Delhi District Court
State vs . Sunny on 27 August, 2013
1
FIR No. 125/11
PS - Kanjhawala
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 90/13
Unique ID No. : 02404R0237282011
State Vs. Sunny
S/o Sh. Kanchhi Pal
R/o I160, Mahavir Vihar,
Delhi.
FIR No. : 125/11
Police Station : Kanjhawala
Under Sections : 376/363 IPC
Date of committal to session Court : 01/09/2011
Date on which judgment reserved : 29/07/2013
Date of which judgment announced : 27/08/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 70 2 FIR No. 125/11 PS - Kanjhawala That on 24/05/2011 prosecutrix (name withheld being a case u/s 376 IPC) alongwith her mother Kaushal Khatoon and father Mohd. Siraj came to the police station and disclosed about the rape committed upon her on 23/05/2011 at 8:00 p.m. in the evening. ASI Rajinder was directed to take the action. ASI Rajinder made efforts to call the woman officer from the district line Pitam Pura and from PS Bawana but no woman officer was available, on which ASI Rajinder called NGO. In the presence of NGO and lady Constable Sanjit prosecutrix made statement which is to the effect that, she lives with her parents, brother and sisters. Her parents does baildari. She studies in fourth class in village Madan Pur. She is having six brothers and sisters and she is the eldest. In her gali across 2/3 houses, her friend Ruksar lives who studies in her class. Sunny S/o Kanchhi Pal aged about 20/21 years was generally seen in the gali who about two weeks back in the day time had called her to come in the evening in the mandir of Madan Pur Dabbas but she did not go. Yesterday on 23/05/2011 it was evening time at about 8:00 p.m. and it was dark when she was coming from the house of her friend Ruksar to her house then Sunny forcibly caught her and pressed her mouth with his right hand and forcibly took her in the Beriwala Bagh (Beriwala Garden) 2 of 70 3 FIR No. 125/11 PS - Kanjhawala and after forcibly making her lie down on the ground and after removing her pajami and nicker forcibly committed galat kaam with her. Her mother Kaushal Khatoon while searching her came to the Bagh (garden) and on seeing her mother Sunny fled from there. Sunny had committed galat kaam with her. Legal action be taken against him. The statement has been heard and is correct. Thereafter in the presence of mother and father of the prosecutrix she was got medically examined. She refused for her internal examination. The case was got registered u/s 376 IPC. Further investigation of the case was handed over to SI Naresh Kumar. During the course of the investigation SI Naresh Kumar took the undergarments of the prosecutrix in police possession. On the pointing out of the prosecutrix, accused Sunny was arrested. At the instance of the prosecutrix, the site plan was prepared. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. The under garments and blood sample of accused Sunny were taken into police possession. Statements of the witnesses were recorded. Sealed exhibits were sent to FSL.
Upon completion of necessary further investigation challan u/s 376 IPC was prepared against accused Sunny and was sent to the court for trial.
3 of 70 4 FIR No. 125/11 PS - Kanjhawala
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session 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 for the offences under section 363/376 IPC was made out against accused Sunny. 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, PW2 Dr. Anand Mishra, JR Casualty, SGM Hospital, Mangol Puri Delhi, PW3 Ms. Ruksar, PW4 HC Kailash Chand, PW5 Smt. Kaushal Khatoon, PW6 Ms. Anuradha, Counselor in Navshirti NGO, PW7 Smt. Jaswanti Incharge ClassIV, MC Primary Girls School, Madan Pur Dabbas, Delhi, PW8 W/Constable Sanjit, PW9 ASI Rajinder Singh, PW10 SI Naresh 4 of 70 5 FIR No. 125/11 PS - Kanjhawala Kumar, PW11 - HC Rajbir, PW12 - Dr. Parvinder, SR, Obs. & Gynae, SGMH, Mangol Puri, Delhi, PW13 - Sh. V. Shankarnarayanan, SSO, FSL, Rohini, Delhi and PW14 - Dr. Hena Kausar, SR, Obs. & Gynae, SGM Hospital, Mangol Puri, Delhi.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Prosecutrix is the victim who proved her statement made to the Police Ex. PW1/A which bears her signature at point 'A', her statement recorded u/s 164 Cr.P.C. Ex. PW1/B (also Ex. PX) signed by her at point 'A' and also identified and proved her one lady underwear Ex. P1.
PW2 Dr. Anand Mishra, JR Casualty, SGM Hospital, Mangol Puri Delhi who proved the medical examination of the patient/prosecutrix (name withheld) as was conducted on 24/05/2011 at about 5:00 a.m. by Dr. Arvind vide MLC Ex. PW2/A, signed by Dr. Arvind at point 'A' and deposed that after examining the patient/prosecutrix, Dr. Arvind referred the patient to SR, Gynae.
5 of 70 6 FIR No. 125/11 PS - Kanjhawala PW3 Ms. Ruksar is the friend of prosecutrix who deposed that prosecutrix (name withheld) is her classmate. In the year 2011, she was a student of 4th class. Prosecutrix some of the times used to take note books from her. One day in the morning prosecutrix came to her house to take the note books. She (Prosecutrix) took the note books and went from her house. She did not support the prosecution case and was also crossexamined by the Learned Addl. PP for the State.
PW4 HC Kailash Chand is the duty officer who deposed that on 24/05/2011, at about 7:55 a.m., a rukka was brought by Constable Rattan sent by ASI Rajender Singh and on the basis of which he recorded FIR No. 125/11 and after registration of FIR he handed over the copy of FIR and original rukka to Constable Rattan Singh. Copy of FIR is Ex. PW4/A which bears his signature at point 'A' and also proved his endorsement Ex. PW 4/B on the rukka.
PW5 Smt. Kaushal Khatoon is the mother of the prosecutrix who deposed that on 23/05/2011, she alongwith her husband 6 of 70 7 FIR No. 125/11 PS - Kanjhawala had left for work (labour) at about 7:00 - 7:30 a.m. at Kanjhawala. Her six children (five daughters and one son) were at the home at that time. Her daughter/prosecutrix (name withheld) aged about 13 years was at home. At about 7:00 - 7:30 p.m. she alongwith her husband returned to her home. Her daughter Gulabsha aged about 7 years told her that prosecutrix (name withheld) aged about 13 years was taken by one boy forcefully. Thereafter she alongwith her husband & her younger daughter Gulabsha went in search of her daughter/prosecutrix (name withheld) and when they reached Beriwala Bagh which was at a distance of about ½ km. from her house they saw accused present in the Court was lying on her daughter and on seeing them he ran away. At that time her daughter was naked and she dressed her. Her daughter told her that accused had brought her forcefully and the accused had raped her. She brought her daughter to her house. When they came out from the Beriwala Bagh her neighbourer - Yusuf, who was at that time with them made a call to the Police from his mobile phone. When they reached their home, Police officials reached at their home at the same time. They took them to the PS where Police made inquiry from them and lodged the report. Statement of her daughter was recorded. her 7 of 70 8 FIR No. 125/11 PS - Kanjhawala daughter was sent for medical examination to the SGM Hospital. She was also with her daughter. After medical examination her daughter and she herself came back to the PS. Statement of her daughter u/s 164 Cr.P.C. was recorded.
PW6 Ms. Anuradha, Counselor Navshirti NGO who deposed that on 24/05/2011 she was called by the IO at PS Kanjhawala while she was working as counselor in Navshirti NGO. On that day when she reached in the police station in the morning time prosecutrix was also present. She made the counseling from (of) the prosecutrix in the presence of IO and one lady constable. Thereafter IO recorded the statement of the prosecutrix in her presence. She also made the signature on the statement of the prosecutrix at point B. Thereafter she left the police station.
