Delhi District Court
State vs . 1. Devi Prasad on 26 August, 2013
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FIR No. 57/11
PS - Adarsh Nagar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 137/13
Unique ID No. : 02404R0364112011
State Vs. 1. Devi Prasad
S/o Paragi
R/o Village Gaja Khera,
PS - Hasan Ganj,
District - Unnao, U.P.
FIR No. : 57/11
Police Station : Adarsh Nagar
Under Sections : 363/366/376 IPC
Date of committal to session Court : 07/12/2011
Date on which judgment reserved : 25/07/2013
Date of which judgment announced : 26/08/2013
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FIR No. 57/11
PS - Adarsh Nagar
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 08/03/2011, ASI Uday Singh was present in the Police Station - Adarsh Nagar. Sh. Neg Pal, S/o Sh. Bajrangi Pal, R/o C
- 68, Lal Bagh, Azad Pur, Delhi came to the Police Station and made the statement which is to the effect that, he is residing at the said address and is a driver by profession. His sisterinlaw/prosecutrix (name withheld being a case u/s 376 IPC), D/o Dulare Lal Pal, aged about 15 years, height 5 ft. 3 inches, colour fair, medium built who on 07/03/2011 had gone out of the house (C - 68, Lal Bagh, Azad Pur, Delhi) at about 1:00 p.m. saying that she is going to toilet and has not returned to the house so far. While going out of the house, she was wearing a pink colour salwar suit and was wearing black colour chappal in her feet. Till now, he had searched her of his own but has not been able to find her out. Some unknown person had enticed his sisterinlaw/prosecutrix after inducing her and to report this he has come to the Police Station. From the statement on finding that offence u/s 363 IPC appeared to have been
2 of 73 3 FIR No. 57/11 PS - Adarsh Nagar committed, the case was got registered and the investigation was proceeded with by ASI Uday Singh. During the course of investigation, ASI Uday Singh got flashed WT Message and put it on ZIP Net. The spot was inspected with the complainant. On 13/03/2011, complainant told that he suspects that one boy Devi Prasad S/o Paragi R/o Village Gaja Khera, P.S. Hasan Ganj, Unnao (U.P.) who used to live in his neighbourhood has enticed away the prosecutrix. The information regarding kidnapping of prosecutrix was sent to CBI and NCRB. The Call Detail Records of Mobile Phone Nos. 844723689, 08447257196, 9015535032, 9873985274 & 92111034999 were obtained but no clue could be gathered and the phones were indicating as switched off.
On 25/08/2011, complainant by coming to the Police Station informed that Devi Prasad after taking prosecutrix is present in the village itself on which ASI Uday Singh with staff reached at Village Gaja Khera, District Unnao, U.P. From there prosecutrix and Devi Prasad were apprehended from the house of Devi Prasad. Accused was interrogated who disclosed that prosecutrix was living with her sister. He was also living in the adjacent house and had developed friendship with her (prosecutrix) and he started thinking of making her of his own 3 of 73 4 FIR No. 57/11 PS - Adarsh Nagar (use apna banane ki sochne laga). One day, he told prosecutrix (name withheld) to go for outing and after taking her and touring different places in the end he brought her after inducing her to his house at Unnao where after pressurizing prosecutrix on 15/06/2011, married with her in Unnao Court and then onwards, they are living as husband and wife and had also established physical relations with her. Accused Devi Prasad was arrested and the documents regarding his arrest were prepared. On 27/08/2011, the investigation of the case was handed over to W/ASI Saroj Devi. During the course of investigation prosecutrix and accused Devi Prasad were got medically examined from the BJRM Hospital, Delhi. Prosecutrix was medically examined vide MLC No. 3060 but she refused for her internal medical examination. Accused Devi Prasad was medically examined vide MLC No. 30567. The sealed pullindas of blood sample and undergarments with sample seal as were handed over by the Doctor were taken into Police possession. Statement of prosecutrix was got recorded u/s 164 Cr.P.C. Copy of the statement u/s 164 Cr.P.C. was obtained. Bone age XRay, UTP Test and USG of the prosecutrix was got conducted.
4 of 73 5 FIR No. 57/11 PS - Adarsh Nagar Upon completion of necessary further investigation challan for the offences u/s 363/366/376 IPC was prepared against accused Devi Prasad and was sent to the Court for trial.
2. Since the offences under section 366/376 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 363/366/376 IPC was made out against the accused. 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 14 witnesses. PW1 - Prosecutrix (name withheld), PW2 - Sh. Neg Pal, PW3 - Dr. Mamta, SR Gynae, BJRM Hospital, Delhi, PW4 - HC Shakambar, PW5 - Smt. Kanti Devi, PW6 - Dr. Shubhra Aggarwal, 5 of 73 6 FIR No. 57/11 PS - Adarsh Nagar Pathologist, BJRM Hospital, Jahangir Puri, Delhi, PW7 - Dr. Shipra Rampal, Radiologist, BJRM Hospital, Jahangir Puri, Delhi, PW8 - Dr. Deepak Chugh, Medical Officer, BJRM Hospital, Delhi, PW9 - W/Constable Deepa, PW10 - W/Constable Jamuna Devi, PW11 - Constable Pradeep, PW12 - W/ASI Saroj Devi, PW13 - Dr. Seema, MO, BJRM Hospital and PW14 - ASI Uday Singh.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 prosecutrix is the victim who deposed regarding the incident and proved her statement recorded u/s 164 Cr.P.C. Ex. PW1/A, copy of the marriage agreement Ex. P1 and deposed that "I was forced to sign on it by the accused at points 'A', 'B' and 'C'." and deposed regarding the investigational aspects which she joined.
PW2 - Sh. Neg Pal is the brotherinlaw (jija) of the prosecutrix and deposed that she was residing in their house in the year, 2011. She had gone out of the house on 07/03/2011 and did not return to the house and proved his report made to the Police regarding the missing 6 of 73 7 FIR No. 57/11 PS - Adarsh Nagar of the prosecutrix Ex. PW2/A signed by him at point 'A' and also proved the photograph of the prosecutrix as Ex. PX.
PW3 - Dr. Mamta, SR Gynae, BJRM Hospital, Delhi who deposed that on 27/08/2011 at about 12:30 p.m. patient/prosecutrix was preliminarily medically examined vide MLC No. 30601 and thereafter, was referred to SR, Gynae and proved the gynaecological examination of patient/prosecutrix as was conducted by Dr. Manisha Pradhan at points 'A to A' on the MLC Ex. PW3/A. As per the MLC record, LMP two months back and patient refused to do her internal examination. She was advised for urine pregnancy test, pelvic USG and also proved the notings of Dr. Manisha Pradhan from points 'A' to 'A' on MLC Ex. PW3/A signed by Dr. Manisha Pradhan at point 'A'.
PW4 - HC Shakambar is the Duty Officer who deposed that on 08/03/2011 he was posted as Duty Officer at PS - Adarsh Nagar from 4:00 p.m. to 12:00 night and on that day at about 4:28 p.m., ASI Uday Singh produced rukka on the basis of which he recorded the FIR and proved the copy of FIR Ex. PW4/A signed by him at point 'A' and also 7 of 73 8 FIR No. 57/11 PS - Adarsh Nagar proved his endorsement Ex. PW4/B made on the rukka regarding registration of the FIR vide DD No. 20A signed by him at point 'X'.
PW5 - Smt. Kanti Devi is the elder sister of the prosecutrix in whose house at C68, Lal Bagh, Azadpur, Delhi prosecutrix had come to reside from her native place who deposed that in March 2011, prosecutrix was residing in their house situated at Lal Bagh, Delhi. Prosecutrix was brought by them to their house from the native place about 15 days before the incident. On 07/03/2011 when she had returned after bringing her children from the school to her house she saw that prosecutrix was not at the house and she (PW5) had suspicion on accused Devi Prasad who was their neighbourer at that time. They had searched the prosecutrix in nearby places but not succeeded in tracing out her and ultimately her (PW5) husband had made a missing report at PS Adarsh Nagar. Later on Police has traced out her sister/prosecutrix on 27/08/2011 and Police informed her (PW5) and she went to the PS Adarsh Nagar. Police personals medically examined her sister/ prosecutrix from BJRM Hospital and she (PW5) has also gone with the prosecutrix to the hospital. Doctor asked her (PW5) before medical 8 of 73 9 FIR No. 57/11 PS - Adarsh Nagar examination of her sister/prosecutrix but she refused for the internal examination of her (PW5) sister i.e. prosecutrix and her statement was also recorded by the concerned doctor on the MLC and the same is encircled at Point 'X1' and also affixed her thumb impression on MLC Ext. PW3/A. From the hospital her sister was taken to Rohini Court where her statement was recorded by the concerned Presiding Officer of the Court. Later on the custody of her sister/prosecutrix was handed over to her (PW5) by the order of the concerned Court. Later on she (PW5) also joined the investigation. IO visited their house and asked her (PW5) about the birth certificate of her sister/prosecutrix. Her sister/ prosecutrix was not educated so she handed over the copy of ration card showing the age of prosecutrix about 14 years. The ration card was prepared on 07/04/2010. The copy of ration card is Mark 'Y' (running in three pages). She (PW5) has brought the original ration card and proved the photocopy of Ration Card Ex. PW5/A (Previously marked 'Y').
