Delhi District Court
State vs . Hans Kumar on 26 October, 2013
1
FIR No. 48/09
PS - Alipur
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 164/13
Unique ID No. : 02404R0013092010
State Vs. Hans Kumar
S/o Nathu Ram
R/o Dehra, PS - Masoori,
District - Ghaziabad, U.P.
FIR No. : 48/09
Police Station : Alipur
Under Sections : 376/363/366/506/328 IPC
Date of committal to session Court : 04/02/2010
Date on which judgment reserved : 21/10/2013
Date on which judgment announced : 26/10/2013
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 : That on 27/02/2009, complainant Roop Chand Sharma s/o 1 of 99 2 FIR No. 48/09 PS - Alipur Lahare Ram Sharma R/o Village Tiggipur, Delhi came to the police station and got recorded his statement to ASI Jagdish Chander which is to the effect that, he lives at the above said address and does the work of milk selling. He is having three sons and two daughters. Her youngest daughter/prosecutrix (name withheld being a case u/s 376 IPC) is aged about 14 years who stays at home (Jo Ghar Par Rehti Hai). On 18/02/2009, at about 8:30 a.m., her daughter/prosecutrix had gone out of the house for taking/buying chappal and he kept on waiting for her to return home but she did not return to the home. Her daughter/prosecutrix was wearing sprinkled pink (Chintedaar Gulabi) and blue color suit salwar and was having chappal in her feet and was wearing sky color chunni (Aasmani Rang Ki Chunni Odhi Thi), height about 4 ft. 9 inches thin body, wheatish color, having small hair on the head and longish face. Till date he was searching his daughter/prosecutrix of his own and suspects that his daughter/prosecutrix has been enticed away by some unknown person after inducing her. His daughter/prosecutrix be searched out and the appropriate action be taken. He has heard his statement and is correct. On the basis of the statement of the complainant and from the 2 of 99 3 FIR No. 48/09 PS - Alipur circumstances finding that an offence u/s 363 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by ASI Jagdish Chander. During the course of investigation, all DCPs, All SSPs in India, All SHOs in Delhi were sent WT message. The date of birth certificate (D.O.B.) of the prosecutrix was obtained from Sarvodaya Kanya Vidayalaya, Bakhtawarpur, Delhi according to which her D.O.B. has been shown as 01/12/1994. M.P.S. form was filled, Ishtahare Shore Goga was published and information was given to CBI regarding the prosecutrix. Advertisements were published in the newspapers and announcement through Doordarshan was made. Search for the prosecutrix and accused person was made. Statements of the witnesses were recorded. On 21/03/2009, complainant Roop Chand came to the police station and made the statement which to the effect that, a few months back Hans Kumar alongwith his mother Chanderwati, his brother Suraj and his sister was living in his neighbourhood, who used to work in the agriculture fields (Khet). Hans Kumar used to keep on induce his daughter/prosecutrix (Meri Ladki (name withheld) Par Dore Dalta Rehta Tha) and for this, he (complainant) had also snubbed (Daraya Dhamkaya) him (Hans Kumar).
3 of 99 4 FIR No. 48/09 PS - Alipur Since the day, her daughter/prosecutrix is missing, from the same day, 'Hans Kumar is also missing' and for this reason, he fully suspects (Poora Shaq Hai) that Hans Kumar has enticed away his daughter/prosecutrix after inducing her and search for her be made. On the transfer of ASI Jagdish Chander, further investigation was handed over to ASI Ved Pal, who made efforts to trace out the prosecutrix and accused and thereafter, further investigation was handed over to ASI Dharambir Singh. ASI Dharambir Singh during the course of investigation made efforts for tracing out the prosecutrix and accused, but no clue could be found. Request for announcement of award on accused Hans Kumar was made by senior police officials. Bailable warrant and non bailable warrant were obtained against suspected person Hans Kumar. In compliance of the order of the Hon'ble Delhi High Court, the investigation was carried out by Inspector Surender Sund as in the Hon'ble Delhi High Court a Habeas Corpus writ petition had been filed and the Hon'ble Court had directed to carry out the investigation by some other police official. During the course of investigation on 24/10/2009, prosecutrix was recovered from the upper room of the house of Dannu (Dhanu Ke Makan Ke Upar Ke Kamre), Village Kadkad Model, Ghaziabad, U.P. 4 of 99 5 FIR No. 48/09 PS - Alipur Prosecutrix made the statement which is to the fact that, on 18/02/2009 at about 8:00 a.m. she from her house at Tiggi Pur was going to Bakhtawarpur where her Bua lives for buying chappals where on the way Hans Kumar met and he smelt her something whereupon she kept on doing what he asked for. He after making her sit in the bus took her to village Dehra, Ghaziabad and forcibly kept on making physical relations with her. On 24/02/2009, he took her to Ghaziabad Court, where by writing her name as Geeta R/o Bulandshahar, Court got prepared a marriage agreement, on which her thumb impression and signatures were taken and she on finding the original thereof had torn it out (Jiska Maine Original Kagaz, Hath Lagne Par Fad Diye The). He kept her at different places in Dehra and Kadkad, Ghaziabad and whenever she used to say to go to her house, he used to beat (Jab Bhi Mai Ghar Jane Ko Kehti To Maarta Tha). She on being harassed had given in writing the name of her parents to the people so that they (parents) to get her release from the clutches (Maine Pareshan Ho Kar Logon Ko Apne Mata Pita Ka Naam Likh Kar Diya Tha Ki Ve Mujhe Aa Kar Chura Lein). The information regarding which was given by one person to her father, who today on 24/10/2009, got the raid conducted in the houses (on rent) of Hans 5 of 99 6 FIR No. 48/09 PS - Alipur Kumar and of his relatives, under the pressure of which and being perturbed, he (Hans Kumar) went away after leaving her in the house of Dhanno at Kadkad Model (Jo Aaj 24/10/2009 Ko Aapne Hans Kumar Ke Gharon (Kiraye) Va Uske Rishtedaron Ke Gharon Mei Raid Kara Di Jo Dabav Mei Pareshan Ho Kar Mujhe Dhanno Ke Ghar Kadkad Model Mein Chor Kar Chala Gya). Hans Kumar by enticing her, by threatening her and after making her smell something had kidnapped her and had forcibly attempted to perform marriage with her and had forcibly established physical relations with her. On which, sections 366/376 IPC were added in the case. Accused Hans Kumar was arrested and his disclosure statement was recorded. Both the prosecutrix and accused Hans Kumar were medically examined and the sealed exhibits handed over by the doctor after their medical examination were taken into police possession and were deposited in the malkhana. Statements of the witnesses were recorded. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. The sealed exhibits were sent to FSL.
Upon completion of the necessary further investigation, challan for the offences u/s 363/366/376/506/328 IPC was prepared 6 of 99 7 FIR No. 48/09 PS - Alipur against accused Hans Kumar and was sent to the Court for trial.
2. Since the offences under sections 366/376/328 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 328/363/366/376/506(II) IPC was made out against accused Hans Kumar. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 25 witnesses. PW1 - Roop Chand, PW2 - Prosecutrix (name withheld), PW3 - Smt. Mangesh Kumari, Principal, MCD P. School, Tigi Pur, Delhi - 110036, PW4 - Shri Niwas Singhal, TGT S.S.T., Admission Incharge, Sarvodaya Kanya Vidhalaya, Bakhtawarpur, Delhi, PW5 - Sh. Yogesh Kumar, PW6 - Dhannu, PW7 - Kanhiya Lal, 7 of 99 8 FIR No. 48/09 PS - Alipur Advocate, Ghaziabad District Court, UP, PW8 - Sh. Ram Singh, Advocate, Ghaziabad Civil Court, UP, PW9 - Sh. Anar Singh, PW10 - SI Ajeet Singh, PW11 - Dr. Anvita Kaushik, Medical Officer, SRHC Hospital, Narela, Delhi, PW12 - Dr. Rajesh Kumar, Medical Officer, SRHC Hospital, Narela, Delhi, PW13 - HC Sudhir Kumar, PW14 - Lady Constable Poonam, PW15 - Constable Rakesh Kumar, PW16 - SI Ved Pal, PW17 - HC Jitender Kumar, PW18 - SI Jagdish Chander, PW19 - SI Sachin Maan, PW20 - Constable Yashwant and PW21 - Sh. Vishal Singh, Learned MM - 04, Rohini Court Complex, Delhi, PW22 - HC Poonam, PW23 - SI Dharambir Singh, PW24 - Seema Nain, S.S.O., Biology, FSL, Rohini, Delhi, PW25 Inspector Surender Sund (Retired), PW26 Constable Bramdev and PW27 HC Jagdish Chander.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Roop Chand, is the father of prosecutrix who proved his statement made to the police Ex. PW1/A signed by him at point A and also proved the seizure memo of the certificate of the date of birth of her daughter/prosecutrix Ex. PW1/B signed by him at point A and also 8 of 99 9 FIR No. 48/09 PS - Alipur marked the copy of the affidavit of her daughter/prosecutrix reflecting her date of birth Mark A signed by him at point A. PW2 Prosecutrix, is the victim deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. signed by her at point A and also identified her Salwar as Ex. P1 and an underwear as Ex. P2.
PW3 - Smt. Mangesh Kumari, Principal, MCD Primary School, Tigi Pur, Delhi who produced the admission record of the prosecutrix (name withheld) and deposed that as per their admission record prosecutrix (name withheld) was admitted in their School in IInd Class. At the time of admission Sh. Roop Chand father of prosecutrix had given an affidavit mentioning the date of birth of her daughter/prosecutrix as 01/12/1994 and proved the photocopy of admission form Ex. PW3/A (2 pages), copy of the admission register of the students admitted in the year 2001 Ex. PW3/B, copy of the affidavit Ex. PW3/C and further deposed that prosecutrix studied in their school upto Vth Class and thereafter she was transferred to Sarvodya Kanya 9 of 99 10 FIR No. 48/09 PS - Alipur Vidayalava, Bakhtawarpur, Delhi and also proved a certificate issued by her in this regard Ex. PW3/D signed by her at point A. PW4 Shri Niwas Singhal, TGT SST, Admission Incharge, Sarvodya Kanya Vidayalava, Bakhtawarpur, Delhi who deposed that prosecutrix was admitted in their school vide entry number 7358 in class VI on the basis of transfer certificate from MCD Primary School, Tigi Pur mentioning her date of birth as 01/12/1994 and proved the certificate issued by VicePrincipal of their School Ex. PW4/A signed by him at point A and also proved the copy of SLC Ex. PW4/B, copy of the admission form Ex. PW4/C (2 pages) and the copy of the admission register Ex. PW4/D. PW5 Sh. Yogesh Kumar is the brother of prosecutrix who deposed regarding the joining of investigation for tracing out of her sister/prosecutrix and of her recovery and also proved the recovery memo of the prosecutrix Ex. PW5/A signed by him at point 'A'.
PW6 Dhannu, who deposed that he does not know 10 of 99 11 FIR No. 48/09 PS - Alipur anything about this case. Neither he knows anything about the case. He was also crossexamined by the learned Addl. PP for State.
PW7 Sh. Kanhaiya Lal Advocate Ghaziabad Court, Distt. Ghaziabad UP who deposed that he is practicing as an advocate at Ghaziabad District Court, U.P. and on 24/02/2009, he had identified one boy namely Hans Raj and a girl namely Geeta who had stated their age as 22 years and 20 years respectively on their marriage agreement and got it Notraised. The photocopy of the marriage agreement is Ex. P1. He had identified the said boy and the girl at point 'A' on Ex. P1. He had also identified the joint photograph of the said boy and the girl affixed at point 'B' and also identified their thumb impressions at Points 'C' and 'D' on Ex. P1 and stated that the said marriage agreement was seized by the IO vide seizure memo Mark 'A' but stated as much time has been elapsed so he cannot identify that boy and that girl.