PW7 Smt. Jaswanti Incharge ClassIV, MC Primary Girls School, Madan Pur Dabbas, Delhi who produced the original record pertaining to age proof of the prosecutrix who took admission in MC Primary Girls School on dated 08/07/2008. She deposed that as per the 8 of 70 9 FIR No. 125/11 PS - Kanjhawala record the date of birth of prosecutrix is 10/03/2001. She had issued a certificate in this regard on 26/07/2011 Ex. PW7/A and also proved the copy of the certificate Ex. PW7/B given by the parents of the prosecutrix at the time of her admission, copy of the admission form is Ex. PW7/C. She further deposed that at the time of her (prosecutrix) admission in the school, photograph of the prosecutrix was taken on the record and her date of birth mentioned in the register at serial no. 1801 and proved the copy thereof as Ex. PW7/D. PW8 W/Constable Sanjit, who deposed that on the intervening night of 2324/05/2011 she was on duty from 8:00 p.m. to 8:00 a.m. On 24/05/2011 in the morning time, prosecutrix, her mother and father had come to the Police Station. SI Naresh Kumar made interrogation from them and after registration of the case, he handed over the custody of the prosecutrix to her for getting her (prosecutrix) medical examination. She took the prosecutrix to SGM Hospital, Mangol Puri, but during the medical examination, she refused to get herself examined. Thereafter she alongwith the prosecutrix returned to the Police Station and handed over the custody of prosecutrix to the IO 9 of 70 10 FIR No. 125/11 PS - Kanjhawala as well as her MLC.
PW9 ASI Rajinder Singh, is the initial Investigating Officer (IO) of the case who deposed that on 24/05/2011, he was posted in PS - Kanjhawala. On that day, complainant/prosecutrix (name withheld), her mother and father came to the Police Station and reported to the Duty Officer. Duty Officer called him and prosecutrix (name withheld) and her parents handed over to him and asked him for recording her statement. Prosecutrix (name withheld) made her statement to him. Same is already Ex. PW1/A bears his signature at point 'C' and he made his endorsement on the same. Same is Ex.PW9/A which bears his signature at point 'A'. He got the case registered. Prior to making his endorsement on her statement, prosecutrix was got medically examined from SGM Hospital through lady Constable Sanjeet in the presence of mother of the prosecutrix. After the medical examination of prosecutrix, lady Constable Sanjeet handed over to him the MLC of the prosecutrix and also prosecutrix. Thereafter, he made his endorsement on the statement of prosecutrix and got the case registered. In his endorsement, he made a request to hand over the 10 of 70 11 FIR No. 125/11 PS - Kanjhawala investigation to any other officer. Thereafter, he went to the spot. Further investigation was taken over by SI Naresh who came at the spot. Thereafter, he alongwith SI Naresh, complainant/prosecutrix (name withheld) and her mother proceeded for search of the accused. At about 5:00 p.m. accused present in the Court was found in a gali in front of his house. Prosecutrix (name withheld) pointed out towards accused and he was apprehended and interrogated by the IO and was arrested vide memo Ex. PW9/B which bears his (PW9) signature at point 'A' as well as prosecutrix (name withheld) at point 'B'. His personal search was carried out vide memo Ex. PW9/B which bears his (PW9) signature at point 'A'. Accused made his disclosure statement. Same is Ex. PW9/C bearing his (PW9) signature at point 'A'. Thereafter, they returned to Police Station. His statement was recorded to this extent.
PW10 SI Naresh Kumar is the subsequent Investigation Officer (IO ) of the case who deposed on the investigational aspects carried out by him and besides proving the other memos; arrest memo of accused Sunny Ex. PW9/B, his personal search memo Ex. PW9/B (Arrest memo is also Ex. PW9/B), his disclosure statement Ex. PW9/C 11 of 70 12 FIR No. 125/11 PS - Kanjhawala all bearing his signature at point 'X', also proved site plan Ex. PW10/A signed by him at point 'A'; pointing out memo of place of incident by prosecutrix Ex. PW10/B bearing his signature at point 'A'; seizure memo of the sealed exhibits of accused Sunny Ex. PW10/C; application for recording the statement u/s 164 Cr.P.C. Ex. PW10/D, application for obtaining the copy of the statement recorded u/s 164 Cr.P.C. Ex. PW10/D (Ex. PW10/D is also application for recording the statement u/s 164 Cr.P.C.), signed by him at point 'A'; seizure memo of the sealed exhibits of prosecutrix Ex. PW10/E bearing his signature at point 'A'. He further deposed that the FSL result was collected and filed in the court and tendered the same in evidence as Ex. PY and Ex. PY1.
PW11 - HC Rajbir is the MHC(M) who proved the relevant entry of the register no. 19 Ex. PW11/A, the copy of the RC No. 103/21/11 of register no. 21 Ex. PW11/B and the copy of the acknowledgment receipt of the FSL Ex. PW11/C and deposed that the sealed pullindas remained intact during his custody.
PW12 - Dr. Parvinder, SR, Obs. & Gynae, SGMH, Mangol 12 of 70 13 FIR No. 125/11 PS - Kanjhawala Puri, Delhi who deposed that 24/05/2011 one patient/prosecutrix was brought to the Hospital and she was initially examined by Dr. Heena, SR, Obs. & Gynae who prepared the MLC. Thereafter, again at about 6:45 p.m. she was again brought to the Hospital by the IO with the request for sealing of the undergarments of the patient. The patient was initially examined by CMO on Duty and thereafter, she was referred to SR, Gynae whereupon patient was produced before her and on the request of the IO the undergarments of the victim were taken into possession and handed over to IO and proved her notings in this regard at portion 'X' signed by her at point 'A' on the back of the OPD Card Ex. PW12/A. PW13 - Sh. V. Shankarnarayanan, SSO, FSL, Rohini, Delhi who examined the exhibits biologically and serologically and proved the biological report Ex. PY and the serological report as Ex. PY1 bearing his signature at point 'A' respectively.
PW14 - Dr. Hena Kausar, SR, Obs. & Gynae, SGM Hospital, Mangol Puri, Delhi who deposed that on 24/05/2011, one patient/prosecutrix (name withheld) was brought to the Hospital for 13 of 70 14 FIR No. 125/11 PS - Kanjhawala medical examination. She was initially examined by CMO/JR on Duty and thereafter, she was referred to SR Gynae whereupon she examined the patient/prosecutrix. She (patient/prosecutrix) gave alleged history of sexual assault. According to patient, she was forced to go to a lonely garden in No. 1 Block, Madan Pur where she had sexually intercourse forcefully by accused Sunny (20 years) between 5:00 p.m. to 9:00 p.m. on 23/05/2011. There is history of previous date out with the same boy two weeks back with consent but no history of sexual assault at that time. Patient/prosecutrix was councelled persistently for medical examination but she refused and further deposed that on examination her vitals were stable. Local examination - No external injury seen. Patient/prosecutrix and her mother refused to get herself internally medically examined and sampling and proved her Gynaecological examination from Point 'Z' to 'Z' on MLC Ex. PW2/A bearing her signature at point 'B'.
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 02/04/2012 Learned Counsel 14 of 70 15 FIR No. 125/11 PS - Kanjhawala for the accused had stated that he has 'no objection' to the exhibition of the statement recorded u/s 164 Cr.P.C. and the same was exhibited as Ex. PX.
It is also to be mentioned that on 20/04/2013, accused Sunny made the statement in the Court whereby admitted his own medical examination vide MLC No. 5970 dated 25/05/2011 Ex. PX1 and had stated that he has no objection if the concerned Doctor is not examined in the Court as witness.
7. Statement of accused Sunny was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and opted to lead defence evidence. In his defence accused Sunny examined one witness namely DW1 - Sh. Jakir Hussain.
DW1 - Sh. Jakir Hussain deposed that he knows accused Sunny as he is their neighbour. On 24/05/2011, he (DW1) was present at his house and heard the noise. He (DW1) came out from the house and saw that there was a Police vehicle in the Gali. Police called the Sunny and made him to sit in the vehicle and thereafter, they took him (Sunny) away at about 5:00 p.m. He (Sunny) had not committed any wrong.