PW6 - Dr. Shubhra Aggarwal, Pathologist, BJRM Hospital, Jahangir Puri, Delhi who deposed that on 27/08/2011 at about 12:30 p.m., one patient/prosecutrix (name withheld) was brought by W/Constable Deepa for medical examination. After examination by SR, 9 of 73 10 FIR No. 57/11 PS - Adarsh Nagar Gynae she was referred for Urine Pregnancy Test (UPT) to the Laboratory. In the Laboratory, the patient's Urine Pregnancy Test was conducted under her supervision on 30/08/2011 and on seeing the report,she found that the above test is positive in the urine sample sent to the Laboratory and proved the report in this regard as Ex. PW6/A signed by her a point 'A' and further deposed that patient/prosecutrix was again tested on 21/09/2011 for the same test and proved the report of UPT as Ex. PW6/B signed by her at point 'A'.
PW7 - Dr. Shipra Rampal, Radiologist, BJRM Hospital, Jahangir Puri, Delhi who deposed that on 27/08/2011 at about 12:30 p.m., one patient/prosecutrix was brought by W/Constable Deepa for medical examination as she was referred by SR, Gynae for Pelvic USG Test to the Department of Radiology and proved the USG Test as was conducted by Dr. Tufail vide report Ex. PW7/A signed by Dr. Tufail at point 'A' and further deposed that on 22/12/2011, she examined XRay Plate of patient/prosecutrix vide MLC No. 137803 and XRay Plate No. 3317/21/12/2011 for Bone Age Estimation and after examining XRay Plates of elbow, wrist, shoulder and pelvis, she opined the estimated age 10 of 73 11 FIR No. 57/11 PS - Adarsh Nagar between 1920 years on 21/12/2011 and proved the detailed report in this regard as Ex. PW7/B signed by her at point 'A'.
PW8 - Dr. Deepak Chugh, Medical Officer, BJRM Hospital, Delhi who deposed that on 27/08/2011 at about 1:45 p.m. patient/accused Devi Prasad was produced for medical examination for his potency test and after his preliminary examination, he was referred to SR, Surgery and Dr. Annu Basu examined the patient and proved the medical examination as was conducted by Dr. Annu Basu from portion 'A' to 'A1' on the MLC Ex. PW8/A signed by Dr. Annu Basu at point 'B' and as per opinion there is nothing to suggest that patient is unable to do complete sexual act.
PW9 - W/Constable Deepa who deposed that on 27/08/2011, she alongwith W/ASI Saroj Devi went to BJRM Hospital for medical examination of prosecutrix. At that time her sister Kanti was also with them. She was produced for medical examination before the concerned Doctor but prosecutrix and her sister Kanti refused for internal medical examination in writing on the MLC. The encircled portion 'X2' is thumb 11 of 73 12 FIR No. 57/11 PS - Adarsh Nagar marked by prosecutrix and refusal by the sister Kanti is encircled at 'X1' and thumb marked and signed at point 'A' on MLC Ex. PW3/A. PW10 - W/Constable Jamuna Devi who deposed that on 25/08/2011 she alongwith ASI Uday Singh and Constable Pradeep went in search of the prosecutrix (name withheld) at the native village of alleged accused Devi Prasad at Unnao, U.P. where at the house of Devi Prasad the prosecutrix was found alongwith a boy Devi Prasad. Devi Prasad was interrogated and after interrogation he was apprehended by the IO and deposed on the investigational aspects and proved the recovery memo of the prosecutrix Ex. PW10/A signed by her at point 'A'. The recovery memo of photocopy of marriage agreement (Ex. P1) produced by accused Devi Prasad Ex.PW10/B, signed by her at point 'A' and disclosure statement of accused Ex. PW10/C signed by her at point 'A'.
PW11 - Constable Pradeep who deposed that on 25/08/2011, he was posted as Constable in PS - Adarsh Nagar. On that day, he alongwith ASI Uday Singh had left for District Unnao, village 12 of 73 13 FIR No. 57/11 PS - Adarsh Nagar Gazakhera. On 26/08/2011, they reached in the village Gazakhera at the house of accused Devi Prasad but he was not found there but prosecutrix (name withheld) was found there. After about half an hour, accused Devi Prasad came there and he was apprehended and proved the arrest memo of accused Devi Prasad Ex. PW11/A, his personal search memo Ex. PW11/B signed by him at point 'A' respectively, besides proving his disclosure statement Ex. PW10/C, recovery memo of the prosecutrix Ex. PW10/A signed by him at point 'B' respectively, the recovery memo of photocopy of marriage agreement (Ex. P1) produced by accused Devi Prasad Ex.PW10/B, signed by him at point 'B' and further deposed that on 27/08/2011 he alongwith IO ASI Saroj and Lady Constable Deepa took accused Devi Prasad and prosecutrix to BJRM Hospital and got them medically examined and proved the seizure memo of the sealed exhibits handed over by the concerned Doctor after the medical examination of accused Devi Prasad Ex. PW11/C signed by him at point 'A'.
PW12 - W/ASI Saroj Devi is the subsequent Investigating Officer (IO) of the case who deposed that on 27/08/2011, investigation of 13 of 73 14 FIR No. 57/11 PS - Adarsh Nagar the present case was marked to her and deposed on the investigational aspects. Besides proving the seizure memo of the sealed exhibits of accused Devi Prasad Ext PW11/C signed by her at point 'C' also proved the application for recording the statement of the prosecutrix u/s 164 Cr.P.C. Ex. PX3, signed by her at point 'A', the application of obtaining the copy of the statement u/s 164 Cr.P.C. Ex. PX4, signed by her at point 'B' and further deposed that on 30/08/2011, prosecutrix was again taken to Hospital for medical examination and her UPT was got conducted. On 21/09/2011, she was again taken to the BJRM Hospital for Bone Age examination but the same could not be conducted as her UPT Examination found positive and further deposed that she obtained the copy of the ration card of the prosecutrix Ex. PW5/A and further deposed that on 21/12/2011, the Bone Age examination of the prosecutrix was got conducted and the report was filed in the Court.
PW13 - Dr. Seema, MO, BJRM Hospital who deposed that on 21/12/2011, as per MLC No. 3791, patient/prosecutrix was brought to the Hospital for medical examination and after her initial examination by CMO on Duty, she was referred to SR, Gynae where she was examined 14 of 73 15 FIR No. 57/11 PS - Adarsh Nagar by Dr. Anshu Gupta. The patient refused to get herself internally examined and proved the findings of Dr. Anshu Gupta as Ex. PW13/A on the MLC signed by Dr. Anshu Gupta at point 'A'.
PW14 - ASI Uday Singh is the initial Investigating Officer (IO) of the case who deposed that on 08/03/2011, complainant Neg Pal came to the Police Station and he recorded his statement Ex. PW2/A and attested his signature at point 'A' signed by him at point 'B' and prepared rukka Ex. PW14/A signed by him at point 'A' and got the case registered and deposed on the investigational aspects and proved the arrest memo of accused Devi Prasad Ex. PW11/A, his personal search memo Ex. PW11/B, his disclosure statement Ex. PW11/C, all bearing his signatures at point 'X' and also proved the recovery memo of the prosecutrix Ex.PW10/A signed by him at point 'X' and the seizure memo of the photocopy of the marriage certificate (Ex. P1) of the prosecutrix and accused Devi Prasad Ex. PW10/B bearing his signature at point 'X' and further deposed that further investigation was handed over to ASI Saroj. Thereafter, he alongwith ASI Saroj, Lady Ct. Deepa and Ct. Pardeep took accused Devi Prasad and prosecutrix to BJRM Hospital where the 15 of 73 16 FIR No. 57/11 PS - Adarsh Nagar medical examinations of accused Devi Prasad and prosecutrix were got conducted and the sealed exhibits handed over by the Doctor after the medical examination were seized by ASI Saroj Devi.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. It is to be mentioned that on 30/01/2013, Ms. Dhaneshwari Devi, Amicus Curiae for the accused Devi Prasad made the statement wherein she admitted the proceedings u/s 164 Cr.P.C. recorded in this case by Ms. Shunali Gupta, Learned MM. The statement u/s 164 Cr.P.C. is already Ex. PW1/A. The proceedings u/s 164 Cr.P.C. is Ex. PX1 (running in two pages), the certificate regarding true and correctness of the statement in the proceedings is Ex. PX2, the application for recording the statement u/s 164 Cr.P.C. is Ex. PX3 and the application of the IO for obtaining the copy of the statement u/s 164 Cr.P.C. and the proceedings is Ex. PX4. Learned Counsel for the accused had stated that she has 'no objection', Learned MM who recorded the statement u/s 164 Cr.P.C. be not examined in the Court as witness.
