Delhi District Court
State vs . 1. Arvind on 25 September, 2013
1
FIR No. 152/11
PS - Vijay Vihar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 19/13
Unique ID No. : 02404R0192672011
State Vs. 1. Arvind
S/o Sh. Sunheri Lal
R/o A1/42, Harsh Dev Park,
Budh Vihar, Phase - II,
New Delhi.
FIR No. : 152/11
Police Station : Vijay Vihar
Under Sections : 376 IPC
Date of committal to session Court : 26/07/2011
Date on which judgment reserved : 17/09/2013
Date on which judgment announced : 25/09/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : 1 of 97 2 FIR No. 152/11 PS - Vijay Vihar That on 01/05/2011 on receipt of DD no. 9B SI Ramesh Thakur reached at place of incidence at A1/42, Harsh Dev Park where HC Bhim Singh and Ct. Sunil met him. There victim girl/prosecutrix (name withheld being a case u/s 376 IPC) came and told about the committal of galat kaam with her by one boy Arvind. On the spot, WHC Sita was called. Prosecutrix accompanying her bua Sunita was sent with WHC Sita for medical examination to BSA hospital. After her medical examination WHC Sita obtained the MLC of the prosecutrix and the sealed exhibits which were handed over by the doctor after her medical examination and the same were produced to SI Ramesh Thakur which were taken into police possession. Thereafter, prosecutrix got recorded her statement which to the effect that, she lives with her parents at A1/42, Harsh Dev Park, Budh Vihar Ph. II, Delhi and is studying in MCD School, Sector1, Avantika, Rohini in 9th class. Yesterday on 30.04.2011 at about 07.30 a.m. In the morning, her mother and her brother Lalit had gone to Shahdara to her maternal uncle's house and her father after seeing them off at Rithala Metro Station had left for his work. She was alone at her house and at about 12 noon for the purpose of washing the clothes was sitting in the gallery, at that time one boy 2 of 97 3 FIR No. 152/11 PS - Vijay Vihar Arvind whom she knows for about a month and who lives in Harsh Dev Park and who comes to visit her sister Poonam in her neighbourhood came to the gallery from the roof and stood in front of her. She told Arvind, "Mama what are you doing here, I am alone in the house". Arvind told, "Nothing, I am just standing, when nobody is at home then only I have come" and then went inside the room and started calling her inside. She refused to go inside the room and she again said "you go out" and she gave a call to an aunty in the neighbourhood (maine barabar wali aunty ko awaz di) but no response came from that side. Then Arvind after forcibly lifting her took her in the inside room and threw her on the bed. She started screaming on which Arvind after pressing her mouth with chunni committed galat kaam with her and went away from the roof side. In the night at about 10.00 p.m. when her father came back at home she told all the incident to him. Her father told the incident to her uncle, bua and others. Her uncle Upender made a call at no. 100. On which, the police came at her house. She also was medically examined at BSA Hospital while accompanying her bua and father. Her statement has been recorded in the presence of her bua Sunita. She has read the same and is correct. Legal action be taken. After that leaving the prosecutrix in the 3 of 97 4 FIR No. 152/11 PS - Vijay Vihar supervision of WHC Sita, SI Ramesh Thakur came back at the spot, where HC Bhim Singh, HC Sunil were left for the protection of the spot. From the statement of the prosecutrix and on inspection of MLC and the circumstances, finding that an offence u/s 376 IPC appeared to have been committed, SI Ramesh Thakur got registered the case and proceeded with further investigation. During the course of investigation, one bed sheet was taken into police possession at the instance of the prosecutrix on which the rape was alleged to have been committed with the prosecutrix. Site plan was prepared at the instance of the prosecutrix. Accused Arvind was arrested. Statements of the witnesses were recorded. Medical examination of accused Arvind was got conducted from the BSA Hospital and the sealed exhibits handed over by the doctor after his medical examination were taken into police possession. During the course of the investigation, the dossier of the accused was prepared and he was produced before the court. Case property was deposited in the Malkhana. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded. The certificate of date of birth of the prosecutrix was taken into police possession. Sealed exhibits were sent to the FSL.
4 of 97 5 FIR No. 152/11 PS - Vijay Vihar Upon completion of necessary further investigation challan for the offence u/s 376 IPC was prepared against accused Arvind and was sent to the Court for trial.
2. Since the offence under section 376 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376 IPC was made out against the accused. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 16 witnesses. PW1 - prosecutrix (name withheld), PW2 - Ravinder Kumar Sharma, father of the prosecutrix, PW3 - Dr. Florence Almeida, CCMO, Jag Pravesh Chander Hospital, Shastri Park, Delhi, 5 of 97 6 FIR No. 152/11 PS - Vijay Vihar PW4 - Constable Ram Pal Yadav, PW5 - HC Bhim Singh Daggar, PW6
- Upender Sharma, PW7 - W/SI Satya Wati, PW8 - Dr. Shimpi Goel, SR Gynae, BSA Hospital, Rohini, Delhi, PW9 - Constable Sunil Kumar, PW10 - Ms. Suman Lata, Vice Principal, GGSS Avantika, Sector - 1, Rohini, Delhi, PW11 - Sh. Sachin Gupta, Learned Metropolitan Magistrate, Rohini District Courts, Delhi, PW12 - HC Ram Singh, PW13 - Constable Mehek Singh, PW14 - W/HC Sita Devi, PW15 - Smt. Sunita and PW16 - SI Ramesh Thakur.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 Prosecutrix, is the victim who deposed regarding the incident and proved her statement made to the police Ex. PW1/A, her statement recorded u/s 164 Cr.P.C. Ex. PW1/B, seizure memo of bed sheet Ex. PW1/C, identified and proved her clothes, underwear, a salwar of orange colour Ex. P1 & Ex. P2 respectively and a bed sheet Ex. P3.
PW2 Ravinder Kumar Sharma is the father, of the 6 of 97 7 FIR No. 152/11 PS - Vijay Vihar prosecutrix who deposed regarding the incident as was disclosed to him by the prosecutrix and on the investigational aspects which he joined and observed.
PW3 Dr. Florence Almeida, CCMO, Jag Pravesh Chander Hospital, Shastri Park, Delhi who deposed that on 01/05/2011 at about 2:20 p.m. he examined the patient Arvind and after examination he found there was no evidence to suggest that the patient cannot perform sexual intercourse and proved the MLC of accused Arvind Ex. PW3/A signed by him at Point 'B'.