PW8 Sh. Ram Singh Adv. Ghazaiabad, Civil Court, UP has deposed that he is practicing as an Advocate at Ghaziabad Civil Court, U.P. and having power of Notary Public in the year, 2009 and his 11 of 99 12 FIR No. 48/09 PS - Alipur chamber no. 11, at Civil Compound, Ghaziabad. On 24/02/2009 he had notarized the marriage agreement of one boy namely Hans Raj and a girl namely Geeta who had stated their age as 22 years and 20 years respectively and identified their photos and thumb impressions by Advocate Sh. Kanhiya Lal on affidavit Ex. P1 and on the identification of Sh. Kanhiya Lal, Advocate he had affixed Notarized stamp at Point 'E' and signed by him at point 'F' on their marriage agreement Ex. P1. Both the boy Hans Raj and girl Geeta had signed his register on 24/02/2009 as per entry at Serial No. 1 at points 'A' & 'B' but stated as much time has been elapsed so he cannot identify that boy and that girl.
PW9 Anar Singh, in whose house accused with prosecutrix resided has a tenant has deposed that accused Hans Raj resided in their house as a tenant for about 1015 days. He started residing in their house on 15/10/2009 alongwith a girl whom he used to state as his wife. He does not remember the name of the girl. During their stay for about 5/7 days he came to know that the girl is the one who had ran away from her house, therefore, he asked them to vacate his house. One day the girl called him as 'Papaji' and by such calling he became more affectionate 12 of 99 13 FIR No. 48/09 PS - Alipur towards her. He had got vacated his house after about 10/11 days. Thereafter, they shifted in the house of Dhanu which is situated towards the outer perifry of the village. The girl herself had told that she had ran away from her house. Later on, he came to know that both girl and the boy were arrested by the Police. The girl had told him that she is the resident of Sungarpur and her father's name as Roop Chand Sharma. He had contacted Sh. Roop Chand Sharma.
On a leading question by the Addl. PP for state he deposed that the name of the girl which has called him as "Papaji" might be prosecutrix (name withheld).
PW10 SI Ajit Singh, is the duty officer who proved the computerised copy of FIR Ex. PW10/A and also proved his endorsement Ex. PW10/B signed by him at point A on the Rukka.
PW11 Anvita Kaushik, Medical Officer, SRHC Hospital Narela who proved the gynecological examination of prosecutrix as was conducted by Dr. Kavita from portion A to A1 of the back side of MLC Ex. PW11/A signed by Doctor Kavita at point A. 13 of 99 14 FIR No. 48/09 PS - Alipur PW12 Dr. Rajesh Kumar Medical officer, SRHC Hospital Narela who conducted the medical examination of prosecutrix on 25/10/09 vide MLC Ex. PW11/A signed by him at point B. He further deposed on 25/10/09 itself he also examined patient/accused Hans kumar and his sexual character were fully developed and he was of the opinion that there is nothing to suggest that he cannot perform sexual intercourse and proved the MLC Ex. PW12/A signed by him at point A. PW13 HC Sudhir Kumar who joined investigation on 24/10/09 with the IO and proved the recovery memo of prosecutrix PW5/A and signed by him at point A and also proved the arrest memo of accused Hans Kumar Ex. PW13/A his personal search memo Ex. PW13/B and his disclosure statement is Ex. PW13/C signed by him at point A. PW14 Lady Ct. Poonam who joined investigation with the IO on 24/10/09 and deposed on the investigation aspect and proved the recovery memo of prosecutrix PW5/A and signed by him at point A. 14 of 99 15 FIR No. 48/09 PS - Alipur PW15 Ct. Rakesh Kumar who deposed on 24/10/09 and 25/10/09 joined the investigation with the IO and deposed on the investigation aspects and also proved recover memo of prosecutrix PW5/A , arrest memo of accused Hans Kumar Ex. PW13/A his personal search memo Ex. PW13/B and his disclosure statement is Ex. PW13/C. PW16 SI Veer Pal who deposed that on 26/06/2009, he was working as ASI at PS - Alipur. On that day, investigation of the case was transferred to him as ASI Jagdish Chander was transferred from PS
- Alipur. He searched the prosecutrix and accused but all his efforts were in vain. He also attended the Hon'ble High Court on 21/07/2009 in the writ of Habeas Corpus and the same was adjourned to 24/08/2009 and further investigation of the case was transferred to ASI Dharambir on 26/07/2009 from him.
PW17 HC Jitender Kumar who produced the details of the involvement of the accused Hans Kumar in PS Alipur and deposed that as per record, he is involving only in this case i.e. FIR No. 48/09. He 15 of 99 16 FIR No. 48/09 PS - Alipur had also confirmed his involvement from PS - Masuri, District Ghaziabad where the residence of was situated and there also he is not involving in any case and proved the report in this regard Ex. PY.
PW18 SI Jagdish Chander who is Investigation Officer (IO) of the case and deposed on investigation aspect and proved his attestation signed by him at point X on the statement Ex. PW1/A and also proved his endorsement Ex. PW18/A signed by him at point 'X1'. Besides proving the seizure memo of the age proof of prosecutrix Ex. PW1/A and signed by him at point 'B' and the certificate issued by Vice Principal of the school showing the date of birth of the prosecutrix Ex. PW4/A. PW19 SI Sachin Maan who joined investigation on 24/10/2009 and deposed on investigation aspects and also proved the recovery memo of prosecutrix Ex. PW5/A. PW20 Constable Yashwant who joined investigation on 24/10/2009 and deposed on investigation aspects and also proved the 16 of 99 17 FIR No. 48/09 PS - Alipur recovery memo of prosecutrix Ex. PW5/A arrest memo of accused Hans Kumar Ex. PW13/A his personal search memo Ex. PW13/B signed by him at point B respectively.
PW21 Sh. Vishal Singh Learned MM who recorded the statement of prosecutrix U/s 164 Cr.PC and proved his endorsement Ex. PW 21/A signed by him on the point A on the application for recording the statement 164 Cr.PC and deposed that he recorded the statement of prosecutrix U/s 164 Cr.PC and proved the proceedings as PW 21/B running in 3 pages signed by him at point A to E and also proved his endorsement at point A on the application Ex. PW21/C vide which copy of statement was supplied to the IO.
PW22 - HC Poonam who on 25/10/2009 alongwith IO Inspector Surender Sund took the prosecutrix for medical examination deposed that the prosecutrix was medically examined and thereafter Doctor handed over the pullinda containing the exhibits alongwith sample seal, which were seized by the IO vide seizure memo Ex. PW22/A, bearing her signature at point 'A'.
17 of 99 18 FIR No. 48/09 PS - Alipur PW23 - SI Dharambir Singh who deposed that on 29/07/2009 investigation of the present case was marked to him. He inspected the file and found that neither the prosecutrix was found nor the accused has been arrested. He searched accused Hans Kumar and prosecutrix (name withheld) but they were not found and on 23/10/2009, the case was handed over to Inspector Surender Sund for further investigation.
PW24 - Seema Nain, S.S.O., Biology, FSL, Rohini, Delhi who deposed that on 06/07/2010, nine sealed parcels were received in their Office for examination and the same were marked to her for examination. She has proved the biological and serological reports Ex. PW24/A and Ex. PW24/B respectively signed by her at points 'A'.
PW25 - Inspector Surender Sund (Retired) is the Investigating Officer (IO) of the case who deposed that on 24/10/2009 he was posted as Inspector SHO PS - Alipur, Delhi and on that day investigation of the present case was taken over by him on the direction 18 of 99 19 FIR No. 48/09 PS - Alipur of the Hon'ble Delhi Hight Court in the matter of Habeas Corpus filed by complainant Roop Chand Sharma in the present case and deposed on the investigational aspects and proved the recovery memo of prosecutrix Ex. PW5/A bearing his signature at point 'Z' and proved the arrest memo of accused Hans Kumar Ex. PW13/A, his personal search memo Ex.PW13/B, his disclosure statement Ex. PW13/C, all bearing his signatures at point 'X', seizure memo of Anubandh (Agreement of the contract) Ex. PW15/A bearing his signatures at point 'A'. Agreement is already Ex. P1 and proved the seizure memo of the sealed exhibits as were handed over by the Doctor after the medical examination of prosecutrix and accused Hans Kumar Ex. PW22/A and Ex. PW15/A respectively bearing his signatures at point 'B' and further deposed that on 26/10/2009, he moved the application u/s 164 Cr.P.C. for recording the statement of the prosecutrix Ex. PW25/B and obtained the copy of the same vide application Ex. PW25/C bearing his signature at point 'A' and further deposed that the sealed exhibits were sent to FSL and after completing the investigation, challan was prepared and filed in the Court. Later on, FSL Result was collected and file din the Court.
19 of 99 20 FIR No. 48/09 PS - Alipur PW26 Constable Bramdev deposed that on 06/07/2010, on the instructions of IO, he took nine sealed pullindas alongwith sample seal from the MHC(M) for depositing it in FSL vide RC No. 74/21/10. He deposited the same in FSL Rohini and thereafter deposited the acknowledgment receipt of the pulindas in the Malkhana. The sealed pulinda remained intact during his custody.
PW27 HC Jagdish Chander deposed that on 25/10/2009, Inspector Surender Sund, SHO deposited nine pulindas sealed with the seal of SRHC Hospital alongwith sample seal in the Malkhana. He made entry at serial no. 2431 in register no. 19.
On 06/07/2010, on the instructions of IO, nine sealed pulindas alongwith sample seal were handed over to Constable Brahm Dev for depositing in the FSL, Rohini vide RC No. 74/21/10. After depositing the same in FSL, he (Constable Brahm Dev) had deposited the acknowledgment receipt of the pullinda with him. He also proved the copy of the relevant entry of register no. 19 is Ex. PW27/A, the copy of relevant entry of register no. 21 is Ex. PW27/B and copy of the acknowledgment receipt is Ex. PW27/C and further deposed that the 20 of 99 21 FIR No. 48/09 PS - Alipur sealed pullindas remained intact during his custody.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Hans Kumar was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and did not opt to lead any defence evidence.
7. Learned Counsel for accused submitted that PW1 - Roop Chand who is the complainant/father of the prosecutrix in his examinationinchief has deposed that, "I handed over the certificate of date of birth of prosecutrix (name withheld) to the IO, which was taken into possession vide memo Ex. PW1/B which bears my signatures at point 'A'". Learned Counsel submitted that here it is important to note that there is no date of birth certificate issued by any municipal or civil authority, rather there is a certificate issued by School Authorities.
Learned Counsel submitted that during his cross examination, PW1 - Roop Chand has stated that, "I had not made any 21 of 99 22 FIR No. 48/09 PS - Alipur PCR Call or had gone to the PS, when I came to know that my daughter/prosecutrix (name withheld) is missing." Learned Counsel for the accused submitted that it is pertinent to note herein that there is a delay of about 10 days in lodging the report of missing of daughter of complainant with Police and this delay has not been explained neither by the complainant nor by the Investigating Agency. Moreover, it is highly unbelievable that in today's computer and mobile age, one parent/guardian even do not make/lodge any complaint with 100 number PCR for full 10 days when his child (daughter) were missing and that too in the capital Delhi, further it is ample clear that complainant is not a novice or a person who lacks basic intelligence. He himself has stated to be a businessman engaged in selling milk.