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7. Statement of accused Devi Prasad was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and did not opt to lead any defence evidence.
8. Learned Counsel for the accused submitted that accused has been falsely implicated in this case by the complainant and his family member in connivance with police and the FIR was lodged on 08/03/2011 while the prosecutrix was recovered on 26/08/2011.
Learned Counsel for the accused further submitted that the statement of prosecutrix has not been supported by any other prosecution witness. The prosecutrix has stated that she was kept in a room in village for five months. IO and parents never visited the village Unnao to verify whether she was kept there or not. There is no pointing out memo of village Unnao of the room on the record and no investigation was carried out to prove/support the version of living at Unnao for five months, nor any site plan was prepared by the police.
17 of 73 18 FIR No. 57/11 PS - Adarsh Nagar Learned Counsel for the accused further submitted that the IO has not made any public witness while arresting the accused nor he confirmed the fact whether the prosecutrix was kept there or not or was there any such room in real or not. Learned Counsel for the accused further submitted that the IO has not even made any inquiry from any person in village Unnao. He further submitted that prosecutrix did not even tell the above said facts to her parents and it proves the afterthought manipulations in the present case with malafide intention to implicate the accused.
Learned Counsel for the accused further submitted that the prosecutrix was kept there for five months and it is impossible to stay in a room without going for call of nature. She further submitted that prosecutrix has stated lie about five months' stay in village Unnao in a room.
Learned Counsel for the accused further submitted that there is no evidence on record which would prove the stay of prosecutrix for five months at the places where she alleged to be stayed in her statement 18 of 73 19 FIR No. 57/11 PS - Adarsh Nagar neither any enquiry about the same has been done by the IO.
Learned Counsel for the accused further submitted that the statements of prosecutrix u/s 161 Cr.P.C., u/s 164 Cr.P.C. and her examinationinchief is not corroborated from her crossexamination.
Learned Counsel for the accused further submitted that the prosecutrix was not ready for internal examination at the time of her medical examination.
Learned Counsel for the accused further submitted that prosecutrix has not any document regarding her date of birth and the ration card is not properly pertained to the date of birth of the prosecutrix.
Learned Counsel for the accused further submitted that it was a case of elopement.
Learned Counsel for the accused further submitted that the 19 of 73 20 FIR No. 57/11 PS - Adarsh Nagar accused is a young boy and is having past clean and clear criminal antecedent and is a poor person and belongs to a respectable family. She further submitted that he is the sole bread earner of his family and due to his detention in JC, his family members are suffering from starvation.
Learned Counsel for the accused further submitted that in view of the above facts and circumstances it is clear that the accused is innocent and has been falsely implicated in this case and the prosecution has failed to prove its case against the accused and prayed for acquittal of the accused.
9. 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.
10. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State 20 of 73 21 FIR No. 57/11 PS - Adarsh Nagar and Ms. Dhaneshwari Devi, Learned Amicus Curiae for the accused and have also carefully perused the entire record.
11. The charge for the offences punishable u/s 363/366/376 IPC against the accused Devi Prasad is that on 07/03/2011 at about 1:00 p.m., he enticed the prosecutrix (name withheld), D/o Sh. Dularay Lal Pal aged around 15 years a minor from her house situated near Sauchalia, C
- 68, Lal Bagh, Azad Pur, Delhi from her lawful guardianship and without consent of her brother and sisterinlaw and kidnapped the prosecutrix with intent that she may be forced or seduced to illicit intercourse and that on or after 07/03/2011 he took prosecutrix (name withheld), D/o Sh. Dularay Lal Pal to his native place i.e. village Gaj Khera, PS - Hassan Ganj, Unnav (U.P.) and raped her forcefully without her consent and against her will.
12. 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 21 of 73 22 FIR No. 57/11 PS - Adarsh Nagar interest of justice.
AGE OF THE PROSECUTRIX
13. PW1 - prosecutrix in her examinationinchief has deposed that : "I do not remember my date of birth as I am illiterate and never attended any school."
On 17/10/2012 PW5 - Smt Kanti Devi, elder sister of prosecutrix in her examinationinchief has deposed that : "My sister was not educated so I handed over the copy of ration card showing the age of prosecutrix (name withheld) about 14 years. The ration card was prepared on 07/04/2010. The copy of ration card is MarkY (running in three pages)."
PW5 - Smt. Kanti Devi in her examinationinchief recorded on 21/11/2012 has deposed that : "I have brought the original Ration Card in the name of Sh. Ram Dulare in which one of the member of the family is prosecutrix (name withheld), aged around 14 years at the time of issuance of the same. The photocopy of Ration Card is Ex. PW5/A (OSR) (Previously marked 'Y')."
I have carefully perused the photocopy of ration card Ex.
22 of 73 23 FIR No. 57/11 PS - Adarsh Nagar PW5/A in which at S. No. 6, the name of the prosecutrix has been shown and against her name, the age has been shown as 14 years. Undisputably, except for the bare mentioning of age as 14 years in the Ex. PW5/A, no date of birth of the prosecutrix is mentioned therein. Nor any supporting document has been produced or proved on the record on the basis of which the age of prosecutrix came to be mentioned as 14 years in the ration card Ex. PW5/A. In the circumstances, Ex. PW5/A does not conclusively prove the age of the prosecutrix as 14 years as on 07/04/2010, the date on which the ration card was allegedly prepared.
In case 'Jarnail Singh Vs. State of Haryana', 2013 VII AD (S.C.) 313 in para 20, the Hon'ble Supreme Court has held that, it would be just and appropriate to apply Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 to determine the age of the prosecutrix.
In the instant case, since there is absence of the matriculation or equivalent certificate; the date of birth certificate from the school (other than a play school) first attended; the birth certificate given by a corporation or a municipal authority or a panchayat of PW1 -
23 of 73 24 FIR No. 57/11 PS - Adarsh Nagar prosecutirx as provided under Rule 12 (3)(a) (i) (ii) and (iii) therefore the medical opinion with respect to PW1 - prosecutrix can be taken into consideration under clause (b) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.
Now let the testimony of PW7 Dr. Shipra Rampal, who proved the bone age estimation of PW1 - prosecutrix be perused and analysed.
PW7 - Dr. Shipra Rampal, Radiologist, BJRM Hospital, Jahangir Puri, Delhi in her examinationinchief recorded on 17/10/2012 deposed that on 27/08/2011 at about 12:30 p.m., one patient/prosecutrix was brought by W/Constable Deepa for medical examination as she was referred by SR, Gynae for Pelvic USG Test to the Department of Radiology and proved the USG Test as was conducted by Dr. Tufail vide report Ex. PW7/A signed by Dr. Tufail at point 'A'. During her further examinationinchief recorded on 30/01/2013, Pw7 - Dr. Shipra Rampal deposed that on 22/12/2011, she examined XRay Plate of patient/prosecutrix vide MLC No. 137803 and XRay Plate No. 3317/21/12/2011 for Bone Age Estimation and after examining XRay 24 of 73 25 FIR No. 57/11 PS - Adarsh Nagar Plates of elbow, wrist, shoulder and pelvis, she opined the estimated age between 1920 years on 21/12/2011 and proved the detailed report in this regard as Ex. PW7/B signed by her at point 'A'.
There is nothing in her crossexamination so as to impeach her creditworthiness. Nor any evidence to the contrary has been produced or proved on the record by the accused.
In the circumstances, it stands proved that the estimated age of prosecutrix was between 1920 years as on the date of bone age estimation on 21/12/2011.
As the date of alleged incident is 07/03/2011 and the estimated age of the prosecutrix is between 1920 years as on the date of bone age estimation on 21/12/2011, on simple arithmetical calculation, the age of prosecutrix comes to between 1819 years as on the date of incident on 07/03/2011.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged between 1819 years as on the date of alleged incident on 07/03/2011.