PW4 Constable Ram Pal Yadav is the Duty Officer, who proved his endorsement on the tehrir at Point 'X' signed by him at Point 'B' mentioning Kayami DD No. 8A regarding registration of FIR and proved the copy of the FIR Ex. PW4/A. PW5 HC Bhim Singh Daggar who on 01/05/2011 joined the investigation with SI Ramesh Thakur and deposed on the investigational aspects and proved the copy of DD No. 9B Ex. PW5/A. 7 of 97 8 FIR No. 152/11 PS - Vijay Vihar PW6 Upender Sharma is the uncle (Chacha) of the prosecutrix, who deposed regarding the incident as was disclosed to him by his brother (PW2 - Ravinder Kuamr Sharma) and on the investigational aspects which he joined and observed and proved the bed sheet Ex. P3.
PW7 W/SI Satya Wati is the initial Investigating Officer (IO) of the case, who deposed that on 02/05/2011 she was entrusted with the investigation of this case as she was posted in the Sub Division though she was posted at Police Station South Rohini, Delhi. She went to the house of the prosecutrix i.e A1/42, Hardev Park Budh Vihar, PhaseII, where prosecutrix and her parents met her. She recorded the statement of Ravinder Kumar father of the prosecutrix under section 161 Cr.P.C. She also moved an application for recording the statement of the prosecutrix under section 164 Cr.P.C. and got her (PW1) statement under section 164 Cr.P.C. recorded from the concerned Court. She also deposited the exhibits of this case in the FSL Rohini and recorded the statement of concerned MHC(M) in this regard. She also collected the 8 of 97 9 FIR No. 152/11 PS - Vijay Vihar school certificate showing date of birth of the prosecutrix and was taken into possession vide memo Ex. PW7/A signed by her (PW7) at point 'A' from her father. The certificate is Ex. PX. Thereafter, she proceeded on long leave and further investigation was handed over to SI Ramesh Thakur. During the trial proceeding she collected the FSL report and same was filed by her. Biological and serological reports are Ex.PY and Ex. PY1 respectively.
PW8 Dr. Shimpi Goel, SR Gynae, BSA Hospital, Rohini, Delhi who proved the gynaecological examination as was conducted by Dr. Shweta Aggarwal, of prosecutrix vide MLC Ex. PW8/A signed by her (Dr. Shweta Aggarwal) at point 'B' and the consent of the father of the patient at Point 'C' on MLC Ex. PW8/A. PW9 Constable Sunil Kumar who on 01/05/2011 joined the investigation with SI Ramesh Thakur and deposed that on 01/05/2011 he was posted at Police Station Vijay Vihar. On that day at about 2.21 a.m. (night) a call was received that 34 boys after having gagging the mouth of a girl had ran away from the spot from the house No. A1/42, 9 of 97 10 FIR No. 152/11 PS - Vijay Vihar Harshdev Park Budh Vihar, PhaseII Rohini. On receipt of this call he (PW9) alongwith HC Bhim Singh reached at house No. A1/42, Harshdev Park Budh Vihar, PhaseII Rohini. In the meantime, SI Ramesh Thakur also reached there. SI Ramesh Thakur made inquiries from the girl and her Bhua. The girl was sent with W/HC Sita for medical examination and the Bhua of the girl also accompanied her. At about 8:00 a.m. in the morning SI Ramesh Thakur handed over a tehrir to him (PW9) for the purpose of getting the case registered. At about 8:20 p.m., he reached at the Police Station and handed over the tehrir to the Police Station and after getting the case registered with the copy of FIR and the tehrir he had reached at the said house at A1/42, Harshdev Park, Budh Vihar, PhaseII Rohini and handed over the tehrir and copy of the FIR to the IO SI Ramesh Thakur. At about 1:00 p.m. at the instance of the girl/prosecutrix accused Arvind Kumar was arrested vide arrest memo Ex. PW9/A which is signed by him (PW9) at point 'A'. He also identified the accused present in the Court. His personal search was conducted vide memo Ex. PW9/B which bears his (PW9) signature at point 'A'. The girl/prosecutrix also signed the arrest memo at point 'B' and also signed the personal search memo at point 'B'.
10 of 97 11 FIR No. 152/11 PS - Vijay Vihar PW10 Ms. Suman Lata, Vice Principal, GGSS Avantika, Sector1, Rohini, Delhi who deposed that as per their record one child prosecutrix (name withheld) D/o Ravinder Kumar Sharma, mother's name Smt. Ram Wati Devi was admitted in their school on 28/03/2006 in th class 6 H vide admission No. 4518. According to their record her date of birth is 03/07/1996. She was admitted in their school on the basis of SLC issued from Head Master, MC Primary Balika Vidyalya Budh Vihar, Phase - I, Delhi 110041. The copy of the admission register is Ex. PW10/A and the copy of the SLC of MC Primary Balika Vidyalya Budh Vihar Phase - I, Delhi 110041 is Ex. PW10/B. PW11 Sh. Sachin Gupta, Metropolitan Magistrate, Rohini District Courts, Delhi who recorded the statement of the prosecutrix u/s 164 Cr.P.C and proved statement of IO SI Satyawati regarding the identification of the prosecutrix Ex. PW11/A and proved the proceedings for recording the statement of prosecutrix Ex. PW11/B, statement u/s 164 Cr.P.C of the prosecutrix as Ex. PW1/B, certificate of correctness of the proceedings as Ex. PW11/C and sending of the proceedings in sealed 11 of 97 12 FIR No. 152/11 PS - Vijay Vihar cover to the Court concerned vide his endorsement Ex. PW11/D. PW12 - HC Ram Singh is the MHC(M) who proved the relevant entries of register no. 19 Ex. PW12/A (Colly.), the copy of the RC No. 58/21/11 Ex. PW12/B and the copy of the acknowledgment receipt of the FSL Ex. PW12/C. PW13 Constable Mehek Singh who deposed that on 01/05/2011, as per the directions of IO SI Ramesh Thakur, he has taken the accused Arvind to BSA Hospital and got him medically examined. After medical examination concerned doctor has given a sealed pulinda sealed with the seal of 'SD' and a sample seal and same was handed over to the IO at the PS and the IO has taken into possession the pulindas vide memo Ex. PW13/A signed by him (PW13) at point 'A' and as long as pulinda remained in his possession same was not tampered with.
PW14 - W/HC Sita Devi who deposed that on 01/05/2011, as per the directions of IO SI Ramesh Thakur, she has taken the prosecutrix (name withheld) to BSA Hospital and got her medically 12 of 97 13 FIR No. 152/11 PS - Vijay Vihar examined. After medical examination concerned doctor had given a sealed pulinda sealed with the seal of 'SD' and a sample seal and same was handed over to the IO at the PS and the IO has taken into possession the pulindas vide memo Ex. PW14/A signed by her (PW14) at point 'A'. As long as pulinda remained in her possession same was not tampered with.
