Delhi District Court
State vs . (I) Tejinder Singh @ Lucky Singh on 5 January, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 34/12
Unique Case ID No. 02404R01120712012
State Vs. (i) Tejinder Singh @ Lucky Singh
S/o Sh. Darshan Singh
R/o C106, Sector5,
Bawana Industrial Area,
Permanent Address :
H. No. 330/331, 3rd Floor,
Pocket4, Sector22,
Rohini, Delhi.
(Convicted)
(ii) Vikram Singh @ Vicky Singh
S/o. Sh. Jagjit Singh
R/o. B74, Guru Nanak Enclave,
Chander Vihar,
Nilothi Extension,
Vikaspuri, Delhi.
(Convicted)
FIR No. : 32/12
Police Station: Shahbad Dairy
Under Sections: 376(2)(g)/506 IPC
Date of committal to Sessions Court : 27.04.2012
Date on which judgment was reserved : 4.1.2013
Date on which judgment pronounced : 4.1.2013
St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 1 of 93
JUDGMENT:
(1) As per the allegations, before 28.01.2012 (on many occasions) at C105/106, Sector5, Bawana Industrial Area, Delhi, within the jurisdiction of Police Station Shahbad Dairy, the accused Tejinder Singh @ Lucky Singh and Vikram Singh @ Vicky Singh committed gang rape upon the prosecutrix 'P' (name of the prosecutrix is withheld as this is a case under Section 376 IPC). It is also alleged that both the accused persons criminally intimidated above said prosecutrix "P" not to disclose about the commission of gang rape to any one.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 28.01.2012 the prosecutrix "P" came to the police station along with her father Sunil Kumar and uncle Sh. R. K. Robin and lodged complaint wherein she told the police that she was studying in ClassV in Ganeshi Public School, Village Sanoth and that her father was doing a job of chowkidar for last seventeen months at C105 & 106, Sector5, Bawana Industrial Area, Bawana, Delhi, and he was running a tea stall in front of C105.
She further stated that after coming from school she used to sit on the said tea stall. She has also stated that her mother was ill, her father used to frequently take her mother hospital. According to the prosecutrix the accused Lucy Singh and Vicky Singh were the owner of C106 and St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 2 of 93 she used to visit them when they ordered for tea. The prosecutrix further stated that about four to five months back when she went to their office, both the accused caught hold of her and after removing her clothe both the accused persons committed rape upon her one by one on which she started crying but could not disclose this fact to anybody due to the threats given by the accused and they continued to do so whenever her father took her mother to hospital. She further told the police that one day when she had gone to the roof, one Deepak Kumar Shah (accused is facing trial separately before the Juvenile Justice Board) who was working as Foreman at C104, caught hold of her and committed rape upon her. The prosecutrix has also stated that all the three accused persons have been regularly committing rape upon her against her wish under threats and it was due to the threats she could not tell anything to her parents. According to the prosecutrix, about ten to twelve days prior to the date of the complaint she fell ill and her father took her to the doctor who declared her pregnant, and it was only on repeatedly asking by her father she disclosed all the facts in detail to her father after which she was taken to the police station. (3) On the basis of the complaint made by the prosecutrix "P", the present case was got registered under Sections 376 (2)(G)/506 IPC, medical of the prosecutrix "P" was got conducted, accused persons were arrested and after completing the investigation, charge sheet was filed in the court.
St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 3 of 93 CHARGE:
(4) The charges under Sections 376 (2) (g)/506 IPC were settled against the accused Tejeder Singh @ Lucky Singh and Vikram Singh @ Vicky Singh to which they pleaded not guilty and claimed trial. EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as twenty three witnesses as under:
Public Witnesses/ Victim/ Complainant:
(6) PW10 'P' is the prosecutrix. She has deposed that they are four brothers and sisters i.e. two brothers and two sisters, both the brothers are elder to her and she is the third child of her parents. She has deposed that her sister who is now 10 months old is the youngest and that her father is doing Chowkidari in the factories at Bawana while her mother is a housewife. According to the prosecutrix, at the time of the incident she was studying in Class 5th in Ganesh Public School which is also in the same area. The witness has deposed that they were running tea stall where she also used to sit along with her parents and brothers. She has deposed that her mother was suffering from breathing problems and often remain unwell and her father used to take her to the hospital frequently and in the absence her father, it was she who need to run the tea stall. Witness has deposed that one day when her parents St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 4 of 93 were away and she was sitting at the tea stall when Lucky and Vicky who were the owners of the factory where her father was a Chowkidar, asked her to get tea in their office. According to the witness she prepared tea and took the same to the office of Lucky and Vicky and after serving the tea when she was returning the accused Lucky (correctly identified) caught hold of her. The accused Vicky shut the door of the office after which Vicky forcibly removed her clothes, first Lucky forcibly committed rape on her and thereafter it was Vicky who committed rape on her on which she raised alarm and cried (CHILAI ROI) but they did not leave her and her voice could not be heard outside because of the noise of the machine which was operating in the factory.
On a court question as to what was the work being done in the factory, the witness has responded that bottles were being manufactured (bottle banti hain). Witness has deposed that thereafter the accused persons asked her to wear her clothes but since she was unwilling to go out after the incident, they forcibly first put her clothes on her and then asked her to leave and also threatened her again and again that if she told about this incident to anybody, they would kill her and her family members and throw them in the Nehar (AGAR TUMNE KISI KO BI BATAYA TO HUM TUJHE OR TERE PARIVAR KO MAR KAR NEHAR MEIN FEK DENGE).
(7) On a Court question as to why did they threatened her again and again, the witness has respondent that they used to threaten her St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 5 of 93 again and again when they repeated this act with her time and again. On being asked by the court as to what she means by the word act, the witness has explained that the accused persons committed rape with her whenever her parents used to go out or to the hospital. (8) The prosecutrix has further deposed that one day when she was drying her clothes on her Chhat / Roof, Deepak Kumar who was working in factory No. C104 i.e. adjoining factory owned by one Munna, jumped over the roof and came over to her roof where she was drying the clothes and caught hold of her after which he removed her clothes and committed rape on her on which she screamed and cried but he did not leave her. She has deposed that in a similar manner, whenever her parents used to be away, he i.e. Deepak used to frequently come to her house and committed rape on her but out of fear, she did not tell anybody because he had threatened her. According to the witness, one day she fell ill on which her parents took her to the doctor who informed her parents that she was pregnant by seven to eight months and it was only then that she informed her parents about what Lucky, Vicky and Deepak had done with her after which her parents brought her to the Police Station where her statement Ex.PW10/A was recorded by the IO. The prosecutrix has deposed that thereafter on her identification and pointing out, the accused were apprehended and accused Deepak was arrested vide Ex.PW10/B, Lucky Singh was arrested vide Ex.PW10/C and Vicky Singh was arrested vide St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 6 of 93 Ex.PW10/D. The prosecutrix has further deposed that on the next day, she was also taken to the hospital where her medical examination was got conducted after which she was brought to the court where her statement was recorded by the Ld. MM vide Ex.PW10/E bearing her signatures at various point Mark A. The prosecutrix has further deposed that on 28.01.12, police recorded her statement vide Ex.PW10/F. According to the witness, the disclosure statement of accused Tejinder Singh @ Lucky Ex.PW10/G bears her signatures at point A, disclosure statement of accused Vikram Singh @ Vicky Ex.PW10/H bears her signatures at point A. Witness has further deposed that police also prepared the pointing out memos at the instance of the accused Lucky and Vicky vide Ex.PW10/I and Ex.PW10/J. (9) In her cross examination by Ld. Defence Counsel, the witness has deposed that she was an original resident of Bihar, Distt. Nalanda. According to the witness she was initially residing at her native village and does not recollect when she came to Delhi and has explained that it was when she was studying in Class 4th and has clarified that in Delhi and she was admitted in Class 5th. She has admitted that they came to Bawana about 2 years ago and has voluntarily added that prior to that they were residing at Ghitorni where they were residing for many years. The witness again said, her parents were residing at Ghitorni while she was residing in Nawada where she St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 7 of 93 was residing with her second brother and they were studying there. The witness has deposed that in Navada, she was studying in Vasant Valley, Industrial Missions Public School (a Christian School) but she does not recollect for how many years, she studied in that school. According to the witness she was not working while she in her native village and it was only when she came to Delhi that she started working in a tea stall run by her family. She has deposed that she and her brother Suraj were admitted together in the school at Bihar but is unable to tell by how many years Suraj was elder to her and states that according to her he must be elder to her by 2 years and Suraj was also studying in Class 5th. (10) On being asked by the court as to why she was still in class 5th for many years, the prosecutrix has explained that she had given the examination but failed in Class 5th. The witness has further deposed that Sushil was her eldest brother who was previously working but now he is staying at home and he must be elder to her by four years. According to the witness, she used to go to the school in Delhi regularly, except on holidays, and used to speak and interact with her teachers in the school but she has no friends in the school. The witness has deposed that except her family, nobody was residing in the factory at C105106. Witness has admitted that she does not have any differences with her mother and often spoke / conversed with her. According to her, she did not tell to her mother anything when for the first time the alleged incident took place with her by Lucky and Vicky St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 8 of 93 nor she told her teachers any of the child in school as to what had happened. She has deposed that her mother remained admitted in the hospital at the time of delivery but otherwise she used to remain at home. She has further deposed that she knew Deepak because he used to come at her shop to take tea who used to come almost everyday. She has further deposed that ever since, she come from the village they had opened a tea stall and Deepak used to come there. The prosecutrix is unable to tell at what time her father used to open the shop and she explained that she used to sit in the tea stall after the school hours i.e. after 1 p.m. her father shuts the shop at about 9:00 pm. According to the witness, when for the first time the incident took place, it was day time i.e. when her parents had gone to the hospital. The witness has further deposed that the factory in question has a basement and has two floors and the factory remains empty. According to the witness at the time of the incident, Lucky and Vicky were having two workers who were working in the factory. She is unable to tell if there were six to seven persons working in the factory at the time of the incident and has clarified that she did not find any worker working there. She has deposed that at the time of the incident, she did not see any worker and has also stated that she did not recollect the date of the incident. According to the witness, the accused Vicky and Lucky were residing at Rohini and had come to the factory by their vehicle and they drive themselves but she is unable to tell the make of the vehicle. She has St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 9 of 93 deposed that the accused persons used to come together in the same vehicle. She has deposed that the family members of the accused also used to come in the factory and has voluntarily explained that the parents of the accused used came to the factory for performing religious ceremonies during festivals. According to the witness the room where the incident had taken place is as big as the chamber of the court i.e. around 10 x 12 feet. Witness has admitted that there was a table in the room with two chairs but there was no sitting arrangement in the form of a bench or anything else. Witness has denied that no such incident had taken place at any point of time or that she was now creating a story only to falsely implicate the accused. She has deposed that on the date of the incident, her younger brother was with her at the tea stall and has voluntarily deposed that he had gone out to play. She has further deposed that after the incident, she came back to the tea stall but she did not tell her brother or anybody else as to what had happened. According to the witness she was not crying at the time when she came back to the tea stall and nobody noticed her. She has deposed that the machine was operating on the ground floor and also on the first floor. The machine was being operated by the accused but she did not see any worker. According to the witness the incident lasted for about half an hour and she has voluntarily explained that she came out of the room after about half an hour. She is unable to tell the number of times, the accused had committed rape on her and has voluntarily explained that they repeated St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 10 of 93 the act on a large number of other occasions as well.