It is pertinent to reproduce para 20 of Jarnail Singh's case 25 of 73 26 FIR No. 57/11 PS - Adarsh Nagar (Supra) of the Hon'ble Supreme Court which reads as under : "On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to hereinabove reads as under : "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, 26 of 73 27 FIR No. 57/11 PS - Adarsh Nagar the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in subrule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those 27 of 73 28 FIR No. 57/11 PS - Adarsh Nagar disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the 28 of 73 29 FIR No. 57/11 PS - Adarsh Nagar absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
14. Learned Counsel for the accused submitted that prosecutrix has not produced any document regarding her date of birth and the ration card is not properly pertained to the date of birth of the prosecutrix.
I have carefully perused and analysed the evidence on the record.
The testimonies of PW1 prosecutrix, PW5 Dr. Kanti Devi and PW7 Dr. Shipra Rampal have been discussed and analysed herein above and at the cost of repetition, it stands established on the record that PW1 prosecutrix was aged between 1819 years as on the date of alleged incident on 07/03/2011.
In the circumstances, no further discussion on the plea so raised is called for.
29 of 73 30 FIR No. 57/11 PS - Adarsh Nagar MEDICAL EVIDENCE OF THE PROSECUTRIX
15. PW3 - Dr. Mamta, SR Gynae, BJRM Hospital, Delhi deposed that on 27/08/2011 at about 12:30 p.m. patient/prosecutrix was preliminarily medically examined vide MLC No. 30601 and thereafter, was referred to SR, Gynae and proved the gynaecological examination of patient/prosecutrix as was conducted by Dr. Manisha Pradhan at points 'A to A' on the MLC Ex. PW3/A. As per the MLC record, LMP two months back and patient refused to do her internal examination. She was advised for urine pregnancy test, pelvic USG and also proved the notings of Dr. Manisha Pradhan from points 'A' to 'A' on MLC Ex. PW3/A signed by Dr. Manisha Pradhan at point 'A'.
PW6 - Dr. Shubhra Aggarwal, Pathologist, BJRM Hospital, Jahangir Puri, Delhi deposed that on 27/08/2011 at about 12:30 p.m., one patient/prosecutrix (name withheld) was brought by W/Constable Deepa for medical examination. After examination by SR, Gynae she was referred for Urine Pregnancy Test (UPT) to the Laboratory. In the Laboratory, the patient's Urine Pregnancy Test was conducted under her supervision on 30/08/2011 and on seeing the report,she found that the 30 of 73 31 FIR No. 57/11 PS - Adarsh Nagar above test is positive in the urine sample sent to the Laboratory and proved the report in this regard as Ex. PW6/A signed by her a point 'A' and further deposed that patient/prosecutrix was again tested on 21/09/2011 for the same test and proved the report of UPT as Ex. PW6/B signed by her at point 'A'.
PW13 Dr. Seema, MO, BJRM Hospital deposed that on 21/12/2011, as per MLC No. 3791, patient/prosecutrix was brought to the Hospital for medical examination and after her initial examination by CMO on Duty, she was referred to SR, Gynae where she was examined by Dr. Anshu Gupta. The patient refused to get herself internally examined and proved the findings of Dr. Anshu Gupta as Ex. PW13/A on the MLC signed by Dr. Anshu Gupta at point 'A'.
There is nothing in the crossexamination of PW3 - Dr. Mamta and PW6 - Dr. Shubhra Aggarwal so as to impeach their creditworthiness. Moreover, PW13 - Dr. Seema was not crossexamined despite grant of opportunity on behalf of accused.
In view of above and in the circumstances, the gynaecological examination from points 'A' to 'A' on MLC Ex. PW3/A, Urine Pregnancy Test (UPT) vide Ex. PW6/A, Ex. PW6/B of 31 of 73 32 FIR No. 57/11 PS - Adarsh Nagar the prosecutrix as well as her examination conducted by Dr. Anshu Gupta on 21/12/2011 vide Ex. PW13/A stands proved on the record. VIRILITY OF THE ACCUSED
16. PW8 - Dr. Deepak Chugh, Medical Officer, BJRM Hospital, Delhi who deposed that on 27/08/2011 at about 1:45 p.m. patient/accused Devi Prasad was produced for medical examination for his potency test and after his preliminary examination, he was referred to SR, Surgery and Dr. Annu Basu examined the patient and proved the medical examination as was conducted by Dr. Annu Basu from portion 'A' to 'A1' on the MLC Ex. PW8/A signed by Dr. Annu Basu at point 'B' and as per opinion there is nothing to suggest that patient is unable to do complete sexual act.
There is nothing in the crossexamination of PW8 - Dr. Deepak Chugh so as to impeach his creditworthiness.
In the circumstances, it stands established on the record that accused Devi Prasad was capable to do complete sexual act.
17. Now let the testimonies of PW1 - Prosecutrix, PW2 - Neg 32 of 73 33 FIR No. 57/11 PS - Adarsh Nagar Pal, brotherinlaw of the prosecutrix and PW5 - Kanti Devi, elder sister of prosecutrix be perused and analysed.
PW1 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 07/05/2011, I came to the house of my sister Kanti Pal at Lal Bagh in Delhi. Accused Devi Prasad was residing in the neighbourhood of the house of my sister Kanti Pal who used to visit the house of my sister oftenly. On that day he asked me to for a stroll towards Azad Pur as he was living in the neighbourhood of my sister believing him I went alongwith him. He took me in a bus. I do not know as to what places he roamed me. In the process of roaming he took me to his house at his native place and I asked her (him) to drop me at my sister's house but he did not pay heed to it. There at his house he forcibly did the Galat Kaam with me. Galat Kaam I mean by which I became pregnant (Pet Mein Bacha Reh Gaya Tha). My condition became bad despite this he did not leave me at the house of my sister despite my repeated request. He kept me at his house for about 1 or 2 months. He also took me to the Court of his area for the purpose of marriage with me and he forced me to perform marriage with him and forcibly made me to sign the marriage agreement. The copy of marriage agreement is Ex. P1 on which I was forced to sign by the accused at points 'A', 'B' & 'C'. The copy of the marriage agreement was seized by the IO. After about 34 months of 07/05/2011 and on dated 26th my sister alongwith two three Police officials of Delhi came to the house of accused and recovered me from his house and he was also apprehended. I do not want to go with 33 of 73 34 FIR No. 57/11 PS - Adarsh Nagar the accused. I do not remember my date of birth as I am illiterate and never attended any School. I also made statement (under section 164 Cr.P.C.) before the Court."
From the aforesaid narration of PW1 - prosecutrix, it is clear that on 07/05/2011, she came to the house of her sister Kanti Pal at Lal Bagh in Delhi. Accused Devi Prasad was residing in the neighbourhood of the house of her sister Kanti Pal who used to visit the house of her sister oftenly. On that day he asked her (PW1 - prosecutrix) for a stroll towards Azad Pur as he was living in the neighbourhood of her sister believing him she went alongwith him. He took her in a bus. She does not know as to what places he roamed her. In the process of roaming he took her to his house at his native place and she asked him to drop her at her sister's house but he did not pay heed to it. There at his house he forcibly did the Galat Kaam with her. Galat Kaam she means by which she became pregnant (Pet Mein Bacha Reh Gaya Tha). Her condition became bad despite this he did not leave her at the house of her sister despite her repeated request. He kept her at his house for about 1 or 2 months. He also took her to the Court of his area for the purpose of marriage with her and he forced her to perform 34 of 73 35 FIR No. 57/11 PS - Adarsh Nagar marriage with him and forcibly made her to sign the marriage agreement. The copy of marriage agreement is Ex. P1 on which she was forced to sign by the accused at points 'A', 'B' & 'C'. The copy of the marriage agreement was seized by the IO. After about 34 months of 07/05/2011 and on dated 26th her sister alongwith two three Police officials of Delhi came to the house of accused and recovered her (PW1
- prosecutrix) from his house and he was also apprehended. She does not want to go with the accused. She does not remember her date of birth as she is illiterate and never attended any School. She also made statement (under section 164 Cr.P.C.) before the Court.
PW1 - Prosecutrix during her crossexamination has negated the suggestions that she was meeting accused Devi Parsad oftenly or that she had gone with the accused person with her own free will and consent that is why she did not raise any alarm at any point of time or that she was not taken forcibly by the accused at any place or that she was (not) forced by accused to marry with him or to sign forcibly at marriage agreement Ex. P1 or that no threatening as alleged was ever made to her or that no physical relation was established with her by the 35 of 73 36 FIR No. 57/11 PS - Adarsh Nagar accused or that she was staying in Delhi only and did not go to any place or at the native place of the accused or that a false story has been cooked up by her at the instance of her sister, implicating the accused in the false case or that she is deposing falsely.