PW15 Smt. Sunita is the bua of the prosecutrix who deposed that on 30/04/2011, at about 10:30 p.m., her brother Ravinder who is residing at Budh Vihar has come to her. Thereafter, she alongwith her brother went to his house at Budh Vihar. She made inquiries from her niece/prosecutrix (name withheld) D/o Ravinder and she (prosecutrix) told her (PW15) that accused Arvind has committed Galat Kaam (rape) with her (prosecutrix). She correctly identified the accused Arvind present in the Court. She called her other brother Upender and told to him the facts. He made telephone call to Police at 100 number. Police came there. prosecutrix (name withheld) was taken to Ambedkar Hospital and was medically examined. The statement of prosecutrix (name withheld) was recorded which is already exhibited as 13 of 97 14 FIR No. 152/11 PS - Vijay Vihar Ex. PW1/A, bearing her signature at point 'B'.
PW16 - SI Ramesh Thakur is the Investigating Officer (IO) of the case who deposed that on 30/04/2011, he received DD No. 9B and thereafter he reached at the spot i.e. A1/42, Harhdev Park where he met HC Bhim Singh, Constable Sunil and prosecutrix (name withheld) D/o Ravinder Kumar Sharma, her father, her uncle Upender and Bua Sunita. He made inquiries from the prosecutrix and she told that rape has been committed upon her by Arvind. W/HC Sita was called at the spot. Prosecutrix was taken for medial examination by him alongwith W/HC Sita and Sunita. After medical examination, doctor handed over the pulinda containing the exhibits which were seized vide memo Ex. PW14/A, bearing his signature at point 'B'. They came back at the spot. He recorded statement of prosecutrix which is already exhibited as Ex. PW1/A and attested her signature at point 'A', bearing his signature at point 'X', in the presence of Sunit Sharma. He prepared rukka Ex. PW16/A, bearing his signature at point 'A' and the rukka was handed over to Constable Sunil for getting registered the FIR. After getting the FIR registered, Constable Sunil came back at the spot and handed over 14 of 97 15 FIR No. 152/11 PS - Vijay Vihar the copy of FIR and original rukka to him. He prepared the site plan Ex. PW16/B, bearing his signature at point 'A' at the instance of prosecutrix. One bed sheet was seized from the bed lying in the room of the prosecutrix, after converting the same into a pulinda and sealing the same with the seal of 'PK', vide seizure memo Ex. PW1/C, bearing his signature at point 'C'. Thereafter, accused Arvind, present in the Court was apprehended at the instance of complainant from his (accused Arvind) sister's house, situated in the same premises. He was interrogated and arrested vide arrest memo Ex. PW9/A and his personal search was conducted vide memo Ex. PW9/B. Accused was taken to BSA Hospital and his medical examination was got conducted. After his medical examination, doctor handed over the pulinda containing the exhibits which were seized vide memo Ex. PW13/A, bearing his signature at point 'B'. Accused was brought to PS and case property was deposited in the Malkhana. Accused was produced in the Court and was sent to JC. On 02/05/2011, case file was handed over to W/SI Satyawati. He correctly identified the accused Arvind present in the Court.
The testimonies of the material prosecution witnesses shall 15 of 97 16 FIR No. 152/11 PS - Vijay Vihar be dealt with in detail during the course of the appreciation of the evidence.
6. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
7. Statement of accused Arvind was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and opted to lead defence evidence. In his defence he examined three witnesses namely DW1 Satpal Singh, DW2 - Keshav Dev Sharma and DW3 - Laxmi.
DW1 Satpal Singh is the neighbour who deposed that he is running a kiryana shop from his house i.e. A1/25, Harsh Dev Park, Budh Vihar, Phase II, Delhi86. He is familiar with Ravinder Kumar (father of prosecutrix) and Ram Babu as they are also residing in the neighbourhood. He is also familiar with accused Arvind Kumar present 16 of 97 17 FIR No. 152/11 PS - Vijay Vihar in the Court. He does not know the relationship between Ram Babu and accused Arvind Kumar. On 30/04/2011, between 11:00 a.m. 12:00 noon, gaali galoch had taken place between Ravinder Kumar and Ram Babu as Ravinder Kumar had taken the liquor (Sharab pi rakhi thi) and he takes liquor in the day time (wo din me pi leta hai) and after taking liquor (sharab pi kar) he was hitting by his legs against the door of the house of Ram Babu (darwaje pe laat mar raha tha). On which, there was a malee (shor sharaba) in the gali. At that time, in the house of Ravinder, besides Ravinder, her daughter, and later on the wife of Ravinder came out (baad mein uski gharwali nikal kar aayi thi). At that time, in the house of Ram, Babu, besides Ram Babu, his wife was also present. In his (DW1) presence, the daughter of Ravinder had not made any complaint of the committal of rape upon her against anyone.
DW2 - Keshav Dev Sharma is the neighbour who deposed that he is familiar with Ravinder and Ram Babu as both are his neighbourer. On 30/04/2011 at about 11:45 a.m. to 12:00 noon, an altercation (jhagra) had taken place between Ravinder and Ram Babu. He (DW2) saw that Ravinder was in a drunken state (wo sharab piye hue 17 of 97 18 FIR No. 152/11 PS - Vijay Vihar tha) and he was hitting at the gate of the house of Ram Babu by legs (wo gate me laat vaat mar raha tha) and he (Ravinder) was also abusing (gaali galoch de raha tha). At that time, in the house of Ram Babu, Ram Babu and his children were present. At that time, in the house of Ravinder, besides Ravinder her daughter Sarita was present. The jhagra took place there. Ravinder had told that he has been insulted and he will see (meri beijjati ki hai mein dekh loonga). At that time, in his presence, no complaint was made by daughter of Ravinder that anyone had committed any chhedkhani or battamiji with her. No allegations of rape were made by daughter of Ravinder, in his (DW2) presence.
PW3 - Laxmi is the neighbour who deposed that she does not know Ravinder and Ram Babu but they are living in her neighbourhood. On 30/04/2011, between 11:30 a.m. and 12:00 noon, Ravinder who was in drunken state came and started hitting at the gate of the house of Ram Babu with legs. Ravinder was saying to Ram Babu that he will see him (mein dekh lunga). At that time, in the house of Ravinder, besides Ravinder his daughter Sarita was present. In her presence no complaint was made by Sarita that anyone had committed 18 of 97 19 FIR No. 152/11 PS - Vijay Vihar chhedkhani or committed any rape upon the prosecutrix.
8. Learned Counsel for the accused submitted that the information, which was given by PW6 Upender Sharma was to the extent that three boys have gagged the mouth of girl and thereafter had ran away. Though, it was also alleged that all the three boys are familiar, but even at the time of recording of statement of PW6, he did not disclose the name of the said three boys. This witness in fact has stated totally different story from the information given by him to the police by dialing number 100.