15 of 70 16 FIR No. 125/11 PS - Kanjhawala There were around 15/20 persons in the gali of the locality. Police had not made any inquiries from the public persons as well as from him (DW1). Accused has been falsely implicated in this case.
8. Learned Counsel for accused submitted that the accused has been falsely implicated in the case by complainant and his family members in connivance with Police. He further submitted that PW1 - prosecutrix in her chief examination has said that she was standing outside of her house at about 8:00 p.m. and she was going to the house of her friend Ruksar to bring to (the) note book to complete her School homework. She also said that prior to leaving her home for collecting the notebook from Ruksar, she had told to her younger sister if she becomes late she can know her whereabouts from the house of Ruksar. On being late her brother and mother came towards the side of house of Ruksar and when they made alarm on the way. After some time her mother came at the spot with her father and she was escaped free from the clutches of the accused. She also said that her father made a call at No. 100 and Police came at the spot and (she) was taken to the Police Station on motorcycle where her statement was recorded. She also 16 of 70 17 FIR No. 125/11 PS - Kanjhawala handed over the clothes which she was wearing at the time of incident to the IO. She was also got medically examined at SGM Hospital. During her crossexamination she told that the height of the boundary wall of the Beri Wala Bagh was about 2.5 feet. He further submitted that the MHC(M) produced only one lady underwear (Ex. P1) as case property. In her crossexamination she (prosecutrix) told that on the day of incident she had gone to School at 7:30 a.m. She had not informed anybody that accused Sunny few days prior to the incident asked her to meet him at Makdoom Pur Dabas Mandir in the evening. She had not asked him why he was calling her. She told that she was having only one copy in her hand at that time. She also told the said copy was left in the Beri Ka Bagh at time of incident but the Police has not recovered any copy. She also told her notebook fell at the place where the accused had caught her. He further submitted that PW2 - Dr. Anand Mishra, JR Casualty, SGM Hospital, Mangol Puri, Delhi has told that he identifies the hand writing and signatures of Dr. Arvind. However, in the MLC no fresh external injury seen at the time of her examination. She also told "MAIN APNI MARJI SE APNA ANDRUNI AUR BAHARI JANCH NAHI KARWANA CHAHTI HUN ISSE MERA CASE MERE 17 of 70 18 FIR No. 125/11 PS - Kanjhawala VIRUDH JA SAKTA HAI". He further submitted that PW3 - Ms. Ruksar D/o Shammi Khan has told that one day in the morning prosecutrix (name withheld) had come to my house to take my note books and Police had not made any enquiry from her. He further submitted that PW4 - HC Kailash is a Duty Officer. He further submitted that PW5 - Kaushal Khatoon in her examinationinchief told that she returned alongwith her husband to her home where her daughter Gulabsha told that the prosecutrix (name withheld) was taken by one boy forcibly. But Gulabsha was not made witness. She told that her neighbour Yusuf made call to Police form his mobile phone. In her crossexamination she told that there was a boundary of 5 feet on one side of the park and she was having torch with her and Police officials came at her house and she herself and her daughter had gone to PS. Her daughter was not medically examined in the first time. She was confronted with her statement that due to fear they had not gone to the PS in the night and gone there in the morning. He further submitted that PW7 - Smt. Jaswanti, Incharge, Class - IV of MC Primary Girls School has told that on the basis of affidavit prosecutrix got admission in the School. He further submitted that keeping in view all the above facts and 18 of 70 19 FIR No. 125/11 PS - Kanjhawala circumstances which clearly indicates that the accused is innocent and has been falsely implicated in the present case. The prosecution has failed to prove the allegations/guilt against the accused and prayed for the 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 and Sh. Aijaz Ahmed, Learned Counsel for the accused and have also carefully perused the entire record.
11. The charge for the offences punishable u/s 363/376 IPC against the accused Sunny is that on 23/05/2011, at about 8:00 p.m., Beri Wala Bagia - I, Block, Meer Vihar, Delhi, within the jurisdiction of PS -
19 of 70 20 FIR No. 125/11 PS - Kanjhawala Shahbad Dairy, he kidnapped/abducted the prosecutrix (name withheld) aged around 11 years and took her to Beri Wala Bagh where he committed rape upon her.
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 interest of justice.
AGE OF THE PROSECUTRIX
13. PW7 Smt. Jaswanti Incharge ClassIV, MC Primary Girls School, Madan Pur Dabbas, Delhi who produced the original record pertaining to age proof of the prosecutrix who took admission in MC Primary Girls School on dated 08/07/2008. She deposed that as per the record the date of birth of prosecutrix is 10/03/2001. She had issued a certificate in this regard on 26/07/2011 Ex. PW7/A and also proved the copy of the certificate Ex. PW7/B given by the parents of the prosecutrix at the time of her admission, copy of the admission form is Ex. PW7/C. 20 of 70 21 FIR No. 125/11 PS - Kanjhawala She further deposed that at the time of her (prosecutrix) admission in the school , photograph of the prosecutrix was taken on the record and her date of birth mentioned in the register at serial no. 1801 and proved the copy thereof as Ex. PW7/D. During her crossexamination, PW7 - Smt. Jaswanti has deposed that prosecutrix (name withheld) took admission in the 1st Standard. As per the record, no other document was taken from the father of prosecutrix (name withheld) at the time of her admission except the affidavit. She cannot tell the time and validity of the affidavit.
There is nothing in the crossexamination of PW7 - Smt. Jaswanti so as to impeach her creditworthiness. She has deposed the facts as per the School admission record and has also proved the certificate Ex. PW7/A bearing her signature at point 'A', issued regarding the date of birth of the prosecutrix as 10/03/2001. No evidence to the contrary has been produced or led on the record by the accused.
In the circumstances, it stands established on the record that the date of birth of the prosecutrix is 10/03/2001.
The Hon'ble Supreme Court in case State of Maharashtra 21 of 70 22 FIR No. 125/11 PS - Kanjhawala Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
As the date of alleged incident is of 23/05/2011 and the date of birth of prosecutrix is 10/03/2001, on simple arithmetical calculation, the age of prosecutrix comes to 10 years, 02 months and 13 days as on the date of incident on 23/05/2011.
In view of above and in the circumstances, it stands 22 of 70 23 FIR No. 125/11 PS - Kanjhawala established on record that PW1 prosecutrix was aged 10 years, 02 months and 13 days as on the date of alleged incident on 23/05/2011. Hence, a minor.
14. Learned Counsel for the accused submitted that PW7 - Smt. Jaswanti has told that on the basis of affidavit, prosecutrix got admission in the School.
I have carefully perused and analysed the evidence on record.
In view of as to what has been discussed and analysed here inabove it stands established on record that PW1 - prosecutrix was aged 10 years, 02 months and 13 days as on the date of alleged incident on 23/05/2011.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX
15. PW2 Dr. Anand Mishra, JR Casualty, SGM Hospital, Mangol Puri Delhi who proved the medical examination of the 23 of 70 24 FIR No. 125/11 PS - Kanjhawala patient/prosecutrix (name withheld) as was conducted on 24/05/2011 at about 5:00 a.m. by Dr. Arvind vide MLC Ex. PW2/A signed by Dr. Arvind at point 'A' and deposed that after examining the patient/prosecutrix Dr. Arvind referred the patient to SR, Gynae.
Despite grant of opportunity, PW2 - Dr. Arvind Mishra was not crossexamined on behalf of accused.