(11) On a Court Question if anybody else also committed this act of rape or sexually exploited her and why did she said five persons because this court had observed the prosecutrix suddenly stating that five persons were involved, the prosecutrix has explained replied that Rajesh and Girish who were Chowkidar of the factory had also made physical relations with her. She further explained that Rajesh and Girish resided on the top floor of the same factory while they (her family) were residing on the ground floor and has voluntarily added that they used to call her to the top floor and then made relations with her on many occasions. The prosecutrix has denied that she was about to get married to Deepak. She has also deposed that initially she had not told the police about the Rajesh and Girish. She further deposed that she did not tell the Ld. MM about Rajesh and Girish and has voluntarily added that she did tell the police later on about them and has deposed that she did not tell anybody in her house about her pregnancy and has voluntarily explained that it was later on that she came to know that she was pregnant and nobody from her family suspected the same. She has deposed that it was only when she had malaria and was taken to the hospital by her father that her pregnancy was revealed. (12) The witness has denied that she used to go out with Deepak or that when her parents were not at home, Deepak used to come and meet her and has voluntarily explained that he only used to come and St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 11 of 93 take tea. Witness has denied that she only had physical relations with Deepak. She is also unable to tell to whom the child belonged and has voluntarily explained that she cannot tell about the father of the child because all the accused including Rajesh and Ganesh used to make regular relations with her. Witness has denied that accused Lucky and Vicky have been falsely implication by her father only to extort money from them and no such incident took place and it is for this reason that she did not disclose about the same to anybody. Witness has also denied that she was deposing falsely on the tutoring of her parents. (13) PW19 Ganga (from Navshrishti NGO B115 116, Budh Bazar Road, Nangloi) has deposed that on 28.01.2012 she received a call from Police Station Shahbad Diary regarding rape of a young girl and on receipt of the information she reached Police Station Shahbad Dairy where she met the prosecutrix, her father Sunil and SI Mukesh. According to the witness she spoke to the girl and counseled her and she (prosecutrix) disclosed that she was residing in Bawana Industrial Area along with her parents and four other brothers and sisters and is a student of Class V. The witness has deposed that the prosecutrix also informed that her father was a Guard and they are also running a tea stall outside the factory and her mother was a patient of Asthama. According to the witness the prosecutrix further informed that when her father used to take her mother to the hospital, she along with her brother Suraj and younger sister used to manage the tea stall. The St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 12 of 93 witness has deposed that according to the prosecutrix, one day when she was managing the Tea Stall, she was asked by Vicky Singh the owner of the factory to bring tea inside the factory and when she went inside she found both Vicky Singh and Lucky Singh inside the factory and that when she was about to pour tea in the cups, Vicky Singh caught hold of her and Lucky Singh closed the door and thereafter both of them raped her. The witness has further deposed that the prosecutrix also informed that thereafter she started crying and both the accused threatened her not to inform about the incident to anybody or else they would throw her family in the Nehar. The witness has deposed that the prosecutrix told her that that she was thereafter regularly sexually abused by these persons for two to three months and whenever her father used to take her mother to the hospital these persons called her inside the factory and sexually abused her. According to the witness, the prosecutrix has informed her that one day when she was drying the clothes on the roof another boy residing in the neighbourhood namely Deepak also climbed on the roof and did galat kaam (with her). The witness has deposed that the prosecutrix further informed her that later on when she fell sick and her father took her to the hospital it was then it was revealed that she had conceived and was pregnant. The witness has deposed that thereafter police recorded the statement of the prosecutrix in her presence which statement is already Ex. PW10/A and bears her signature at point A. St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 13 of 93 (14) In her cross examination by Ld. Defence Counsel, the witness has deposed that she reached the Police Station at about 7 to 8 p.m. and remained in there till about 10 - 11 p.m. The witness has voluntarily added that at that time the prosecutrix appeared very scared and apprehensive and she had to counsel her for quite some time. Witness has deposed that the statement of the prosecutrix was recorded at about 10 p.m. and at the time when statement of the prosecutrix was recorded her father and chacha were also present in the police station. Witness has denied that the statement of the prosecutrix was recorded by the police on the tutoring of her father and chacha and she merely signed the same in routine matter.
(15) PW20 Sunil Kumar is the father of the prosecutrix "P" and has deposed that he was residing at the given address on the ground floor along with his wife and children and was doing the work of Chowkidar at factory No. C105 and C106 in the night hours for last one and a half years prior to the date of occurrence. According to him, during the day time he used to sell tea on the ground floor of C105. He has deposed that his wife, daughter namely 'P' who was aged about 13 years and his son namely Suraj used to help him in supplying the tea in the factory No. C104, C105 and C106. He has deposed that his wife namely Rani Devi was a patient of Asthama and so she was ill for the last 2½ 3 months prior to the date of incident and that whenever he used to take his wife to hospital for treatment, his daughter 'P' and son St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 14 of 93 Suraj used to maintain tea stall and supply tea in the factories. The witness has deposed that he knew the accused Lucky Singh and Vicky Singh (correctly identified in the court) as they are the owner of factory No. C106 and he also knew the accused Deepak Kumar Shah as he used to work as Foreman in factory No. C104. According to the witness about 10 to 12 days prior to reporting of the matter the condition of his daughter 'P' was deteriorated on which he had taken her to the Government Dispensary situated in Metro Vihar PhaseI and at that time when the doctor had checked her, he had told that his daughter 'P' was pregnant. The witness has deposed that on hearing the same, he was shocked as his daughter was aged about 13 years. According to the witness, after he came back to his house with daughter and called his younger brother namely Ravinder Kumar Robin and after that asked 'P' about the matter on which she started crying and scared and on repeatedly asking she disclosed them that Lucky Singh, Vicky Singh the owners of factory No. C106 and Deepak Kumar Shah (foreman of factory No. C106) were doing "galat kaam" with her for a long time and she was threatened by them not to disclose the matter to anyone otherwise they will kill her. According to the witness, when his daughter disclosed these fact to them, he along with his brother R K Robin took her at PS Shahbad Dairy where they disclosed the matter to the police and police recorded statement of 'P' and thereafter his daughter was taken to MB Hospital with lady constable Seema and SI St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 15 of 93 Mukesh Devi for her medical examination. The witness has deposed that he also accompanied them to the hospital and after her medical examination they all reached at factory No. C104, Bawana where accused Deepak Shah was present at the aforesaid factory and he was arrested by the police at the instance of his daughter. The witness has deposed that the police also made enquiries from accused Deepak and he confessed his guilt. He has deposed that at that time police prepared some papers regarding his arrest which were signed by the witness. The witness has deposed that he can identify the said papers and also the accused Deepak (accused Deepak is Juvenile). Witness has deposed that after the arrest of accused Deepak, he took them to the house of accused Lucky Singh in Sector 22, Rohini where accused Lucky Singh was found present and accused Lucky Singh was arrested and he was also interrogated by the police in which he has also confessed about his guilt. The witness has deposed that he also signed the papers prepared by the police regarding arrest of accused Lucky Singh i.e. arrest memo of accused Lucky Singh is Ex.PW10/C, personal search memo Ex.PW20/A and the disclosure statement Ex.PW10/G. The witness has deposed that after the arrest of accused Lucky Singh, they all reached the house of accused Vickey Singh at Guru Nanak Enclave, Vikas Puri, Delhi and when they reached there accused Vicky Singh was found present in front of his house and he was also arrested by the police at the instance of daughter of the witness i.e. the prosecutrix and on St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 16 of 93 interrogation by the police in, he also confessed about his guilt. Witness has seen arrest memo of accused Vicky Singh @ Vikram Singh which is Ex.PW10/D which bears signatures of the witness at point B. Personal search of accused Vicky Singh is Ex.PW20/B bearing signatures of the witness at point A. Disclosure statement of accused Vickey Singh is Ex.PW10/H which also bears signatures of the witness at point B. (16) The witness has further deposed that after the arrest both the accused Lucky Singh and Vicky Singh, they took the police at factory No. C106, Bawana Industrial Area, Bawana, Delhi where they pointed out the office where they had done "galat kaam" with his daughter 'P'. The pointing out memo of accused Lukcy Singh is Ex.PW10/I and that of accused Vicky Singh is Ex.PW10/J. The witness has deposed that after that they all went to Police Station Shahbad Dairy where his statement was recorded by the IO in the police station and thereafter he took his daughter back to house. The witness has deposed that prior to that as per the directions of the IO, he had given undertaking to the police to produce his daughter in the police station on the next day. According to him the said undertaking was signed by him which is Ex.PW20/C (17) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he came to his house along with his daughter St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 17 of 93 from the police station in the night at 12.00 (midnight). Witness has deposed that he has four children i.e. elder son namely Sushil and other son namely Suraj Kumar, daughter namely 'P' and other daughter namely Kanchan and that he was living at C105 for the last 17 months prior to the date of incident. According to the witness they were also using basement of factory No. C106. He has admitted that he along with his Children were residing at C105 and were not living in the basement of C106 and that the name of owner of C105 is Mr. Nitin. He has deposed that his daughter told him that she was subjected to sexual assault for the last one year. According to the witness he used to talk with all his children including 'P' and his daughter 'P', his son Suraj, himself and his wife used to sit at the aforesaid Tea Stall. According to the witness his younger brother Ravinder Kumar Robin used to reside with him and on the day he came to know of the pregnancy of his daughter Ravinder Kumar was called by him from his work place. Witness has admitted that Karuna is his niece who is residing with him after the incident. He has further deposed that his daughter 'P' used to go to supply the tea in the factory No. C106 only and not to other factories and whenever she used to supply tea at C106, his tea stall was used to managed by his son Suraj. According to the witness his son Suraj never complained to him regarding anything which was abnormal at any point of time nor he (Suraj) told him that 'P' came crying, terrified from C106 at any point of time. According to the witness his St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 18 of 93 elder son Sushil used to reside with his elder brother. The witness has deposed that his daughter 'P' told him that she will not go to C106 for supply of tea and when she refused to go to factory No. C106, he used to go there to supply tea and for the last two years he was going to supply tea and 'P' was not going to supply tea in C106. She has deposed that the distance between his Tea Stall and the office of accused Lucky Singh and Vicky Singh may be about 10 or 15 steps. According to the witness the office of Lucky Singh and Vickey Singh is not visible from his Tea Stall. Witness has denied that his shop and the gate of C106 are adjacent to each other and that he was deposing falsely in this regard. The witness has deposed that he was not having any document to prove the age of his daughter 'P' so he could not give the same to the police. Witness has denied the suggestion that he has deliberately mentioned the age of his daughter 'P' as 13 years to falsely implicate the accused persons. Witness has denied that age of his daughter was more than 18 years.
(18) The witness has further deposed that he came Delhi from his native place for about four years back and for the last four years he was residing at C105. The witness has again deposed that prior to 17 months of the incident he was living at Haiderpur, Delhi. Witness has denied that he was residing C106 till 26.01.2012 and on 26.01.2012 he vacated the premises C106 and shifted to C105. Witness has further denied that he demanded Rs.20,000/ from Lucky Singh and when he St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 19 of 93 refused to give then he falsely implicated him in the present case. Witness has deposed that at present he is residing at C91, Bawana Industrial area, Bawana, Delhi. Witness has denied that he had demanded money from the owner of C105 for vacating the premises. Witness has also denied the suggestion that he has falsely implicated the accused persons to extort money from them. Witness has further denied the suggestion that accused persons never committed any offence with his daughter or that he was deposing falsely. (19) PW21 Ravindra Kumar Robin has deposed that on 28.01.2012 his elder brother namely Sunil Kumar had called him on which he had reached at House No. C105, Sector 5, Bawana Industrial Area, Bawana, Delhi, where he was residing at that time and witness was also residing there. Witness has deposed that he used to play Nukkar Natak so often used to remain out for playing Nukkar Natak in different areas. The witness has deposed that when he reached at the house i.e. C105, Sector 5, Bawana Industrial Area, his brother Sunil Kumar disclosed him about the fact of pregnancy of his daughter 'P' and thereafter they had repeatedly asked 'P' to disclose about the matter. According to the witness the prosecutrix 'P' was looking scared and was not disclosing about the matter but after some time on being asked she told them that one Deepak Kumar Shah who was working in Factory No. C104 as Foreman and Lucky Singh and Vicky Singh who were the owners of factory No. C106 had been committing "Galat Kaam" i.e. St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 20 of 93 rape with her for a long time. The witness has deposed that the prosecutrix had also told that she was also threatened by them not to disclose about the incident to anyone otherwise they would kill her and her family members. The witness has deposed that when 'P' disclosed these facts to them he along with his brother Sunil Kumar took 'P' to Police Station Shahbad Dairy where her statement was recorded by the police regarding the occurrence and after that she was sent to hospital where she was medically examined. Witness has deposed that he remained in the police station and his brother Sunil had also accompanied to the hospital and after arrest of the aforesaid accused i.e. accused Deepak Kumar, Lucky Singh and Vicky Singh were brought to police station. According to the witness, thereafter 'P' was handed over to his brother Sunil Kumar but at that time he was directed to produce 'P' on the next day in the police station for further investigation. The witness has deposed that at that time statement of the witness was also recorded by the police and thereafter he along with his brother and 'P' came to their house. The witness has further deposed that on 27.01.2012 he also filed a complaint to police station Bawana which is Ex.PW21/A. He has deposed that on 06.02.2012 he had made a complaint to PS Shahbad Dairy which is Ex.PW21/B. (20) Addl. PP for the State with due permission of the court put some leading questions to the witness wherein the witness has explained that earlier he had given 28.01.2012 as the date when his St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 21 of 93 brother Sunil Kumar had called him at his mobile at his house while in fact his brother had actually informed him about two to three days prior to giving the complaint dated 27.01.2012. According to the witness 'P' had informed them about the occurrence on 27.01.2012 and thereafter he had made the complaint Ex.PW21/A to Police Station Bawana and it was on 28.01.2012 when he along with his brother Sunil Kumar took 'P' to the Police Station Shahbad Dairy. Witness has deposed that he did not inform the court about the aforesaid facts as he had forgotten about the same.