Learned Counsel for the accused further submitted that there is delay of more than 24 hours in recording of the FIR, which itself creates doubt about the actual happening of the incident. Moreover, there is no explanation given by the prosecutrix as to why the FIR was not lodged immediately. If the girl was actually raped, why she did not call to the police immediately or why she did not call anyone from the neighbourhood or any of her family members immediately after the incident, why she remained quite for more than 12 hours. This itself creates strongest doubt about the genuineness of the alleged incident.
19 of 97 20 FIR No. 152/11 PS - Vijay Vihar Learned Counsel for the accused further submitted that PW1 has deposed that, "After entering in my house, when accused tried to rape her, she pushed him in order to get him away from that place, stating that by this time, none of the family member was present at the home. She has also stated that, "Thereafter I called a lady in the neighbourhood calling 'Auntiji Auntiji', but no response came from there. Thereafter, Arvind forcibly after picking me up took me inside the room and thrown me on the bed. When I started crying and raising alarm, he tied my mouth with my Chunni and forcibly caught hold of her with his hands and put off his clothes as we as of my clothes and thereafter committed intercourse upon me". Learned Counsel for the accused submitted that, as per MLC, there is no injury at all on the mouth, or at any other place of body of the prosecutrix. Hence, the version of the prosecutrix is totally doubtful in nature.
Learned Counsel for the accused further submitted that during her crossexamination, PW1 has stated that, "It is correct that I had told the police that three boys had come who had pressed my mouth and fled away. She further stated that, "It is correct that I had told to the PCR police that I knew those three boys but had not told their names and 20 of 97 21 FIR No. 152/11 PS - Vijay Vihar addresses". This itself shows that no rape was committed upon the prosecutrix. Moreover, this is also not the version of the prosecution that for any reasonable or immediate reason, the prosecutrix did not disclose the actual facts, if any.
Learned Counsel for the accused further submitted that PW2 Sh. Ravinder Kumar Sharma, who is father of the prosecutrix, stated in his examination in chief that, "When I came to my house again at about 10:30 p.m. in the night and I was told by my daughter prosecutrix (name withheld) about the whole incident. On hearing which I felt some unconsciousness and got perplexed as I am a sugar patient". It is totally contrary to the version of PW1, who has not stated any such thing at all.
Learned Counsel for the accused further submitted that PW5 HC Bhim Singh Daggar, who reached at the spot, has been confronted with his crossexamination on the point that W/Constable Sita Devi had also reached the spot, where they came to know that prosecutrix has been raped. On the statement of the prosecutrix an endorsement was made by SI Ramesh Thakur. At the instance of the prosecutrix, a bed sheet was recovered which was lying on the bed at the 21 of 97 22 FIR No. 152/11 PS - Vijay Vihar time of commission of the alleged offence from the house. The accused was arrested at the instance of prosecutrix and after his arrest, the arrest memo and personal search was prepared. Thus, it is very much clear that this witness is false and planted and there is why, he has material involvement regarding all the material proceedings.
Learned Counsel for the accused further submitted that PW6 Sh. Upender Sharma, who called the police and during his cross examination, he has stated that the facts disclosed by him at the time of dialing no. 100 were totally correct. Learned Counsel further submitted that the information, which was given by him to the police was that three persons have gagged the mouth of the girl. Thus, it is clearly and conclusively proved that no rape was committed upon the prosecutrix, which is duly supported by the oral evidence of PW6 and medical evidence, because PW8 Dr. Shimpi Goel has deposed that "When the patient was brought for examination, there was no evidence of any external injury visible, neither any scratch over genetic area or other body parts. No bleeding per vagina or no discharge per vagina. Anal opening intact. As per her vaginal examination, patient is allowing examination by two fingers". This itself shows that there was no forcible 22 of 97 23 FIR No. 152/11 PS - Vijay Vihar intercourse at all because if there was any intercourse actually, then either bleeding or discharge must be present over there.
Learned Counsel for the accused further submitted that PW6 Upender Sharma stated during his crossexamination that, "Statement of prosecutrix was not recorded by any police official in my presence. PCR officials had formally interrogated the prosecutrix in my presence. PCR officials had recorded statement of the prosecutrix. Again said PCR officials have not recorded statement of prosecutrix". The version of this witness is totally contrary to the version of the police officials. He has also stated that, "It is correct that no conversation took place between me and my niece (the prosecutrix) after my reaching at my brother's house. It is correct that neither my brother nor my sister nor my niece prosecutrix made call to the police before I made the call to the police at 100 number". It clearly shows that after hatching a conspiracy, the accused has been falsely implicated in the present case.
Learned Counsel for the accused further submitted that PW9 Constable Sunil Kumar, who has stated tat he visited the spot and accused was arrested in his presence and during his crossexamination, he stated that, "It is correct that no disclosure statement of accused was 23 of 97 24 FIR No. 152/11 PS - Vijay Vihar recorded in my presence in this case. It is correct that no statement of Bua of the prosecutrix was recorded in my presence. I cannot say whether statement of anyone was not recorded in my presence".
Learned Counsel for the accused further submitted that PW15 Smt. Sunita is Bua of the prosecutrix and her entire evidence is hearsay in nature. Moreover, during her crossexamination, she has stated that Upender had told to the police the facts, which was told by prosecutrix. The entire facts and incident, were told to Upender by prosecutrix before Upender made call to the police. If it is true, then no rape was committed upon the prosecutrix, because no such fact was disclosed by Upender at the time of dialing no. 100.
Learned Counsel for the accused further submitted that from the bare perusal of entire evidence of the prosecution, it is clear that the entire evidence produced by the prosecution are contrary, vague and doubtful in nature, upon which no reliance can be placed. Moreoever, it is settled law that burden of proof always lies upon the prosecution to prove its case beyond all reasonable doubts and in case, if there is a doubt, the benefit of doubt must be given to the accused.
Learned Counsel for the accused further submitted that the 24 of 97 25 FIR No. 152/11 PS - Vijay Vihar entire area where the alleged offence has been stated to be committed, is a thickly populated area, but no one from the neighbourhood came in support of the prosecutrix. Moreover at the time of recording of defence evidence, neighbours have stated no allegations of any rape, committed upon the prosecutrix.
Learned Counsel for the accused further submitted that the accused Arvind may kindly be ordered to be acquitted and discharged from the present case, in view of detailed submissions made above, to meet the ends of justice.
9. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
10. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. Ashutosh Bhardwaj, Learned Counsel for the accused and have 25 of 97 26 FIR No. 152/11 PS - Vijay Vihar also carefully perused the entire record.
11. The charge for the offence punishable u/s 376 IPC against the accused Arvind is that on 30/04/2011, at about 12:00 noon at the house of Sarita i.e. House No. A1/42, Harsh Dev Park, Budh Vihar,Phase - II, Delhi, he forcefully raped prosecutrix (name withheld), D/o Sh. Ravinder Kumar Sharma aged around 14 years without her consent and against her will.
12. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
13. PW1 - prosecutrix in her examinationinchief recorded on 18/02/2012 has deposed that : th "At that time I was studying in 9 class in Rajkiya Uch rd Prathmik Kanya Vidayalaya, Sector - 1, Rohini. My date of birth is 3 26 of 97 27 FIR No. 152/11 PS - Vijay Vihar July, 1996."
There is nothing in the crossexamination of PW1 - prosecutrix so as to impeach her creditworthiness on the aspect of her age.
PW10 Ms. Suman Lata, Vice Principal, GGSS Avantika, Sector1, Rohini, Delhi who deposed that as per their record one child prosecutrix (name withheld) D/o Ravinder Kumar Sharma, mother's name Smt. Ram Wati Devi was admitted in their school on 28/03/2006 in th class 6 H vide admission No. 4518. According to their record her date of birth is 03/07/1996. She was admitted in their school on the basis of SLC issued from Head Master, MC Primary Balika Vidyalya Budh Vihar, Phase - I, Delhi 110041. The copy of the admission register is Ex. PW10/A and the copy of the SLC of MC Primary Balika Vidyalya Budh Vihar Phase - I, Delhi 110041 is Ex. PW10/B. During her crossexamination, PW10 - Ms. Suman Lata has deposed that : "I cannot admit or deny as to whether the date of birth 03/07/1996 entered in the record is correct or wrong. Vol. The date of 27 of 97 28 FIR No. 152/11 PS - Vijay Vihar birth was entered as per the documents and on the basis as I have deposed."
There is nothing in the crossexamination of PW10 - Ms. Suman Lata so as to impeach her creditworthiness on the aspect of her age. Nor any evidence to the contrary has been produced or led on the record on behalf of the accused.
In the circumstances, it stands established on the record that th date of birth of the prosecutrix is 03/07/1996.
As the date of alleged incident is 30/04/2011 and the date of birth of prosecutrix is 03/07/1996, on simple arithmetical calculation, the age of prosecutrix comes to 14 years, 09 months and 27 days as on the date of incident on 30/04/2011.
In view of above and in the circumstances, it stands established on record that PW1 prosecutrix was aged 14 years, 09 months and 27 days as on the date of alleged incident on 30/04/2011.
The Hon'ble Supreme Court in case State of Maharashtra Vs. Gajanan Hemant Janardhan Wankdhede (2008) 8 SCC 38 has 28 of 97 29 FIR No. 152/11 PS - Vijay Vihar held as under : "13. .....On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive.
14. Interestingly, no question was put to the victim in cross examination about the date of birth. The High Court also noted that no document was produced at the time of admission and a horoscope was purportedly produced. There is no requirement that at the time of admission documents are to be produced as regards the age of the student....."
MEDICAL EVIDENCE OF THE PROSECUTRIX
14. PW8 Dr. Shimpi Goel, SR Gynae, BSA Hospital, Rohini, Delhi has proved the gynaecological examination as was conducted by Dr. Shweta Aggarwal, of prosecutrix and proved the MLC Ex. PW8/A signed by her (Dr. Shweta Aggarwal) at point 'B' and the consent of the father of the patient at Point 'C'.
It is pertinent to reproduce the examinationinchief of PW8 29 of 97 30 FIR No. 152/11 PS - Vijay Vihar Dr. Shimpi Goel which reads as under : "I have been deputed by Medical Superintendent to depose in the court on behalf of Dr.Shweta Aggarwal, Senior Resident Gynae as she has since left the hospital and her whereabouts are not available in the hospital record. I can identify the hand writing and signatures of Dr. Shweta as I have worked with her and seen her writing and signature in usual course of my official duties in the year 2011.
As per record, patient/prosecutrix (name withheld) was brought for examination on 01/05/2011 at about 5:20 a.m. by HC Sita Devi with alleged history of sexual assault by a boy named Arvind with the help of another boy name Gaurav as told by patient herself living in her neighbourhood and the assault was done at the house of the patient at about 12 noon on 30/04/2011 as the patient was alone in her house, which is at point X on the MLC Ex. PW8/A. The patient was examined locally and as per examination hymen was torn, posterior lateral, (old tear). No evidence of any external injury visible neither any scratch over genetic (genitalia) area or other body parts. No bleeding per vagina or no discharge per vagina. Anal opening intact. As per per vaginal examination, patient is allowing examination by two fingers. Seven samples mentioned in the MLC Ex. PW8/A at point 'A' were taken sealed and handed over to SI Ramesh Thakur. The MLC prepared by doctor Shweta Aggarwal is Ex. PW8/A signed by her at point 'B'. Before examination, the consent of the father of the patient was taken in writing and the same is mentioned at point 'C' on Ex. PW8/A."
Despite grant of opportunity PW8 - Dr. Shimpi Goel was not crossexamined on behalf of the accused.
30 of 97 31 FIR No. 152/11 PS - Vijay Vihar In the circumstances, the medical/gynaecological examination of the prosecutrix vide MLC Ex. PW8/A stands proved on the record.
VIRILITY OF THE ACCUSED
15. PW3 Dr. Florence Almeida, CCMO, Jag Pravesh Chander Hospital, Shastri Park, Delhi has deposed that on 01/05/2011 at about 2:20 p.m. he examined the patient Arvind and after examination he found there was no evidence to suggest that the patient cannot perform sexual intercourse and proved the MLC of accused Arvind Ex. PW3/A signed by him at Point 'B'.
Despite grant of opportunity PW3 Dr. Florence Almeida was not crossexamined on behalf of the accused.
In view of above and in the circumstances, it stands proved on the record that accused Arvind was capable of performing sexual intercourse.
31 of 97 32 FIR No. 152/11 PS - Vijay Vihar BIOLOGICAL AND SEROLOGICAL EVIDENCE
16. PW7 W/SI Satya Wati is the initial investigating officer (IO) of the case, who besides proving the other memos also proved FSL Report Ext. PY and Ext. PY1 respectively.
As per biological report Ex. PY the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cardboard box sealed with the seal of "SD" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h' and '1i', described to be of prosecutrix.
Exhibit '1a' : Nail clippings described as nail scraping kept in an injection vial.
Exhibit '1b' : A few strands of hair described as 'Pubic hair'. Exhibit '1c' : Dark brown liquid in two test tubes described as 'blood sample'.
Exhibit '1d' : Cotton wool swab on a stick kept in a test tube described as 'vaginal swab'.
Exhibit '1e' : One microslide having faint smear described as 'Vaginal smear'.
Exhibit '1f' : Cotton wool swab on a stick kept in a test tube described as 'Cervical swab'.
Exhibit '1g' : One microslide having faint smear described as 'Cervical smear'.
32 of 97
33
FIR No. 152/11
PS - Vijay Vihar
Exhibit '1h' : One underwear.
Exhibit '1i' : One salwar.