PW12 - Dr. Parvinder, SR, Obs. & Gynae, SGMH, Mangol Puri, Delhi who deposed that 24/05/2011 one patient/prosecutrix was brought to the Hospital and she was initially examined by Dr. Heena, SR, Obs. & Gynae who prepared the MLC. Thereafter, again at about 6:45 p.m. she was again brought to the Hospital by the IO with the request for sealing of the undergarments of the patient. The patient was initially examined by CMO on Duty and thereafter, she was referred to SR, Gynae whereupon patient was produced before her and on the request of the IO the undergarments of the victim were taken into possession and handed over to IO and proved her notings in this regard at portion 'X' signed by her at point 'A' on the back of the OPD Card Ex. PW12/A. Despite grant of opportunity, PW12 was not crossexamined 24 of 70 25 FIR No. 125/11 PS - Kanjhawala on behalf of accused.
PW14 - Dr. Hena Kausar, SR, Obs. & Gynae, SGM Hospital, Mangol Puri, Delhi who deposed that on 24/05/2011, patient/prosecutrix (name withheld) was brought to the Hospital for medical examination. She was initially examined by CMO/JR on Duty and thereafter, she was referred to SR Gynae whereupon she examined the patient/prosecutrix. She (patient/prosecutrix) gave alleged history of sexual assault. According to patient, she was forced to go to a lonely garden in No. 1 Block, Madan Pur where she had sexually intercourse forcefully by accused Sunny (20 years) between 5:00 p.m. to 9:00 p.m. on 23/05/2011. There is history of previous date out with the same boy two weeks back with consent but no history of sexual assault at that time. Patient/prosecutrix was counseled persistently for medical examination but she refused and further deposed that on examination her vitals were stable. Local examination - No external injury seen. Patient/prosecutrix and her mother refused to get herself internally medically examined and sampling and proved her examination from Point 'Z' to 'Z' on MLC Ex. PW2/A bearing her signature at point 'B'.
25 of 70 26 FIR No. 125/11 PS - Kanjhawala PW14 - Dr. Heena Kausar during her crossexamination had deposed that : "the victim and her mother has denied to go for internal examination even though, I had stated if this examination is not made, the case can go against them. Vol. What they insisted not for the internal medical examination."
There is nothing in the crossexamination of PW14 - Dr. Heena Kausar so as to impeach her creditworthiness. She has proved the examination of the prosecutrix from point 'Z' to 'Z' on the MLC Ex. PW2/A bearing her signature at point 'B'. Nothing more can be read in it. Learned Counsel for the accused has failed to explain as to what benefit he intends to reap from such observation made in the examination at point 'Z' to 'Z' of the MLC Ex. PW2/A. It is also to be noticed that in the examination at point 'Z' to 'Z' on MLC Ex. PW2/A, the history as was told by prosecutrix to the Doctor Heena Kausar (PW14) is also found to be recorded which is to the effect that : "Alleged H/o sexual assault. Brought by Police for medical examination. According to patient she was forced to go to a lonely garden (Beri Ka Bagia) in I - Block, Madan Pur where she had sexual intercourse forcefully by accused Sunny (20 years) 26 of 70 27 FIR No. 125/11 PS - Kanjhawala between 5:00 p.m. 9:00 p.m. on 23/05/2011. There is H/o previous date out with the same boy two weeks back with consent but no H/o sexual assault at that time"
Undisputably, the said history in the examination from point 'Z' to 'Z' on the MLC Ex. PW2/A has not been disputed during the cross examination of PW14 - Dr. Hena Kaushar where PW1 - prosecutrix, on the first available opportunity has given the history to the said Doctor regarding the committal of the crime upon her by accused Sunny.
VIRILITY OF THE ACCUSED
16. On 20/04/2013, accused Sunny made the statement in the Court without oath wherein, he admitted his own medical examination vide MLC No. 5970 dated 25/05/2011 exhibited as Ex. PX1.
On careful perusal of the MLC Ex. PX1 of accused Sunny, it is found mentioned therein that there is nothing to suggest that he is incapable of performing sexual intercourse.
In view of above and in the circumstances, it stands proved on the record that accused Sunny was capable of performing sexual
27 of 70 28 FIR No. 125/11 PS - Kanjhawala intercourse.
BIOLOGICAL AND SEROLOGICAL EVIDENCE
17. PW13 - Sh. V. Shankarnarayanan, SSO, FSL, Rohini, Delhi who examined the exhibits biologically and serologically and proved the biological report Ex. PY and the serological report as Ex. PY1 bearing his signature at point 'A' respectively.
As per biological report Ex. PY the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibits '1'.
Exhibit '1' : Strands of hair. Parcel '2' : One sealed cloth parcel sealed with the seal of
"SGMH MANGOLPURI DELHI" containing exhibits '2'. Exhibit '2' : Dark brown foul smelling liquid described as 'Blood sample'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibits '3'.
28 of 70 29 FIR No. 125/11 PS - Kanjhawala Exhibit '3' : Yellowish white viscous foul smelling liquid described as 'Semen sample'.
Parcel '4' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibits '4'. Exhibit '4' : One underwear. Hair could not be detected on exhibit '4' i.e. underwear.
Parcel '6' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibits '6'.
Exhibit '6' : One underwear having brownish stains. Hair could not be detected on exhibit '6' i.e. underwear. RESULT OF ANALYSIS
1. Blood was detected on exhibits '2' and '6'.
2. Blood could not be detected on exhibit '4'.
3. Semen could not be detected on exhibits '1', '4' and '6'.
4. Vaginal epithelial cells 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 'VSN FSL DELHI'.
29 of 70 30 FIR No. 125/11 PS - Kanjhawala The serological report Ex. PY1 reads as under : Exhibits Species of origin ABO Grouping/Remarks Blood stains: '2' Blood sample Since blood sample was putrefied hence no opinion '6' Underwear Human No reaction Semen stains: '3' Semen sample Since semen sample was putrefied hence no opinion On careful perusal and analysis of the biological and serological evidence on record, blood was detected on exhibit '2' (Blood sample of accused) and exhibit '6' (Underwear of prosecutrix); blood could not be detected on exhibit '4' (Underwear of the accused); and semen could not be detected on exhibit '1' (Strands of hair of the accused), exhibit '4' (Underwear of the accused) and exhibit '6' (Underwear of the prosecutrix). As per the serological report Ex. PY1 'Sample was putrefied hence no opinion' could be given on the exhibit '2' (Blood Sample of accused) and exhibit '3' (Semen Sample of the accused).
As per the biological report Ex. PY, with regard to the description of the articles contained in the parcels, it is noticed that 30 of 70 31 FIR No. 125/11 PS - Kanjhawala Parcel No. 1 to 4 belongs to accused which was seized vide seizure memo Ex. PW10/C dated 25/05/2011, parcel no. 6 belongs to the prosecutrix which were seized vide seizure memo Ex. PW10/E dated 24/05/2011.
It is also to be noticed that the alleged incident is of dated 23/05/2011 and the medical examination of accused Sunny was conducted on 25/05/2011 vide MLC Ex. PX1. In the MLC Ex. PX1, it is also shown "Penis normal in size, shape. Smegma present over the glans penis". It is settled law that any examination of Smegma after 24 hours of the incident would be inconsequential. The Hon'ble Supreme Court held that examination of Smegma loses all importance after twenty four hours of the performance of the sexual intercourse. (Ref. 'Aman Kumar vs. State of Haryana', 2004 III AD (S.C.) 447; S. P. Kohli (DR) Vs. High Court of P & H (1979) ISCC 212).
On a conjoint reading of the medical evidence on the MLC Ex. PW2/A of the prosecutrix together with the MLC of accused Sunny Ex. PX1 in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse 31 of 70 32 FIR No. 125/11 PS - Kanjhawala activity.
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. PY, prosecution has discharged its initial burden of proving the presence of Human blood on Exhibit 6 (underwear of prosecutrix seized vide seizure memo Ex. PW10/E).