Further, PW1 has stated in his crossexamination that, "I alongwith family members went to village Bakhtawarpur in the market for her search. But when she did not find, we search in our relations in Faridabad, Ballabhgarh and in the side of Sonipat, Haryana. I alongwith my family members made every effort for her search (Confronted with Ex. PW1/A where it is not so recorded) and I had not lodged any complaint with the Police officials against the accused that he used to 22 of 99 23 FIR No. 48/09 PS - Alipur tease my daughter. "I had told to the Police in my complaint Ex. PW1/A that accused Hans Kumar used to tease my daughter/prosecutrix (name withheld) on so many occasions. I threatened him on this aspect. Accused Hans Kumar was also found missing from the date of missing of my daughter. I suspected the accused Hans Kumar had enticed my daughter (Confronted with Ex. PW1/A where it is not so recorded). I had not got registered the date of birth of my daughter with MCD. I cannot say whether the age of my daughter was 1011 years when she was admitted in 2nd class and cannot say with certainty whether my daughter/prosecutrix (name withheld) was born prior to the death of Rajiv Gandhi. It is wrong to suggest that I had furnished the affidavit in School for the purpose of getting her admitted in School only.
Learned Counsel for accused further submitted that PW2 - prosecutrix in her examinationinchief has deposed that, "on 18/02/2009 at about 8:00 - 8:30 p.m. I went to village Bakhtawarpur where my Bua (sister of my father) was residing. I went there to purchase slippers. On the isolated place on the way accused Hans Kumar present in the Court today met me and he inhaled me some poisonous substance as a result of 23 of 99 24 FIR No. 48/09 PS - Alipur which I went into the condition of unconsciousness. I acted upon his instructions due to consciousness and he took me to Ghaziabad, U.P. where his sister was residing where he gave me some beatings and tried to make physical relations with me. Accused also made physical relations "Galat Sambandh" i.e. he had done Balatkar with me forcibly. Thereafter, accused Hans Kumar took me to Ghaziabad Court and he forced me to get marry with him and he disclosed my wrong name and address as Geeta in Ghaziabad Court and he forced me to disclose my age as 18 years. Accused forcibly married me on fictitious basis."
In her crossexamination PW2 - prosecutrix has stated that, "I can read Hindi language. I cannot tell when I started going to School. I had studied upto 5th class in village Tigipur but I do not remember when I left the said School. I joined Kanya Vidhalaya in village Bakhtawarpur thereafter and left the School in the year, 2008. I joined the Tigipur School in class 2nd. It is wrong to suggest that my age was about 1011 years when I joined the Tigipur Village School in class 2nd. My parents might have deposited my date of birth certificate with the School authorities at the time of my admission in Tigipur School. Again 24 of 99 25 FIR No. 48/09 PS - Alipur said, I do not remember whether my parents had deposited the birth certificate at the time of admission in Tigipur School, I did not hand over my birth certificate to the IO. My father can tell about my birth certificate".
Learned Counsel for accused further submitted that from the crossexamination of PW1 - Roop Chand, father of the prosecutrix and PW2 - prosecutrix, it becomes crystal clear that there is birth certificate of prosecutrix available and it had been deliberately not brought on record by the Investigating Agency as that would have clearly established that prosecutrix was about the age of 18 years i.e. a major at the time of alleged incident. Further no enquiry or record has been produced by the Investigating Agency about/regarding the first School attended by the prosecutrix as she herself has told/deposed before the Court that she got admitted in School at village Tigipur in class 2nd, thus the simple School that remained unanswered is that from which School she did/passed 1st standard. Furthermore, according to version of PW2 in her crossexamination her parents (father) were in the possession of her date of birth certificate.
25 of 99 26 FIR No. 48/09 PS - Alipur Then further she (PW2) has stated in her crossexamination that, "My statement was recorded by the Police officials at PS - Alipur only once. I had read my statement recorded by the Police officials of PS - Alipur. I had stated to the Police in my statement u/s 161 Cr.P.C. that, "he used to tease me and make to physical relations forcibly." (Confronted with Ex. PW2/DA where the fact and make to physical relations forcibly is not recorded). The village Bakhtawarpur is about 1015 minutes on foot. The market in the village Bakhtawarpur opens at 9:00 a.m. It is correct that the main road leading towards Bakhtawarpur has residences and shops by its side. Vol. I had not been using the said road for to and fro and used the paraller (parallel) deserted road as the distance from the deserted road was comparatively lesser and house of my Bhua was also falls in. I had not disclosed about it in my statement under section 161 Cr.P.C. and 164 Cr.P.C. It is wrong to suggest that there is not said paraller (parallel) deserted road leading towards village Bhaktawarpur. I did not show the said road or the spot to the Police officials. I went to Ghaziabad by bus. I cannot tell about the bus as the same was chartered bus or DTC one. Probably 34 buses were changed when we went to Ghaziabad on the way to Ghaziabad I did not 26 of 99 27 FIR No. 48/09 PS - Alipur raise any alarm or alerted my copassengers that I was being taken forcibly against my wishes. It is correct that the house where I was taken by the accused in Ghaziabad U.P. alleged to be of the sister of the accused is situated in a residential area. It is wrong to suggest that the family of in laws of sister of accused was also residing in the house. Vol. Sister was residing alone in the said house. While going alone with accused I did not make any noise as I was unconscious and my mind was not working and so long as I remained in the house, accused did not permit me to come out and so I was not able to make any noise. It was a single storied house and there was only one room on the ground floor. It is correct that there was no toilet inside the said house and the toilet was situated on the back side of the said house at a distance of about 2530 steps and there were several other toilets situated there. I never raised alarm whenever I went for easing myself out at the toilets. Vol. The sister and niece of the accused always accompanied me moreover the entire native residents of the village were also aware about me and were hand in glove with the accused and never helped me. It is correct that I had not stated to the Police officials in my statement u/s 161 Cr.P.C. as well as my statement u/s 164 Cr.P.C. recorded by the Magistrate that 27 of 99 28 FIR No. 48/09 PS - Alipur accused had made physical relations, "Galat Sambandh" i.e. Balatkar with me forcibly at the house of his sister. Vol. Police officials had only asked me whether accused had raped me or not at the time of recording of the statement. It is correct that the Office of SSP, Ghaziabad is situated just outside the entrance gate of the Court on the right side and there is a Police Chowki at the entrance gate of the Court. I had not raised any alarm while going to Ghaziabad Court even on seeing the Police officials. I do not know whether I was taken before the magistrate for performing of marriage. I had not raised the alarm in the Court premises before the public persons present in the Court at Ghaziabad. Vol. Accused had threatened me with dire consequences would be meted to me and my family members. I did not raise any alarm even at the Court where marriage documents were prepared as I was afraid from the accused. ......................... I had not told to the Police in my statement under section 161 Cr.P.C. or before the Magistrate in my statement u/s 164 Cr.P.C. that, "on one day, accused went somewhere and his mother also went somewhere, at that time, the owner of the said house came and inquired from me, "that Beeti Kya Baat Hai Tere Ko Yeh Kyon Marte Peethe Hain". I disclosed all the facts to the landlord and told him that 28 of 99 29 FIR No. 48/09 PS - Alipur accused had kidnapped me and also did wrong act with me in the mean time, accused Hans Kumar reached there and heard the conversation, thereafter, he took me to some another place". It is correct that accused used to work as a Painter even during the period when we were residing at Kadkad village, Ghaziabad. It is correct that accused used to go for his work at 8:00 a.m. and returned back by 7 a.m. (be read as 7:00 p.m.) but he used to go occasionally. It is incorrect to suggest that I was residing with the accused in capacity of his wife however, accused had told to the neighbour that I am his wife. It is wrong to suggest that I used to go alongwith the accused for purchasing vegetables and other grocery items in the market and also used to visit the nearby Mangal Bazar for the same purpose............... It is wrong to suggest that accused was on visiting terms in our house when I used to reside with my parents. Vol. Accused was working with my brother.
Learned Counsel for the accused submitted that from the above contents of crossexamination of PW2 - prosecutrix, it could be easily made out that there was no enticing or forcible removal of prosecutrix (PW2) and furthermore, she has not denied about her visit to Ghaziabad Courts with accused for the purpose of marriage. Prosecutrix 29 of 99 30 FIR No. 48/09 PS - Alipur has also admitted that there were public persons at each place and each time in her surroundings i.e. when she went to Ghaziabad with accused in buses (after interchanging buses) then in Ghaziabad Courts, (District Courts even Police officials were there) and also at the place where she was residing with accused as his wife.
Learned Counsel for accused further submitted that PW3 - Smt. Mangesh Kumari has deposed about the School Admission Record of prosecutrix from Class II and uptill Class Vth when she left the School.
He submitted that it is nowhere mentioned and clarified either by prosecutrix and her father or by the Investigating Agency, from which School prosecutrix has studied in class I or nursery and on what basis/record, she got admission in Class II (eligibility criteria) without any record of class I or before (nursery class etc.). Moreover, PW3 in her crossexamination admitted that "It is correct that signatures of father does not appear on Ex. PW3/A in two pages".
Learned Counsel for the accused submitted that PW4 - Shri 30 of 99 31 FIR No. 48/09 PS - Alipur Nivas Singhal has brought the record pertaining to the admission of prosecutrix in 6th class in their School.
During his crossexamination, PW4 Shri Niwas Singhal has stated that, "It is correct that name of the mother mentioned in Ex. PW4/C is Maha Devi. We do not ask for the birth certificate of the student at the time of admission."
Learned Counsel for accused further submitted that it is clear from admission records i.e. records proved/exhibited by PW3 - Smt. Mangesh Kumari and PW4 - Shri Nivas Singhal are not in consonance with each other and there are differences in the name of parents and furthermore it is apparent that prosecutrix age was not shown correctly or her correct age has been suppressed just to get her admitted in School.
Learned Counsel for accused further submitted that PW5 - Yogesh Kumar is the brother of the prosecutrix who joined investigation on 24/10/2009 at the time of recovery of prosecutrix.
In his crossexamination, PW5 - Yogesh Kumar has stated that, "It is correct that I have not signed Ex. PW5/A at point 'X' as well 31 of 99 32 FIR No. 48/09 PS - Alipur as at point 'A'. It is correct that I have signed Ex. PW5/A at point 'A' and 'X' at PS - Alipur............... It is correct that when I met my sister on 24/10/2009, she was dressed up like a married girl and had wore saree, mangalsutar and had also put sindur in her forehead. Again said, I am not sure whether she had sindur in her forehead........ Photographs mark PW5/DA and mark PW5/DB was not given by my sister to the Police on 24/10/2009."
Learned Counsel for accused submitted that from above, it becomes evident that Ex. PW5/A and other documents were prepared at PS - Alipur, subsequently, and because of the said reason, PW5 had signed them at PS - Alipur. Secondly, it becomes crystal clear that prosecutrix was living at Ghaziabad with accused as his legally wedded wife. Moreover, mark PW5/DA and mark PW5/DB proves the fact beyond all reasonable doubts that prosecutrix was living as a wife with accused and enjoying married life.
PW5 - Yogesh Kumar in his crossexamination has further stated that, "It is correct that no Police officials from Ghaziabad Police had accompanied us when we went in search of prosecutrix. I cannot say 32 of 99 33 FIR No. 48/09 PS - Alipur whether IO had shown the search warrants to the public persons at Ghaziabad whose houses were searched by us. I do not know whether IO had seized any documentary proof from the lady Dhanno regarding the capacity in which she was residing in the said house. It is correct that public persons from neighbourhood gathered at the house of Dhanno when we went there. .........Vol. As soon as we recovered my sister, IO immediately accompanied my sister, myself alongwith one Lady Constable left the spot in the Police vehicle. I cannot say whether IO had informed the local Police of the area from where my sister was recovered. IO had not recorded the statement of any public person at Ghaziabad on 24/10/2009 from whom inquiries were made.