The testimony of PW1 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. Inspite of incisive crossexamination 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 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 the case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW1/A. 36 of 73 37 FIR No. 57/11 PS - Adarsh Nagar The testimony of PW1 Prosecutrix is also found to be corroborated in material particulars by the testimonies of PW5 - Kanti Devi, sister of the prosecutrix and PW2 - Neg Pal, brotherinlaw of the prosecutrix to whom PW1 Prosecutrix disclosed the facts relating to the crime shortly after her recovery after the incident being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.
PW5 - Kanti Devi in her examinationinchief recorded on 17/10/2012 has deposed that : "In the March, 2011 prosecutrix (name withheld) was residing in our house situated at Lal Bagh, Delhi. Prosecutrix (name withheld) was brought by us to our house from the native place about 15 days before the incident. On 07/03/2011 when I had returned after brought (bringing) my children from the school to my house I saw that prosecutrix (name withheld) was not at the house and I had suspicion on accused Devi Prasad who was our neighbourer at that time. We had searched prosecutrix (name withheld) in nearby places but not succeeded in tracing out her and ultimately my husband had made a missing report at PS Adarsh Nagar.
Later on police has traced out my sister/prosecutrix (name withheld) on 27/08/2011 and police informed me and I went to the PS Adarsh Nagar. Police personals medically examined my sister/prosecutrix (name withheld) from BJRM Hospital and I was also gone with prosecutrix (name withheld) to the hospital. Doctor asked me 37 of 73 38 FIR No. 57/11 PS - Adarsh Nagar before medical examination of my sister/prosecutrix (name withheld) but I refused for the internal examination of my sister and my statement was also recorded by the concerned doctor on the MLC and the same is encircled at Point 'X1' and also affixed my thumb impression on MLC Ex. PW3/A. From the hospital my sister was taken to Rohini Court where her statement was recorded by the concerned Presiding Officer of the Court. Later on the custody of my sister was handed over to me by the order of the concerned Court.
Later on I was also joined the investigation. IO visited our house and asked me about the birth certificate of my sister. My sister was not educated so I handed over the copy of ration card showing the age of prosecutrix (name withheld) about 14 years. The ration card was prepared on 07/04/2010. The copy of ration card is Mark 'Y' (running in three pages). I have not brought the original ration card.
I have brought the original Ration Card in the name of Sh. Ram Dulare in which on the the member of the family is prosecutrix (name withheld), aged around 14 years at the time of issuance of the same. The photocopy of Ration Card is Ex. PW5/A (OSR) (Previously marked 'Y')."
From the aforesaid narration of PW5 - Kanti Devi, it is clear that in the March, 2011 prosecutrix was residing in their house situated at Lal Bagh, Delhi. Prosecutrix was brought by them to their house from the native place about 15 days before the incident. On 07/03/2011 when she had returned after bringing her children from the 38 of 73 39 FIR No. 57/11 PS - Adarsh Nagar school to her house she saw that prosecutrix was not at the house and she (PW5) had suspicion on accused Devi Prasad who was their neighbourer at that time. They had searched the prosecutrix in nearby places but not succeeded in tracing out her and ultimately her (PW5) husband had made a missing report at PS Adarsh Nagar. Later on Police has traced out her sister/prosecutrix on 27/08/2011 and Police informed her (PW5) and she went to the PS Adarsh Nagar. Police personals medically examined her sister/ prosecutrix from BJRM Hospital and she (PW5) has also gone with the prosecutrix to the hospital. Doctor asked her (PW5) before medical examination of her sister/prosecutrix but she refused for the internal examination of her (PW5) sister i.e. prosecutrix and her statement was also recorded by the concerned doctor on the MLC and the same is encircled at Point 'X1' and also affixed her thumb impression on MLC Ext. PW3/A. From the hospital her sister was taken to Rohini Court where her statement was recorded by the concerned Presiding Officer of the Court. Later on the custody of her sister/prosecutrix was handed over to her (PW5) by the order of the concerned Court. Later on she (PW5) also joined the investigation. IO visited their house and asked her (PW5) about the birth certificate of her sister/prosecutrix. Her 39 of 73 40 FIR No. 57/11 PS - Adarsh Nagar sister/ prosecutrix was not educated so she handed over the copy of ration card showing the age of prosecutrix about 14 years. The ration card was prepared on 07/04/2010. The copy of ration card is Mark 'Y' (running in three pages). She (PW5) has brought the original ration card and proved the photocopy of Ration Card Ex. PW5/A (Previously marked 'Y').
During her crossexamination PW5 - Kanti Devi has negated the suggestions that her sister i.e. PW1 prosecutrix did not go with Devi Prasad or that the prosecutrix was (not) residing with them for the last many years or that accused has been falsely implicated in this case due to some personal enmity with them or that she is deposing falsely.
PW2 - Neg Pal in his examinationinchief has deposed that : "Prosecutrix (name withheld) is my sisterinlaw (Sali). She was residing in our house in the year, 2011. Prosecutrix (name withheld) had gone out of the house on 07/03/2011 and did not return to the house. We tried to trace her as (at) our own but could not succeed on that day. On the next day i.e. on 08/03/2011 I went to the Police Station Adarsh Nagar and reported the matter to the Police. Police has recorded my statement Ex. PW2/A signed by me at point 'A'. For 23 days we could not suspect anyone however, after 34 days later by our own sources we 40 of 73 41 FIR No. 57/11 PS - Adarsh Nagar came to know that Devi Prasad accused is the person involved in such act of taking away my sisterinlaw/prosecutrix (name withheld) and I informed to the Police accordingly. I had also provided a photograph of prosecutrix (name withheld) to the Police. The photograph is Ex. PX."
From the aforesaid narration of PW2 - Neg Pal, it is clear that the prosecutrix (name withheld) is his sisterinlaw (Sali). She was residing in their house in the year, 2011. Prosecutrix (name withheld) had gone out of the house on 07/03/2011 and did not return to the house. They tried to trace her at their own but could not succeed on that day. On the next day i.e. on 08/03/2011, he went to the Police Station Adarsh Nagar and reported the matter to the Police. Police has recorded his statement Ex. PW2/A signed by him at point 'A'. For 23 days they could not suspect anyone however, after 34 days later by their own sources they came to know that Devi Prasad accused is the person involved in such act of taking away his sisterinlaw/prosecutrix (name withheld) and he informed to the Police accordingly. He had also provided a photograph of prosecutrix (name withheld) to the Police. The photograph is Ex. PX.
During his crossexamination, PW2 - Neg Pal has deposed 41 of 73 42 FIR No. 57/11 PS - Adarsh Nagar that : "Prosecutrix (name withheld) was staying with us for the last 1½ or 2 months prior to the incident. Vol. I had brought her as my wife was not keeping well. My marriage had taken place about 12 to 13 years back in the year 1999 in the month of July. I have two children. Vol. Four of my children have expired. My eldest child is about eight years of age. It is correct that I have stated in my statement Ex. PW2/A to the Police that my sisterinlaw had gone for easing herself on 07/03/2011. I came to know about the said fact that my sisterinlaw has gone for easing herself from a lady who lived in my neighbourhood to whom she/prosecutrix (name withheld) had told about the said fact. I do not know the name of that lady. It is correct that my wife Kanti Pal is elder to prosecutrix (name withheld). My wife Kanti Pal is an illiterate. Accused Devi Prasad used to visit our house as his door used to open in our neighbourhood."
There is nothing in the crossexamination of PW5 - Kanti Devi, sister of the prosecutrix and PW2 - Neg Pal, brotherinlaw of the prosecutrix so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. Their testimonies 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] are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is 42 of 73 43 FIR No. 57/11 PS - Adarsh Nagar nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
18. While analysing the testimonies of PW1 Prosecutrix, PW2
- Neg Pal, her brotherinlaw and PW5 - Kanti Devi, her elder sister as discussed hereinabove inspite of incisive crossexamination nothing has come out in the statements of PW1 Prosecutrix, PW2 - Neg Pal and PW5 - Kanti Devi, which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW1 - prosecutrix that she was meeting accused Devi Parsad oftenly or that she had gone with the accused person with her own free will and consent that is why she did not raise any alarm at any point of time or that she was not taken forcibly by the accused at any place or that she was (not) forced by accused to marry with him or to sign forcibly at marriage agreement Ex. P1 or that no threatening as alleged was ever made to her or that no physical relation was established with her by the accused or that she was staying in Delhi only and did not go to any place or at the native place of the accused or that a false story has been cooked up by her at the instance of her sister, implicating the 43 of 73 44 FIR No. 57/11 PS - Adarsh Nagar accused in the false case or that she is deposing falsely and the suggestions put to PW5 - Kanti Devi that her sister i.e. PW1 prosecutrix did not go with Devi Prasad or that the prosecutrix was (not) residing with them for the last many years or that accused has been falsely implicated in this case due to some personal enmity with them or that she is deposing falsely were put, which were negated by PW1 - prosecutrix and PW5 - Kanti Devi but the same have not at all being made probable much established by any cogent evidence.
