pain increased in her body. It is quite impossible that the pain increased after 14 hours of the alleged incident and then only she complained of it. The next PCR call is at 5:50 in the evening. Neither the Police men of first PCR nor the second PCR were examined by prosecution. Learned Counsel for accused further submitted that in FIR victim stated that accused did 'galat kaam' then she 73 of 99 74 FIR No. 209/11 PS - Kanjhawala became unconscious but in her statement u/s 164 Cr.P.C. when her eyes were open she sees her salwar was open. It means what happened with her she could not know. In examinationinchief before Court she told "I became unconscious after sometime, I regained consciousness I found that my salwar was put off and galat kaam was done with me' she did not state to her father about the rape. In FIR she told that she did not disclose about rape due to prestige and told about rape in evening when the pain increased. In statement u/s 164 Cr.P.C., she told everything to her father, in examinationinchief before Court she said "I was in perplexed condition. When my condition become well I narrated the incident to my mother". Thus the victim changes her statements throughout. In the FIR when the wrong was done with her she was in conscious and she cried also. In 164 Cr.P.C. statement she couldn't cried. Here she became unconscious and what happened after she being unconscious, she couldn't explain. In examinationinchief before the Court she also became unconscious and what happened with her was in unconscious stage only. While she cried why nobody heard her cry when the area is thickly populated. When she was going nobody seen her, when she was coming nobody see her. It creates a serious doubt 74 of 99 75 FIR No. 209/11 PS - Kanjhawala about the story of prosecution. In crossexamination she told Police had reached at about 4:00 a.m. then she disclosed about the incidence to her father but not the complete fact. It is important that why she didn't disclose the incidence of rape with her to the father when the Police was present there. Learned Counsel for accused further submitted that PW8
- Sh. Manjoor Alam is the father of the victim stated in his cross examination that he came to know about the incident at about 3:00 a.m. on 30/08/2011. Then why he didn't disclose this matter before the Police in the morning and why FIR was lodged 21 hours after the incident.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix in her examinationinchief has specifically deposed that : "...My father met me outside my house. I tried to speak to him but I was not able to speak properly because of the hard pressing of my mouth by the Sarfraj but could communicate very little to my father. My father had seen me coming out from the house of brother in law of accused Sarfraj and as I was in perplexed condition and was also weeping. My father made a call at No. 100 to the police. Police had come within about half an hour. In the meantime when my 75 of 99 76 FIR No. 209/11 PS - Kanjhawala condition become better I narrated the incident to my mother then I along with my parents went to the PS. Police recorded my statement in between 10:00 to 11:00 p.m. in the night, the same is Ex. PW1/A signed by me at point 'A'..."
During her crossexamination, PW1 - prosecutrix has deposed that : "Police had reached at about 4:00 a.m. in the morning on the date of incident. Immediately after the occurrence I had disclosed some facts of the incident at that time to my Papa as he had seen me when I was coming out from the house/place of occurrence. Vol. The complete details of the incident were told by me to the Police at about 5:00 p.m. in the evening. After knowing some facts of the incident from me immediately thereafter my Papa had telephoned the Police."
PW8 - Manjoor Alam, father of the prosecutrix in his examinationinchief has deposed that : "I made inquiries from her and she told me about the quarrel, so I made telephone call to the police regarding quarrel. Sarfraj was apprehended from his house. Police came there but the respectable persons of the locality asked me that they will get compromised the matter and did not ask me to take the police action. Police went from the spot. In the evening at about 3:00 p.m. prosecutrix (name withheld) told me and my wife that accused Sarfraj committed rape upon her 76 of 99 77 FIR No. 209/11 PS - Kanjhawala forcibly. Thereafter I again made telephone call to the police at no. 100 from mobile no. 8800966782 which was in the name of my son but I using that mobile phone. Police came there alongwith lady police and took us in the police station."
During his crossexamination PW8 - Manjoor Alam has deposed that : "Q. At what time did you come to know about the incident in question?
A. At abut 3:00 a.m. in the morning at 30/08/2011."
"Police was informed at about 4:00 a.m. PCR was informed. Vol. PCR came within 10 minutes of giving information"
"Police remained at my house for about 10 minutes for the first time. I had made second call to the Police at about 4:00 p.m. Police came after 4:00 p.m."
On a conjoint reading of the testimony of PW1 - prosecutrix and that of PW8 - Manjoor Alam, the delay in registering the report with the Police vide Ex. PW1/A stands sufficiently and satisfactorily explained.