Learned Counsel for accused submitted that from the above contents of the crossexamination of PW5 - Yogesh Kumar, it is evident that no rules or proper procedure were followed by the Investigating Agency and rather, they had acted like goons/antisocial elements. From their conduct, as they just picked up the prosecutrix from her house and brought her to PS with her family members (parents). Though, it is the claim of Investigating Agency that they were conducting the proper 33 of 99 34 FIR No. 48/09 PS - Alipur investigation but its nature and impact and result casts serious doubts on this claim.
Learned Counsel for accused further submitted that PW7 - Sh. Kanhiya Lal, Advocate during his crossexamination has stated that, "it is correct that the boy and girl had stated to me that they had married. They were looking cheerful."
Learned Counsel for accused further submitted that PW8 - Ram Singh, Advocate in his crossexamination has stated that, "it is correct that both the boy and the girl, when had come to me, they were dressed in their marriage dress and also told me, on inquiry, that they had married each other. They were looking cheerful."
Learned Counsel for accused further submitted that PW9 - Anar Singh in his examinationinchief had deposed that, "accused Hans Kumar resided in our house as a tenant for about 10 to 15 days.......... The girl herself had told that she had run away from her house. Later on, I came to know that both girl and the boy were arrested by the 34 of 99 35 FIR No. 48/09 PS - Alipur Police........ I had contacted Sh. Roop Chand Sharma.
During his crossexamination, PW9 - Anar Singh has stated that, "It is correct that both boy and the girl were presenting as a married couple and living a normal life as is generally lead by a common married couple. Both boy and the girl used to bring the household articles together and also used to roam around in the locality........ I had stated to the Police in my statement u/s 161 Cr.P.C. that after vacating my house, they had shifted to the house of Dhanno (Confronted with the statement mark P9D where it is not so recorded).
Learned Counsel for accused further submitted that from above, it becomes crystal clear that there is no iota of evidence (credible) against the accused and it is a clear cut case of marrying voluntarily out of love on the part of prosecutrix with accused and later on, implicating the accused in the present case at the instance of her parents and the Learned Counsel prayed for the acquittal of the accused Hans Kumar from all the charges levelled against him.
35 of 99 36 FIR No. 48/09 PS - Alipur
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. Aseem Bhardwaj, Learned Amicus Curiae for the accused and have also carefully perused the entire record.
10. The charge for the offences punishable u/s 328/363/366/376/506(II) IPC against accused Hans Kumar is that on 18/02/2009, at about 8:00 a.m. At village Tigipur, he administered (made to inhale) to prosecutrix (name withheld) certain poison or stupefying thing with intent to commit or to facilitate the commission of an offence upon the prosecutrix (name withheld) and that on the abovesaid, date, time and place, he kidnapped the prosecutrix (name withheld) (minor girl - aged about 14 years) from the lawful guardianship of her parents 36 of 99 37 FIR No. 48/09 PS - Alipur with intent that she may be compelled to marry against her will or in order that she may be forced to illicit intercourse and after kidnapping the prosecutrix (name withheld) he had taken her to different places at District Ghaziabad, U.P. and repeatedly raped her till 24/10/2009 and during the abovesaid period, he criminally intimidated prosecutrix (name withheld) to kill her and her family members with intent to cause alarm to her.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW1 - Roop Chand, father of the prosecutrix in his examinationinchief has deposed that : "I handed over the certificate of date of birth of prosecutrix (name withheld) to the IO which was taken into possession vide memo Ex. PW1/B which bears my signatures at point 'A'. I also handed over 37 of 99 38 FIR No. 48/09 PS - Alipur the copy of the affidavit reflecting the date of birth of my daughter which is Mark 'A', it bears my signatures at point 'A'."
During his crossexamination, PW1 - Roop Chand negated the suggestions that he had furnished the affidavit in the School for the purpose of getting her admitted in the School only or that the age of his daughter at the time of registration of the present case was about 20 years or that he had falsely mentioned her wrong age before the School Authorities for getting her admitted in the School.
PW2 - prosecutrix during her crossexamination recorded on 27/11/2010 has deposed that : "I can read Hindi language. I cannot tell when I started going to School. I had studied upto 5th class in a village Tigipur but I do not remember when I left the said School. I joined Kanya Vidhalaya in village Bakhtawar Pur thereafter and had left the School in the year, 2008. I joined Tigipur School in class 2nd. It is wrong to suggest that my age was about 1011 years when I joined the Tigipur Village School in class 2nd."
PW3 - Smt. Mangesh Kumari, Principal, MCD Primary School, Tigi Pur, Delhi who produced the admission record of the prosecutrix (name withheld) and deposed that as per their admission 38 of 99 39 FIR No. 48/09 PS - Alipur record prosecutrix (name withheld) was admitted in their School in IInd Class. At the time of admission Sh. Roop Chand father of prosecutrix had given an affidavit mentioning the date of birth of her daughter/prosecutrix as 01/12/1994 and proved the photocopy of admission form Ex. PW3/A (2 pages), copy of the admission register of the students admitted in the year 2001 Ex. PW3/B, copy of the affidavit Ex.PW3/C and further deposed that prosecutrix studied in their school upto Vth Class and thereafter she was transferred to Sarvodya Kanya Vidayalava, Bakhtawarpur, Delhi and also proved a certificate issued by her in this regard Ex. PW3/D signed by her at point 'A'.
PW4 Shri Niwas Singhal, TGT SST, Admission Incharge, Sarvodya Kanya Vidayalava, Bakhtawarpur, Delhi who deposed that prosecutrix was admitted in their school vide entry number 7358 in class VI on the basis of transfer certificate from MCD Primary School, Tigi Pur mentioning her date of birth as 01/12/1994 and proved the certificate issued by VicePrincipal of their School Ex. PW4/A signed by him at point A and also proved the copy of SLC Ex. PW4/B, copy of the admission form Ex. PW4/C (2 pages) and the copy of the admission 39 of 99 40 FIR No. 48/09 PS - Alipur register Ex. PW4/D. There is nothing in the crossexamination of PW3 - Smt. Mangesh Kumari and PW4 - Shri Niwas Singhal so as to impeach their creditworthiness. No 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 the prosecutrix is 01/12/1994.
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 40 of 99 41 FIR No. 48/09 PS - Alipur examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
As the date of alleged incident is of 18/02/2009 and the date of birth of the prosecutrix is 01/12/1994, on simple arithmetical calculation, the age of prosecutrix comes to 14 years, 02 months and 17 days as on the date of incident on 18/02/2009.
In view of above and in the circumstances, it stands established on record that PW2 prosecutrix was aged 14 years, 02 months and 17 days as on the date of alleged incident on 18/02/2009. Hence, a minor.
13. Learned Counsel for the accused submitted that no reliable and trustworthy proof of date of birth of prosecutrix despite the fact that it was available and deliberately not produced as admitted by PW2 - prosecutrix and also by the IO as to how prosecutrix got admitted in class 2nd without attending class 1st. Learned Counsel for accused further 41 of 99 42 FIR No. 48/09 PS - Alipur submitted that it is clear from admission records i.e. records proved/exhibited by PW3 - Smt. Mangesh Kumari and PW4 - Shri Nivas Singhal are not in consonance with each other and there are differences in the name of parents I have carefully perused and analysed the evidence on record.
All the relevant and material evidence on the aspect of age of prosecutrix has been discussed, detailed and analysed hereinabove. At the cost of repetition, it stands established on the record that PW2 - prosecutrix was aged 14 years, 02 months and 17 days as on the date of incident on 18/02/2009. Admittedly, no evidence to the contrary has been produced or led by the accused on the record.
As regards the plea as to how prosecutrix got admitted in Class 2nd without attending Class 1st is concerned, PW1 - Roop Chand, father of the prosecutrix, in his examinationinchief has specifically deposed that : "I handed over the certificate of date of birth of prosecutrix (name withheld) to the IO which was taken into possession vide memo Ex. PW1/B which bears my signatures at point 'A'. I also handed over the copy of the affidavit reflecting the date of birth of my daughter 42 of 99 43 FIR No. 48/09 PS - Alipur which is Mark 'A', it bears my signatures at point 'A'."
The copy of affidavit Mark 'A' has been marked as Ex. PW3/C in the evidence of PW3 Smt. Mangesh Kumari. On perusal of affidavit Ex. PW3/C, it is found to have specifically mentioned therein : "1. That she (prosecutrix) is my real daughter.
2. That correct and exact date of birth is (of) my daughter is 01/12/1994 (1st day of Dec. Nineteen hundred ninety four).
3. That she has not studied in any Govt. or recognised school so far but she is studied up to 1st class standred (standard) privately."
As regards the plea that there are differences in the name of parents in the admission records proved by PW3 - Smt. Mangesh Kumari and PW4 - Shri Niwas Singhal is concerned, in all the documents Ex. PW3/A, Ex. PW3/B, Ex. PW3/C and Ex. PW3/D, proved by PW3 - Smt. Mangesh Kumari, the name of father of prosecutrix has been specifically mentioned as 'Roop Chand' except on the admission card (Pravesh Patra) of the second page of Ex. PW3/A where at the place "signature - Father/Guardian" thumb impression of illiterate mother - Shobha is affixed. Further in all the documents Ex. PW4/A, PW4/B, PW4/C and PW4/D, proved by PW4 - Shri Niwas Singhal, name of the 43 of 99 44 FIR No. 48/09 PS - Alipur father of prosecutrix is specifically mentioned as 'Roop Chand' except in Admission Form Ex. PW4/C (2 pages) and admission register Ex. PW4/D, the name of the mother as 'Maha Devi' has been shown.
Information on this aspect regarding variation in the name of mother must have been elicited by the accused during the cross examination of PW1 - Roop Chand, father of prosecutrix, PW2 - prosecutrix and PW5 Yogesh Kumar, brother of the prosecutrix which he failed to do so. For such failure, accused is to blame himself and none else. Even otherwise, the fact regarding the age of the prosecutrix has been proved on record by clear, cogent and convincing evidence.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW12 - Dr. Rajesh Kumar, Medical Officer, SRHC Hospital, Narela, Delhi deposed that on 25/10/2009, he was working as CMO in SRHC Hospital. On that day, Constable Poonam brought patient/prosecutrix (name withheld), D/o Roop Chand Sharma for medical examination with the alleged H/o sexual assault and patient was 44 of 99 45 FIR No. 48/09 PS - Alipur referred to SR, Gynae for medical examination and proved the MLC Ex. PW11/A signed by her at point 'B'.
PW11 - Dr. Anvita Kaushik, Medical Officer, SRHC Hospital Narela who proved the gynecological examination of patient/prosecutrix as was conducted by Dr. Kavita from portion 'A' to 'A1' of the back side of MLC Ex. PW11/A signed by Doctor Kavita at point 'A'.
The relevant part of the examinationinchief of PW11 - Dr. Anvita Kaushik reads as under : "Doctor Kavita examined the patient and as per record the patient was well oriented with time, place and person. On local examination hymen was ruptured, vagina admitted two fingers, cervix healthy, no discharge. Uterus was anteverted normal in size and bilateral fornices free. UPT was negative. Samples of pubic hair, nail clippings, vaginal slides and endocervical slide and swab were taken and under garments i.e. Salwar (Pyjama) were sealed and handed over to the IO. The examination portion 'A' to 'A1' on the back side of the MLC is Ex. PW11/A signed by Dr. Kavita at point 'A'."
There is nothing in the crossexamination of PW12 - Dr. Rajesh Kumar and PW11 - Dr. Anvita Kaushik so as to impeach her creditworthiness.