(21) The witness has correctly identified the accused Lucky Singh and Vicky Singh in the court as the same who were arrested by the police and brought to the police station. Witness has deposed that he can also identify accused Deepak (Juvenile accused) if shown to him. (22) In his cross examination by Ld. Defence Counsel, the witness PW21 has deposed that 'P' told him about the incident on 28.01.2012 as he was away from the house before 28.01.2012. The witness has deposed that at that time he was in Delhi when he was called by his brother. He has further deposed that his brother had called him on 28.01.2012. According to the witness, the elder son of Sunil Kumar was residing with his eldest brother namely Anil Kumar at Sultanpur, Mehrauli, Delhi, but he had not visited the house of his brother Sunil 8 or 10 months prior to 28.01.2012. Witness has denied that he intentionally did not mention about the complaints or that St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 22 of 93 because of this reason he gave a evasive answer that he forgot to tell about his above said complaints. Witness has voluntarily deposed that he had inadvertently mentioned the date as 28.01.2012 while in fact he had visited the house of his brother on 27.01.2012 and prior to 8 or 10 months of 27.01.2012 he had not visited the house of his brother Sunil Kumar. Witness has denied the suggestion that he was intentionally giving a false explanation to fill up the loop holes or that he in connivance of his brother falsely implicating the accused persons by making false complaint in the police station to extort money from the accused persons. The witness has admitted that he was having a mobile phone and his brother called him by making a call at his mobile phone. Witness has denied the suggestion that nothing wrong was happened with his niece 'P' or that he intentionally implicating the accused persons in the present case. The witness has denied that his niece 'P' was not a girl of low IQ or that she was having a good IQ but to falsely implicate the accused persons in the present case he mention her as a girl of lower IQ and intentionally give lower age i.e. 13 years. Police/ Official Witnesses:
(23) PW1 HC Murari Lal is a formal witness who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that he was posted as MHC (M) at Police Station Shahbad Dairy since 13.01.2012 and on 28.01.2012 St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 23 of 93 he received one sample seal sealed with the seal of MS MB Hospital and seizure memo from SI Mukesh Kumar vide entry in register no.19 and mud no. 811/12. He has deposed that Further he deposed that on
29.01.2012 he received the exhibits i.e. blood sealed, blood sample, pubic hair and sample seal of accused Tejinder Singh, Deepak Kumar Shah and Vikram Singh @ Vicky Singh and seizure memos from SI Mukesh Kumar sealed with the seal of MS MB Hospital, Pooth Khurd, Delhi vide entry in register no.19 and mud no. 811/12. Further on 05.03.2012 he received the exhibits of the prosecutrix, one envelop containing blood sample, blood on gauze piece, scalp hair, pubic hair, vaginal swab and seizure memo from SI Mukesh Kumar sealed with the seal of MS MB Hospital, Pooth Khurd, Delhi vide entry in register no. 19 and mud no. 913/12. He has further deposed that on 09.03.2012, he handed over the exhibits of accused persons and of prosecutrix vide RC no. 28/21/12 Ex.PW1/C to constable Ram Kishore for depositing the same in FSL Rohini which is entered in register no.19 at serial no. 811/12 Ex.PW1/A and 913/12 Ex.PW1/B and copy of RC Ex.PW1/D was handed over to him by constable Ram Kishore after depositing in FSL. On 30.03.2012 he received the exhibits of newly born baby of prosecutrix, one envelop containing blood on gauze piece, one envelop containing sealed blood sample in plain bulb and sample seal all sealed with the seal of MS MB Hospital, Pooth Khurd, Delhi and seizure memo from SI Mukesh Kumar vide entry in register no.19 and mud no. St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 24 of 93 961/12 Ex.PW1/E. On 13.04.2012, he handed over the exhibits of the newly born baby of prosecutrix vide RC no. 68/21/12 Ex.PW1/F to constable Ramesh for depositing in FLS Rohini which is entered in Register no. 19 at serial no. 961/12 and copy of RC Ex.PW1/G was handed over to him by constable Ramesh after depositing in FSL. Witness was not crossexamined by Ld. Defence Counsel for both the accused persons though opportunity was given and the entire testimony has gone uncontroverted.
(24) PW2 Ct. Ramesh Kumar is a formal witness who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) bearing his signatures at points A and B and also relied upon documents i.e. seizure memo Ex.PW2/A, bearing his signatures at point A. In his affidavit he deposed that on 05.03.2012 he was posted at PS Shahbad Dairy and went to MB Hospital with SI Mukesh Kumar where the following exhibits of prosecutrix were received by SI Mukesh Kumar i.e. (i) one envelope containing blood sample, (ii) one envelope containing of blood one gauze piece (iii) one envelope containing scalp hair (iv) one envelope containing pubic hair and (v) one envelope containing vaginal swab, all sealed with the seal of MS MB Hospital, Pooth Khurd, Delhi, (25) The witness has further deposed that the above said samples were seized by SI Mukesh Kumar and he also signed on the seizure St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 25 of 93 memo. According to the witness, on 13.04.2012, he received the exhibits of the above mentioned case, sample seal from HC Murari Lal through RC No. 68/21/12 for depositing in FSL / Rohini and copy of RC was handed over too HC Murari Lal and that the sealed exhibits were in safe and no any kind of tempering with its during his custody. Witness was not crossexamined by the Ld. Defence Counsel and hence his entire testimony has gone uncontroverted.
(26) PW3 Ct. Ram Kishore is a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) bearing his signatures at points A and B and also relied upon the RC No.28/21/12 which was already Ex.PW1/C. He deposed through his affidavit that on 09.03.2012, he was posted at PS Shahbad Dairy, Delhi and when he reached in the malkhana of PS Shahbad Dairy he received exhibits of above mentioned case and sample seal from HC Murari Lal through RC No. 28/21/12 for depositing the same in FSL Rohini and copy of RC was handed over to HC Murari Lal and and that the sealed exhibits were in safe and no any kind of tempering with its during his custody. Witness was not cross examined by the Ld. Defence Counsel and hence the entire testimony has gone uncontroverted.
(27) PW4 Ct. Vikram is a formal witness who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 26 of 93 of Section 296 Cr.PC) and also proved the seizure memo Ex.PW4/A. He has deposed that on 30.03.2012, he was posted as constable in PS Shahbad Dairy, Delhi and went to MB Hospital, Pooth Khurd, Delhi with SI Mukesh Kumar where prosecutrix 'P' met with newly born baby and doctor provided the following blood sample of newly born baby of 'P' i.e. (i) one envelope containing blood on gauge piece of newly born baby of 'P', (ii) one envelope containing sealed blood sample in plain bulb of newly born baby of 'P' (iii) sample seal, all sealed with the seal of MS MB Hospital, Pooth Khurd, Delhi.
(28) PW5 SI Anil Kumar is a formal witness who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) bearing his signatures at points A and B and also relied upon the Crime Team Report Ex.PW5/A. He deposed through his affidavit that on 29.01.2012, he was posted as I/C Crime Team, Outer District, Delhi and he received an information and reached at the spot along with constable Manish (photographer) i.e. C105, Sector5, DSIDC, Bawana, Delhi where prosecutrix 'P' d/o. Sunil Kumar along with SI Mukesh Kumar met them and after pointing out the site was inspected by him and photographs of the place of incident were taken by the photographer and that he had submitted the report to the IO.
St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 27 of 93 (29) PW6 Ct. Manish is a formal witness who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) bearing his signatures at points A and B and also relied upon the documents i.e. photographs Ex.PW6/A1 to Ex.PW6/A11 and the negatives Ex.PW6/D. Further he deposed through his affidavit that on 29.01.2012 he was posted as photographer at Crime Team, Outer District, Delhi and went to C105, Sector5, DSIDC, Bawana, Delhi along with SI Anil Kumar, I/C Crime Team/Outer Distt. and he has taken photographs of the place of occurrence i.e. C104, C105 & C106, Sector5, DSIDC, Bawana, Delhi on the pointing out of the prosecutrix 'P' and that the photographs had been handed over to Investigating officer.
(30) PW7 HC John Patric has been examined by way affidavits which is Ex.PW7/A and has relied upon the copy of FIR Ex.PW7/A and the endorsement on rukka Ex.PW7/B. He has not been cross examined on behalf of the accused and the entire testimony as gone uncontroverted.
(31) PW8 W/Ct. Seema has been examined on affidavit which is Ex.PW8/1. He has proved the seizure memo Ex.PW8/A. In his cross examination the witness has deposed that the statement of prosecutrix was recorded around 4:30 pm and as far as he recollect, the mother of the prosecutrix was present and that the NGO representative St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 28 of 93 was also present three at that time. According to the witness, the NGO representative also accompanied the prosecutrix to the hospital. He has denied that statement of prosecutrix was recorded on the tutoring of the family members or that she did not state anything.
(32) PW22 Const. Virender Rathee has deposed that on 28.01.2012 he was posted at Police Station Shahbad Diary and on that day at about 5.30 p.m., the duty officer handed over to copy of FIR No. 32/12 u/s 376/506/34 IPC along with the original tehrir and directed him to go to DSIDC Sector 5 Bawana and handed over the same to SI Mukesh. He has deposed that he reached sector 5 Bawana where he met SI Mukesh, Const. Karan, lady Const. Seema, prosecutrix 'P' and her father Sunil and he handed over the copy of FIR and original tehrir to SI Mukesh. He has further deposed that thereafter on the pointing out of prosecutrix 'P' they went to C 104 Sector 5 Bawana where Deepak Shah was present and she identified as the boy who had committed rape on her, on which Deepak was apprehended and arrested. According to the witness, thereafter Deepak was interrogated and his disclosure statement was recorded by SI Mukesh and his custody was handed over to him. Witness has deposed that prosecutrix also named two other persons namely Tejinder @ Lucky and Vikram @ Vicky owners of factory No. C106 as the persons who had been committing rape on her. The witness has deposed that Deepak disclosed that he knew the house of Tejinder @ Lucky on which they all went to H. No. 330331 Pocket St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 29 of 93 4 Sector 22 Rohini where they found Tejinder on the third floor and he was identified by 'P' and on her pointing out he was arrested vide memo Ex.PW10/C bearing his signature at point B. According to the witness, he was also personally searched the jamatalashi revealed two mobile phones one of Nokia and the other of Tata Indicome and also Rs.4,700/ and a leather purse on which the personal search memo was prepared vide Ex.PW20/A bearing his signature at point B. According to him, the accused Lucky (correctly identified) was thereafter interrogated by the IO and his disclosure statement was recorded which was Ex.PW10/G bearing his signature at point C wherein he disclosed the address of Vicky as B74, Guru Nanak Enclave, Chander Vihar, Vikas Puri.
(33) The witness has deposed that thereafter they all along with accused Deepak and Lucky went to B74, Guru Nanak Enclave where they found one person coming out of the said house and the prosecutrix identified him as Vikram Singh @ Vicky who arrested vide memo Ex.PW10/D bearing his signature at point C. The witness has further deposed that the accused Vikram Singh was personally searched which revealed one mobile phone make Havi, Rs.640/ , one leather purse and RC of a motor cycle and his personal search memo was prepared vide Ex.PW20/B bearing his signature at point B. The witness has deposed that the accused Vikram Singh @ Vicky (correctly identified) was St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 30 of 93 thereafter interrogated by the IO and his disclosure statement was recorded which was Ex. PW10/H bearing his signature at point C. According to him, thereafter all the accused took them to Sector 5 C 106, where they pointed out the office where they had committed the offence with the prosecutrix (objected to by the Ld. Defence counsel) and the said pointing out memo Ex.PW10/I, bearing his signature at point C, prepared on the behest of accused Lucky Singh. The witness has deposed that the pointing out memo prepared on behest of accused Vikram Singh was Ex. PW10/J bearing his signature at point C. He has further deposed that thereafter, they all returned to P.S. and from the P.S. they went to M.B. Hospital, Pooth Kalan, Delhi for medical examination of the accused Deepak, Tajinder @ Lucky and Vikrem @ Vicky and after the medical examination of the accused persons the doctor handed over the exhibits pertaining to the accused Deepak, Lucky Singh, Vicky Singh and the prosecutrix and the sample seal of the hospital to the IO who seized the same vide seizure memos Ex.PW22/A and PW22/B bearing his signature at point A. The witness has deposed that they then returned to the police station and the accused were produced before the Ld. MM during the day.
(34) In his cross examination by the Ld. Defence Counsel, the witness has deposed that they have reached at the house of accused Tejinder at about 9.35 p.m. but he had not made any departure entry separately. Witness has denied that Deepak never disclosed the name of St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 31 of 93 accused Lucky Singh and Vikram Singh. Witness has also denied the suggestion that accused Lucky Singh and Vikram Singh were not arrested from their house at the instance of accused Deepak and prosecutrix. According to him they stayed at the house of accused Lucky for about 2025 minutes. He has deposed that Sector5 is at a distance of 5 to 6 km. from Guru Nanak Enclave, Chander Vihar. Witness has denied the suggestion that no disclosure statement was made by accused Lucky Singh and Vikram Singh or that that both were called at the P.S. and were arrested in this case. He has also denied that he signed all the documents at P.S. at the instance of the IO to falsely implicate the accused persons in the present case. They all went in a private vehicle which was hired by the IO of the case. The witness is unable to tell the number of that vehicle. Witness has denied the suggestion that nothing happened in the manner as deposed by him in his examination in chief or that he was deposing falsely at the instance of the IO. According to the witness, when they reached at the house of accused persons their family members were also present. He has deposed that the IO did not make any effort to call any neighbour to become witness of the disclosure statement of accused persons. He is unable to tell how much time was taken by the IO in preparing the disclosure statement of accused Vikram Singh and same was his reply about the disclosure statement of accused Lucky Singh. The witness has admitted the suggestion that factory No. C 106 is surrounded by other St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 32 of 93 factories.