At the cost of repetition, from the suggestions put to PW1 - prosecutrix and PW5 - Kanti Devi as detailed hereinabove, by the accused Devi Prasad, it is to be noticed that a futile attempt has been made by accused Devi Prasad to save his skin from the clutches of law by floating every possible theory. The theories floated by accused Devi Prasad are : The Theory that, "she (prosecutrix) was meeting accused Devi Prasad oftenly".
The Theory that, "she (prosecutrix) had gone with the accused person with her own free will and consent".
The Theory that, "she (prosecutrix) was not taken 44 of 73 45 FIR No. 57/11 PS - Adarsh Nagar forcibly by the accused at any place".
The Theory that, "she (prosecutrix) was (not) forced by accused to marry with him or to sign forcibly at marriage agreement Ex. P1".
The Theory that, "no threatening as alleged (accused threatened prosecutrix not to raise any alarm if not done so then she (prosecutrix) will be thrown under the train) was ever made to her".
The Theory that, "no physical relation was established with her (prosecutrix) by the accused".
The Theory that, "she (prosecutrix) was staying in Delhi only and did not go to any place or at the native place of the accused".
The Theory that, "a false story has been cooked up by her (prosecutrix) at the instance of her sister, implicating the accused in the false case".
The Theory that, "her (PW5 - Kanti Devi) sister i.e. PW1 prosecutrix did not went with Devi Prasad".
The Theory that, "the prosecutrix was (not) residing 45 of 73 46 FIR No. 57/11 PS - Adarsh Nagar with them (PW5 - Kanti Devi) for the last many years".
AND The Theory that, "accused has been falsely implicated in this case due to some personal enmity with them".
On careful perusal and analysis of the entire evidence on record, the said theories so propounded by accused Devi Prasad are found, not only self contradictory but have also not at all being made probable much established by any cogent evidence, therefore falls flat to the ground.
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 46 of 73 47 FIR No. 57/11 PS - Adarsh Nagar that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
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
47 of 73 48 FIR No. 57/11 PS - Adarsh Nagar unnecessary."
PW10 - W/Constable Jamuna Devi, PW11 - Constable Pardeep and PW14 - ASI Uday Singh have proved the recovery of prosecutrix on 26/08/2011 vide recovery memo Ex. PW10/A from the house of accused Devi Prasad and accused Devi Prasad was also found present there. PW1 - prosecutrix was medically examined at BJRM Hospital and also tested for Urine Pregnancy Test (UTP) which was found positive.
PW6 - Dr. Shubhra Aggarwal, Pathologist, BJRM Hospital, Jahangir Puri, Delhi who deposed that on 27/08/2011 at about 12:30 p.m., one patient/prosecutrix (name withheld) was brought by W/Constable Deepa for medical examination. After examination by SR, Gynae she was referred for Urine Pregnancy Test (UPT) to the Laboratory. In the Laboratory, the patient's Urine Pregnancy Test was conducted under her supervision on 30/08/2011 and on seeing the report,she found that the above test is positive in the urine sample sent to the Laboratory and proved the report in this regard as Ex. PW6/A signed by her a point 'A' and further deposed that patient/prosecutrix was again tested on 21/09/2011 for the same test and proved the report of UPT as 48 of 73 49 FIR No. 57/11 PS - Adarsh Nagar Ex. PW6/B signed by her at point 'A'.
From above, it stands clearly established on record that after the recovery of prosecutrix on 26/08/2011 vide recovery memo Ex. PW10/A, on 27/08/2011 after her medical examination she was tested for UTP on 30/08/2011 and then again on 21/09/2011 vide reports Ex. PW6/A and Ex. PW6/B respectively and she was found positive for such pregnancy tests.
On analysing the testimony of PW1 - prosecutrix in the light of the medical evidence, gynaecological examination from point 'A' to 'A' on MLC Ex. PW3/A, Urine Pregnancy Test (UPT) Reports Ex. PW6/A; Ex. PW6/B of the prosecutrix, and the MLC of the accused Devi Prasad Ex. PW8/A detailed and 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 consequent upon which pregnancy occurred.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by the accused Devi Prasad with PW1 - Prosecutrix without her consent;
49 of 73 50 FIR No. 57/11 PS - Adarsh Nagar whereupon PW1 - prosecutrix became pregnant.
20. Learned Counsel for the accused submitted that accused has been falsely implicated in this case by the complainant and his family member in connivance with police and the FIR was lodged on 08/03/2011 while the prosecutrix was recovered on 26/08/2011.
I have carefully perused and analysed the evidence on the record.
PW2 Neg Pal, who is the brotherinlaw (jija) of PW1 Prosecutrix in his examinationinchief, has specifically deposed that prosecutrix (name withheld) is his sisterinlaw (saali) and she was residing in their house in the year 2011. She had gone out of the house on 07/03/2011 and did not return to the house. They tried to trace her of her on but could not succeed on that day. On the next day i.e. on 08/03/2011, he went to the PS Adarsh Nagar and reported the matter to the police. Police recorded his statement Ex. PW2/A signed by him at point 'A'. For 23 days they could not suspect anyone, however, 34 days later by their own sources, they came to know that Devi Prasad, accused, is the person involved in such act of taking away his sisterinlaw 50 of 73 51 FIR No. 57/11 PS - Adarsh Nagar (prosecutrix) and he informed the police accordingly. He also provided a photograph of the prosecutrix to the police. The photograph is Ex. PX.
There is nothing in the crossexamination of PW2 Neg Pal, so as to impeach his creditworthiness. From the testimony of PW2 Sh. Neg Pal, the delay of one day in registering the report with the police vide Ex. PW2/A stands sufficiently and satisfactorily explained.
From the testimony of PW1 prosecutrix as well as that of PW11 Constable Pradeep, PW10 W/Constable Jamna Devi and PW14 ASI Udai Singh, IO, the recovery of the prosecutrix on 26/08/2011 from the house of accused at his native place Unnao stands proved vide recovery memo Ex. PW10/A. Learned Counsel for the accused failed to explain as to what benefit she intends to reap by raising the said plea by way of corelating the registration of FIR Ex. PW4/A on 08/03/2011 with the recovery of prosecutrix on 26/08/2011 vide recovery memo Ex. PW10/A, when undisputably, the registration of FIR Ex. PW4/A is prior to the recovery of prosecutrix on 26/08/2011. There is nothing in the crossexamination of the said PWs on the aspect of recovery of prosecutrix so as to impeach their creditworthiness.
51 of 73 52 FIR No. 57/11 PS - Adarsh Nagar 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 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 52 of 73 53 FIR No. 57/11 PS - Adarsh Nagar false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to 53 of 73 54 FIR No. 57/11 PS - Adarsh Nagar 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 Vs. State of Haryana AIR 2009 SC 2190' has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
54 of 73 55 FIR No. 57/11 PS - Adarsh Nagar 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 statement of prosecutrix has not been supported by any other prosecution witness. The prosecutrix has stated that she was kept in a room in village for five months. IO and parents never visited the village Unnao to verify whether she was kept there or not. There is no pointing out memo of village Unnao of the room on the record and no investigation was carried out to prove/support the version of living at Unnao for five months, nor any site plan was prepared by the police. Learned Counsel for the accused further submitted that the IO has not made any public witness while arresting the accused nor he confirmed the fact whether the prosecutrix was kept there or not or was there any such room in real or not. Learned Counsel for the accused further submitted that the IO has not even made any inquiry from any person in village Unnao. She further submitted that prosecutrix did not even tell the above said facts to her parents and it proves the afterthought manipulations in the present case with malafide intention to implicate the accused. Learned Counsel 55 of 73 56 FIR No. 57/11 PS - Adarsh Nagar for the accused further submitted that the prosecutrix was kept there for five months and it is impossible to stay in a room without going for call of nature. She further submitted that prosecutrix has stated lie about five months' stay in village Unnao in a room. Learned Counsel for the accused further submitted that there is no evidence on record which would prove the stay of prosecutrix for five months at the places where she alleged to be stayed in her statement neither any enquiry about the same has been done by the IO.