45 of 99 46 FIR No. 48/09 PS - Alipur In view of above and in the circumstances, the medical and the gynaecological examination of PW2 - prosecutrix vide MLC Ex. PW11/A and from portion 'A' to 'A1' on the back side of the MLC Ex. PW11/A stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW12 Dr. Rajesh Kumar Medical officer, SRHC Hospital Narela who deposed that on 25/10/09 he was working as CMO in SRHC Hospital and on that day he examined patient/accused Hans Kumar and his sexual character were fully developed and he was of the opinion that there is nothing to suggest that he cannot perform sexual intercourse and proved the MLC Ex. PW12/A signed by him at point 'A'.
There is nothing in the crossexamination of PW12 - Dr. Rakesh Kumar so as to impeach his creditworthiness.
In the circumstances, it stands clearly established on the record that accused Hans Kumar was capable to perform the sexual intercourse.
46 of 99 47 FIR No. 48/09 PS - Alipur BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW24 - Seema Nain, S.S.O., Biology, FSL, Rohini, Delhi who deposed that on 06/07/2010, nine sealed parcels were received in their Office for examination and the same were marked to her for examination. She has proved the biological and serological reports Ex. PW24/A and Ex. PW24/B respectively signed by her at points 'A'.
The biological report Ex. PW24/A reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA, DELHI" containing exhibits '1a' and '1b' stated to be of prosecutrix.
Exhibit '1a' : One microslide having faint whitish smear described as 'Endocervical slide'.
Exhibit '1b' : One microslide having faint whitish smear described as 'vaginal swab'.
Parcel '2' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA, DELHI" containing exhibits '2' stated to be of prosecutrix.
Exhibit '2' : One cotton wool swab on long plastic stick 47 of 99 48 FIR No. 48/09 PS - Alipur described as 'Endocervical swab'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA, DELHI" containing exhibits '3' stated to be of prosecutrix.
Exhibit '3' : A few strands of hair described as 'pubic hair'. Parcel '4' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA, DELHI" containing exhibits '4' stated to be of prosecutrix.
Exhibit '4' : A few nail clippings. Parcel '5' : One sealed cloth parcel sealed with the seal of
"SRHC HOSPITAL NARELA, DELHI" containing exhibits '5' stated to be of prosecutrix.
Exhibit '5' : One dirty salwar. Parcel '6' : One sealed cloth parcel sealed with the seal of
"SRHC HOSPITAL NARELA, DELHI" containing exhibits '6' stated to be of accused.
Exhibit '6' : One dirty underwear. Parcel '7' : One sealed cloth parcel sealed with the seal of
"SRHC HOSPITAL NARELA, DELHI" containing exhibits '7', kept in a plastic vial stated to be of accused.
Exhibit '7' : Dirty, yellowish, foul smelling, viscous liquid described as 'Semen sample'.
Parcel '8' : One sealed cloth parcel sealed with the seal of 48 of 99 49 FIR No. 48/09 PS - Alipur "SRHC HOSPITAL NARELA, DELHI" containing exhibits '8', kept in plastic vial stated to be of accused.
Exhibit '8' : Dirty, foul smelling, dark brown liquid described as 'Blood sample'.
Parcel '9' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA, DELHI" containing exhibits '9' stated to be of accused.
Exhibit '9' : A small bunch of black strands of hair described as 'Pubic hair'.
RESULT OF ANALYSIS
1. Blood was detected on exhibit '8'.
2. Human semen was detected on exhibit '1a', '1b', '2', '5' and '6'.
3. Semen could not be detected on exhibits '3' and '9'.
4. Skin could not be detected on exhibit '4'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'S.Nn FSL DELHI'.
The serological report Ex. 24/B reads as under: Exhibits Species of origin ABO Grouping/Remarks Blood stains: '8' Blood sample Sample was putrefied hence no opinion 49 of 99 50 FIR No. 48/09 PS - Alipur Semen stains: '2' Cotton wool swab No reaction '5' Salwar Inconclusive '6' Underwear Inconclusive '7' Semen sample Sample was putrefied hence no opinion On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '8' (blood sample of accused Hans Kumar). Human semen was detected on exhibit '1a' (Endocervial Slide of the prosecutrix), exhibit '1b' (Vaginal Swab of the prosecutrix), exhibit '2' (Endocervial Swab of the prosecutrix), exhibit '5' (Dirty Salwar of the prosecutrix) and exhibit '6' (Dirty underwear of accused Hans Kumar).
On a conjoint reading of the medical evidence on the MLC Ex. PW11/A, the gynaecological examination from portion 'A' to 'A1' on the back side of MLC Ex. PW11/A of the prosecutrix together with the MLC of accused Hans Kumar Ex. PW12/A in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
50 of 99 51 FIR No. 48/09 PS - Alipur In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW24/A with regard to the description of the articles contained in the parcels, it is noticed that, Parcel No. 1 to Parcel No. 5 belong to PW2 - Prosecutrix which were seized vide seizure memo Ex. PW22/A dated 25/10/2009 and parcel no. 6 to parcel no. 10 belong to accused Hans Kumar which were seized vide seizure memo Ex. PW15/A dated 25/10/2009.
As per the biological report Ex. PW24/A, prosecution has discharged its initial burden of proving the presence of Human semen was detected on exhibit '1a' (Endocervial Slide of the prosecutrix seized vide seizure memo Ex. PW22/A), exhibit '1b' (Vaginal Swab of the prosecutrix seized vide seizure memo Ex. PW22/A), exhibit '2' (Endocervial Swab of the prosecutrix seized vide seizure memo Ex. PW22/A), exhibit '5' (Dirty Salwar of the prosecutrix seized vide seizure memo Ex. PW22/A) and exhibit '6' (Dirty underwear of accused Hans Kumar seized vide seizure memo Ex. PW15/A).
51 of 99 52 FIR No. 48/09 PS - Alipur Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1a', '1b', '2', '5' and '6' 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 additional link in the prosecution case.
17. Now let the testimonies of PW2 - Prosecutrix, PW1 - Roop Chand, her father and PW5 - Yogesh Kumar, her brother be perused and analysed.
PW2 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I am educated upto 7th standard. We are five brothers and sisters. I am youngest one. Accused present in the Court today was residing in our neighbour in the house of one Ombir as a tenant. He used to tease me and make to (to make) physical relations forcibly.
On 18/02/2009 at about 8:00/8:30 a.m. I went to village Bakhtawarpur where my Bhua (sister of my father) was residing. I went there to purchase slippers. On the isolated place on the way accused Hans Kumar present in the Court today met me and he inhaled me some 52 of 99 53 FIR No. 48/09 PS - Alipur poisonous substance as a result of which I went into the condition of unconsciousness. I acted upon his instructions due to consciousness and he took me to Ghaziabad U.P. where his sister was residing where he gave me some beatings and tried to make physical relations with me. Accused also made physical relations "Galat Sanbandh" i.e. he had done balatkar with me forcibly. Thereafter, accused Hans Kumar took me to Ghaziabad Court. He forced me to get marry with him and he disclosed my wrong name and address as Geeta in Ghaziabad Court and he forced me to disclose my age as 18th years. Accused forcibly married me on fictitious basis. Thereafter, accused took me to village Karkar (Kadkad), Ghaziabad and kept me on different places. I tried to disclose the facts to many persons but I was kept on watch by the family members of the accused.
On one day, accused went somewhere and his mother also went somewhere, at that time the owner of the said house came and inquired from me "that Beeti Kaya Baat Hai Tere Ko Yeh Kyo Marte Peethe Hain". I disclosed all the facts to the land lord and told him that accused had kidnapped me and also did wrong act with me in the meantime accused Hans Kumar reached there and heard the conversation, thereafter, he took me to some another place. In that place, where he was keeping me to during the days of Diwali, accused was giving beatings to me and in the meantime, the land lord came there and he also inquired and I disclosed all the facts to him then he asked from me my address of Delhi. I gave him the address. After giving the beatings accused fled away with the fear that my parents and Police might have reached there. Thereafter, on 24/10/2009, SHO PS - Alipur along with my brother Yogesh came there and I was rescued from the grip of the accused. I was kept in Police Station - Alipur and on the next day I was produced before the MM from where I was sent to Nari 53 of 99 54 FIR No. 48/09 PS - Alipur Niketan and on next day my statement under section 164 Cr.P.C. was recorded and I had stated to in the statement whatever I had stated today in the Court. I was also got medically examined at Satyawati Raja Harish Chand Hospital.
At this stage a sealed parcel sealed with the seal of 'VS' is opened and statement under section 164 Cr.P.C. is taken out which the witness has admitted that she had made the statement before the Magistrate and same is Ex. PW2/A running into two pages which bears my signatures at point 'A'.
I can identify my undergarments if shown to me. At this stage a sealed pullinda duly sealed with the seal of FSL is opened and the case property is taken out. The witness has seen salwar and underwear to the witness which she has identified her salwar as Ex. P1 and underwear is Ex. P2."
From the aforesaid narration of PW2 - Prosecutrix it is clear that she is educated upto 7th standard and they are five brothers and sisters and she is the youngest amongst them. Accused present in the Court was residing in their neighbour in the house of one Ombir as a tenant. He used to tease her to make physical relations forcibly. On 18/02/2009 at about 8:00/8:30 a.m. she went to village Bakhtawarpur where her Bhua (sister of her father) was residing. She went there to purchase slippers. On the isolated place on the way accused Hans Kumar met her and he inhaled her some poisonous substance as a result 54 of 99 55 FIR No. 48/09 PS - Alipur of which she went into the condition of unconsciousness. She acted upon his instructions due to consciousness and he took her to Ghaziabad U.P. where his sister was residing where he gave her some beatings and tried to make physical relations with her. Accused also made physical relations "Galat Sanbandh" i.e. he had done balatkar with her forcibly. Thereafter, accused Hans Kumar took her to Ghaziabad Court. He forced her to get marry with him and he disclosed her wrong name and address as Geeta in Ghaziabad Court and he forced her to disclose her age as 18th years. Accused forcibly married her on fictitious basis. Thereafter, accused took her to village Kadkad, Ghaziabad and kept her on different places. She tried to disclose the facts to many persons but she was kept on watch by the family members of the accused. On one day, accused went somewhere and his mother also went somewhere, at that time the owner of the said house came and inquired from her "that Beeti Kaya Baat Hai Tere Ko Yeh Kyo Marte Peethe Hain". She disclosed all the facts to the land lord and told him that accused had kidnapped her and also did wrong act with her in the meantime accused Hans Kumar reached there and heard the conversation, thereafter, he took her to some another place. In that place, where he was keeping her 55 of 99 56 FIR No. 48/09 PS - Alipur to during the days of Diwali, accused was giving beatings to her and in the meantime, the land lord came there and he also inquired and she disclosed all the facts to him then he asked from her, her address of Delhi. She gave him the address. After giving the beatings accused fled away with the fear that her parents and Police might have reached there. Thereafter, on 24/10/2009, SHO PS - Alipur along with her brother Yogesh came there and she was rescued from the grip of the accused. She was kept in Police Station - Alipur and on the next day she was produced before the MM from where she was sent to Nari Niketan and on next day her statement under section 164 Cr.P.C. was recorded and she had stated in the statement whatever she had stated in the Court. She was also got medically examined at Satyawati Raja Harish Chand Hospital.