Accused was under an obligation to explain how and under what circumstances, the Human Blood came to be present on Exhibit 6 (underwear of prosecutrix). The absence of such an explanation both in the Sec. 313 Cr.P.C. statement of the accused and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
In view of above and in the circumstances, the suggestions put to PW1 - prosecutrix by the Learned Counsel for the accused "that no such incident had taken place with her or that accused had not raped her or that on the day of incident her age was between 1819 years or that 32 of 70 33 FIR No. 125/11 PS - Kanjhawala on this account she had not got herself medically examined or that as nothing has happened with her therefore, she had not got herself internally examined" which were negated by PW1 - prosecutrix fail to hold any water. Nor the same have at all being made probable much established by any cogent evidence.
Further PW1 - prosecutrix was not crossexamined by the Learned Counsel for the accused on the reasons for her refusal for her internal medical examination. For such failure, accused is to blame himself and none else. However, PW1 - prosecutrix during her cross examination has specifically deposed that "I was got medically examined" "I had not made any endorsement on the MLC in my handwriting."
In view of above discussion and in the circumstances, the refusal for her internal examination by PW1 - prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
18. Now let the testimonies of PW1 - Prosecutrix, PW5 - Smt. Kaushal Khatoon, her mother and PW6 - Ms. Anuradha, Counselor, Nav 33 of 70 34 FIR No. 125/11 PS - Kanjhawala Srishti NGO be perused and analysed.
PW1 prosecutrix, in her examinationinchief recorded on 24/10/2011 has deposed which is reproduced and reads as under : "We are five sisters and one brother. My father is a labourer. I am the eldest. Accused Sunny present in the Court today used to reside in my neighbourhood.
About five six months back it was holiday I was standing outside my house at about 8:30 p.m. I was going to the house of my friend Ruksar to bring note book to complete my school home work. When I was coming back to my house, accused Sunny was standing on the way near Berry Orchid (Berry Ka Bagh) "Us Jagah Par Sannata Tha Usne Mera Haaath Pakra aur Berry Ke Bagh Me Le Gaya and Mera Muh Daba Liye". He threw me on the ground "Usne Mere Paon Daba Liye"
and removed my clothes and as well as his clothes and committed rape forcefully upon me.
Prior to leaving my home for collecting the note book from Ruksar, I had told to my younger sister if I become late she can know my whereabouts from the house of Ruksar. As I got late, my sister went to the house of Ruksar to know my whereabouts and Ruksar told my sister that I had left with the note book. On being my late, my brother and mother came towards the side of house of Ruksar and when they made alarm on the way and near the Berry Bagh on hearing the scream of my mother accused Sunny present in the Court today hold me down when I tried to escape from the clutches of accused. After some time my mother came at the spot with my father and I was escaped free from the clutches of accused. On seeing my mother and father and other public persons
34 of 70 35 FIR No. 125/11 PS - Kanjhawala accused managed to escape by jumping over the boundary wall of the Berry Bagh and thereafter, I was taken to the home. Thereafter, my mother and father went to the house of Sunny to know his whereabouts but accused did not found there. Thereafter, my father made a call at 100 number. Police came and I was taken to Police Station on motorcycle where my statement was recorded. My statement is Ex. PW1/A which bears my signature at point 'A'. After that I was taken for medical examination and I was produced before Magistrate where my statement was recorded. My statement is Ex. PW1/A which bears my signature at point 'A'. After that I was taken for medical examination and I was produced before Magistrate where my statement was recorded. Copy of the same is Ex. PW1/B which bears my signature at point 'A'. I also handed over my clothes which I was wearing at the time of incident to the IO. I was also got medically examined at SGM Hospital. I can identify the clothes if shown to me and identified one lady underwear Ex. P1."
From the aforesaid narration of PW1 - prosecutrix, it is clear that they are five sisters and one brother. Her father is a labourer. She is the eldest. Accused Sunny present in the Court used to reside in her neighbourhood. About five six months back it was holiday she was standing outside her house at about 8:30 p.m. She was going to the house of her friend Ruksar to bring note book to complete her school home work. When she was coming back to her house, accused Sunny 35 of 70 36 FIR No. 125/11 PS - Kanjhawala was standing on the way near Berry Orchid (Berry Ka Bagh). There was a silence, accused hold her hand and took her to Berry Ka Bagh and gagged her mouth. He threw her on the ground and pressed her feet and removed her clothes and as well as his clothes and committed rape forcefully upon her. Prior to leaving her home for collecting the note book from Ruksar, she had told to her younger sister if she become late she can know her whereabouts from the house of Ruksar. As she got late her sister went to the house of Ruksar to know her whereabouts and Ruksar told her sister that she had left with the note book. On being her late her brother and mother came towards the side of house of Ruksar and when they made alarm on the way and near the Berry Bagh on hearing the scream of her mother accused Sunny hold her down when she (PW1 - prosecutrix) tried to escape from the clutches of accused. After some time her mother came at the spot with her father and she was escaped free from the clutches of accused. On seeing her mother and father and other public persons accused managed to escape by jumping over the boundary wall of the Berry Bagh and thereafter, she was taken to the home. Thereafter, her mother and father went to the house of Sunny to know his whereabouts but accused did not found there.
36 of 70 37 FIR No. 125/11 PS - Kanjhawala Thereafter, her father made a call at 100 number. Police came and she was taken to Police Station on motorcycle where her statement was recorded. Her statement is Ex. PW1/A which bears her signature at point 'A'. After that she was taken for medical examination and she was produced before Magistrate where her statement was recorded. Her statement is Ex. PW1/A which bears her signature at point 'A'. After that she was taken for medical examination and she was produced before Magistrate where her statement was recorded. Copy of the same is Ex. PW1/B which bears her signature at point 'A'. She also handed over her clothes which she was wearing at the time of incident to the IO. She was also got medically examined at SGM Hospital.
PW1 - Prosecutrix during her crossexamination has negated the suggestions that accused Sunny was in love affair with her friend Ruksar or that she fell in love with accused Sunny or that on his refusal she had falsely implicated him in this case or that no such incident had taken place with her or that accused had not raped her or that on the day of incident her age was between 1819 years or that on this account she had not got herself medically examined or that as 37 of 70 38 FIR No. 125/11 PS - Kanjhawala nothing had happened with her therefore, she had not got herself internally examined or that there was a dispute between her family and the family of Sunny so she falsely implicated him or that she had been tutored by her parents.
Inspite of incisive crossexamination of PW1 - Prosecutrix, nothing material has been brought out so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The version of this witness on the core spectrum of crime has remained intact. The testimony of PW1 - prosecutrix on careful perusal and analysis is found to be natural, clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that she had an animus against the accused Sunny to falsely implicate him in the case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in consonance with her statement Ex. PW1/A made to the Police as well as 38 of 70 39 FIR No. 125/11 PS - Kanjhawala her statement recorded u/s 164 Cr.P.C. Ex.PW1/B (also Ex. PX).
The testimony of PW1 - Prosecutrix is also found to be corroborated by PW5 Smt. Kaushal Khatoon, her mother and PW6 Ms. Anuradha, Counselor Nav Srishti NGO, to whom prosecutrix had disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
PW5 - Smt. Kaushal Khatoon in her examinationinchief has deposed that : "On 23/05/2011, I alongwith my husband has left for work (labour) at about 7:00 - 7:30 a.m. at Kanjhawala. My six children (five daughters and one son) were at the home at that time. My daughter/prosecutrix (name withheld) aged about 13 years was at home. At about 7:00 - 7:30 p.m. I alongwith my husband returned to my home. My daughter Gulabsha aged about 7 years told me that prosecutrix (name withheld) aged about 13 years was taken by one boy forcefully. Thereafter I alongwith my husband & my younger daughter Gulabsha went in search of my daughter/prosecutrix (name withheld) and when we reached Beriwala Bagh which was at a distance of about ½ km. From my house. We saw accused present in the Court today was lying on my daughter and on seeing us he ran away. At that time my daughter was naked and I dressed her. My daughter told me that accused had brought 39 of 70 40 FIR No. 125/11 PS - Kanjhawala her forcefully and the accused had raped her. I brought my daughter to my house. When we came out from the Beriwala Bagh my neighbourer
- Yusuf, who was at that time with us made a call to the Police from his mobile phone. When we reached our home, Police officials reached at my home at the same time. They took us to the PS where Police made inquiry from us and lodged the report. Statement of my daughter was recorded. My daughter was sent for medical examination to the SGM Hospital. I was also with my daughter. After medical examination my daughter and myself came back to the PS. Statement of my daughter u/s 164 Cr.P.C. was recorded."