Parcel '3' : One sealed cloth parcel sealed with the
seal of "SD" containing exhibits '3a', '3b', '3c', '3d', '3e', '3f', '3g', '3h' and '3i' kept in a cardboard box, described to be of accused. Exhibit '3a' : Dark brown foul smelling liquid kept in a test tube described as 'blood in plain vial'.
Exhibit '3b' : Gauze cloth piece having brown stains described as 'blood on air dried gauze'.
Exhibit '3c' : Very few strands of hair described as 'combed pubic hair'.
Exhibit '3d' : Very few strands of hair described as 'plucked pubic hair'.
Exhibit '3e' : A few strands of hair described as 'Plucked scalp hair'.
Exhibit '3f' : A few strands of hair described as 'Cut scalp hair'.
Exhibit '3g' : One underwear.
Exhibit '3h' : On banian.
Exhibit '3i' : One microslide described as 'Smegmal slide'.
Parcel '5' : One sealed cloth parcel sealed with the
seal of "PK" containing exhibit '5'.
Exhibit '5' : One bedsheet.
33 of 97
34
FIR No. 152/11
PS - Vijay Vihar
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1c', '1h', '1i', '3a' and '3b'.
2. Blood could not be detected on exhibits '1a', '1b', '1d', '1f', '3c', '3d', '3e', '3f', '3g', '3h' and '5'.
3. Human semen was detected on exhibits '1f', '1g' and '1h'.
4. Semen could not be detected on exhibits '1a', '1b', '1d', '1e', '1i', '3c', '3d', '3e', '3f', '3g', '3h', '3i' and '5'.
5. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'DS FSL DELHI'.
The serological report Ex. PY1 reads as under : Exhibits Species of origin ABO Grouping/Remarks Blood stains : '1c' Blood samples Sample was putrefied hence no opinion '1h' Underwear Human No reaction '1i' Salwar Human No reaction '3a' Blood sample Sample was putrefied hence no opinion '3b' Gauze cloth piece Human No reaction Semen stains : '1f' Cotton wool swab Inconclusive result '1h' Underwear Inconclusive result 34 of 97 35 FIR No. 152/11 PS - Vijay Vihar On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibits '1c' (Blood sample of the prosecutrix/victim), exhibit '1h' (underwear of the prosecutrix/victim), exhibit '1i' (salwar of the prosecutrix/victim), exhibit '3a' (Blood Sample of accused Arvind) and exhibit '3b' (Gauze cloth piece having brown stains described as 'blood on air dried, of accused Arvind'; Human semen was detected on exhibit '1f' (Cotton wool swab described as 'Cervical swab' of the prosecutrix), exhibit '1g' (Cervical smear of the prosecutrix) and exhibit '1h' (underwear of the prosecutrix).
On a conjoint reading of the medical evidence, the gynaecological examination on MLC Ex. PW8/A of the prosecutrix together with the MLC of accused Arvind Ex. PW3/A, in the light of the biological and serological evidence detailed hereinabove, it clearly indicates the taking place of sexual intercourse activity.
In the circumstances, it stands clearly established on the record that sexual intercourse activity has taken place in the instant 35 of 97 36 FIR No. 152/11 PS - Vijay Vihar case.
As per the biological report Ex. PY with regard to the description of the articles contained in the parcels, it is noticed that, parcel no. 1 belongs to prosecutrix which was seized vide seizure memo Ex. PW14/A dated 01/05/2011, parcel no. 3 belongs to accused Arvind which was seized vide seizure memo Ex. PW13/A dated 01/05/2011 and parcel no. 5 containing the bed sheet seized from the place of incident vide seizure memo Ex. PW1/C dated 01/05/2011.
As per the biological report Ex. PY, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1f' (Cervical swab of the prosecutrix seized vide seizure memo Ex. PW14/A), exhibit '1g' (Cervical smear of the prosecutrix seized vide seizure memo Ex. PW14/A) and exhibit '1h' (underwear of the prosecutrix seized vide seizure memo Ex. PW14/A). Accused was under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1f', '1g', and 'h' as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statement of the accused 36 of 97 37 FIR No. 152/11 PS - Vijay Vihar and his omission to lead any evidence in this regard and his complete denial becomes an additional link in the prosecution case.
17. Now let the testimonies of PW1 - Prosecutrix, PW2 - Ravinder Kumar Sharma, her father, PW6 - Upender Sharma, her Uncle and PW15 - Smt. Sunita, her Bua be perused and analyzed.
PW1 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "On 30/04/2011 I was present in the above house along with my younger brother Kapil aged around six years. At about 7:30 a.m. in the morning my father had gone to leave my mother and younger brother Lalit at Metro station Rithala as they were to go Shahdara at the house of my maternal grand mother (nani) and thereafter my father had gone to his work place/factory. At about after completing the house hold work at about 12 noon, I had started washing the clothes in the gallary of my house. At that time from the upper side i.e. roof one boy named Arvind comes. The roof of my house and the roof of the adjacent house are parallel to each other from where Arvind came. The adjacent house is the house of sister of Arvind. I saw Arvind when he had just come on the back of me. When I saw Arvind I asked him Mamaji what are you doing here. As the neighbour children called Arvind as Mama so I used to call him as Mama on which Arvind told that there is nothing but he is standing just like that. I asked Arvind to go from there. On which 37 of 97 38 FIR No. 152/11 PS - Vijay Vihar Arvind told that is just standing like that and will not say anything. At that time my younger brother Kapil had gone in the back gali for cycling and at that time my no other family member was present. Thereafter I forcibly pushed Arvind to in order to get him away from that place and stating that by this time none of my family member is present at home. On which Arvind told that he has come knowing that none of your family member is present in the house. When I again forcibly pushed Arvind in order to get him away from there but Arvind bolted the kundi of the gate of my house from inside. Thereafter I called a lady in the neighbourhood calling Auntiji Auntiji but no response came from there. Thereafter Arvind forcibly after picking me up took me in the inside room and thrown me on the bed. When I start crying and raising alarm he tied my mouth with my chuni and he forcibly caught hold of me with his hands and put off his clothes as well as of my clothes. In such a forceful catching hold of me I couldn't do anything and thereafter he started kissing me (chumne laga). Then he took out his penis and inserted into my vagina and committed intercourse upon me. Thereafter on hearing the sounds of the engine of my father's bike (motorcycle) Arvind fled away using the stair case from the roof side after opening the kundi of the main gate of my house. My father though came and stopped in front of house but gone straight and thereafter had come to the house at about 10.00 pm. When my father came I narrated the whole incident to him. Then my father went to the house of auntiji i.e. sister of Arvind in the neighbourhood and told her that her younger brother Arvind has committed 'galat kaam' with his daughter. My father had taken drinks (mere papa ne drink kar rakhi thi). Sister of Arvind and her elder son forcibly dominated my father (mere papa par char bethe) and they had also called of many persons. Thereafter my father went to the house of my buaji (my father's sister) and told the 38 of 97 39 FIR No. 152/11 PS - Vijay Vihar entire incident to my bua and my chachaji (uncle) namely Upender. My uncle Upender informed the police at No. 100 on which the Police reached. Police recorded my statement. My statement is Ex. PW1/A. Same is signed by me at point 'A'. Then went to the house of sister of accused Arvind. My medical examination was also got conducted by the police at the hospital and my clothes/underwear were also taken into possession by the doctor. My statement was also got conducted U/S 164 Cr.P.C. before the Court of Sh. Sachin Gupta.