(35) PW23 SI Mukesh Kumar has deposed that on 28.01.2012 he was posted as SI at PS Shahbad Dairy. Witness has deposed that on that day prosecutrix was brought to the police station by her father Sunil Kumar and her uncle Ravindra Kumar Robin and at that time 'P' had got recorded her statement to him regarding the occurrence and the same is Ex.PW10/A on which 'P' had signed at point A and at that time he had informed one Nazma of NGONav Srishti Sanstha but she had sent one lady namely Ganga who came at the police station later on though prior to arrival of NGOGanga he had made rukka on the statement of 'P' for registration of a case U/s 376(2)(g)/506 IPC and handed over the same to Duty Officer for registration of the case. According to the witness, the Rukka Ex.PW23/A is the same which was made by him which bear his signatures at point A. He has further deposed that after handing over the rukka to Duty Officer he along with lady Ct. Seema took prosecutrix along with her father to M B Hospital Pooth Khurd where on the prosecutrix was got medically examined with her consent and also with the consent of her father. The witness has also deposed that after medical examination the sample seal was given by the doctor to Lady Ct. Seema which was taken into possession by him vide Ex.PW8/A which bears signatures of the witness at point B. According to the witness, after that they have reached at Factory. No. C105, Sector St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 33 of 93 5, Bawana Industrial Area, Bawana, Delhi and after some time Ct. Virender had come to him and gave copy of FIR and original rukka to the him (witness) and thereafter he along with prosecutrix, her father Sunil Kumar, Ct. Virender and Ct. Karan had reached at factory No.C104 where accused Deepak Kumar Shah was found present. The witness has deposed that accused was apprehended by him at the instance of prosecutrix and after interrogation he was arrested by him in this case and arrest memo of accused was prepared and his personal search was also conducted by witness. The witness has further deposed that the accused had also made disclosure statement to the witness and after that he also pointed out the place of occurrence at factory No. C105. According to him after that accused Deepak took them at the house bearing No. 330/31, PocketIV, Sector 22, Rohini, Delhi where accused Lucky Singh was found present there and he was apprehended at the instance of prosecutrix and after interrogation he was arrested in this case vide arrest memo Ex.PW10/C which bears signatures of the witness at point C and personal search of the accused was also conducted vide Ex.PW20/A bearing signatures of the witness at point C. Disclosure statement of accused Tejinder Singh @ Lucky Singh was recorded vide Ex.PW10/G which bears signatures of the witness at point C. The witness has deposed that after that accused Lucky Singh took them at the house of accused Vikram Singh i.e. 74B, Nanak Enclave, Chander Vihar, Niluthi Extn., Vikas Puri, Delhi where accused St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 34 of 93 Vikram Singh @ Vicky Singh was found present in front of his house and he was apprehended at the instance of prosecutrix and was arrested vide arrest memo Ex.PW10/D bearing signatures of the witness at point D and personal search of the accused was conducted vide memo Ex.PW20/B bearing signatures of the witness at point C. The witness has deposed that the accused Vickey Singh had also got recorded his disclosure statement Ex.PW10/H bearing signature of the witness at point D. According to the witness, thereafter both the accused Vicky Singh and Lucky Singh took them at C106 where they point out the place of occurrence i.e. his office inside the factory where they committed rape upon the prosecutrix on which separate pointing out memo of accused Tejinder Singh @ Lucky Singh Ex.PW10/I was prepared which bears signatures of the witness at point B and pointing out memo of accused Vicky Singh which is Ex.PW10/J was prepared bearing signatures of the witness at point D. The witness has deposed that after that they all along with the three accused came back to the police station where NGOGanga was found present at the police station. According to him, Ganga had made enquiries from prosecutrix and the statement of 'P' which is Ex.PW10/A was recorded which is bearing signatures of Ganga at point B and signatures of prosecutrix is at point A. The witness has deposed that after that on the request of Sunil Kumar custody of prosecutrix was handed over to him and at that St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 35 of 93 time undertaking Ex.PW20/C, which bears signatures of the witness at point B and signatures of Sunil Kumar at point A, was taken from Sunil Kumar to produce the prosecutrix on the next day in the police station as the statement of prosecutrix U/s 164 Cr. P. C. was to be got recorded by the concerned Ld. MM. According to the witness after that all the three accused namely Deepak, Lucky Singh and Vicky Singh were taken to MB Hospital where they were got medically examined. He has deposed that both the Ct. Virender and Karan also accompanied him to the hospital and after medical examination of the accused the doctor handed over to him the exhibits along with sample seals which were taken into possession by him. The witness has deposed the exhibit of accused Lucky Singh were taken into possession by him vide Ex.PW22/A and that of Vickey Singh vide seizure memo Ex.PW22/B. According to the witness in the morning of 29.01.2012 Crime Team was called and Crime Team came at the spot and inspected the places of occurrence and prepared its report Ex.PW5/A and Crime Team photographer Ct. Manish had taken photographs of the places of occurrence at the instance of prosecutrix. The witness has furthe3r deposed that at that time he prepared the site plan of the places of occurrence at the instance of the prosecutrix and the same is Ex.PW23/B. The witness has also deposed that application was moved before the Ld. MM for getting statement U/s 164 Cr. P. C. recorded and St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 36 of 93 the same was Ex.PX2 and statement of prosecutrix U/s 164 Cr. PC was recorded by Ld. MM. The witness has deposed that on 08.02.2012 he received one complaint dated 06.02.2012 made by R. K. Robin in which he has also alleged the role of two more persons namely Rajesh and Ganesh. He made efforts to find out these two persons but they could not be found as no father's name and address was mentioned in this complaint. According to the witness, on 05.03.2012 the exhibits of prosecutrix were received from the hospital which he taken into possession vide Ex.PW2/A. (36) The witness has further deposed that he was out station and he came to know about the delivery of the male child by prosecutrix at her house i.e. C105 and that thereafter she and the child had been taken to the hospital. He went to the MB Hospital and got collected the blood sample of newly born baby which blood sample was handed over to him by the doctor along with the sample seal which he seized vide Ex.PW4/A bearing signatures of the witness at point B. He went back to the police station and deposited the exhibits in the Malkhana and also recorded the statement of Ct. Vikram who was with him in the hospital. According to the witness on 13.04.2012 the fresh exhibits were sent to FSL through Ct. Ramesh and statement of Ct. Ramesh and supplementary statement of Ct. Ramesh was recorded. He has deposed that he had collected the affidavit of Sunil Kumar regarding date of birth of prosecutrix and the same was taken into possession vide seizure St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 37 of 93 memo Ex.PW23/D which bears his signatures at point A and Ex.PW23/E was the same affidavit which was taken by him from Sunil Kumar. Thereafter on 28.01.2012 a complaint was received from one Sh. R. K. Robin and after completion of investigations he prepared the charge sheet and filed the same in the court on 24.04.2012. The witness has further deposed that on 13.07.2012 the ossification test of the prosecutrix was got conducted in BJRM Hospital vide Ex.PW15/A and he collected the FSL report Ex.PW14/A and submitted the same in the court along with ossification test report on 09.08.2012. The witness has collected DNA test report Ex.PW13/A and submitted the same in the court on 31.08.2012.
(37) In cross examination by Ld. Defence Counsel, the witness has denied that the statement of the prosecutrix on the basis of which the Tehrir was prepared was not recorded by him. Witness has denied that the prosecutrix had been tutored by the representative of the NGO only after which he recorded her statement. Witness has deposed that the statement of the prosecutrix was recorded by him at 3.30 p.m. in the Police Station itself. According to him, at the time when the prosecutrix was taken to the hospital only her father Sunil accompanied her. Witness has deposed that the representative of the NGO did not accompany them to the hospital. Witness has denied that the prosecutrix had only made allegations against Deepak and that Vikram St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 38 of 93 and Tejinder were implicated later on and has voluntarily added that that she had made allegations against all the three accused persons. The witness has admitted that there are other factories around C105 and most of them are under construction. Witness has denied the suggestion that the area in question is thickly inhabited and large number of persons reside in the area. Witness has deposed in his cross examination that the factory where the family of the prosecutrix was residing i.e. C 105 there was no other family except the family of the prosecutrix. Witness has denied the suggestion that apart from Deepak there are other persons residing in C104. Witness deposed that he had measured the room and the room pointed out by the prosecutrix in C 106 is a small office used as a office measuring about 8 x 9 feet with one table and about two chairs and that there was no provision in the room for taking rest, that there was no bed or bench in the said room. Witness has denied that in case of any alarm being raised in the room on ground floor in C 106 voices can be heard outside though witness voluntarily deposed that no voices can be heard because there was a gate installed outside and if closed no voices can go out. Witness has admitted the suggestion that the prosecutrix had not told him the residential addresses of both the accused Lucky Singh and Vicky Singh and they had gone to the house of Lucky Singh as Deepak had taken them there and Lucky Singh was the one who had taken them to the house of Vicky Singh. Witness has further explained that they reached St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 39 of 93 at the house of Lucky Singh at about 9.30 p.m. and the place where he stays was a residential area and he did not join any neighbour in the investigation and that the arrest, personal search and the disclosure statement of Lucky Singh do not bear the signatures of any public person. Witness has voluntarily deposed that it was night at that time and hence, it became difficult to join any public persons. According to him he completed all the documentations in respect of Lucky Singh standing outside his house under the street light. According to him, the chowkidar of the area was not joined in the investigation, as he could not find him. He has deposed that they left the house of Lucky Singh at about 10.05 p.m. and thereafter went to the house of Vicky Singh which is about 7 kms. away from the house of Lucky Singh and reached there in about 10 minutes time. The witness has deposed that the house of Vicky Singh is situated in a residential area and he did not join any neighbour or any public person in the investigation though voluntarily stated that it was late night and there was nobody available. According to the witness, it took him about half an hour to complete the documentations in respect of Vicky Singh, that all the documents prepared in respect of Vicky Singh do not bear the signatures of any public witness. Witness has denied the suggestion that he recorded the statement of Lucky Singh and Vicky Singh of his own and after obtaining their signatures on blank papers. Witness has also denied the suggestion that the accused did not point out any place of occurrence or St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 40 of 93 that he prepared the pointing out memo of his own. Witness has further denied the suggestion that the statement of the prosecutrix u/s 164 CrPC was got recorded after she was given sufficient opportunity of being tutored by her family. According to the witness the father of the prosecutrix did not give to any authentic document regarding the date of birth. He was admitted that the estimated age of the prosecutrix as revealed in the ossification report was in between 17 to 18 years. Witness has denied that he had not conducted the investigations fairly or that the site plan prepared by him is not correct. The witness has deposed that the office is situated just in front of the main gate and the tea stall is situated inside the main gate of factory No. C105. Witness has denied the suggestion that accused Lucky Singh and Vicky Singh have been falsely implicated.
Witnesses of Medical Examination:
(38) PW9 Dr. Subhash has deposed that on 30.03.12, he was posted as Senior Resident in the above said department of the hospital and on that day, IO moved an application for a blood sample of the newly born baby of prosecutrix and his HOD directed him to obtain the blood sample of newly born baby. He obtained the blood sample newly born baby i.e. boy of 'P' and the same was kept in a glass vial and in the gauze piece and both were kept in a envelop and same was handed over to the IO in sealed condition with the sample seal to SI Mukesh Kumar.
St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 41 of 93 He prepared the application of SI Mukesh Kumar is Ex.PW9/A which bears his signatures at point A. According to the witness, the above said newly born boy was admitted in the hospital and he prepared his discharge slip which is Ex.PW9/B which bears his signatures at point A. Witness was not crossexamined by Sh.Deepak Ghai, Advocate for both the accused persons despite opportunity in this court. (39) PW11 Dr. Neha Kumari has deposed that on 28.01.2012 the prosecutrix, aged 13 years was brought at the casualty of the hospital by L/Ct. Seema for medical examination and Dr. Sidharth medically examined her and prepared her MLC No. 318/12 vide MLC EX PW 11/A and Dr. Sidharth referred the patient to Gynae department for further physical examination and management. Witness has further deposed that on the same day, in the Gynae department at about 5:30 PM she medically examined the prosecutrix. She has deposed that in her medical examination she found hymen of the patient obviously in torn condition, IQ level of the patient was good. The witness has deposed that during the medical examination she found the prosecutrix eight month pregnant at the time of examination. She gave her observations on the MLC EX PW 11/A at encircled portion from point X to X1 which bears her signatures at point A and B. Witness also handed over blood sample in five vials, blood on gauze piece, scalp hair, pubic hair and vaginal swab from four sides and handed over the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 42 of 93 same to the IO in sealed condition along with the sample seal to the IO. The witness has also prepared the medical documents in respect of the above said patient for her medical examination which were EX PW 11/B (running into 18 pages).