The sight cannot be lost of the fact that the Indian women 77 of 99 78 FIR No. 209/11 PS - Kanjhawala has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
78 of 99 79 FIR No. 209/11 PS - Kanjhawala The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members 79 of 99 80 FIR No. 209/11 PS - Kanjhawala has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case 'Satyapal Vs. State of Haryana AIR 2009 SC 2190' has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
At the cost of repetition, the testimonies of PW1 -
80 of 99 81 FIR No. 209/11 PS - Kanjhawala prosecutrix and PW8 - Manjoor Alam, her father have been discussed and analysed hereinabove as well as hereinbefore, which are found to be clear, cogent, convincing and inspiring confidence. They have withstood the rigors of crossexamination without being shaken. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
As regards the plea of nonjoining of any neighbour is concerned, the sight cannot be lost of the fact of time of incident, which was 3:00 a.m. in the morning (night). At this hour of night, public persons who are in sleep cannot be expected to be present.
In the circumstances, nonjoining of any public persons/neighbours does not falsify the case of the prosecution, which is otherwise proved on record by clear, cogent and convincing evidence.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would 81 of 99 82 FIR No. 209/11 PS - Kanjhawala be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for accused submitted that as stated in the FIR victim knew accused prior to the incident. Learned Counsel for accused further submitted that in FIR, she has stated that that person who pushed her was Sarfaraj whom she knew prior to the incidence because where he took her was the house of his Jija. In 164 Cr.P.C. statement she had told that she doesn't know Sarfraz but further she had stated there is a house of his Jija in his gali where he used to visit. She 82 of 99 83 FIR No. 209/11 PS - Kanjhawala had seen him only two or three times but not knowing his name which is quite contradictory from, FIR where she has stated the name of the accused. In examinationinchief she had also stated that she was knowing Sarfraz who used to come to the house of his Jija in the same gali. Thus it is clear that victim was well knowing Sarfraz. This is why Sarfraz met victim 3:00 a.m. and it was not by chance. If victim was stating true then there must be TIP.
I have carefully perused and analysed the evidence on record.
PW1 - prosecutrix in her examinationinchief has specifically deposed that : "Accused Sarfraj used to come to the house of his brother in law (Jija) whose residence is in the same gali in which our house is situated. I know accused Sarfraj by face. I never talk to him prior to the incident."
There is nothing in the crossexamination of PW1 - prosecutrix so as to impeach her creditworthiness.
The deposition of PW1 - prosecutrix as reproduced herein above is found to be in consonance with her statement recorded u/s 164 83 of 99 84 FIR No. 209/11 PS - Kanjhawala Cr.P.C. Ex. PW1/B as well as her statement made to the Police Ex. PW1/A on the basis of which FIR Ex. PW4/A was registered.
PW1 - prosecutrix during her statement recorded u/s 164 Cr.P.C. Ex. PW1/B has deposed that : ".....I was not knowing Sarfraz previously. His brotherin law's house is situated in our gali, which he (Sarfraz) used to visit, then only I had seen him once or twice. I was not knowing his name. We never talked with each other. (Sarfraz Ko Main Pehle Se Nahi Janti Thi. Hamari Gali Mei Uske Jija Ji Ka Ghar Hai Jahan Woh Aata Jata Tha Bas Tabhi Ek Do Baar Maine Use Dekha Tha Par Main Uska Naam Nahi Janti Thi. Hamari Kabhi Baat Bhi Nahi Hui.)"
PW1 - prosecutrix in her statement made to the Police Ex. PW1/A has stated that on 30/08/2011, at about 3:00 a.m. in the night, when she was going from her house for toilet to the public lavatory (sarvajanik shouchalaya) and had reached a little distance away then she was caught by one person from back and after pressing her mouth he took her to one house and after entering into the house, he after pushing made her fall on the floor and closed the door and during this, she saw that the person who after catching hold (daboch kar) had pushed her is, Sarfraz whom she knows previously as the house in which she was taken is the house of his jija which usually remains closed and Sarfraz used to
84 of 99 85 FIR No. 209/11 PS - Kanjhawala visit this house for this reason she knows him (Aaj Dinank 30/08/2011 Ko Waqt Kareeb 3:00 Baje Raat Jab Main Apne Ghar Se Toilet Karne Ke Liye Sarvjanik Shauchalaya Ja Rahi Thi Ki Jab Main Ghar Se Kuch Door Pahunchi To Mujhe Ek Shakhs Ne Peeche Se Pakad Liya Aur Mera Muh Daba Kar Mujhe Ek Ghar Mei Le Gaya Aur Ander Jate Hi Mujhe Dhakka De Kar Farsh Par Gira Diya Va Darwaze Ko Band Kar Diya Jo Issi Dauraan Maine Dekha Ki Jis Shakhs Ne Mujhe Daboch Kar Dhakka Mara Hai Weh Sarfraz Hai Jise Main Pehle Se Jaanti Hoon Kyonki Weh Mujhe Jis ghar Mei Le Gaya Tha Weh Uske Jija Ka Ghar Hai Jo Aksar Band Rehta Hai Va Sarfraz Is Ghar Par Aata Rehta Hai Isliye Mai Use Jaanti Hu).