At this stage a sealed envelope sealed with the seal of SG is produced and opened from which the proceedings and the statement U/s 164 Cr.P.C. are taken out. The statement U/S 164 Cr.P.C. is shown to the witness who stated to have made the same which is Ex. PW1/B and has put her signature and right thumb impression at points A & B. th At the time I was studying in 9 class in Rajkiya Uch rd Prathmik Kanya Vidayalaya, Sector 1, Rohini. My date of birth is 3 July, 1996.
I can identify the accused if shown to me.
At this stage, the wooden partition has been removed. Accused Arvind is present in the Court (correctly identified).
The wooden partition now has been restored to its original position.
The bed on which the rape was committed upon me by accused Arvind, the bed sheet of the same was seized by the police after converted into a pulanda and sealed and seized vide seizure memo Ex. PW1/C signed by me at point 'A'. The bed sheet was dominately of green colour having other colours adjusted in it also. I can identify the 39 of 97 40 FIR No. 152/11 PS - Vijay Vihar undergarments/clothes seized by the doctor as well as the bed sheet if shown."
During her further examinationinchief dated 16/04/2012 PW1 - prosecutrix deposed that : "I can identify the undergarments seized by the Doctor as well as the bed sheet if shown to me.
At this stage, Parcel No. 1 bearing the seal of FSL is produced and opened which is containing an an underwear and a salwar of orange colour which the witness identified to be the same which are Ex. P1 and P2 respectively.
At this stage Parcel No. 5 bearing the seal of FSL is produced and opened which is containing a bed sheet which the witness identifies to be the same which is Ex. P3."
From the aforesaid narration of PW1 - prosecutrix, it is clear that on 30/04/2011 she was present in the above house along with her younger brother Kapil aged around six years. At about 7:30 a.m. in the morning her father had gone to leave her mother and younger brother Lalit at Metro Station Rithala as they were to go Shahdara at the house of her maternal grand mother (nani) and thereafter, her father had gone to his work place/factory. At about after completing the house hold work at about 12 noon, she had started washing the clothes in the gallery of her house. At that time from the upper side i.e. roof one boy named Arvind 40 of 97 41 FIR No. 152/11 PS - Vijay Vihar comes. The roof of her house and the roof of the adjacent house are parallel to each other from where Arvind came. The adjacent house is the house of sister of Arvind. She saw Arvind when he had just come on the back of her. When she saw Arvind she asked him Mamaji what are you doing here. As the neighbour children called Arvind as Mama so she used to call him as Mama on which Arvind told that there is nothing but he is standing just like that. She asked Arvind to go from there. On which Arvind told that is just standing like that and will not say anything. At that time her younger brother Kapil had gone in the back gali for cycling and at that time her no other family member was present. Thereafter, she forcibly pushed Arvind to in order to get him away from that place and stating that by this time none of her family member is present at home. On which Arvind told that he has come knowing that none of your family member is present in the house. When she again forcibly pushed Arvind in order to get him away from there but Arvind bolted the kundi of the gate of her house from inside. Thereafter, she called a lady in the neighbourhood calling Auntiji Auntiji but no response came from there. Thereafter, Arvind forcibly after picking her up took her in the inside room and thrown her on the bed. When she 41 of 97 42 FIR No. 152/11 PS - Vijay Vihar start crying and raising alarm he tied her mouth with her chunni and he forcibly caught hold of her with his hands and put off his clothes as well as of her clothes. In such a forceful catching hold of her, she couldn't do anything and thereafter he started kissing her (chumne laga). Then he took out his penis and inserted into her vagina and committed intercourse upon her. Thereafter, on hearing the sounds of the engine of my father's bike (motorcycle) Arvind fled away using the stair case from the roof side after opening the kundi of the main gate of her house. Her father though came and stopped in front of house but gone straight and thereafter had come to the house at about 10.00 pm. When her father came she narrated the whole incident to him. Then her father went to the house of auntiji i.e. sister of Arvind in the neighbourhood and told her that her younger brother Arvind has committed 'galat kaam' with his daughter. Her father had taken drinks (mere papa ne drink kar rakhi thi). Sister of Arvind and her elder son forcibly dominated her father (mere papa par char bethe) and they had also called of many persons. Thereafter, her father went to the house of her buaji (my father's sister) and told the entire incident to her bua and her chachaji (uncle) namely Upender. Her uncle Upender informed the police at No. 100 on which 42 of 97 43 FIR No. 152/11 PS - Vijay Vihar the police reached. Police recorded her statement. Her statement is Ex. PW1/A. Same is signed by her at point 'A'. Then went to the house of sister of accused Arvind. Her medical examination was also got conducted by the police at the hospital and her clothes/underwear were also taken into possession by the doctor. Her statement was also got conducted u/s 164 Cr. PC before the court of Sh. Sachin Gupta. She also proved her statement u/s 164 Cr.P.C. Ex. PW1/B which bears her signature and right thumb impression at points 'A' & 'B'. At that time th she was studying in 9 class in Rajkiya Uch Prathmik Kanya Vidayalaya, rd Sector 1, Rohini. Her date of birth is 3 July, 1996. She correctly identified the accused in the Court. The bed on which the rape was committed upon her by accused Arvind, the bed sheet of the same was seized by the police after converting it into a pulanda and sealed and seized vide seizure memo Ex. PW1/C signed by her at point 'A'. The bed sheet was dominately of green colour having other colours adjusted in it also. She identified and proved her clothes, an underwear, a salwar of orange colour Ex. P1 and P2 respectively and a bed sheet Ex. P3.