(40) In her cross examination by Ld. Defence Counsel, the witness has deposed that when prosecutrix came for medical examination she was showing all the visible symptoms and character of a pregnant women. She has deposed that abdomen was distending about 32 weeks and it was clearly visible, the fetal heart sound was present and found regular and patient did not complaint to me any other illness. (41) PW12 Dr. S. N. Siddharth has deposed that on 28.01.2012 he was working as Medical Officer in Maharshi Valmiki Hospital and on that day prosecutrix, female aged about 13 years was brought before him for medical examination. The witness has deposed that on examination he found the patient conscious and the patient had told the alleged history of being pregnant therefore she was referred to SR Gynae for further physical examination and management and accordingly the patient was examined in the Gynae Department. He had also prepared MLC bearing no. 318/12 Ex.PW11/A which was in his handwriting and bearing his signatures at point C. (42) The witness has deposed that on 29.01.2012 at 1.45AM he had also examined Vikram Singh S/o Jagjeet a male aged about 27 St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 43 of 93 years who was brought by SI Mukesh Kumar for medical examination and on examination he found that his penis was well developed and uncircumcised. The witness has deposed that his pubic and axillary hairs were present and there was nothing to suggest that the patient was not capable to perform sexual intercourse. The witness has deposed that his blood sample was taken, loose pubic hair were also taken and sealed with the seal of hospital and handed over to the IO. The witness has deposed that he had also prepared MLC bearing no. 327/12 regarding the aforesaid examination which is Ex.PX6 (admitted by the accused) which was in handwriting of the witness and bear his signatures at point A and also at point B. (43) The witness has further deposed that on the same day he had also examined one Tejinder @ Lucky S/o Darshan a male aged about 30 years who was brought by SI Mukesh for medical examination. The witness had deposed that on examination he found that his penis was well developed and uncircumcised, pubic and axillary hairs were present and there was nothing to suggest that the patient was not capable to perform sexual intercourse. According to the witness the blood sample of the accused was taken, loose pubic hair were also taken and sealed with the seal of hospital and handed over to the IO. The witness has deposed that he had also prepared MLC bearing no. 326/12 Ex.PX5 (admitted by the accused) regarding the aforesaid examination. In his cross examination by the counsel for the accused St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 44 of 93 the witness has deposed that at the time prosecutrix was produced before him, her abdomen was distended.
(44) PW15 Dr. Shipra Rampal, (Radiologist, BJRM Hospital) has deposed that on 13.07.2012, the prosecutrix 'P', alleged age around 13 years was produced before the medical board comprising of herself, Dr. Javed Salam and Dr. Abhilasha for the purpose of ascertaining her bone age. According to the witness, she carried out the radiological examination of the prosecutrix after her physical and dental examination and on the basis of the said examinations they had given a report which is Ex.PW15/A bearing her signature at point A, signatures of Dr. Abhilasha at point B and signatures of Dr. Javed Salam at point C and that of Dr. Niyati Srivastava at point D. According to the report the estimated age of 'P' Kumari D/o Sunil Kumar between 17 to 18 years. In her crossexamination by Ld. Defence Counsel, the witness has deposed that as per their examination, the prosecutrix was more than 17 and less than 18 years.
(45) PW16 Dr. Abhilasha (Civil Assistant, Dental Surgeon, BJRM Hospital) has deposed that on 13.07.2012 the prosecutrix 'P', alleged age around 13 years was produced before the medical board comprising of herself, Dr. Javed Salam and Dr. Shipra Ram Pal for the purpose of ascertaining her bone age. The witness has deposed that she carried out the dental examination of the patient, after her physical and radiological examination and on the basis of the said examinations they St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 45 of 93 have given a report Ex.PW15/A bearing signature of Dr. Shipra Ram Pal at point A, her signatures at point B and signatures of Dr. Javed Salam at point C and that of Dr. Niyati Srivastava at point D. According to the report the estimated age of 'P' Kumari D/o Sunil Kumar between 17 to 18 years. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(46) PW17 Dr. Niyati Srivastava (SR BJRM Hospital), has deposed that on 13.07.2012 prosecutrix aged around 13 years was brought / produced before her by SI Mukesh Kumar for her age determination / ossification test. The witness has deposed that she conducted the physical examination of the prosecutrix and gave her findings on the MLC Ex.PW15/A bearing her signature at point D. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(47) PW18 Dr. Javed Salam (Junior Medical Specialist, BJRM Hospital) has deposed that on 13.07.2012 the prosecutrix, alleged age around 13 years was produced before the medical board comprising of herself (witness), Dr. Shipra Ram Pal and Dr. Abhilasha for the purpose of ascertaining her bone age. According to the witness, she was the Member of the Board who carried out the Radiological Examination, physical and dental examination of the prosecutrix 'P' and on the basis St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 46 of 93 of the said examinations they had given a report which is Ex.PW15/A bearing signature of Dr. Shipra Ram Pal at point A signatures of Dr. Abhilasha at point B and her signatures at point C and that of Dr. Niyati Srivastava at point D. According to the report the estimated age of the prosecutrix 'P' has been found between 17 to 18 years. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
Witnesses from Forensic Laboratory:
(48) PW13 Sh. A. K. Shrivastava, (Deputy Director, DNA Unit, FSL) has deposed that a total number of five parcels were received in the FSL, DNA Unit for purposes of examination in the present case. According to him, after conducting a detailed examination he gave his report Ex.PW13/A bearing his signatures on various point marked A. According to the witness, the source of the exhibits i.e. "1 (blood of new born baby of 'P'), Ex.2 (blood sample of new born baby of prosecutrix), Ex.3 (blood sample of accused Tejinder Singh), Ex.5 (blood of accused Deepak Kumar) and Ex.9 (blood sample of accused Vikram Singh), were examined. Witness has deposed that in the DNA examination, the source of exhibits 1, 2, 3, 5 & 9' were subjected to DNA isolation and the DNA was isolated from the source of exhibits "1, 3, 5, & 9", however DNA could not be isolated from exhibits "2".
St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 47 of 93 According to the witness, STR analysis was used for the sample and the data was analyzed by using Gene Mapper IDX Sofware. The witness has deposed that on DNA examination he found that one set alleels from the source of exhibit "9" (Blood sample said to be of accused Vikram Singh) were accounted in the alleles from the source of exhibit '1' (Blood on gauze piece of new born baby of the prosecutrix 'P'). The witness has deposed that the alleles from the source of exhibits '3' (Blood said to be accused Tejinder Singh ) and alleles from the source of the exhibits '5' (Blood said to be accused Deepak) were not accounted in the alleles from the source of the exhibits '1' (Blood on gauze piece of new born baby of the prosecutrix 'P'). (49) According to the witness after the above said examination, he observed that the DNA profiling (STR analysis) performed on the exhibits '1', '2', '3', '5', and '9' provided was sufficient to conclude that the source of exhibits '9' (Blood sample said to be of accused Vikram Singh) was biological father of source of exhibit '1' (Blood on gauze piece of new born baby of prosecutrix). The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
(50) PW14 Dhruv Sharma (Assistant Director, Biology, FSL Rohini) has deposed that on 09.03.2012, 14 parcels were received in the FSL Rohini in duly sealed condition. According to the witness the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 48 of 93 exhibits / contents of the parcels were duly examined by him biologically after which he gave his report vide Ex.PW14/A bearing his signature at point A. The witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted. STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(51) After completion of prosecution evidence the statement of the accused Vikram Singh @ Vicky Singh was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him which the accused has denied. Accused stated that he was innocent and had been falsely implicated. According to him he had never came in the factory of the father of Lucky Singh and he was working as a die maker at NW9, Vishnu Garden.
(52) Statement of the accused Tejinder Singh @ Lucky Singh was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him which the accused has denied. He has stated that he was innocent and had been falsely implicated. According to him, the accused Vicky Singh never came in the factory in his presence as he was working as a die maker at NW9, Vishnu Garden as factory C106 was being owned and managed by his father Darshan Singh. (53) Both the accused have examined one witness in their defence i.e. DW1 Darshan Singh who is father of accused Tejinder @ St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 49 of 93 Lucky. According to the witness he is running factory at C106, Sector5, DSIDC, Bawana and is into a business of bottle manufacturing and die making for the last three years. The witness has deposed that apart from him, there are four workers who were working in his factory. He has deposed that he was the owner of the factory and in this regard witness showed the copy of General Power of Attorney is Ex.DW1/A (running into four pages) and the copy of electricity bill is Ex.DW1/B. According to the witness, his son Tejinder @ Lucky used to come with him in the factory in the morning to drop him and after that he used to go back to his own factory situated at 487/47, Peeragarhi, near Metro Station where he was doing the job of die making. The witness has deposed that during the day time, his younger son Gurvinder used to stay with him and Tejinder @ Lucky never remained in the factory during the working hours as he had to manage the work of the factory situated at Peeragarhi. The witness has further deposed that Sunil Kumar the father of prosecutrix was residing along with his family at the basement of his factory at Bawana as a security guard and on 26.1.2012 he shifted to C105 along with his family to work there as security guard. He has deposed that Sunil Kumar was running a tea shop in front of C105 and only Sunil and his son Suraj used to come to supply tea and his daughter 'P' never came to supply tea to his labour and him. According to the witness on 5.1.2012 Sunil Kumar demanded Rs.20,000/ and electricity bill from him and his son Tejinder @ Lucky St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 50 of 93 in the morning time to which he refused and asked them to vacate the basement but Sunil Kumar became annoyed at his refusal and threatened his son to implicate him in some false case. He has further deposed that the keys of the factory always remained with him and at no point of time his son Tejinder @ Lucky remained in the factory in his absence during the period of three years as he used to remain busy in his factory at Peeragarhi. He has deposed that his son Tejinder has been falsely implicated by the complainant. According to the witness, the accused Vicky Singh was not the owner of his factory and he worked at his factory about one and half year back and after leaving the job he never came to his factory ever.
(54) In his cross examination by Ld. Addl. PP for the State the witness has deposed that he was not into any partnership with anybody and that Vicky Singh was not in his relation and was only working in the factory. He has deposed that there was no documentary record to show that his son was also employed in the factory and has voluntarily added that he was only helping him there. According to the witness, he was having a mobile phone bearing no. 9810749497 and he was using this number for about 9 to 10 years. He has deposed that his son has a separate number which is 9212485006 which is now closed after this incident as he is in judicial custody. Witness has denied that he normally remain at home while his son was taking care of the business which fact can be got proved from the call detail records and the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 51 of 93 location charts. The witness has further deposed that he did not inform the police when the father of the prosecutrix namely Sunil threatened him and wanted to extort money from him nor he made any complaint to any authority including the court. Witness has denied the suggestion that the accused Tejinder Singh being his son, he was deliberately deposing falsely in order to save him from penal consequences. FINDINGS:
(55) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the Accused:
(56) In so far as the identity of the accused Tejinder Singh @ Lucky Singh and Vikram Singh @ Vicky Singh is concerned, the same stands and established. They have been specifically named in the complaint and also in the FIR. Even otherwise they were known to the victim and her family prior to the incident and have been identified by them in the court. I hold that the identity of both the accused stands established.
St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 52 of 93 Age of the prosecutrix:
(57) The case of the prosecution is that the prosecutrix was around 13 years of age at the time of the incident. In her statement before the Ld. MM and even in the court the prosecutrix has herself given her age as 13 years and has claimed at the time of incident she was studying in class 5th. Further at the time of her medical examination, she has given her age as 13 years. I may mention that despite the information to the Investigating Officer that the prosecutrix was studying in the school, her date of birth has not been collected by the IO from the school. There being no authentic document on record regarding the age of the prosecutrix, on the directions of the Court, ossification / age determination test of the prosecutrix got conducted and as per the report Ex.PW15/A duly proved by Dr. Shipra Rampal (PW15), Dr. Abhilasha, Dr. Niyati Srivastava (PW17) and Dr. Javed Salam (PW18), the estimated age of the prosecutrix as on 13.7.2012 was found to be between 17 to 18 years thereby establishing that at the time of the incident i.e. January 2012 and before that, the prosecutrix was a minor below 18 years of age (i.e. 16 - 17 years of age.) Medical Evidence:
(58) Dr. Neha Kumari (PW11) and Dr. S. N. Sidhardth (PW12) have duly proved the medical record of the prosecutrix vide St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 53 of 93 Ex.PW11/A and Ex.PW11/B showing that at the time of examination on 28.1.2012 they found that the prosecutrix 'P' was pregnant by 8 months. Both the doctors have proved that when the prosecutrix was brought to the hospital, she was showing visible signs of a pregnant women her abdomen being distending about 32 weeks and it was clearly visible. Both the doctors have proved that the fetal heart sound was present and found regular.
(59) Dr. S. N. Sidharth (PW12) has also proved the MLC of the accused Vikram Singh and Tejinder Singh. They have proved that there was nothing to suggest that both the patients (accused Vikram Singh and Tejinder Singh) were not capable of performing sexual intercourse.