I have carefully perused and analysed the examinationin chief of PW1 - prosecutrix as well as her statement recorded u/s 164 Cr.P.C. Ex. PW1/B and her statement made to the Police Ex. PW1/A on the aspect of knowing the accused previously. On a conjoint reading and analysis of the same, I find that as such there is no contradiction among them as has been attempted to be portrayed by the Learned Counsel for the accused. Further, if in the estimation of the Learned Counsel for the 85 of 99 86 FIR No. 209/11 PS - Kanjhawala accused, the testimony of PW1 - prosecutrix was not as per the statement made to the Police Ex. PW1/A or as per the statement u/s 164 Cr.P.C. Ex. PW1/B, then he should have sought an explanation from the prosecutrix during her crossexamination and should have confronted her with her statement made to the Police Ex. PW1/A or the statement u/s 164 Cr.P.C. Ex. PW1/B but he failed to do. For such failure accused is to blame himself and none else. Moreover, the so called 'variation' or 'improvement' on the aspect of knowing the accused previously, is merely the 'clarification' or 'elaboration' of facts. The core facts about committal of the crime by the accused upon the prosecutrix remained intact.
In the circumstances, the plea raised regarding holding of Test Identification Parade (TIP) of the accused does not found to have substance.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal 86 of 99 87 FIR No. 209/11 PS - Kanjhawala variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
Learned Counsel for the accused also appeared to have propounded the theory that "Victim was well knowing Sarfraz, that is why Sarfraz met victim 3:00 a.m. and it was not by chance."
The testimony of PW1 - prosecutrix has been discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW1
- prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence.
On careful perusal and analysis of the entire evidence on record, the said theory so propounded by the Learned Counsel for accused Sarfraz is found not only contradictory with the defence evidence led by him but the same has also not at all being made probable much established by any cogent evidence, therefore falls flat to the ground.
87 of 99 88 FIR No. 209/11 PS - Kanjhawala It is also to be noticed, the said theory, so propounded by the accused was not put/suggested to PW1 - prosecutrix during her incisive and lengthy crossexamination. Nor even a single word regarding the said theory so propounded by the accused was uttered by him during his statement u/s 313 Cr.P.C. In the circumstances, the theory so propounded is merely an afterthought and appeared to have been propounded by the accused in order to save his skin from the clutches of law.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for accused submitted that there is no injury in MLC, no mark of any scuffle on body of victim or accused. Even hymen torn (old tear) P/V/2 finger easily. This would easily means that she was of easy virtue.
I have carefully perused and analysed the evidence on record.
The medical/gynaecological examination of the prosecutrix has been discussed and analysed hereinbefore. PW9 - Dr. Hena Kausar 88 of 99 89 FIR No. 209/11 PS - Kanjhawala has proved the gynaecological examination of the prosecutrix as was conducted by Dr. Pooja on the MLC Ex. PW9/A signed by Dr. Pooja at point 'A'. Her testimony, on careful perusal and analysis is found to be clear, cogent and reliable. There is nothing in the crossexamination of PW9 - Dr. Hena Kausar so as to impeach her creditworthiness.
The medical evidence of accused Sarfraz has been discussed and analysed hereinbefore. PW3 Dr. Mahipal Singh, CMO SGM Hospital, Delhi who medically examined patient/accused Sarfraz on 31/08/2011 and deposed that he was of the opinion that there was nothing to suggest that patient/accused Sarfraz cannot perform sexual act vide MLC Ex. PW3/A signed by him at point 'A'.
Despite grant of opportunity, PW3 - Dr. Mahipal Singh was not crossexamined on behalf of accused.
Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda 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 89 of 99 90 FIR No. 209/11 PS - Kanjhawala seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
90 of 99 91 FIR No. 209/11 PS - Kanjhawala As regards the plea that PW1 prosecutrix was of easy virtues is concerned, it is not made clear by the Learned Counsel for accused as to what benefit he intends to reap from the said plea so raised. Does he intend to convey that PW1 - prosecutrix is a girl/woman of "easy virtues" or a girl/woman of "loose moral character".
If it is so, it is not permissible as every woman has a right to protect her dignity and cannot be subjected to rape only for that reason.
In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"
can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 91 of 99 92 FIR No. 209/11 PS - Kanjhawala 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because has is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. PW13 - SI Rajesh Kumar is the IO of this case and hasn't investigated the case in proper manner. In crossexamination IO accepted that he did not make any inquiry from 2 PCR officials (First in morning time and second in evening time), he didn't inquire from any neighbours in the gali, he didn't inquire the owner of the house where the alleged incidence had taken place, no public person was asked to join the proceedings. No other members of the prosecutrix family was inquired into except her parents. He didn't record the statement of Anuradha 92 of 99 93 FIR No. 209/11 PS - Kanjhawala belonging to the NGO who made counseling to the victim. He had not gone inside the room of the place of incidence. If he had gone in the room there might be possibility to get some evidence regarding the incidence.
I have carefully perused and analysed the evidence on record.
The said lapses/discrepancies reflect on the investigation but do not reflect upon the substantive evidence and the probative value of the statement of PW1 - prosecutrix made on material and relevant aspects. Nor do they vitiate or negate the prosecution case which is otherwise proved on record by clear, cogent and convincing evidence. The version on PW1 - prosecutrix on the core spectrum of crime has remained intact.
It is not the case of the accused that the PCR Officials who made the preliminarily inquiries were cited in the list of witnesses and have been withheld by the prosecution. As per section 134 of the Indian Evidence Act, 1872, no particular number of witnesses shall, in any case, be required for the proof of any fact.
It is well settled that if already overwhelming evidence is 93 of 99 94 FIR No. 209/11 PS - Kanjhawala available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Nonexamination of such other witness may not be material.
The Hon'ble Supreme Court in case "Takhaji Hiraji Vs Thakore Kubersing Chamansing", 2001 IV AD (S.C) 393 has observed that : "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which would have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Non examination of such other witnesses may not be material. In such a case the Court ought to scrutinies the worth of the evidence adduced. The Court of facts must ask itself Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question 94 of 99 95 FIR No. 209/11 PS - Kanjhawala of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of the witnesses."
As regards the plea of the Learned Counsel for the accused that PW13 - SI Rajesh Kumar admitted to various lapses made by him during the course of investigation, I have carefully perused and analysed his evidence. His testimony is found to be clear, cogent and a graphic details of the steps which he took during the course of investigation.
Moreover, the lapses/discrepancies pointed out during the crossexamination of PW13 SI Rajesh Kumar do not negate nor do they 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 95 of 99 96 FIR No. 209/11 PS - Kanjhawala SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case 96 of 99 97 FIR No. 209/11 PS - Kanjhawala and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for the accused referred to the cases and are reported as 'State Vs. Anwar Hussain', 2012 (4) LRC 310 (Delhi), 'Ram Babu Vs. State', 2013(4) LRC191 (Delhi), 'Ashok Narang Vs. State', 2012(2) LRC 287 (Delhi), 'Rai Sandeep @ Deepu Vs. State', 2012(8) LRC 210 (SC), 'Div Samal Vs. State', 2012(1) LRC 240 (Delhi) and 'Kamal Vs. State of Haryana', 2013 (6) LRC (P&H).
97 of 99 98 FIR No. 209/11 PS - Kanjhawala I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
27. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 30/08/2011, at about 3:00 a.m. (night) while the prosecutrix aged about 15 years (to be exact 14 years 05 months and 18 days) was going to the public toilet from her house no. B999, J. J. Colony, Sawada Gherva, Delhi accused Sarfraz caught hold of her from behind and pressed her mouth after which he took her to a house and closed the door and 98 of 99 99 FIR No. 209/11 PS - Kanjhawala thereafter forcibly raped the prosecutrix against her wishes and without her consent and when she tried to raise noise, he also criminally intimidated her.
I accordingly hold accused Sarfraz guilty for the offences punishable u/s 376/506 IPC and convict him thereunder.
28. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Sarfraz in the commission of the offences u/s 376/506 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Sarfraz beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Sarfraz guilty for the offences punishable u/s 376/506 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) th on 19 Day of November, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 99 of 99