From the aforesaid narration of PW5 - Smt. Kaushal Khatoon it is clear that on 23/05/2011, she alongwith her husband had left for work (labour) at about 7:00 - 7:30 a.m. at Kanjhawala. Her six children (five daughters and one son) were at the home at that time. Her daughter/prosecutrix (name withheld) aged about 13 years was at home. At about 7:00 - 7:30 p.m. she alongwith her husband returned to her home. Her daughter Gulabsha aged about 7 years told her that prosecutrix (name withheld) aged about 13 years was taken by one boy forcefully. Thereafter she alongwith her husband & her younger daughter Gulabsha went in search of her daughter/prosecutrix (name withheld) and when they reached Beriwala Bagh which was at a distance of about ½ km. from her house they saw accused present in the Court 40 of 70 41 FIR No. 125/11 PS - Kanjhawala was lying on her daughter and on seeing them he ran away. At that time her daughter was naked and she dressed her. Her daughter told her that accused had brought her forcefully and the accused had raped her. She brought her daughter to her house. When they came out from the Beriwala Bagh her neighbourer - Yusuf, who was at that time with them made a call to the Police from his mobile phone. When they reached their home, Police officials reached at their home at the same time. They took them to the PS where Police made inquiry from them and lodged the report. Statement of her daughter was recorded. her daughter was sent for medical examination to the SGM Hospital. She was also with her daughter. After medical examination her daughter and she herself came back to the PS. Statement of her daughter u/s 164 Cr.P.C. was recorded.
During her crossexamination PW5 - Smt. Kaushal Khatoon has negated the suggestions that they had not gone to the PS in the night time or that she is deposing falsely or that the age of her daughter at that time was 1819 years or that due to enmity the accused was falsely implicated in the present case.
41 of 70 42 FIR No. 125/11 PS - Kanjhawala PW6 - Ms. Anuradha in her examinationinchief has deposed that : "On 24/05/2011, I was called by the IO of this case at PS - Kanjhawala, while I was working as Counselor in Nav Srishti, NGO. On that day, I reached in the PS in the morning time, where prosecutrix was also present. I made the counseling from (of) the prosecutrix in the presence of IO and one Lady Constable. Thereafter, IO recorded the statement of the prosecutrix in my presence. I also made the signatures on the statement of prosecutrix at point 'B'. Thereafter, I left the PS."
From the aforesaid narration of PW6 Ms. Anuradha it is clear that the on 24/05/2011, she was called by the IO of this case at PS - Kanjhawala, while she was working as Counselor in Nav Srishti, NGO. On that day, she reached in the PS in the morning time, where prosecutrix was also present. She made the counseling of the prosecutrix in the presence of IO and one Lady Constable. Thereafter, IO recorded the statement of the prosecutrix in her presence. She also made the signature on the statement of prosecutrix at point 'B'. Thereafter, she left the PS. However, PW6 - Ms. Anuradha was not crossexamined on 42 of 70 43 FIR No. 125/11 PS - Kanjhawala behalf of accused despite grant of opportunity.
Inspite of incisive crossexamination of PW5 - Smt. Kaushal Khatoon, mother of the prosecutrix, nothing material has been brought out so as to impeach her creditworthiness. She has 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]. Her testimony is found to be natural, clear, cogent, reliable and having a ring of truth. 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 found to be also corroborated by PW3 - Ruksar, who is the classmate of the prosecutrix. She has deposed that prosecutrix (name withheld) is her classmate. In the year 2011, she was a student of 4th class. Prosecutrix some of the times used to take note books from her. One day in the morning prosecutrix came to her (PW3) house to take the note books. She (Prosecutrix) took the note books and went from her house. She was 43 of 70 44 FIR No. 125/11 PS - Kanjhawala declared hostile and was also crossexamined by the Learned Addl. PP for the State.
It is settled law that evidence of hostile witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable or careful scrutiny thereof (Ref. : 'Prithi Vs. State of Haryana', (2010) 8 SCC
536).
In case 'Himanshu @ Chintu Vs. State (NCT of Delhi)', (2011) 2 SCC 36, the Hon'ble Supreme Court held that the dependable part of the evidence of a hostile witness can be relied on. Thus it is the duty of the Court to separate the grain from the chaff and the maxim falsus in uno falsus in omnibus, has no application in India vide 'Nisar Alli Vs. The State of Uttar Pradesh', AIR 1957 SC 366.
From the aforesaid testimony of PW3 - Rukshar, it is clear that prosecutrix (name withheld) is her class mate. In the year, 2011 she was a student of 4th class. Prosecutrix (name withheld) some of the times 44 of 70 45 FIR No. 125/11 PS - Kanjhawala used to take note books from her. One day in the morning prosecutrix had come to her house to take her note books. She took the note books and went from her house.
On careful perusal and analysis of the testimony of PW3 - Ruksar, it is clearly indicated that both Ruksar and prosecutrix were class mates in 4th class and sometimes prosecutrix used to take note books from her meaning thereby prosecutrix used to go to the house of her friend, PW3 - Ruksar some of the times to take note books and one day in the morning prosecutrix had come to her house to take her note books and she (prosecutrix) took the note books and went from her home.
PW3 - Ruksar during her crossexamination by Learned Counsel for the accused has deposed that prosecutrix (name withheld) took the copy from her on 23/05/2011.
On careful scrutiny, the said crossexamination so conducted by Learned Counsel for accused does not fortify the defence of the accused rather supports the prosecution case, for the reason that it was not got clarified from the witness (PW3 - Ruksar) as to when and at what time, in which part of the day (morning/evening/night) of 23/05/2011 prosecutrix took copy from her (PW3 - Ruksar) especially in 45 of 70 46 FIR No. 125/11 PS - Kanjhawala view of categorical deposition of PW3 - Ruksar that "Prosecutrix (name withheld) some of the times used to took (take) note books from me. One day in the morning prosecutrix (name withheld) had come to my house to take my note books. She took the note books and went from my house". And also in view of as discussed herein above that both PW3 - Ruksar and prosecutrix were the class mates and prosecutrix used to visit her house of and on for taking note books.
In the circumstances, the hostility of PW3 - Ruksar does not falsify the case of the prosecutrix which is otherwise proved on record by clear, cogent and convincing evidence.
19. While analysing the testimony of PW1 - Prosecutrix and PW5 - Smt. Kaushal Khatoon as discussed hereinabove inspite of incisive crossexamination of PW1 - Prosecutrix and PW5 - Smt. Kaushal Khatoon nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW1 - prosecutrix that accused Sunny was in love affair with her friend Ruksar or that she fell in love with accused Sunny or that on his refusal she had falsely 46 of 70 47 FIR No. 125/11 PS - Kanjhawala implicated him in this case or that no such incident had taken place with her or that accused had not raped her or that on the day of incident her age was between 1819 years or that on this account she had not got herself medically examined or that as nothing had happened with her therefore, she had not got herself internally examined or that there was a dispute between her family and the family of Sunny so she falsely implicated him or that she had been tutored by her parents and the suggestions to PW5 - Smt. Kaushal Khatoon that they had not gone to the PS in the night time or that she is deposing falsely or that the age of her daughter at that time was 1819 years or that due to enmity the accused was falsely implicated in the present case 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 led or produced by the accused on the record to show that he has been falsely implicated due to enmity except for raising a bare plea that due to enmity he was falsely implicated in the present case.