I have carefully perused and analysed the evidence on the record.
The plea of the Learned Counsel for the accused that the statement of PW1 prosecutrix has not been supported by any other prosecution witness, is vague and she has not clarified as to which prosecution witness and on what aspect, the testimony of PW1 prosecutrix has not been supported.
From the testimony of PW1 prosecutrix as well as that of PW11 Constable Pradeep, PW10 W/Constable Jamna Devi and PW14 ASI Udai Singh, IO, the fact regarding the recovery of the PW1 56 of 73 57 FIR No. 57/11 PS - Adarsh Nagar prosecutrix on 26/08/2011 from the house of accused Devi Prasad at Distt. Unnao, village Gaja Khera vide recovery memo Ex. PW10/A stands proved.
PW14 ASI Udai Singh, IO in his examinationinchief has specifically deposed that on 25/08/2011 complainant Neg Pal (PW2) informed him that accused Devi Prasad has taken away his sisterinlaw (saali) prosecutrix and they are present in Distt. Unnao (UP). Thereafter, he alongwith woman Constable Jamna Devi (PW10), Constable Pradeep (PW11) had left the police station for village Gaja Khera, Distt. Unnao (UP). On 26/08/2011, they reached at Village Gaja Khera at the house of accused Devi Prasad, but accused Devi Prasad not met there, however, prosecutrix was found there. After half an hour, accused Devi Prasad also reached there and was apprehended, interrogated and arrested vide arrest memo Ex. PW11/A and his personal search was conducted vide memo Ex. PW11/B and he made disclosure statement Ex. PW11/C, all bearing his signatures at point 'X'. The prosecutrix was also taken into possession vide memo Ex. PW10/A bearing his signature at point 'X'.
The said part of the testimony of PW14 ASI Udai Singh, 57 of 73 58 FIR No. 57/11 PS - Adarsh Nagar IO, has been corroborated by PW10 W/Constable Jamna Devi, PW11 Constable Pradeep as well as by PW1 prosecutrix. There is nothing in the crossexamination of the said PWs so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal and analysis their testimonies are found to be clear, cogent, convincing, 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.
PW1 prosecutrix during her examinationinchief has deposed that "I do not remember my date of birth as I am illiterate and never attended any school."
PW1 prosecutrix in her examinationinchief has specifically deposed that "After about 34 months of 07/05/2011 and on dated 26th my sister alongwith 23 police officials of Delhi came to the house of accused and removed me from his house and he was also apprehended".
Moreover, during the crossexamination of PW1 58 of 73 59 FIR No. 57/11 PS - Adarsh Nagar prosecutrix, self contradictory suggestions have been revealed which are reproduced and read as under : "It is wrong to suggest that I had gone with the accused person with my own free will and consent, that is why I did not raise any alarm at any point of time........"
"It is wrong to suggest that I was staying at Delhi only and did not go to any place or at the native place of the accused."
As regards the plea that there is no pointing out memo of village Unnao of the room on the record, nor any site plan of the room was prepared by the police, are concerned, information regarding the same must have been elicited from PW14 ASI Udai Singh during his crossexamination. For such failure, accused is to be blame himself and none else. However, PW14 ASI Udai Singh in his crossexamination has specifically deposed that they first went to concerned PS Hasanganj before going to village of accused, they made their arrival entry in the said PS. One Constable from the local police had accompanied them but he does not remember his name.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show 59 of 73 60 FIR No. 57/11 PS - Adarsh Nagar the admission of that fact (Ref. Wahid Ahmed & ors., V/s State (NCT of Delhi) 2011 VII AD (DELHI) 276).
Moreover, the said lapses do not reflect upon the substantive evidence and the probative value of the statement of PW1 prosecutrix made on material and relevant aspects. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The version of PW1 prosecutrix on the core spectrum of crime has remained intact.
As regards the plea whether the prosecutrix was kept there at Unnao for five months or not or whether there was any such room, is concerned, the same is found to be devoid of any substance, in view of the categorical deposition of PW1 prosecutrix made in her examinationinchief which is reproduced and reads as under : "in the process of roaming, he took me to his house at his native place and I asked her (him) to drop me at my sister's house but he did not pay heed to it. There at his house he forcibly did the Galatkam with me. Galat kaam I mean by which I became pregnant. (pet main bacha rehgaya tha). My condition became bad despite this he did not leave me at the house of my sister despite my repeated request. He kept me at his house for about 1 or 2 months".
60 of 73 61 FIR No. 57/11 PS - Adarsh Nagar As regards the plea that IO has not even inquired any person in the village Unnao, is concerned, the information regarding this must have been obtained from PW14 ASI Udai Singh, IO. For such failure, accused is to be blame himself and none else. It is a known fact that persons of the public are reluctant to join the police in the investigation of any case as they do not want to undertake the unpleasant task of attending the police station and the court for giving evidence (Ref. :
Nirmal Singh & ors. vs. State (NCT of Delhi) 2011 III AD (DELHI)
699.) As regards the plea that prosecutrix was kept there for five months in a room and it is impossible to stay in a room without going for call of nature, is concerned, the information regarding the same must have been obtained from PW1 prosecutrix. For such failure, accused is to be blame himself and none else.
In view of the above and in the circumstances, there is no substance in the pleas so raised by the Learned Counsel for accused.
22. Learned Counsel for the accused submitted that the statements of prosecutrix u/s 161 Cr.P.C., u/s 164 Cr.P.C. and her 61 of 73 62 FIR No. 57/11 PS - Adarsh Nagar examinationinchief is not corroborated from her crossexamination.
I have carefully perused and analysed the evidence on the record.
The testimony of PW1 prosecutrix has been discussed and analysed in detail hereinbefore. At the cost of repetition, on careful perusal and analysis, the testimony of PW1 prosecutrix is found to be clear, natural, cogent, reliable, convincing and inspiring confidence. Her version on the core spectrum of the crime has remained intact. In the witness box, she has withstood the rigors of crossexamination, without being shaken. Her testimony is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW1/A as well as her statement made to the police u/s 161 CrPC.
Learned Counsel for the accused failed to pin point as to how and in what manner, the crossexamination of PW1 prosecutrix has dented her examinationinchief and her statements recorded u/s 161 Cr.P.C. and u/s 164 Cr.P.C. Ex. PW1/A. In the circumstances, the plea so raised is found to be totally vague, unsubstantiated and unfounded.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
62 of 73 63 FIR No. 57/11 PS - Adarsh Nagar
23. Learned Counsel for the accused submitted that the prosecutrix was not ready for internal examination at the time of her medical examination.
I have carefully perused and analysed the evidence on the record.
It is not made clear by the Learned Counsel for the accused as to what benefit she intends to reap by raising such plea, especially, in view of the testimony of PW1 prosecutrix who in her examinationin chief, has specifically deposed that : "There at his house, he forcibly did the galatkam with me. Galatkam I mean by which I became pregnant. (pet main bacha rehgaya tha). My condition became bad despite this he did not leave me at the house of my sister despite my repeated request."
PW3 Dr. Mamta, SR Gynae, BJRM Hospital, who deposed that on 27/08/2011 after preliminary medical examination of the patient/prosecutrix, she was referred to SR Gyane and proved her gynecological examination as was conducted by Dr. Manisha Pradhan at points 'A to A' on the MLC Ex. PW3/A. As per the MLC record, LMP two months back and patient refused to do her internal examination. She 63 of 73 64 FIR No. 57/11 PS - Adarsh Nagar was advised for urine pregnancy test, pelvic USG and also proved the notings of Dr. Manisha Pradhan from points 'A' to 'A' on MLC Ex. PW3/A signed by Dr. Manisha Pradhan at point 'A'.
PW6 - Dr. Shubhra Aggarwal, Pathologist, BJRM Hospital, Jahangir Puri, Delhi who deposed that on 27/08/2011 at about 12:30 p.m., one patient/prosecutrix (name withheld) was brought by W/Constable Deepa for medical examination. After examination by SR, Gynae she was referred for Urine Pregnancy Test (UPT) to the Laboratory. In the Laboratory, the patient's Urine Pregnancy Test was conducted under her supervision on 30/08/2011 and on seeing the report, she found that the above test is positive in the urine sample sent to the Laboratory and proved the report in this regard as Ex. PW6/A signed by her a point 'A' and further deposed that patient/prosecutrix was again tested on 21/09/2011 for the same test and proved the report of UPT as Ex. PW6/B signed by her at point 'A'.