FSL / Forensic Evidence:
(60) After the birth of the child, the DNA Fingerprinting examination was got conducted and PW13 A. K. Shrivastava has duly proved the report in this regard vide Ex.PW13/A. He has proved that STR Analysis was used for the sample and the data was analyzed by using GeneMapper IDX Software. He has further proved his conclusion that one set alleles from the source of Ex.9 (blood sample Vikram Singh) were accounted in the alleles from the source of Ex.1 (i.e. blood on gauze piece of new born baby of prosecutrix 'P'). He has further proved that alleles from the source of Ex.3 (i.e. blood sample of accused Tejinder Singh) and the alleles from the source of Ex.5 (i.e. St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 54 of 93 blood sample of Deepak) are not counted in the alleles from the source of the Ex.1 (i.e. blood on gauze piece of new born baby of prosecutrix 'P'). The witness has conclusively proved that the accused Vikram Singh @ Vicky Singh is the biological father of the new borne baby of the prosecutrix 'P'.
Prosecutrix 'P' is a child according to the Protection of Children from Sexual Offences Act, 2012 and her consent if any becomes immaterial:
(61) Law is changing notions and never static. It has to change with the changing norms. Recently law relating to Protection of Children from Sexual Offences has been passed by the Indian Parliament (Protection of Children from Sexual Offences, 2012 Act also known as POCSO) which has come into effect on 14.11.2012 which seeks to protect children from offences of sexual assault, sexual harassment and pornography. The Protection of Children from Sexual Offences, 2012 Act prescribes standards to be followed by the State and parties in ensuring the best interest of the children and to prevent inducement or coercion of children in any unlawful sexual activity or any unlawful sexual practices etc. Section 2 (d) of the Protection of Children from Sexual Offences, 2012 Act defines 'Child' as any person below the age of 18 years. It defines all acts of sexual offences including Aggravated Penetrative Sexual Assault as already St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 55 of 93 contemplated under Section 375 Indian Penal Code as an offence. This is a Special Act which seeks to address the issues regarding sexual exploitation and sexual abuse of a child i.e. a person below 18 years.
Legally a child is not capable of giving the consent and hence the Question of Consent does not arise.
(62) The issue regarding the application of a Legislation to the events which happened before the commencement of the Act, was discussed in the case of Collier Vs. Austin Health & Ors. [2011] VSC 344 (27 July 2011) and the Supreme Court of Victoria under similar circumstances had held that though the Penal provisions of this later beneficial legislation cannot be applied retrospectively yet the intent of the Special Legislation and its Charter has to be interpreted liberally and in compatibility with the human rights and the rights of the citizens so sought to be protected by the Beneficial Legislation. It was held that the protective human rights legislation were beneficial and remedial and hence the other existing general legislation can be read in the light of the purpose of the Special Legislation. In a case where special rights of a particular group are concerned than the protective and remedial legislation cannot be construed narrowly. In our present case though this Beneficial Legislation (POCSO) will not operate in cases where the facts and events occurred prior to the commencement of the Act but at the same time even in the absence of such a legislation the statutory provisions already in existence were required to be interpreted in a St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 56 of 93 manner compatible to the Human Rights/ Child Rights. As on date the POCSO has come into force and hence it becomes the obligation of this Court to interpret the provisions of the General Law (Section 375 Indian Penal Code) in the light of the Charter of the Protective Child Rights Legislation.
(63) This Special Act (POCSO) is a beneficial piece of Legislation and would prevail over any other General Legislation in case of events/ incidents which have taken place after the coming into force of this legislation. It is solely on account of this Special Act (POCSO) that the provisions of Section 375 Indian Penal Code clause Sixthly providing that a man is said to commit 'rape' who has sexual intercourse with a woman, with or without her consent, when she is under sixteen years of age, gets diluted. While passing this Special Legislation it was necessary for the Legislators to taken care of all conflicting situations (like age of consent etc.) which unfortunately has not been done and a void has been created and it has been left to the Courts to fill up the same. We cannot have two sets of legislation governing the same situation/ event and hence under the given circumstances the provisions of Section 375 Indian Penal Code clause Sixthly is now required to be read harmoniously in the light of this recent enactment (Protection of Children from Sexual Offences, 2012 Act). In this regard, my view finds due support from the provisions of St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 57 of 93 Section 42 of POCSO which provides that where an act or omission constitutes an offence punishable under this Act and also under any other law for the time being in force, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under such law or this Act as provides for punishment which is greater in degree. This indicates that the POCSO in fact supplements the existing general law in which the pending cases are being already tried. Hence taking a cue from the Legislative intent as provided in the Charter of the Special Act (POCSO) which is to protect all persons below 18 years as contemplated in POSCO, I hold that the prosecutrix 'P' is a child being a person below 18 years and her consent if any becomes immaterial (as the child is not capable of giving any consent).
Allegations against the accused Tejinder Singh @ Lucky and Vikram Singh @ Vicky:
(64) The case of the prosecution is that the father of the prosecutrix is Chowkidar in the factory at Bawana and her mother is a house wife and they are also running a tea stall outside the factory of which the accused Tejinder Singh and Vikram Singh are the owner. It is further case of the prosecution that the prosecutrix used to sit in the tea stall in the absence of her parents and brother as her mother often remained unwell as she was a patient of Asthma and her father used to take her to the hospital. It is alleged that both the accused are the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 58 of 93 owners of the factory where her father was working as Chowkidar. The case of the prosecution is that on the date of incident the accused Tejinder Singh and Vikram Singh had asked the prosecutrix to bring tea for them and when she was returning back after giving tea, the accused Tejinder Singh @ Lucky caught hold of her while the accused Vikram Singh @ Vicky shut the door of the office and both of them thereafter forcibly removed her clothes and committed rape upon her. It is alleged that after the said day both the accused threatened the prosecutrix and also repeated this act with her on many occasions taking advantage of the absence of her parents who used to frequently visit the hospital. The prosecutrix has also alleged that on one occasion when she was drying her clothes on the roof, another boy namely Deepak who was working in the adjoining factory owned by one Munna, jumped over the roof and came to her and caught hold of her and committed rape upon her and whenever her parents used to be away, Deepak used to come and commit rape upon her. The prosecutrix has disclosed that on one occasion she fell ill and when she informed her parents they took her to the doctor and it was then that the doctor informed that she was eight months pregnant, and she narrated the entire incident to her parents.
The relevant portion of the testimony of the prosecutrix 'P' is reproduced as under:
"We are four brothers and sisters i.e. two brothers and two sisters. Both the brothers are elder to me. I am the third child of my parents. My sister who St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 59 of 93 is now 10 months old is the youngest. My father is doing Chowkidari in the factories at Bawana. My mother is a housewife. At the time of the incident, I was studying in Class 5th in Ganesh Public School which is also in the same area. We were running tea stall where I used to sit alongwith my parents and brothers. My mother is suffering from breathing problems and often remains unwell and my father takes her to the hospital frequently and in the absence, I run tea stall.
One day when my parents were away, I was sitting at the tea stall, Lucky and Vicky who are the owner of one of the factory in the area where my father was a Chowkidar asked me to get tea in their office, I prepared tea and took the same to their office. When I was returning after giving tea, accused Lucky (present in the court and correctly identified) caught hold of me and accused Vicky (present in the court and correctly identified) closed/shut the door of the office, while Vicky forcibly removed my clothes. First Lucky forcibly committed rape on me and thereafter it was Vicky who committed rape on me. I raised alarm and cried (CHILAI ROI) but they did not leave me. My voice could not be heard outside because of the noise of the machine which was operating in the factory.
On court question What is the work done in the factory?
Ans. Bottles are manufactured (bottle banti hain).
Then they asked me to wear my clothes.
Since I was unwilling to go out after the incident, they forcibly first put my clothes on me St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 60 of 93 and then asked me to leave and also threatened me again and again that if I told about this incident to anybody, they would kill me and my family members and throw them in the Nehar (AGAR TUMNE KISI KO BI BATAYA TO HUM TUJHE OR TERE PARIVAR KO MAR KAR NEHAR MEIN FEK DENGE).
Court question - Why did they threatened you again and again?
Ans. They used to threaten me again and again when they repeated this act with me time and again.
Court question - What act?
Ans. They committed rape with me whenever my parents used to go out or to the hospital.
One day, when I was drying my clothes on my Chhat/roof, Deepak Kumar who is working in factory no.C104 i.e. adjoining factory owned by one Munna, he jumped over the roof and came over my roof where I was drying the clothes, caught hold of me. He thereafter removed my clothes and committed rape on me. I screamed and cried but he did not leave me. In a similar manner, whenever my parents used to away, he i.e. Deepak used to frequently come to my house and committed rape on me but out of fear, I did not tell anybody because he had threatened me.
One day, I fell ill and my parents took me to the Doctor who informed my parents that I had become pregnant by seven to eight months and it was then that I informed them about what Lucky, Vicky and Deepak have done with me. My parents brought me to the Police Station where my St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 61 of 93 statement was recorded by the IO which statement is Ex.PW10/A bearing my signatures at point A. Thereafter on my identification and pointing out, accused were apprehended. The arrest memo of Deepak is Ex.PW10/B bearing my signatures at point A. The arrest memo of Lucky Singh is Ex.PW10/C bearing my signatures at point A. The arrest memo of Vicky Singh is Ex.PW10/D bearing my signatures at point A. On the next day, I was also taken to the hospital where my medical examination was got conducted after which I was brought to the court where my statement was recorded by Ld. MM which statement is Ex.PW10/E bearing my signatures at various point Mark A. On 28.01.12, police recorded my statement vide Ex.PW10/F bearing my signatures at point A. Disclosure statement of accused Tejinder Singh @ Lucky was recorded by police vide Ex.PW10/G which bears my signatures at point A. Disclosure statement of accused Vikram Singh @ Vicky was recorded by the police vide Ex.PW10/H which bears my signatures at point A. Police prepared the pointing out memos at the instance of the accused Lucky vide Ex.PW10/I which bears my signatures at point A. Accused Vicky pointed out place of incident Ex.PW10/J which bears my signatures at point A."
(65) The prosecutrix has been exhaustively cross examined on the aspect of her age. In her testimony she has claimed that she was 13 St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 62 of 93 years of age but in her cross examination she has stated that when she came Delhi she was studying in class 4th and in Delhi she was admitted in Class 5th. Further, she has admitted that prior to her parent's coming to Bawana, they were residing at Ghitroni for many years and also in Navada where she and her second brother were studying. She has also admitted that for large number of years she was not able to clear her class 5th.
(66) I have considered the cross examination of the prosecutrix and admittedly there being no authentic proof regarding her age, the ossification / age determination report which shows the age of the prosecutrix in July 2012 was between 17 to 18 years, is admissible and there is no reason to doubt the same.
(67) The prosecutrix has also been exhaustively cross examined with regard to the incident having taken place and she has denied having knowledge that 6 to 7 persons used to work in the factory at the time of incident. She has also explained that the incident had taken place in a room which was around 10 to 12 feet. This court has observed that the photographs of the said room have been placed on record and the room appears to be of the said measurement. She has further admitted that there is a table and two chairs lying in the said room and no sitting arrangement. She has further admitted on the date of incident her younger brother was with her at tea stall and has explained that he had gone out to play. She has also admitted that she never disclosed to St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 63 of 93 her brother or anybody else as to what had happened with her. She is unable to tell the number of occasions on which she had been raped by the accused and has explained that they had repeatedly this act on number of occasions.
(68) Further, this court during her cross examination noticed that she has started saying that there were actually five persons who were involved in the incident and has on a specific court question put to her if anybody else had sexually exploited her, the prosecutrix has explained that five persons including Rajesh and Girish who were the Chowkidar of the factory have also made physical relations with her. She has further explained that Rajesh and Girish were residing on the top floor of the same factory while they (she and her family) on the ground floor and they used to come to the ground floor and made physical relations with her on many occasions. She has denied that she was about to get married Deepak. She has admitted that she did not disclose this fact to the police or the Ld. Magistrate. She has denied the suggestion that it was Deepak who made physical relations with her and has also states that she was unaware of the person who had fathered the child because there were many people who had sexually exploited her over the period of time.
(69) Sunil Kumar (PW20) is the father of the prosecutrix and Ravinder Kumar Robin (PW21) is her uncle (i.e. brother of Sunil Kumar). Sunil Kumar has proved that he is doing work of Chowkidar St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 64 of 93 and was residing on the ground floor in same factory where the incident had allegedly taken place on the ground floor along with his wife and children. He has also proved that he used to sell tea on the ground floor of C105 and whenever he used to be away, his children including daughter 'P' used to sit on the tea stall. Sunil Kumar has corroborated the testimonies of the prosecutrix to the extent that since his wife was suffering from Asthma, he used to take her to the hospital and in his absence his daughter 'P' used to sit on the tea stall and used to supply tea in the factory. He has identified both the accused Vikram Singh and Tejinder Singh in the court as the owners of the factory C106 and has also stated that he is aware that Deepak used to work in the factory C104. He has further corroborated the testimony of the prosecutrix that it was he who had taken her to the doctor and came to know that she was pregnant on which he shocked as is daughter ('P') was hardly 13 years, and it was thereafter that he consulted his brother Ravindra Kumar Robin (PW21) after which they made inquiries from her and it was only after their repeated asking that she disclosed to them as what was happening with her in their absence and also disclosed that she was threatened by these persons not to disclose anything to anybody or else the would kill her. He has also proved that on coming to know about the incident, he along with his brother Ravinder Kumar Robin went to the police station and made a complaint.