PW2 - Prosecutrix during her crossexamination has negated the suggestions that her age was about 1011 years when she joined the Tigipur village School in class 2nd or that there is not said paraller (parallel) deserted road leading towards village Bhaktawarpur or that the family of inlaws of sister of accused was (were) also residing in the house or that the said house was four storeyed building at Kadkad 56 of 99 57 FIR No. 48/09 PS - Alipur Village or that there were many tenants in that house or that prior to going to the Ghaziabad Court, she solemnized the marriage with the accused in a temple or that photographs were taken or that she had gone to Ghaziabad Court like a newly married lady alongwith accused or that she was residing with the accused in the capacity of his wife however, accused had told to the neighbour that she is his wife or that she used to go along with the accused for purchasing vegetables and other grocery items in the market and also used to visit the nearby Mangal Bazar for the same purpose or that she was in regular contact with her parents and other family members during the period she remained with the accused or that her family members were well aware about her whereabouts and also about the fact that she is residing as a wife of the accused or that the accused was on visiting terms in their house when she used to reside with her parents or that she used to visit Japanese Park and even had gone to see movie with the accused during the period she stayed with her parents or thats he had not stated the same facts as stated by her before the Police to the Magistrate or that had cooked up false story to falsely implicate the accused in the present case at the instance of her parents or that her age is more than 20 years as stated by her at the time of Court 57 of 99 58 FIR No. 48/09 PS - Alipur marriage in Ghaziabad Courts or that accused had not enticed her or administered any poisonous substance as alleged or that she was having an affair with the accused and because of the said reason she herself left the house on 17/02/2009 in the evening and thereafter, she voluntarily married with the accused in a temple and in Ghaziabad Courts or that she and accused were residing as husband and wife or that she is deposing falsely.
Inspite of incisive crossexamination of PW2 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW2 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in this case.
The testimony of PW2 - Prosecutrix is also found to be 58 of 99 59 FIR No. 48/09 PS - Alipur corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
The testimony of PW2 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW2/A bearing her signatures at point 'A'.
The testimony of PW2 Prosecutrix is also found to be corroborated by the testimonies of PW1 - Roop Chand, father of the prosecutrix and PW5 - Yogesh Kumar, brother of the prosecutrix to whom PW2 Prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.
PW1 - Roop Chand in his examinationinchief has deposed that : "On 18/02/2009, my daughter namely prosecutrix (name withheld) had gone to village Bhakhtawarpur to purchase slippers at about 8:00/8:30 a.m. My family members waited her up to 12:00/12:30 p.m. Thereafter, I alongwith family members went to village Bhakhtawarpur in the marker for her search. But when she did not find, we search in our relations in Faridabad, Ballabhgarh and in the side of 59 of 99 60 FIR No. 48/09 PS - Alipur Sonipat Haryana. I alongwith my family members made every efforts for her search but when she could not found ultimately on 27/02/2009, I went to the Police Station where my statement was recorded which is Ex. PW1/A which bears my signatures at point 'A'. Accused Hans Kumar present int he Court today was residing with his sister in our vicinity as a tenant. Accused Hans Kumar used to tease my daughter/prosecutrix (name withheld) on so many occasions. I threatened him on this aspect. Accused Hans Raj (Hans Kumar) was also found missing from the date of missing of my daughter. I suspected that accused Hans Kumar has enticed my daughter. My statement was also recorded by the Police. I handed over the certificate of date of birth of prosecutrix (name withheld) to the IO which was taken into possession vide memo Ex. PW1/B which bears my signatures at point 'A'. I also handed over the copy of the affidavit reflecting the date of birth of my daughter which is mark 'A', it bears my signatures at point 'A'."
From the aforesaid narration of PW1 - Roop Chand it is clear that on 18/02/2009, his daughter namely prosecutrix (name withheld) had gone to village Bhakhtawarpur to purchase slippers at about 8:00/8:30 a.m. His family members waited her up to 12:00/12:30 p.m. Thereafter, he alongwith family members went to village Bhakhtawarpur in the marker for her search. But when she did not find, they search in their relations in Faridabad, Ballabhgarh and in the side of Sonipat, Haryana. He alongwith his family members made every efforts for her search but when she could not found ultimately on 27/02/2009, he 60 of 99 61 FIR No. 48/09 PS - Alipur went to the Police Station where his statement was recorded which is Ex. PW1/A which bears his signatures at point 'A'. Accused Hans Kumar present in the Court was residing with his sister in their vicinity as a tenant. Accused Hans Kumar used to tease his daughter/prosecutrix (name withheld) on so many occasions. He (PW1 - Roop Chand) threatened him on this aspect. Accused Hans Kumar was also found missing from the date of missing of his daughter. He suspected that accused Hans Kumar has enticed his daughter. His statement was also recorded by the Police. He handed over the certificate of date of birth of prosecutrix (name withheld) to the IO which was taken into possession vide memo Ex. PW1/B which bears his signatures at point 'A'. He also handed over the copy of the affidavit reflecting the date of birth of his daughter which is mark 'A', it bears my signatures at point 'A'.
During his crossexamination PW1 - Roop Chand has negated the suggestions that he had furnished the affidavit in the School for the purpose of getting her (prosecutrix) admitted in the School only or that the age of his daughter at the time of registration of the present case was about 20 years or that he had falsely mentioned her wrong age 61 of 99 62 FIR No. 48/09 PS - Alipur before the School authorities for getting her admitted in the School or that accused has been falsely implicated in the present case at their instance by the prosecutrix or that he is deposing falsely.
PW5 - Yogesh Kumar, brother of the prosecutrix in his examinationinchief has deposed that : "On 24/10/2009, he alongwith IO/SHO Surender Sund and other 45 Police officials went to the village Karkar (Kadkad) District Gaziabad in search of my missing sister/prosecutrix (name withheld). 23 houses were searched intensively but my sister could not found there. On further inquiry we came to know that my sister may have gone to Village Dhera PS - Massori, District Gaziabad as our relatives resides there. We similarly went there and searched 23 houses but could not succeed. On further inquiry at Village Dhera we came to know that my sister may be available at Village Arthal. We all went there but could not succeed in tracing out my sister and we came to know that my sister had gone to village Karkar (Kadkad) because they got information that Police was searching them. We again went to village Karkar (Kadkad) and searched house of Phullo but my sister could not found there but we came to know that my sister has gone to the house of Dhano situated nearby the house of Phullo. We all immediately rushed to the Dhanno and on searching his house on the ground floor nobody was found but on the first floor in a room my sister was sitting on the mat. She was taken into possession at my instance by the Police officials and a recovery memo Ex. PW5/A was prepared signed by me at point 'A'. My sister remain under protection of one Lady/Constable and the IO after 62 of 99 63 FIR No. 48/09 PS - Alipur informing to the concerned PS of the area from where my sister was recovered. We all returned to the PS Alipur alongwith my sister. My statement was also recorded."
From the aforesaid narration of PW5 - Yogesh Kumar it is clear that on 24/10/2009, he alongwith IO/SHO Surender Sund and other 45 Police officials went to the village Kadkad District Gaziabad in search of his missing sister/prosecutrix (name withheld). 23 houses were searched intensively but his sister could not found there. On further inquiry they came to know that his sister may have gone to Village Dhera PS - Massori, District Gaziabad as their relatives resides there. They similarly went there and searched 23 houses but could not succeed. On further inquiry at Village Dhera they came to know that his sister may be available at Village Arthal. They all went there but could not succeed in tracing out his sister and they came to know that his sister had gone to village Kadkad because they got information that Police was searching them. They again went to village Kadkad and searched house of Phullo but his sister could not found there but they came to know that his sister has gone to the house of Dhano situated nearby the house of Phullo. They all immediately rushed to the Dhanno and on searching his house 63 of 99 64 FIR No. 48/09 PS - Alipur on the ground floor nobody was found but on the first floor in a room his sister was sitting on the mat. She was taken into possession at his instance by the Police officials and a recovery memo Ex. PW5/A was prepared signed by him at point 'A'. His sister remain under protection of one Lady/Constable and the IO after informing to the concerned PS of the area from where his sister was recovered. They all returned to the PS Alipur alongwith his sister. His statement was also recorded.
During his crossexamination PW5 - Yogesh Kumar has negated the suggestions that he had seen his sister/prosecutrix (name withheld) at PS - Alipur and she was not recovered from the house as deposed by him or that he had signed PW5/A when the same was blank at point 'A' and 'X' or that his sister has stated to him as well as to the Police Officials that she is major and that she had married with accused Hans Kumar of her own sweet will and she was living with him as his legally wedded wife or that the public persons who had gathered at the house of Dhanno had told the IO that prosecutrix was living as legally wedded wife of accused or that he had not joined the investigation as deposed or that his sister was not recovered in the manner as deposed by him or that he has deposed falsely.
64 of 99 65 FIR No. 48/09 PS - Alipur There is nothing in the crossexamination of PW1 - Roop Chand and PW5 - Yogesh Kumar 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, cogent, 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.
Further the testimony of PW5 - Yogesh Kumar on the aspect of recovery of PW2 - prosecutrix (vide recovery memo Ex. PW5/A) is also found to be corroborated not only by the testimony of PW2 - prosecutrix but by the testimonies of PWs 13, 14, 15, 19, 20 and 25 also. There is nothing in the crossexamination of the said PWs on the aspect of recovery of prosecutrix so as to impeach their creditworthiness. 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 65 of 99 66 FIR No. 48/09 PS - Alipur the case. In the circumstances, the hostility of PW6 - Dhannu does not vitiate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
18. While analysing the testimony of PW2 - Prosecutrix, PW1 - Roop Chand, her father and PW5 - Yogesh Kumar, her brother as discussed hereinabove inspite of incisive crossexamination nothing has come out in the statements of PW2 - Prosecutrix, PW1 - Roop Chand and PW5 - Yogesh Kumar which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW2 - prosecutrix that her age was about 1011 years when she joined the Tigipur village School in class 2nd or that there is not said paraller (parallel) deserted road leading towards village Bhaktawarpur or that the family of inlaws of sister of accused was (were) also residing in the house or that the said house was four storeyed building at Kadkad Village or that there were many tenants in that house or that prior to going to the Ghaziabad Court, she solemnized the marriage with the accused in a temple or that photographs were taken or that she had gone to Ghaziabad Court like a newly married lady alongwith accused or that 66 of 99 67 FIR No. 48/09 PS - Alipur she was residing with the accused in the capacity of his wife however, accused had told to the neighbour that she is his wife or that she used to go along with the accused for purchasing vegetables and other grocery items in the market and also used to visit the nearby Mangal Bazar for the same purpose or that she was in regular contact with her parents and other family members during the period she remained with the accused or that her family members were well aware about her whereabouts and also about the fact that she is residing as a wife of the accused or that the accused was on visiting terms in their house when she used to reside with her parents or that she used to visit Japanese Park and even had gone to see movie with the accused during the period she stayed with her parents or thats he had not stated the same facts as stated by her before the Police to the Magistrate or that had cooked up false story to falsely implicate the accused in the present case at the instance of her parents or that her age is more than 20 years as stated by her at the time of Court marriage in Ghaziabad Courts or that accused had not enticed her or administered any poisonous substance as alleged or that she was having an affair with the accused and because of the said reason she herself left the house on 17/02/2009 in the evening and thereafter, she voluntarily 67 of 99 68 FIR No. 48/09 PS - Alipur married with the accused in a temple and in Ghaziabad Courts or that she and accused were residing as husband and wife or that she is deposing falsely and the suggestions to PW1 - Roop Chand that he had furnished the affidavit in the School for the purpose of getting her (prosecutrix) admitted in the School only or that the age of his daughter at the time of registration of the present case was about 20 years or that he had falsely mentioned her wrong age before the School authorities for getting her admitted in the School or that accused has been falsely implicated in the present case at their instance by the prosecutrix or that he is deposing falsely and the suggestions to PW5 - Yogesh Kumar that he had seen his sister/prosecutrix (name withheld) at PS - Alipur and she was not recovered from the house as deposed by him or that he had signed PW5/A when the same was blank at point 'A' and 'X' or that his sister has stated to him as well as to the Police Officials that she is major and that she had married with accused Hans Kumar of her own sweet will and she was living with him as his legally wedded wife or that the public persons who had gathered at the house of Dhanno had told the IO that prosecutrix was living as legally wedded wife of accused or that he had not joined the investigation as deposed or that his sister was not 68 of 99 69 FIR No. 48/09 PS - Alipur recovered in the manner as deposed by him or that he has deposed falsely were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
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.