At the cost of repetition, from the suggestions put to PW1 - prosecutrix and PW5 - Smt. Kaushal Khatoon, her mother, as detailed 47 of 70 48 FIR No. 125/11 PS - Kanjhawala hereinabove, by the accused Sunny, it is to be noticed that a futile attempt has been made by accused Sunny to save his skin from the clutches of law by floating every possible theory. The theories floated by accused Sunny are : The Theory that, "Accused Sunny was in love affair with her (prosecutrix) friend Ruksar and she (prosecutrix) fell in love with accused Sunny and on his refusal she (prosecutrix has falsely implicated him in this case".
The Theory that, "There was a dispute between her (prosecutrix) family and the family of Sunny (accused) so she (prosecutrix) falsely implicated him".
The Theory that, "She (prosecutrix) has been tutored by her parents".
AND The Theory that, "Due to enmity the accused has been falsely implicated in the present case".
The said theories so propounded by accused Sunny are not only self contradictory but have also not at all being made probable much 48 of 70 49 FIR No. 125/11 PS - Kanjhawala established by any cogent evidence therefore falls flat to the ground.
However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examination of DW1 Jakir Hussain.
DW1 - Sh. Jakir Hussain in his examinationinchief has deposed that he knows accused Sunny as he is their neighbour. On 24/05/2011, he (DW1) was present at his house and heard the noise. He came out from the house and saw that there was a Police vehicle in the Gali. Police called the Sunny and made him to sit in the vehicle and thereafter, they took him (Sunny) away at about 5:00 p.m. He (Sunny) had not committed any wrong. There were around 15/20 persons in the gali of the locality. Police had not made any inquiries from the public persons as well as from him (DW1). Accused has been falsely implicated in this case.
During his crossexamination by Learned Addl. PP for State, DW1 Jakir Hussain has deposed that he is not a summoned witness. He is doing the work of Beldari. He used to go on his work at around 9:00am and used to come back at around 6.00pm. He knows 49 of 70 50 FIR No. 125/11 PS - Kanjhawala accused Sunny for the last about 89 years. He is having visiting terms with accused Sunny and also having good relations with him and his family. The house of accused Sunny is at the distance about 2 houses from his house. He did not visit police station after the apprehension of accused Sunny by police. He also did not enquire from police officials as to why they are taking Sunny however he came to know that there is case of some girl. He has been asked to depose in the court at the instance of Kanchi Pal, the father of accused Sunny.
The said part of the crossexamination of DW1 Jakir Hussain that he has been asked to depose in the Court at the instance of Kanchi Pal, the father of accused Sunny has knocked out the bottom of the testimony of DW1 Jakir Hussain. Further, DW1 Jakir Hussain during his crossexamination has deposed that he knows accused Sunny for the last 89 years and was having visiting terms with accused Sunny and also having good relations with him and his family. If DW1 Jakir Hussain was so known to the accused and his family and when Sunny was taken by the police, why he did not visit the Police Station after the apprehension of accused Sunny by the police and why he did not inquire from the police officials as to why they were taking away Sunny. No 50 of 70 51 FIR No. 125/11 PS - Kanjhawala explanation in this regard has been given by DW1 Jakir Hussain. Further, during his crossexamination, he has deposed that he used to go for his work at around 9:00 a.m. and used to come back at around 6:00 p.m. Then how he witnessed that on 24/05/2011 at about 5:00 p.m., Sunny was taken away by the Police after making him sit in the vehicle. It creates doubt on the presence of DW1 Jakir Hussain at his house at about 5:00 p.m. on 24/05/2011 regarding which he has deposed in his examinationinchief.
In view of above and in the circumstance, it clearly indicates that DW1 Jakir Hussain is a procured witness. His testimony does not inspire confidence.
20. 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 : 51 of 70 52 FIR No. 125/11 PS - Kanjhawala "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
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 : 52 of 70 53 FIR No. 125/11 PS - Kanjhawala ".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of medical evidence, biological and serological evidence, medical/gynaecological examination from portion 'Z' to 'Z' on MLC Ex. PW2/A of the prosecutrix and MLC of accused Sunny Ex. PX1, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis or by partial penetration of the penis, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Sunny with PW1 - Prosecutrix without her consent.
21. It is now well settled principle of law that conviction for rape can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her 53 of 70 54 FIR No. 125/11 PS - Kanjhawala testimony inspires confidence and is found to be reliable corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. (Ref. State of H.P. Vs. Asha Ram AIR 2006 SC 381).
22. Learned Counsel for the accused submitted that PW1 - prosecutrix in her examinationinchief has stated that her father made a call at No. 100 and Police came at the spot and she was taken to the Police Station on motorcycle where her statement was recorded. While PW5 - Kaushal Khatoon in her examinationinchief has stated that when they came out from the Beri Wala Bagh, her neighbour Yusuf who was at that time with them made a call to the Police from his mobile phone. When they reached their home, Police officials reached at her home at the same time. They took them to the PS where Police made inquiries from them and lodged the report. Statement of her daughter was recorded.
I have carefully perused and analysed the evidence on record.
54 of 70 55 FIR No. 125/11 PS - Kanjhawala Perusal of the record shows that incident is of dated 23/05/2011 at about 8:00 p.m. and the rukka Ex. PW9/A prepared on the statement of PW1 - prosecutrix Ex. PW1/A was sent at 7:45 a.m. on 24/05/2011 for the registration of the case and the FIR Ex. PW4/A was registered at 8:05 a.m. on 24/05/2011.
At the cost of repetition, PW1 - prosecutrix in her examinationinchief recorded on 24/10/2011 has deposed that : "About five six months back it was holiday she was standing outside her house at about 8:30 p.m. She was going to the house of her friend Ruksar to bring note book to complete her school home work. When she was coming back to her house, accused Sunny was standing on the way near Berry Orchid (Berry Ka Bagh). There was a silence, accused hold her hand and took her to Berry Ka Bagh and gagged her mouth. He threw her on the ground and pressed her feet and removed her clothes and as well as his clothes and committed rape forcefully upon her. Prior to leaving her home for collecting the note book from Ruksar, she had told to her younger sister if she become late she can know her whereabouts from the house of Ruksar. As she got late her sister went to the house of Ruksar to know her whereabouts and Ruksar told her sister that she had left with the note book. On being her late her brother and mother came towards the side of house of Ruksar and when they made alarm on the way and near the Berry Bagh on hearing the scream of her mother accused Sunny hold her down when she (PW1 - prosecutrix) tried to escape from the clutches of accused. After some time her mother came at the spot with her father and she was escaped free from 55 of 70 56 FIR No. 125/11 PS - Kanjhawala the clutches of accused. On seeing her mother and father and other public persons accused managed to escape by jumping over the boundary wall of the Berry Bagh and thereafter, she was taken to the home. Thereafter, her mother and father went to the house of Sunny to know his whereabouts but accused did not found there. Thereafter, her father made a call at 100 number. Police came and she was taken to Police Station on motorcycle where her statement was recorded. Her statement is Ex. PW1/A which bears her signature at point 'A'."