(70) Ravinder Kumar Robin (PW21) is the younger brother of St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 65 of 93 Sunil Kumar (PW20) who has corroborated his testimony in toto to the extent that his brother (Sunil Kumar) had called him two - three days prior to 27.1.2012 and it was then that he disclosed him about pregnancy of the prosecutrix on which he and his brother Sunil Kumar repeatedly questioned the prosecutrix who was looking scared and was not telling anything to them and that coaxed her, then she ultimately disclosed that she had been raped over the period of time by many persons who include the accused Tejinder Singh, Vikram Singh and Deepak Kumar Shah, on which they went to the Police Station and got the complaint registered.
(71) Both Sunil Kumar and Ravinder Kumar Robin have been exhaustively cross examined and they have denied that they have falsely implicated the owner of the factory or that they have deliberately given the lower age of the prosecutrix only to extort money from the accused persons.
(72) The Ld. Defence Counsel appearing on behalf of accused Tejinder Singh @ Lucky Singh has raised five fold contentions, firstly regarding the prosecutrix 'P' being a consenting party. He has argued that no wrong has been done against the will of the prosecutrix. Secondly he has raised the issue of promiscuity of the prosecutrix 'P' stating that the entire testimony of the prosecutrix reveal that she was into a physical relationship with large number of persons which also include Rajesh, Girish (whom she at one stage referred to as Ganesh) St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 66 of 93 and Deepak and hence under the given background, her testimony cannot be believed. Thirdly he has pointed out that testimony of the prosecutrix 'P' suffers from material contradictions and improvements in as much as despite sufficient opportunities she at the first instance did not name the Chowkidar Girish and Rajesh and it is for the first time in the Court that she named them. Fourthly he has argued that the aspect regarding the pregnancy of the mother has also been deliberately withheld from the Court. Lastly he has stated that despite having known the names of the accused she did not name the accused but only gave their nick names to the Investigating Officer. In support of his contentions the Ld. Defence Counsel has placed his reliance on the following authorities:
1. Musauddin Ahmed Vs. State of Assam, reported in AIR 2010 SC 3813.
2. Vikramjeet Singh & Other Vs. State of Punjab, reported in 2010 (IV) RCR Crl. 107.
3. Arshad Vs. State of Haryana, reported in 2011 (I) RCR Crl. 111.
4. Alamelu & Anr. Vs. State, reported in 2011 (I) RCR Crl. 498.
5. Jamil Ahmed Vs. State of Haryana, reported in 2011 (III) RCR Crl. 385.
St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 67 of 93
6. Krishan Kumar Malik Vs. State of Haryana, reported in 2011 (III) RCR Crl. 589.
(73) Ld. Addl. PP for the State has on the other hand submitted that the question of consent of the prosecutrix does not arise in view of the provisions of Section 114A of the Indian Evidence Act. He has also argued that keeping in view the young age and vulnerable position of the prosecutrix who was only the daughter of the poor employee of the accused, she was not in a position to oppose the accused who were in a dominating position qua the prosecutrix. He has submitted that the above authorities so being relied upon by the Ld. Defence Counsel would not apply to the facts of the present case.
(74) I have considered the above submissions made by the Ld. Defence Counsel. Before coming to the merits of the case, I may observe that conviction can be based upon the sole testimony of the prosecutrix if found credible and truthful. In this regard the Hon'ble Supreme Court has in the case of State of Rajasthan Vs. Biram Lal reported in 2005 AIR (SC) 2327 held that:
"........It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the court is satisfied that the evidence of prosecutrix is free from blemish and is implicitly St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 68 of 93 reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from independent sources or from the circumstances of the case before recording an order of conviction. In the instant case the allegations were that the accused during night entered the prosecutrix room and committed rape on her, the evidence of the prosecution was found worthy of credit and implicitly reliable....."
(75) In the year 2006 the Hon'ble Apex Court in the case of State of Himachal Pradesh Vs. Asha Ram reported in AIR 2006 SC 381 had observed that:
"...... The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of a 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 and to convict an accused where her testimony inspires confidence and is found to be reliable. It is settled law that corroboration is a condition for Judicial Reliance on the testimony of the prosecutrix and is not a requirement of law but a guidance of Prudence under the given circumstances. Even minor contradiction or insignificant discrepancies in the statement of the prosecutrix cannot be a ground for throwing out, an otherwise reliable prosecution case.
St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 69 of 93 (76) It was further observed by the Hon'ble Court that:
"..... No girl of self respect and dignity who is conscious of her chastity having expectations of married life and livelihood would accuse falsely against any other person of rape, much less against her father, sacrificing thereby her chastity and also expose the entire family to shame and at the risk of condemnation and ostracization by the society. It is unthinkable to suggest that the mother would go to the extent of inventing a story of sexual assault of her own daughter and tutor her to narrate a story of sexual assault against a person who is no other than her husband and father of girl, at the risk of bringing down their social status and spoil their reputation in the society as well as family circle to which they belong to....."
(77) Further, in the case of Vishnu Vs. State of Maharastra reported in 2006 AIR (SC) 508 it was observed by the Hon'ble Apex Court that:
"..... In the traditional nonpermissive bounds of society of India, no girl or woman of selfrespect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle. From the statement of the prosecutrix, it was revealed that the accused induced St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 70 of 93 her to a hotel by creating an impression that his wife was admitted in the hospital and that he would see her first and then drop the prosecutrix at her residence whereas, in fact, she was not admitted in the hospital. On the pretext of going to Hospital, he took her to a hotel, took her inside a room, closed the door of the room, threatened her to finish her if she shouted and then forcibly ravished her sexually. A clear case of rape, as defined under Section 375 Clause third of IPC was found established against the accused...."
(78) Also in the case of Bharwada Boginbhai Hirji Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) it was observed by the Hon'ble Supreme Court that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complaints of rape or sexual molestation be viewed with doubt, disbelief or suspicion? To do so is to justify charge of male chauvinism in a male dominated society.
(79) Applying the above settled principles of law to the facts of present case, coming first to the aspect of consent of the prosecutrix 'P', I may observe that keeping in view the fact that the accused Tejinder Singh @ Lucky Singh was the owner of factory No. C105, Bawana Industrial Area and the prosecutrix and her family was residing in the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 71 of 93 same factory on the ground floor, the minor prosecutrix belonging to extremely poor family, was not in a position to resist the accused. The facts of the case speaks themselves. The prosecutrix belongs to a extremely poor strata of the society. Her father is a Chowkidar in the same factory of which the accused Tejinder Singh is the owner and Vikram Singh is his employee for last many years. It is admitted that in order to make his ends meet, the father of the prosecutrix was also running a teastall at C105 where the prosecutrix used to help him. The dominant position of the accused stand established and the consent under these circumstances if any cannot be free. Further in view of my detail discussion in view of the provisions of the Protection of Children from Sexual Offences Act, 2012 the prosecutrix 'P' being a child (person less than 18 years of age) her consent if any becomes immaterial. Even otherwise, the provisions of Section 114A of Indian Evidence Act provide that in a prosecution for rape under sub section 2 of Section 376 of the Indian Penal Code where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. In the present case the prosecutrix 'P' is very unfailing and consistent on the aspect of the first incident which took place. She has specifically alleged that when she had taken the tea to the room both the accused Tejinder Singh @ Lucky Singh and Vikram St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 72 of 93 Singh @ Vicky Singh were present and it was both of them who committed rape on her one by one after shutting the door. She has explained that she did raise an alarm but her voices could not be heard outside on account of the noise of the machines from the ground floor. It already stands established that the place of the incident is the factory owner by the father of accused Tejinder Singh @ Lucky Singh where glass bottles were being manufactured. As already discussed herein above, there is no reason to disbelieve the prosecutrix 'P'. Hence, in view of the aforesaid, the argument of the Ld. Defence Counsel that the prosecutrix was a consenting party or had consented to the act, stands demolished.
(80) Secondly coming to the argument of the Ld. Defence Counsel that the prosecutrix was a promiscuous women I may note that promiscuity is a practice of casual sex with multiple sex partners. This term is viewed in the context of a mainstream social ideal for sexual activity to take place within exclusive committed relationships. There cannot be a double standard as to how men and women are to be judged for promiscuity. A man who despite his marital relationship is ready to have a free run to have sex with a female child/ minor at any opportunity, has no business to be raising fingers on this sexually exploited minor/ child. Both the accused Tejinder Singh @ Lucky Singh and Vikram Singh @ Vicky Singh are married with a family and the DNA Fingerprinting Report proves that they were having a free run St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 73 of 93 with the child/ prosecutrix. Under the given circumstances their own character being under a cloud, they cannot be permitted to raise issues regarding promiscuity of another whom they have shamelessly exploited over a period of time.
(81) Thirdly coming now to the aspect of contradictions in the testimony of the prosecutrix 'P' as pointed out by the Ld. Defence Counsel, I may observe that the same do not affect the merits of the case in so far as the accused Tejinder Singh and Vikram Singh are concerned. The improvements are only with regard to the naming of Girish and Rajesh at the first instance. The Investigating Officer has already submitted that they had initiated investigations qua these persons Girish and Rajesh but since the complete names and parentage of the said persons not known, hence they could not be traced out. I may note that in so far as the accused Tejinder Singh and Vikram Singh are concerned, the prosecutrix 'P' is most consistent rather persistent in her statement which she gave to the Investigating Officer and thereafter to the Ld. MM under Section 164 Cr.P.C. and also in her deposition before this Court. Merely because she has now added the names of some other persons (whose roles are under investigation by the police) does not in any manner dilute the allegations and mitigate the offence committed by the accused upon the prosecutrix.
(82) Fourthly in so far as the aspect of the pregnancy of the mother of the prosecutrix is concerned, I may observe that there has St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 74 of 93 been no concealment in this regard and the prosecutrix has specifically in her testimony mentioned that her mother was hospitalized on account of her pregnancy. This aspect does not in any manner assist the accused. Rather on the contrary it goes to show that the parents of the prosecutrix were frequently away to hospital on account of the medical condition of her mother, hence lending credibility to the statement of the prosecutrix that the accused used to sexually exploit her by taking advantage of her parents' absence. Whether such absence of her parents was on account of Asthma or pregnancy of her mother is immaterial once the prosecutrix 'P' has specifically explained the incident which had taken place in the absence of her parents.
(83) Lastly in so far as prosecutrix not having given the actual names of the accused despite being aware of the same is concerned, I may observe that the prosecutrix has not only given nick names of the accused but also given their description and informed that they were the owners of the premises where she and her father was working there as Chowkidar confirms the identity of the accused. Rather, the DNA Fingerprinting Report conclusively connects the accused Vikram Singh @ Vicky Singh with the offence.
(84) It is writ large that the oral testimony of the prosecutrix finds due corroboration from the forensic evidence which has come on record showing that one of the accused i.e. Vikram Singh @ Vicky Singh is the person who had fathered her child (which child is St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 75 of 93 presently with the orphanage). In so far as the age of the prosecutrix is concerned, the exact age of the prosecutrix is not known, the Investigating Officer not having bothered to collect the school certificate of the prosecutrix despite the fact that he was aware of the school where the prosecutrix had last attended. The prosecutrix and her family have given her age as 13 years which is disputed by the accused. The ossification report Ex.PW15/A establishes that she was aged around 1718 years at the time of her examination on 13.7.2012 thereby conclusively establishing that she was a minor around 1617 years at the time of the incident.
(85) The DNA Fingerprinting Report affirms that the child born to the prosecutrix 'P' belongs to the accused Vikram Singh @ Vicky Singh and it is this which lends credibility to the testimony of the prosecutrix and altogether demolishes the defence led by the accused in the form of testimony of Darshan Singh (DW1 the father of the accused Tejinder Singh). The accused have desperately tried to take the plea of alibi by raising a defence that the accused Vikram Singh was only a worker in the factory who had left about one and a half years ago and was not visiting the factory and that Tejinder Singh seldom came to the factory alone or remained there alone.