69 of 99 70 FIR No. 48/09 PS - Alipur Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated : ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW2 - Prosecutrix in the light of medical evidence vide MLC Ex. PW11/A, biological and serological evidence vide Ex. PW24/A and Ex. PW24/B, gynaecological examination from portion 'A' to 'A1' on the back side of the MLC Ex.
70 of 99 71 FIR No. 48/09 PS - Alipur PW11/A of the prosecutrix and MLC of accused Hans Kumar Ex. PW12/A, as discussed hereinbefore, the act of performing of sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within the labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by the accused Hans Kumar with PW2 - Prosecutrix without her consent.
20. Learned Counsel for the accused submitted that there is delay in lodging of FIR/complaint. In the present case, the alleged incident is dated 18/02/2009 but the complaint was lodged with Police authorities on 27/02/2009 i.e. after 10 days of incident and this delay has not been explained either by the complainant or by the prosecutrix.
I have carefully perused and analysed the evidence on record.
As per the testimony of PW5 - Yogesh Kumar, brother of prosecutrix, the recovery of PW2 - prosecutrix was made on 24/10/2009 71 of 99 72 FIR No. 48/09 PS - Alipur vide recovery memo Ex. PW5/A. PW1 - Roop Chand in his examinationinchief has deposed that : "On 18/02/2009 my daughter namely prosecutrix (name withheld) had gone to village Bhakhtawarpur to purchase slippers at about 8:008:30 a.m. My family members waited her up to 12:00 - 12:30 p.m. Thereafter, I alongwith family members went to village Bhakhtawarpur in the market for her search. But when she did not find, we search in our relations in Faridabad, Ballabhgarh and in the side of Sonipat Haryana. I alongwith my family members made very efforts for her search but when she could not found ultimately on 27/02/2009, I went to the Police Station where my statement was recorded which is Ex. PW1/A which bears my signatures at point 'A'."
During his crossexamination, PW1 - Roop Chand has deposed that : "I had not made any PCR call or had gone to the Police Station when I came to know that my daughter/prosecutrix (name withheld) is missing. I am a milk vendor by profession and operating from my house. I had stated to the Police in my first complaint on 27/02/2009 that "I alongwith family members went to village Bhakhtawarpur in the market for her search. But when she did not find, we search in our relations in Faridabad, Ballabhgarh and in the side of Sonipat Haryana. I alongwith my family members made every efforts for her search" (confronted with Ex. PW1/A where it is not so recorded)."
72 of 99 73 FIR No. 48/09 PS - Alipur On careful perusal & analysis of the testimony of PW1 - Roop Chand, it is found that his testimony is natural, clear, cogent, inspiring confidence and having a ring of truth. In fact, so called improvements are the 'clarifications' or 'elaboration' of facts in response to the questions put to him which he was not supposed to state in statement under section 161 Cr.P.C. He has deposed the facts which he observed, experienced and acted upon.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
73 of 99 74 FIR No. 48/09 PS - Alipur PW1 - Roop Chand was working as a milk vendor and was operating upon from his house. Sight cannot be lost of the rural background and the local social mileu in which he was living and operating. He candidly deposed that he did not make any PCR Call or had gone to the Police Station when he came to know that her daughter/prosecutrix is missing. From his testimony it is clearly indicated that when he and his family had thoroughly searched for the prosecutrix in their relations in Faridabad, Ballabhgarh and Sonipat and could not find her, then only he (PW1 - Roop Chand) went to the Police Station and got recorded his statement on 27/02/2009 Ex. PW1/A. He has acted in a natural manner in the prevailing local social rural mileu. Nothing more can be read in his testimony. His testimony is also found to be in consonance with his statement made to the Police Ex. PW1/A. Nor it is the case that after the recovery of prosecutrix which was made on 24/10/2009 vide recovery memo Ex. PW5/A, he (PW1 - Roop Chand) lodged the report regarding the missing of his daughter/prosecutrix.
In the circumstances, the delay in lodging the report with the Police vide Ex. PW1/A stands sufficiently and satisfactorily 74 of 99 75 FIR No. 48/09 PS - Alipur explained.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her 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 75 of 99 76 FIR No. 48/09 PS - Alipur attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case 'Rajinder Vs. 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 76 of 99 77 FIR No. 48/09 PS - Alipur to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout 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, 77 of 99 78 FIR No. 48/09 PS - Alipur of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for the accused submitted that the father of the prosecutrix has stated in his examinationinchief that he had scolded and threatened the accused prior to the incident several times as he (accused) used to tease his daughter but there is no complaint regarding this with the Police authorities. Moreover, the prosecutrix is totally silent on this aspect in her entire deposition.
I have carefully perused and analysed the evidence on record.
The testimony of PW2 - prosecutrix has been reproduced, discusses and analysed hereinbefore. At the cost of repetition her testimony is clear, natural, cogent, trustworthy and inspiring confidence. PW1 - Roop Chand, father of the prosecutrix in his crossexamination has specifically deposed that : "I had not lodged any complaint with the Police officials against the accused that he used to tease my daughter. I had told to the 78 of 99 79 FIR No. 48/09 PS - Alipur Police in my complaint Ex. PW1/A that accused Hans Kumar used to tease my daughter prosecutrix (name withheld) on so many occasions I threatened him on this aspect."
In view of above there is explainable variation and does not in any way, adversely affect the case of the prosecution for the reason that PW1 - Roop Chand has categorically stated that he had told to the Police in his complaint Ex. PW1/A that accused Hans Kumar used to tease his daughter/prosecutrix on so many occasions. He threatened him on this aspect but why it was not so recorded in his statement Ex. PW1/A recorded by Investigating Officer PW18 - SI Jagdish Chander would be a reason best known to the Investigating Officer. Strangely when PW18 - SI Jagdish Chander was being crossexamined no such question was put to him as to why he did not completely record the statement of the witness/Pw1 - Roop Chand or whether this witness had made such aforementioned statement.
In the circumstances, the said lapse/discrepancy may reflect on the investigation but does not reflect upon the substantive evidence and probative value of the statement of PW1 - Roop Chand made on relevant and material aspects. His testimony is clear, natural, categorical 79 of 99 80 FIR No. 48/09 PS - Alipur and inspires confidence.
In case titled as 'Kuria & Anr. Vs. State of Rajasthan', 2012 XI AD (S.C) 376, while dealing with a similar situation, where witness stated under oath before the Court that he had informed the Police of what he stated under oath before the Court but it was not so recorded in his statement under Section 161 Cr.P.C. recorded by the Investigating Officer (IO) the Hon'ble Supreme Court has held the reason for the same would be best known to the Investigating Officer (IO). (Para 20 & 21).
Para 20 and 21 of Kuria's Case (Supra) reads as under :
20. These cannot be termed as contradictions between the statements of the witnesses. They are explainable variations which are likely to occur in the normal course and do not, in any way, adversely affect the case of the prosecution. Thus, there are no material contradictions in the statement of the witnesses or the documents, nor can the presence of PW15 be doubted at the place of occurrence.
21. For instance PW15, in his crossexamination, had stated before the Court that Laleng had twisted the neck of the deceased. According to the accused, it was not so recorded in his statement under Section 161, Exhibit D/2 upon which he explained that he had stated before the Police the same thing, but he does not know why the Police did not take note of the same. Similarly, he also said that he had informed the Police that the 80 of 99 81 FIR No. 48/09 PS - Alipur four named accused had dragged the body of the deceased and thrown it near the hand pump outside their house, but he does not know why it was not so noted in Exhibit D/2. There are some variations or insignificant improvements in the statements of PW3 and PW7. According to the learned counsel appearing for the appellants, these improvements are of such nature that they make the statement of these witnesses unbelievable and unreliable. We are again not impressed with this contention. The witnesses have stated that they had informed the Police of what they stated under oath before the court, but why it was not so recorded in their statements under Section 161 recorded by the Investigating Officer would be a reason best known to the Investigating Officer, PW16, was being crossexamined, no such question was put to him as to why he did not completely record the statements of the witnesses or whether these witnesses had made such aforementioned statements. Improvements or variations of the statements of the witnesses should be of such nature that it would create a definite doubt in the mind of the Court that the witnesses are trying to state something which is not true and which is not duly corroborated by the statements of the other witnesses. That is not the situation here. These improvements do not create any legal impediment in accepting the statements of PW3, PW4, PW7 and PW15 made under oath."
Further, PW2 - prosecutrix has proved her statement recorded u/s 164 Cr.P.C. Ex. PW2/A. In the said statement she has categorically deposed regarding the teasing done by accused Hans Kumar and informing of her brother regarding the same and of the 81 of 99 82 FIR No. 48/09 PS - Alipur taking place of a quarrel on this issue between her brother and accused Hans Kumar.
It is pertinent to reproduce the relevant part of statement of PW2 - prosecutrix recorded u/s 164 Cr.P.C. Ex. PW2/A which reads as under : "I live at the abovesaid address with my mother and father. I have studied upto 7th class. Near to my house one boy named Hans Kumar used to live on rent. Hans Kumar used to keep on teasing me, regarding which I had told also to my brother. On this issue (Is Baat Ko Le Kar) a quarrel had taken place between my brother and Hans Kumar..."
It is not the case of the accused that PW2 - prosecutrix was got confronted with her said statement made u/s 164 Cr.P.C. or that she was crossexamined on the said aspect. For such failure accused is to blame himself and none else.
It is to be noticed that PW2 - prosecutrix in her examinationinchief has specifically deposed that : "Accused present in the Court today was residing in our neighbour in the house of one Ombir as a tenant. He used to tease me and make to (to make) physical relations forcibly."
82 of 99 83 FIR No. 48/09 PS - Alipur There is nothing in her crossexamination on this aspect so as to impeach her creditworthiness.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for the accused submitted that it has come on record (chargesheet) that prosecutrix has married with the accused voluntarily, of her own sweet will and wish in the Court and documentary proof regarding the same has been collected and placed alongwith the chargesheet by the Investigating Agency and which has been duly proved by PW7 and PW8.
I have carefully perused and analysed the evidence on record.
At the outset, it is to be mentioned that in the chargesheet nothing is mentioned as has been pleaded, "that prosecutrix has married with the accused voluntarily, of her own sweet will and wish in the 83 of 99 84 FIR No. 48/09 PS - Alipur Court..."
With due respect, it appears that the Learned Counsel for the accused has misread the chargesheet. Moreover, the chargesheet is nothing but a bundle of facts and circumstances and of the steps taken in the investigational proceedings by the Investigating Officer. What has been mentioned in the chargesheet has been detailed hereinbefore while giving the details of the case as unfolded by the report u/s 173 Cr.P.C. At the cost of repetition, the relevant part of the chargesheet reads as under : "On 24/02/2009, he (accused Hans Kumar) took her to Ghaziabad Court and where by writing her name as Geeta R/o Bulandshahar, Court prepared a marriage agreement, on which her thumb impression and signatures were taken and she on finding the original thereof had torn it out (Jiska Maine Original Kagaz, Hath Lagne Par Fad Diye The)."
In the circumstances, it does not lie in the mouth of the accused to state that the plea so raised is as per the chargesheet filed in the Court.