PW13 - Dr. Seema, MO, BJRM Hospital who deposed that on 21/12/2011, as per MLC No. 3791, patient/prosecutrix was brought to the Hospital for medical examination and after her initial examination by 64 of 73 65 FIR No. 57/11 PS - Adarsh Nagar CMO on Duty, she was referred to SR, Gynae where she was examined by Dr. Anshu Gupta. The patient refused to get herself internally examined and proved the findings of Dr. Anshu Gupta as Ex. PW13/A on the MLC signed by Dr. Anshu Gupta at point 'A'.
There is nothing in the crossexamination of PW3 Dr. Mamta, PW6 Dr. Shubhra Aggarwal, so as to impeach their creditworthiness, while PW13 Dr. Seema was not crossexamined on behalf of the accused despite grant of opportunity.
As regards the fact for refusal of the internal medical examination by prosecutrix is concerned, the same is reflected from the testimony of PW3 Dr. Mamta, SR Gynae, BJRM hospital, as discussed hereinabove.
The fact that during the urine pregnancy tests (UPT) conducted of PW1 prosecutrix on 30/08/2011 vide Report Ex. PW6/A and on 21/09/2011 vide Report Ex. PW6/B the prosecutrix was found positive for the said pregnancy tests as is reflected from the testimony of PW6 Dr. Shubhra Aggarwal, Pathologist, BJRM Hospital as discussed 65 of 73 66 FIR No. 57/11 PS - Adarsh Nagar hereinabove.
It is to be noticed that the period of alleged incident is w.e.f. 07/03/2011 and onwards till the recovery of the prosecutrix on 26/08/2011 vide recovery memo Ex. PW10/A from the house of accused Devi Prasad at Village Gaja Khera PS Hasan Ganj, Distt. Unnao (U.P.) and the medical examination of the prosecutrix was conducted on 27/08/2011 vide MLC Ext. PW3/A and his Urine Pregnancy test (UTP) was conducted on 30/08/2011 vide report Ext. PW6/A wherein she was found positive for said test coupled with the testimony of PW1 prosecutrix that due to forcible committal of galat kaam upon her by accused, she became pregnant as discussed hereinabove and this not being a case of recent sexual intercourse activity. In the circumstances, refusal of PW1 - prosecutrix to undergo for her internal examination does not falsify the case of prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Moreover, it was for the accused to elicit information from PW1 prosecutrix as to why she refused for her internal examination at the time of her medical examination. For such failure, accused is to 66 of 73 67 FIR No. 57/11 PS - Adarsh Nagar blame himself and noneelse. At the cost of repetition, it is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref. Wahid Ahmed & ors. vs. State (NCT of Delhi) 2011 VII AD (DELHI)
276).
In the circumstances, there is no substance in the plea so raised by Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that it was a case of elopement.
I have carefully perused and analysed the evidence on the record.
Except for raising a bare plea that it was a case of elopement, nothing has been explained regarding the basis of such plea.
At the cost of repetition PW1 prosecutrix in her examinationinchief has specifically deposed which is reproduced and reads as under : "On 07/05/2011, I came to the house of my sister Kanti Pal at Lal Bagh in Delhi. Accused Devi Prasad was residing in the neighbourhood of the house of my sister Kanti Pal who used to visit the 67 of 73 68 FIR No. 57/11 PS - Adarsh Nagar house of my sister oftenly. On that day he asked me to for a stroll towards Azad Pur as he was living in the neighbourhood of my sister believing him I went alongwith him. He took me in a bus. I do not know as to what places he roamed me. In the process of roaming he took me to his house at his native place and I asked her (him) to drop me at my sister's house but he did not pay heed to it. There at his house he forcibly did the Galat Kaam with me. Galat Kaam I mean by which I became pregnant (Pet Mein Bacha Reh Gaya Tha). My condition became bad despite this he did not leave me at the house of my sister despite my repeated request. He kept me at his house for about 1 or 2 months. He also took me to the Court of his area for the purpose of marriage with me and he forced me to perform marriage with him and forcibly made me to sign the marriage agreement. The copy of marriage agreement is Ex. P1 on which I was forced to sign by the accused at points 'A', 'B' & 'C'. The copy of the marriage agreement was seized by the IO. After about 34 months of 07/05/2011 and on dated 26th my sister alongwith two three Police officials of Delhi came to the house of accused and recovered me from his house and he was also apprehended. I do not want to go with the accused. I do not remember my date of birth as I am illiterate and never attended any School. I also made statement (under section 164 Cr.P.C.) before the Court."
There is nothing in the crossexamination of PW1 Prosecutrix so as to impeach her creditworthiness. She has withstood the test of crossexamination and her testimony is consistent throughout.
While analysing the testimony of PW1 prosecutrix herein 68 of 73 69 FIR No. 57/11 PS - Adarsh Nagar before, I have discussed a number of theories floated by the accused, but the same have fallen flat on the ground. At the cost of repetition, the theory of elopement so propounded by accused Devi Prasad by raising this plea, has also not at all being made probable much established by any cogent evidence, therefore, it also falls flat on the ground.
Moreover, the theory of elopement, as propounded by the accused Devi Prasad has not been supported by PW1 prosecutrix. Had it been a case of elopement, then why PW1 prosecutrix was threatened by accused not to raise any alarm if not done so then she will be thrown under the train? Why PW1 prosecutrix was kept in a locked room? Why PW1 prosecutrix was not allowed to talk in the neighbourhood? Why PW1 prosecutrix was kept under constant watch by all the family members of the accused? Why PW1 prosecutrix was forced to sign the documents of marriage forcefully? Why PW1 prosecutrix was threatened by accused not to disclose anything to anyone when she was taken to court for marriage? Why PW1 prosecutrix was forced to marriage with accused Devi Prasad?
69 of 73 70 FIR No. 57/11 PS - Adarsh Nagar It is pertinent to reproduce the relevant part of the cross examination of PW1 prosecutrix, which reads as under : "The place where he had alighted from the bus after a walk of about 1015 minutes we boarded a train. Accused had threatened me not to raise any alarm, if not done so then I will be thrown under the train."
"When accused Devi Prasad has gone outside he used to lock the door from outside. Accused keeping me for about 10 days in that room accused Devi Prasad took me to his house at his native place. During those ten days in the room I was not allowed to talk in the neighbourhood."
"Q. Did you raise any alarm during the time when accused used to go for taking the food?
Ans. I did not raise any alarm during that said period as none was available in the vicinity of the room as all the occupants in the nearby used to go for duty."
"Public persons were also present on the way leading to the house of the accused from the railway station but I was not allowed to talk to anyone by the accused."
"Accused Devi Prasad did not use to go for any work at his native place. All the family members of accused Devi Prasad used to remain present at their house.
70 of 73 71 FIR No. 57/11 PS - Adarsh Nagar Q. Did you try to flee from there or try to talk to any neighbour? Ans. I could not make any attempt to flee from there as all the family members of the accused used to remain present there. I was not allowed to talk to anyone in the neighbourhood."
Q. You have deposed that you were forced to marry with accused Devi Prasad. Where were you taken from the marriage.? Ans. I do not know.
I was taken to that place in a bus. I was taken in a court room where two three persons were sitting but I do not know which court accused had taken me. Father of the accused was also visited to the court with me and accused. I do not know the name of those persons who were present in that room. I was also threatened not to disclose anything to anyone. I made to sign documents of marriage forcefully. (Jabardasti Haath Pakar Kar Sign Lehain).
In the circumstances, it appears that such theory of elopement has been floated by the accused in order to save his skin from the clutches of law.
In the circumstances, there is no substance in the plea so raised by Learned Counsel for accused.
71 of 73 72 FIR No. 57/11 PS - Adarsh Nagar
25. In view of above and in the circumstances, prosecution has thus proved its case beyond shadows of all reasonable doubts that on 07/03/2011 at about 1:00 p.m., accused Devi Prasad deceitfully induced PW1 prosecutrix aged around 18/19 years to go from her sister Kanti Pal's house for a stroll towards Azadpur but took her to his native place at village Gaja Khera P.S. Hasan Ganj, Unnao (U.P.) with intent that she may be forced or seduced to illicit intercourse and there at his said native place raped her forcibly without her consent and against her will and made her pregnant.
I accordingly hold accused Devi Prasad guilty for the offences punishable u/s 366/376 IPC and convict him thereunder.
26. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Devi Prasad in the commission of the offences u/s 366/376 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 Devi Prasad beyond shadows of all reasonable doubts and 72 of 73 73 FIR No. 57/11 PS - Adarsh Nagar there is no room for hypothesis, consistent with that of innocence of accused Devi Prasad. I, therefore, hold accused Devi Prasad guilty for the offences punishable u/s 366/376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 26th Day of August, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 73 of 73