(86) Both the accused in their statements under Section 313 Cr.P.C. have totally denied the incident or of having made any relations with the prosecutrix though it is not disputed by them that the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 76 of 93 prosecutrix and her family are residing in a room at the ground floor and there is a manufacturing of glass bottles going on in the factory. The case of the accused is that the prosecutrix 'P' was having a steady relationship with another worker of of the factory at C105 and she had deliberately tried to involve them only for extorting money from them. The DNA Fingerprinting Report, however, conclusively establishes that the child of the prosecutrix 'P' was fathered by the accused Vikram Singh thereby nailing the lie of the accused and establishes that the testimony of the prosecutrix 'P' is credible and truthful. (87) The Ld. Defence Counsel for the accused Vikram Singh @ Vicky Singh has vehemently argued that the accused persons have been falsely implicated with malafide intention and to extort money. He has further pointed out that the evidence on record suggests that the prosecutrix never raised any alarm nor disclosed the alleged incident to anybody including her teachers and other student in the school indicating her consent. He has pointed out that the prosecutrix was studying in school but there is nothing on record to suggest that she was regularly going to the school and interacting with the students and the teachers. Rather on the other hand the prosecutrix herself has explained that she had not cleared class five for the last number of years. The prosecutrix has explained that she had no friend and was not interacting with anybody and hence did not disclose the incident to anyone. Even otherwise this Court cannot loose sight of the fact that the prosecutrix is St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 77 of 93 a young girl of immature understanding belonging to a poor section of society who had been sexually exploited by a number of persons including those who were in a dominant position to control her will being the owner of the factory where she and her family are staying and where her father is employed as a Chowkidar. It is only natural that she would have been so overcome with fear or under pressure that she did not disclose about the incident to anybody including her mother. Merely because the prosecutrix did not speak about the incident to anybody including her teachers, friends or parents, does not mitigate the crime committed by the accused, in any manner.
(88) Presence of both the accused Tejinder Singh and Vikram Singh in the factory premises is natural and probable, Tejinder Singh being the owner of the said factory and Vikram Singh being employed there. The presence of the prosecutrix 'P' in the said premises is also natural and probable since her father is a Chowkidar in the factory and their family is admittedly staying in a room on the ground floor. The photographs on record indicate that the incident can in fact take place in the room so alleged by the prosecutrix. In fact the DNA Fingerprinting report conclusively having establishing that the accused Vikram Singh has fathered the child of prosecutrix 'P' puts to an end to all controversies. The question as to whether the incident took place in the room as pointed out by the prosecutrix or otherwise, is a question which looses its relevance under the given circumstances. The forensic St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 78 of 93 report having corroborated, rather having given credence to the version given by the prosecutrix 'P', the onus of explaining how Vikram Singh had fathered the child if he had not made any relations with the prosecutrix then shifted on the accused which they have not been able to successfully discharge. Simply by denying that the incident did not take place does not in any manner exculpates the accused. There is no reason to disbelieve the prosecutrix when she states that she was subjected to a sexual abuses over a period of time, because the birth of the child is an evidence of this exploitation which extended over a period of time and since there were many persons involved in the exploitation of the prosecutrix a minor/ child, perhaps it was this reason she was unable to tell the name of the person who could have fathered her child which fact came to her knowledge only after the DNA Fingerprinting Report.
(89) The father of the prosecutrix has duly supported the testimony of the prosecutrix to the extent that he frequently remains out in view of the long ailment of his wife who was suffering from Asthma for the last many years and he frequently take her to the hospital and perhaps it is for this reason that taking advantage of the situation when the young prosecutrix was left to fend her family and assist her parents, younger siblings to earn livings, when she was exploited by the accused Tejinder Singh @ Lucky and Vikram Singh @ Vicky on account of her vulnerable condition. It is neither alleged nor the defence of the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 79 of 93 accused that the prosecutrix was a consenting party to the act. Rather, on the contrary their sole defence is that they are innocent and have been falsely implicated. Even otherwise, keeping in view the vulnerable position of the prosecutrix, the question of consent does not arise. In view of the above, both the accused Tejinder Singh @ Lucky and Vikram Singh @ Vicky are held guilty for the offence under Section 376(2) (g)/506 Indian Penal Code.
FINAL CONCLUSION:
(90) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 80 of 93 consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(91) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. On the basis of testimonies of the various witnesses examined by the prosecution, the following facts stand established:
➢ That the prosecutrix 'P' was a child below 18 years of age. ➢ That the father of the prosecutrix namely Sunil Kumar was working as Chowkidar in the factory at C105 & 106, Bawana Industrial Area and was also running a tea stall outside the factory.
➢ That the accused Tejinder Singh was the owner of Factory no.
C106, Sector5, Bawana Industrial Area and the accused Vikram Singh was his employee.
➢ That the mother of the prosecutrix was suffering from Asthma and the parents of the prosecutrix used to frequently go to the hospital for her treatment.
➢ That on the date of first incident the prosecutrix 'P' was sitting on the tea stall as her father had gone to the hospital along with her mother, when the accused Tejinder Singh and Vikram Singh St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 81 of 93 asked the prosecutrix to bring tea for them.
➢ That when the prosecutrix 'P' was returning back after giving tea, the accused Tejinder Singh @ Lucky caught hold of her while the accused Vikram Singh @ Vicky shut the door of the office after which they both forcibly committed gang rape upon her. ➢ That both the accused threatened the prosecutrix 'P' not to disclose the incident to any body and thereafter they repeated this act with her on many occasions whenever her parents used to go out / had gone to the hospital.
➢ That it was when the prosecutrix fell ill and was taken to the doctor by her parents, that the doctor informed them that the prosecutrix was pregnant by seven to eight months after which police was informed.
➢ That at the time of her medical examination, the doctors have observed that the prosecutrix was showing visible signs of pregnancy and was diagnosed as pregnant by about 32 weeks. ➢ That the testimony of the prosecutrix 'P' is credible, reliable and truthful.
➢ That the prosecutrix 'P' was being sexually exploited by large number of persons including other employees of the factory over a period of time.
➢ That on account of the said sexual exploitation the prosecutrix became pregnant and conceived but did not come to know of the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 82 of 93 same.
➢ That when the prosecutrix 'P' came to know of her pregnancy she could not tell who had fathered her child, there being large number of persons involved in her exploitation. ➢ That DNA Fingerprinting report has conclusively proved that the accused Vikram Singh @ Vicky Singh is the biological father of the new born baby of the prosecutrix 'P'.
(92) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (93) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLCs, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 83 of 93 trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link. (94) In view of the above, I hold that the prosecution has been able to prove and substantiate the allegations beyond reasonable doubt against both the accused Tejinder Singh @ Lucky Singh and Vikram Singh @ Vicky Singh, who are hereby held guilty for the offence under Section 376(2) (g)/506 Indian Penal Code, and accordingly convicted for the same.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 4.1.2013 ASJ (NW)II: ROHINI
St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 84 of 93
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 34/12
Unique Case ID No. 02404R01120712012
State Vs. (i) Tejinder Singh @ Lucky Singh
S/o Sh. Darshan Singh
R/o C106, Sector5,
Bawana Industrial Area,
Permanent Address :
H. No. 330/331, 3rd Floor,
Pocket4, Sector22,
Rohini, Delhi.
(Convicted)
(ii) Vikram Singh @ Vicky Singh
S/o. Sh. Jagjit Singh
R/o. B74, Guru Nanak Enclave,
Chander Vihar,
Nilothi Extension,
Vikaspuri, Delhi.
(Convicted)
FIR No. : 32/12
Police Station: Shahbad Dairy
Under Sections: 376(2)(g)/506 IPC
Date of conviction: 4.1.2013
Arguments heard on: 4.1.2013
Date of sentence: 5.1.2013
St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 85 of 93
APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Both the convicts Tejender Singh @ Lucky Singh and Vikram Singh @ Vicky Singh in Judicial Custody with Sh.
Vinod Malhotra Advocate.
ORDER ON SENTENCE:
Vide a detailed judgment of even date, both the accused Tejender Singh @ Lucky Singh and Vikram Singh @ Vicky Singh have been held guilt of the offence under Section 376 (2) (g)/ 506 Indian Penal Code and accordingly convicted.
The case of the prosecution is that the prosecutrix 'P' a young girl below the age of 18 years was staying along with her family in the factory bearing No. C105, Sector5, Bawana Industrial Area, Delhi owned by the accused Tejender Singh @ Lucky Singh where the accused Vikram Singh @ Vicky Singh was working. As per the allegations, the prosecutrix 'P' had been sexually abused in the factory premises for a long time not only by the owner Tejender Singh and his employee Vikram Singh but also by many others including the Chowkidar Girish and Rajesh and also by one Deepak who was working in the adjoining factory. It was only when the prosecutrix 'P' fell sick and was taken to the hospital that she was diagnosed as pregnant by eight months and it was only thereafter that on persuasions of her family that she disclosed what had been happening with her, after which St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 86 of 93 the present case was registered.
On the basis of the testimonies of the various witnesses examined by the prosecution particularly the prosecutrix 'P', her father Sunil Kumar, her uncle/ chacha Ravindra Kumar Robin and also on the basis of the medical and forensic evidence on record, this Court vide its Judgment has held both the accused Tejender Singh @ Lucky Singh and Vikram Singh @ Vicky Singh guilty of the offence under Section 376 (2) (g)/ 506 Indian Penal Code for which they have been accordingly convicted.
Heard arguments on the point of sentence. The convict Tejender Singh @ Lucky is stated to be aged about 31 years having a family comprising of aged parents, two younger brothers, one unmarried sister, wife and one boy aged 5 years. He is a Matriculate and had done a Diploma in Tools Designing and is doing the work of dye making. The convict Vikram Singh @ Vicky Singh is stated to be aged about 27 years having a family comprising of aged parents and a four years old daughter. He is 12th class pass and is operating the CNC Machine for dye making.
Ld. Counsel appearing on behalf of the convicts has vehemently argued that both the convicts are first time offenders and have no previous involvements. It is prayed that a lenient view be taken against them. On the other hand the Ld. Addl. Public Prosecutor has prayed for a stern view against the convicts keeping in view the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 87 of 93 allegations involved.
I have considered the rival contentions. This case is a glaring example of the growing menace of sexual abuse of young girls. The provisions of Section 376 (2) (g) Indian Penal Code reads that whoever commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
The Hon'ble Supreme Court has in the judgment of State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550, observed as under:
"Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.."
In the case of Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty reported in AIR 1996 SC 922, the Hon'ble Apex Court observed that: "The entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 88 of 93 Constitution of India, 1950 (in short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions."
It has been held by the Hon'ble Supreme Court in the case reported in AIR 2000 Supreme Court 1470 that:
Socioeconomic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court.
It was also observed by the Hon'ble Court that it is necessary for the court to keep in mind that the object should be to St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 89 of 93 protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. (Ref: Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78).
The offence of rape is barbaric in nature where the victim is ravished like an animal for the fulfillment of desire and lust of another man. As observed by Hon'ble Mr. Justice Arijit Pasayat a murderer destroys the physical frame of the victim whereas the rapist degrades and defiles the soul of a helpless female. As per the official statistics a total number of 568 cases of rape have been reported in Delhi alone in the year 2011 out of which only 2% have been committed by strangers. If unreported cases were to be included, the figure would be much high but most of the cases are not reported by the victims because of the various reasons such as family pressure, behaviour of the police, the unreasonably long and unjust process and application of law and resulting consequences thereof.
The prosecutrix 'P' was a soft and vulnerable target and due to her social disability, she was not in a position to offer any resistance to the convicts particularly Tejender Singh @ Lucky Singh who was the employer of her premises and in whose premises she and her family used to reside. The convicts have taken advantage of the St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 90 of 93 financial and social helplessness of the child who was not in a position to express herself and was an easy and vulnerable prey. The convicts went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating the person of the prosecutrix as a result of which she conceived and a child fathered by the convict Vikram Singh @ Vikcy was born to the prosecutrix (parentage confirmed by DNA examination).
This being the background, no mercy can be shown to the convicts and the ghastly, inhuman act of the convicts cannot be condoned and a substantively, stern sentence is required to be imposed upon the convicts so that it is not only in commensurate with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path.
Therefore, I award the following punishment to the convict Tejender Singh @ Lucky Singh:
1. For the offence under Section 376 (2) (g) Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Ten Years and fine for a sum of Rs.1,00,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Six Months. The entire fine amount if recovered shall be given to the Baby (presently in Emmanuel Convent Sanstha, Safiabad near Narela) of the prosecutrix in the form of St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 91 of 93 an FDR which amount shall be used for his welfare.
2. For the offence under Section 506 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Two Years.
Both the sentences shall run concurrently.
In so far as the convict Vikram Singh @ Vicky Singh is concerned, I award the following punishment to him:
1. For the offence under Section 376 (2) (g) Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine for a sum of Rs.1,00,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Six Months. The entire fine amount if recovered shall be given to the Baby (presently in Emmanuel Convent Sanstha, Safiabad near Narela) of the prosecutrix in the form of an FDR which amount shall be used for his welfare.
2. For the offence under Section 506 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Two Years.
Both the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to both the convicts for the period already undergone by them as per rules. St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 92 of 93 The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
Before ending, in view of the observations made by me in the judgment it has also become necessary for me to bring on record that it is necessary to ensure that in cases relating to sexual exploitation of children (persons below the age of 18 years) the provisions of Protection of Children from Sexual Offences Act 2012 which came into force on 14.11.2012 and is a Beneficial Child Rights Legislation, are invoked. All such cases of sexual assault on a victim below 18 years of age are required to be investigated and tried under this Special Act. In view of the above, I hereby direct that a copy of this order/ judgment be placed before the Commissioner of Police, Delhi for necessary action in this regard.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 5.1.2013 ASJ (NW)II: ROHINI St. Vs. Tejinder Singh & Anr. FIR No. 32/2012, PS Shahbad Dairy Page No. 93 of 93