23. Learned Counsel for the accused has submitted that the fact regarding the marriage of the prosecutrix with accused voluntarily has 84 of 99 85 FIR No. 48/09 PS - Alipur been proved by PW7 - Sh. Kanhiya Lal, Advocate and PW8 - Sh. Ram Singh, Advocate.
At the cost of repetition, PW7 Sh. Kanhaiya Lal Advocate Ghaziabad Court, Distt. Ghaziabad UP has deposed that he is practicing as an advocate at Ghaziabad District Court, U.P. and on 24/02/2009, he had identified one boy namely Hans Raj and a girl namely Geeta who had stated their age as 22 years and 20 years respectively on their marriage agreement and got it Notraised. The photocopy of the marriage agreement is Ex. P1. He had identified the said boy and the girl at point 'A' on Ex. P1. He had also identified the joint photograph of the said boy and the girl affixed at point 'B' and also identified their thumb impressions at Points 'C' and 'D' on Ex. P1 and stated that the said marriage agreement was seized by the IO vide seizure memo Mark 'A' but stated as much time has been elapsed so he cannot identify that boy and that girl.
At the cost of repetition, PW8 Sh. Ram Singh Adv. Ghazaiabad, Civil Court, UP has deposed that he is practicing as an Advocate at Ghaziabad Civil Court, U.P. and having power of Notary 85 of 99 86 FIR No. 48/09 PS - Alipur Public in the year, 2009 and his chamber no. 11, at Civil Compound, Ghaziabad. On 24/02/2009 he had notarized the marriage agreement of one boy namely Hans Raj and a girl namely Geeta who had stated their age as 22 years and 20 years respectively and identified their photos and thumb impressions by Advocate Sh. Kanhiya Lal on affidavit Ex. P1 and on the identification of Sh. Kanhiya Lal, Advocate he had affixed Notarized stamp at Point 'E' and signed by him at point 'F' on their marriage agreement Ex. P1. Both the boy Hans Raj and girl Geeta had signed his register on 24/02/2009 as per entry at Serial No. 1 at points 'A' & 'B' but stated as much time has been elapsed so he cannot identify that boy and that girl.
On careful perusal and analysis of the testimonies of PW7 - Sh. Kanhiya Lal, Advocate and PW8 - Sh. Ram Singh, Advocate, the same is not found to be corroborated by PW2 - prosecutrix.
It is pertinent to reproduce the relevant part of examination inchief of PW2 - prosecutrix which reads as under : "Thereafter, accused Hans Kumar took me to Ghaziabad Court. He forced me to get marry with him and he disclosed my wrong name and address as Geeta in Ghaziabad Court and he forced me to 86 of 99 87 FIR No. 48/09 PS - Alipur disclose my age as 18th years. Accused forcibly married me on fictitious basis."
There is nothing in the crossexamination of PW2 - prosecutrix so as to impeach her creditworthiness. The said part of the testimony of PW2 - prosecutrix has nullified the testimonies of PW7 - Kanhiya Lal, Advocate, Ghaziabad District Court, UP and PW8 - Sh. Ram Singh, Advocate, Ghaziabad District Court, UP who in their examinationinchief have also failed to identify the boy and the girl.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that it has been admitted by various witnesses including PW5 (brother of the prosecutrix) that prosecutrix was dressed up like a newly wedded girl at the time of her alleged recovery from Ghaziabad on 24/10/2009 which clearly indicates that she was living happily and enjoyed her matrimonial life with accused.
I have carefully perused and analysed the evidence on record.
87 of 99 88 FIR No. 48/09 PS - Alipur It is not made clear by the Learned Counsel for the accused as to what benefit he intend to reap by raising the said plea when PW2 - prosecutrix in her examinationinchief has specifically deposed that accused Hans Kumar forced her to get marry with him and he disclosed her wrong name and address and forced her to disclose her wrong age.
At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW2 - prosecutrix which reads as under : "Thereafter, accused Hans Kumar took me to Ghaziabad Court. He forced me to get marry with him and he disclosed my wrong name and address as Geeta in Ghaziabad Court and he forced me to disclose my age as 18th years. Accused forcibly married me on fictitious basis."
There is nothing in the crossexamination of PW2 - prosecutrix so as to impeach her creditworthiness.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for the accused submitted that no force or coercion or threat (No iota of evidence) pertaining to use of force or 88 of 99 89 FIR No. 48/09 PS - Alipur threat, cogent and reliable is placed rather the statements of prosecutrix are highly improbable and inherently false, regarding the manner how she went to Ghaziabad and also to the Court in her deposition.
I have carefully perused and analysed the evidence on record.
The testimony of PW2 - prosecutrix has been reproduced, discusses and analysed hereinbefore. At the cost of repetition her testimony is clear, natural, cogent, trustworthy and inspiring confidence.
At the cost of repetition, it is pertinent to reproduced the relevant part of the examinationinchief of PW2 - prosecutrix which reads as under : "On 18/02/2009 at about 8:00/8:30 a.m. I went to village Bakhtawarpur where my Bhua (sister of my father) was residing. I went there to purchase slippers. On the isolated place on the way accused Hans Kumar present in the Court today met me and he inhaled me some poisonous substance as a result of which I went into the condition of unconsciousness. I acted upon his instructions due to consciousness and he took me to Ghaziabad U.P. where his sister was residing where he gave me some beatings and tried to make physical relations with me. Accused also made physical relations "Galat Sanbandh" i.e. he had done balatkar with me forcibly. Thereafter, accused Hans Kumar took me to Ghaziabad Court. He forced me to get marry with him and he disclosed my wrong name and address as Geeta in Ghaziabad Court and he forced 89 of 99 90 FIR No. 48/09 PS - Alipur me to disclose my age as 18th years. Accused forcibly married me on fictitious basis. Thereafter, accused took me to village Karkar (Kadkad), Ghaziabad and kept me on different places. I tried to disclose the facts to many persons but I was kept on watch by the family members of the accused."
During her crossexamination, PW2 - prosecutrix has specifically deposed that : "It is correct that the house where I was taken by the accused in Ghaziabad U.P. alleged to be of the sister of the accused is situated in a residential area. It is wrong to suggest that the family of in laws of sister of accused was also residing in the house. Vol. Sister was residing alone in the said house. While going alone with accused I did not make any noise as I was unconscious and my mind was not working and so long as I remained in the house, accused did not permit me to come out and so I was not able to make any noise."
During the course of her further crossexamination, PW2 - prosecutrix has specifically deposed that : "I do not know whether I was taken before the magistrate for performing of marriage. I had not raised the alarm in the Court premises before the public persons present in the Court at Ghaziabad. Vol. Accused had threatened me with dire consequences would be meted to me and my family members. I did not raise any alarm even at the Court where marriage documents were prepared as I was afraid from the accused."
90 of 99 91 FIR No. 48/09 PS - Alipur There is nothing in the crossexamination of PW2 - prosecutrix so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. Her version on the core spectrum of crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case. Further, she has also explained the reasons for not raising the noise while going alone with the accused as she was unconscious and her mind was not working and has also deposed that so long as she remained in the house of the sister of the accused, accused did not permit her (prosecutrix) to come out and so she was not able to make any noise. She has further explained the reasons for not raising an alarm at the Ghaziabad Court premises as she was threatened by accused with dire consequences to her and her family members and for not raising any alarm even at Court where marriage documents were prepared as she was afraid from the accused.
Nonraising of any hue and cry, any alarm or any noise by PW2 - prosecutrix while she was being taken by the accused to the house of his sister at Ghaziabad, travelling in public transport and while 91 of 99 92 FIR No. 48/09 PS - Alipur being at the house of his sister at Ghaziabad and while she was taken to the Ghaziabad Court does not falsify the testimony of the prosecutrix and the reasons for not raising any alarm or noise has been explained by PW2 - prosecutrix as discussed hereinabove. Further, the sight cannot be lost of the fact of the mental condition of the prosecutrix and the rigors through which she had passed at Ghaziabad, at the house of the sister of the accused where forcibly the physical relations were established with her by the accused and while she was being taken to the Ghaziabad Courts where she was threatened with dire consequences by the accused to her and to her family members. Nonraising of any hue and cry by PW2 prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by the clear, cogent and convincing evidence.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for the accused further submitted that statement of PW9 - Anar Singh is important as he had stated in his chief that prosecutrix herself has told him that she has ran away from her 92 of 99 93 FIR No. 48/09 PS - Alipur house.
I have carefully perused and analysed the evidence on record.
PW9 Anar Singh, in whose house accused with prosecutrix resided has a tenant has deposed that accused Hans Raj resided in their house as a tenant for about 1015 days. He started residing in their house on 15/10/2009 alongwith a girl whom he used to state as his wife. He does not remember the name of the girl. During their stay for about 5/7 days he came to know that the girl is the one who had ran away from her house, therefore, he asked them to vacate his house. One day the girl called him as 'Papaji' and by such calling he became more affectionate towards her. He had got vacated his house after about 10/11 days. Thereafter, they shifted in the house of Dhanu which is situated towards the outer perifry of the village. The girl herself had told that she had ran away from her house. Later on, he came to know that both girl and the boy were arrested by the Police. The girl had told him that she is the resident of Sungarpur and her father's name as Roop Chand Sharma. He had contacted Sh. Roop Chand Sharma.
On a leading question by the Addl. PP for state he deposed 93 of 99 94 FIR No. 48/09 PS - Alipur that the name of the girl which has called him as "Papaji" might be prosecutrix (name withheld).
During his crossexamination, PW9 - Anar Singh has deposed that : "I had stated to the Police in my statement u/s 161 Cr.P.C. that when I came to know from the girl that she had ran away from her house I got the premises vacated from both boy & the girl. {Confronted with the statement Mark P9D, where it is not so recorded in this manner where it is recorded that the girl had told her own story (Aap Biiti)}."
The said part of the crossexamination of PW9 - Anar Singh does not falsify the testimony of PW9 - Anar Singh and does not come to the rescue of the accused. He has withstood the rigors of cross examination without being shaken.
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
94 of 99 95 FIR No. 48/09 PS - Alipur The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaboration of the statements made by the witness 95 of 99 96 FIR No. 48/09 PS - Alipur earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
In case Leela Ram Vs. State of Haryana, (1999) 9 SCC 525, the Hon'ble Supreme Court has observed that, there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court in 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 96 of 99 97 FIR No. 48/09 PS - Alipur too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The 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. 97 of 99 98 FIR No. 48/09 PS - Alipur 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.
27. In view of above and in the circumstances prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 18/02/2009, at about 8:00 a.m. at village Tigipur, accused Hans Kumar administered (made to inhale) to PW2 - prosecutrix, aged about 14 years (to be exact 14 years, 02 months and 17 days) certain poison or stupefying thing with intent to commit or to facilitate the commission of an offence upon PW2 Prosecutrix and that he kidnapped PW2 Prosecutrix from the lawful guardianship of her parents with intent that she may be compelled to marry against her will or in order that she may be forced to illicit intercourse and after kidnapping PW2 Prosecutrix he had taken her to different places at Dehra, Kadkad Ghaziabad, U.P. and repeatedly raped her till 24/10/2009 and during the abovesaid period, accused Hans Kumar also criminally intimidated PW2 Prosecutrix to kill her and her family members with intent to cause alarm to her.
I accordingly hold accused Hans Kumar guilty for the 98 of 99 99 FIR No. 48/09 PS - Alipur offences punishable u/s 328/363/366/376/506(II) 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 Hans Kumar in the commission of the offences u/s 328/363/366/376/506(II) 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 Hans Kumar beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Hans Kumar guilty for the offences punishable u/s 328/363/366/376/506(II) IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 26th Day of October, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 99 of 99