At the cost of repetition, PW5 - Smt. Kaushal Khatoon, mother of the prosecutrix in her examinationinchief has deposed that : "that on 23/05/2011, she alongwith her husband had left for work (labour) at about 7:00 - 7:30 a.m. at Kanjhawala. Her six children (five daughters and one son) were at the home at that time. Her daughter/prosecutrix (name withheld) aged about 13 years was at home. At about 7:00 - 7:30 p.m. she alongwith her husband returned to her home. Her daughter Gulabsha aged about 7 years told her that prosecutrix (name withheld) aged about 13 years was taken by one boy forcefully. Thereafter she alongwith her husband & her younger daughter Gulabsha went in search of her daughter/prosecutrix (name withheld) and when they reached Beriwala Bagh which was at a distance of about ½ km. from her house they saw accused present in the Court was lying on her daughter and on seeing them he ran away. At that time her daughter was naked and she dressed her. Her daughter told her that accused had brought her forcefully and the accused had raped her. She brought her daughter to her house. When they came out from the Beriwala Bagh her neighbourer - Yusuf, who was at that time with them made a call to the Police from his mobile phone. When they reached 56 of 70 57 FIR No. 125/11 PS - Kanjhawala their home, Police officials reached at their home at the same time. They took them to the PS where Police made inquiry from them and lodged the report. Statement of her daughter was recorded."
During her crossexamination PW5 - Smt. Kaushal Khatoon has deposed that : "...One Police official came to our house. Myself and my daughter had gone to the PS on motor cycle of the Police official and my husband had gone to PS on the motorcycle of the neighbourer. My daughter was not medically examined in the first time as she got afraid but she was medically examined int he second time. It is wrong to suggest that we had not gone to the PS in the night time. I had not stated in my statement to the Police that due to fear we had not gone to the PS in the night and gone there in the morning. (Confronted with statement Ex. PW5/DA where it is not so recorded)... "
On careful perusal and analysis of the testimony of PW1 - prosecutrix, a class 4th student and PW5 - Smt. Kaushal Khatoon, her mother, a labourer, the same are found to be natural, clear, cogent and inspiring confidence. They have deposed the facts which they observed and experienced regarding as to how Police was informed after the incident, when and where the Police reached and how they went at the Police Station and inquiries made from them.
This sufficiently and satisfactorily explains that the Police was informed immediately after the incident.
57 of 70 58 FIR No. 125/11 PS - Kanjhawala 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 58 of 70 59 FIR No. 125/11 PS - Kanjhawala 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 to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to 59 of 70 60 FIR No. 125/11 PS - Kanjhawala 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, of course, not as forward looking as the western countries are."
60 of 70 61 FIR No. 125/11 PS - Kanjhawala In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for the accused submitted that PW1 - prosecutrix in her examinationinchief has deposed that she handed over the clothes which she was wearing at the time of incident to the IO. She was also got medically examined at SGM Hospital and identified and proved one lady underwear as Ex. P1. While PW10 - SI Naresh Kumar in his examinationinchief has deposed that prosecutrix was again medically examined and after medical examination, Doctor handed over the pullindas containing the exhibits which were seized by him vide memo Ex. PW10/E bearing his signature at point 'A'. He further submitted that PW1 - prosecutrix during her crossexamination has deposed that the height of the boundary wall of the Beri Wala Bagh was about 2.5 feet while PW5 - Kaushal Khatoon in her crossexamination has deposed that there was a boundary of 5 feet on one side of the park. Learned Counsel for the accused further submitted that PW1 - prosecutrix in her crossexamination has deposed that she was having 61 of 70 62 FIR No. 125/11 PS - Kanjhawala only one copy in her hand at that time. Her note book fell at the place where the accused had caught her as she was trying to save herself. He submitted that the Police had not recovered any copy.
I have carefully perused and analysed the evidence on record.
On careful perusal and analysis of the testimony of PW1 - prosecutrix, PW5 - Kaushal Khatoon, PW10 - SI Naresh Kumar, I find that the said discrepancies are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence nor do they go to the root of the matter. The said discrepancies do not reflect upon the substantive evidence and the probative value of the statement made by PW1 - prosecutrix on the material and relevant aspects. Nor do that vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The said discrepancies are merely the inconsistencies on the fringe without materially affecting credibility of the evidence. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact. Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with 62 of 70 63 FIR No. 125/11 PS - Kanjhawala individuals. (Ref. 'Mahmood Vs. State', 1991 RLR 287). There are bound to be some discrepancies in the narration of witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Nor a witness can be expected to possess a photographic memory and to recall the details of an incident. PW1 - prosecutrix and PW5 - Smt. Kaushal Khatoon have deposed what they observed and experienced. PW10 - SI Naresh Kumar deposed as to what was done in the course of investigation. Nothing more can be read in their statements.
At the cost of repetition, the testimonies of PW1 - prosecutrix and PW5 - Smt. Kaushal Khatoon are found to be 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.
In a case 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, the Hon'ble Supreme Court has held that much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic 63 of 70 64 FIR No. 125/11 PS - Kanjhawala 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 person's mind whereas it might go unnoticed on the part of another.
The Hon'ble Supreme Court of India in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused 64 of 70 65 FIR No. 125/11 PS - Kanjhawala by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled 'Kuria & Anr. Vs. State of Rajasthan' 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such 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.
65 of 70 66 FIR No. 125/11 PS - Kanjhawala Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for the accused submitted that PW5 - Kaushal Khatoon in her examinationinchief has deposed that she returned alongwith her husband to her home where her daughter Gulabsha told her that prosecutrix (name withheld) was taken by one boy forcibly. Learned Counsel submitted that Gulabsha has not been made a witness.
I have carefully perused and analysed the evidence on record.
It is pertinent to reproduce the relevant part of the examinationinchief of PW5 - Smt. Kaushal Khatoon which reads as under : 66 of 70 67 FIR No. 125/11 PS - Kanjhawala "On 23/05/2011, I alongwith my husband has left for work (labour) at about 7:00 - 7:30 a.m. at Kanjhawala. My six children (five daughters and one son) were at the home at that time. My daughter/prosecutrix (name withheld) aged about 13 years was at home. At about 7:00 - 7:30 p.m. I alongwith my husband returned to my home. My daughter Gulabsha aged about 7 years told me that prosecutrix (name withheld) aged about 13 years was taken by one boy forcefully. Thereafter I alongwith my husband & my younger daughter Gulabsha went in search of my daughter/prosecutrix (name withheld) and when we reached Beriwala Bagh which was at a distance of about ½ km. From my house. We saw accused present in the Court today was lying on my daughter and on seeing us he ran away. At that time my daughter was naked and I dressed her. My daughter told me that accused had brought her forcefully and the accused had raped her..."
From the aforesaid narration of PW5 - Smt. Kaushal Khatoon, it is clearly indicated that her daughter Gulabsha is aged about 7 years who has informed her that her sister/prosecutrix was taken away by one boy forcefully. Already overwhelming evidence is available on the record. Examination of Gulabsha would only be a repetition or duplication of the evidence already adduced. In the circumstances, for the nonciting of Gulabsha in the list of witness and for her non examination, no adverse inference can be drawn against the prosecution. Further, it was for the accused to elicit information from PW10 - SI Naresh Kumar, IO on this aspect. For such failure, accused Sunny is to 67 of 70 68 FIR No. 125/11 PS - Kanjhawala blame himself and none else.
The Hon'ble Supreme Court in case "Takhaji Hiraji Vs Thakore Kubersing Chamansing", 2001 IV AD (S.C) 393 has observed that : "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which would have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Non examination of such other witnesses may not be material. In such a case the Court ought to scrutinies the worth of the evidence adduced. The Court of facts must ask itself Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of the witnesses."
68 of 70 69 FIR No. 125/11 PS - Kanjhawala In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 23/05/2011, at about 8:00 p.m., Beri Wala Bagia - I, Block, Meer Vihar, Delhi, accused Sunny kidnapped PW1 prosecutrix (name withheld) aged around 10 years (to be exact 10 years 02 months and 13 days) and took her to Beri Wala Bagh where he committed rape upon her without her consent.
I accordingly hold accused Sunny guilty for the offences punishable u/s 363/376 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 Sunny in the commission of the offences u/s 363/376 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 69 of 70 70 FIR No. 125/11 PS - Kanjhawala accused Sunny beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Sunny guilty for the offences punishable u/s 363/376 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 27th Day of August, 2013 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 70 of 70