PW1 - Prosecutrix during her crossexamination has negated the suggestions that she had given a wrong date of birth as 43 of 97 44 FIR No. 152/11 PS - Vijay Vihar 03/07/1996 in the present case or that on 30/04/2011 at about 11:30 p.m. her Bhua Sunita brought both her father Ravinder and her uncle Upender in a drunken state and (Upender) struck against the door of the house of Poonam by his leg or that on giving a leg struck against the door of Ms. Poonam by Upender she opened the door on which there was a verbal exchanged of words between Poonam and Upender on which the Mohalla people had gathered or that on seeing the mohalla people they all family members closed the door of their house or that after few hours thereafter, Upender in order to take revenge from Poonam dialed 100 number or that on hearing the siren sound of the Police Upender, Ravinder, Sunita and herself had frightened and a false story was got cooked up from her by Upender, Ravinder and Sunita that three persons had come who had pressed her mouth and fled away or that Arvind had (not) come to her house in the manner as she deposed or that the children of the mohalla used to call accused Arvind as Mamaji or that Arvind has not come to her house on 30/04/2011 or that accused Arvind did not came to her house or had not committed the offence with her or that she had not narrated the true and actual incident in its entirety to the Police Ex.
th PW1/A or that she was not studying in 9 class on date of occurrence or 44 of 97 45 FIR No. 152/11 PS - Vijay Vihar that she is deposing falsely at the instance of her uncle Upender, father Ravinder and Bhua Sunita or that the accused Arvind has been falsely implicated on the issue of that his house number and that of her house number are the same or that she is deposing falsely.
Inspite of incisive crossexamination of PW1 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW1 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
The testimony of PW1 - Prosecutrix is also found to be corroborated by the medical evidence and the biological and serological evidence as discussed hereinbefore.
The testimony of PW1 - Prosecutrix is also found to be in 45 of 97 46 FIR No. 152/11 PS - Vijay Vihar consonance with her statement Ex. PW1/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW1/B. The testimony of PW1 Prosecutrix is also found to be corroborated by the testimonies of PW2 - Ravinder Kumar Sharma, her father, PW6 - Upender Sharma, her uncle and PW15 - Smt. Sunita, her Bhua to whom PW1 Prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.
PW2 - Ravinder Kumar Sharma, father of the prosecutrix in his examinationinchief has deposed that : "I am doing the business of dye making. The name of my daughter is prosecutrix (name withheld). On 30/04/2011 at about 7:30 a.m. I had gone to Rithala Metro Station to leave my wife Ramwati and my son Lalit who were to go to Shahdara. At about 12:00 noon I had come to my house after seeing of my wife and son at Rithala Metro Station after meeting some friends on the way. I did not enter into my house but the gate of my house was opened and my daughter/prosecutrix (name withheld) was washing the cloth and telling her that I have some urgent piece of work at Krishan Vihar, I left to Krishan Vihar from outside of my house. Then I came to my house again at about 10:30 p.m. in the night and I was told by my daughter/prosecutrix (name withheld) 46 of 97 47 FIR No. 152/11 PS - Vijay Vihar about the whole incident. On hearing which I felt some unconsciousness and got perplexed as I am a sugar patient then I stood up and then I phoned my brother Upender who came, my sister also came. We all then went to the adjusant (adjacent) house of sister of Arvind where Gaurav son of sister of accused Arvind abused and threatened us and then we returned to our house from where my brother Upender telephoned the Police at no. 100. Police reached there. I remained at home as I was not well, but my daughter/prosecutrix (name withheld) accompanied by my brother, my sister Sunita Devi went to the Police Station and it was about 11 or 11:30 p.m., exact time I do not recollect. They all returned on the next day at about 12:00 or 12:30 noon.
My daughter/prosecutrix (name withheld) had narrated to me that accused Arvind had come to my house from the roof side and picked her up and thrown on the bed and committed rape upon her.
Accused Arvind was apprehended by the Police on the same night at about 1:00 a.m. Accused Arvind is present in the Court today (correctly identified)."
From the aforesaid narration of PW2 - Ravinder Kumar Sharma, it is clear that he is doing the business of dye making. The name of his daughter is prosecutrix (name withheld). On 30/04/2011 at about 7:30 a.m. he had gone to Rithala Metro Station to leave his wife Ramwati and his son Lalit who were to go to Shahdara. At about 12:00 noon he had come to his house after seeing of his wife and son at Rithala Metro Station after meeting some friends on the way. He does not enter into his house but the gate of his house was opened and his 47 of 97 48 FIR No. 152/11 PS - Vijay Vihar daughter/prosecutrix (name withheld) was washing the cloth and telling her that he (PW2) had some urgent piece of work at Krishan Vihar, he left to Krishan Vihar from outside of his house. Then he came to his house again at about 10:30 p.m. in the night and he was told by his daughter/prosecutrix (name withheld) about the whole incident. On hearing which he (PW2) felt some unconsciousness and got perplexed as he is a sugar patient then he stood up and then he phoned his brother Upender who came, his sister also came. They all then went to the adjacent house of sister of Arvind where Gaurav son of sister of accused Arvind abused and threatened them and then they returned to their house from where his brother Upender telephoned the Police at no. 100. Police reached there. He (PW2) remained at home as he was not well, but his daughter/prosecutrix (name withheld) accompanied by his brother and his sister Sunita Devi went to the Police Station and it was about 11 or 11:30 p.m., exact time he does not recollect. They all returned on the next day at about 12:00 or 12:30 noon. His daughter/prosecutrix (name withheld) had narrated to him that accused Arvind had come to his house from the roof side and picked her up and thrown on the bed and committed rape upon her. Accused Arvind was apprehended by the 48 of 97 49 FIR No. 152/11 PS - Vijay Vihar Police on the same night at about 1:00 a.m. and PW2 correctly identified the accused Arvind present in the Court.
During his crossexamination PW2 - Ravinder Kumar Sharma has negated the suggestion that Police had recorded his statement twice in a day on 01/05/2011 or that he himself and Upender had heavily dranked (drunk) at the house of his sister or that he himself and Upender were in an abriated (inebriated) state and in that state had thrust against the door of a neighbourhood house with feet and had kicked up the quarrels of the occupants living therein or that he himself and Upender had quarreled intensely with Poonam and her son Gaurav or that he had made a wrong and false statement against Poonam and her son Gaurav that they had threatened him or that on 30/04/2011 in the afternoon time of 2:00 or 2:30 p.m., he had severely beaten up Gaurav and he had threatened the Poonam, mother of Gaurav or that on 30/04/2011 when the quarrel had gone out of control and the mohalla people had gathered and by become fearful of the same Upender had phoned to the police at no. l00 or that Upender after dialing no. 100 to Police and on hearing of the blaring of the horn of the Police and of 49 of 97 50 FIR No. 152/11 PS - Vijay Vihar becoming fearful of the same had left for his house or that Upender alongwith the prosecutrix (name withheld) came out from the house after tutoring the prosecutrix of a false story of involvement of three other boys, after pressing of her mouth and of their running away or that he had deposed falsely in the Court that Arvind had committed rape upon his daughter or that he had made a false statement to the Police or that he had deposed falsely before this Court or that he had deposed the wrong time of the PCR call or that the accused Arvind had been falsely implicated in this case or that accused Arvind has been falsely implicated in this case because of his (PW2) quarrel with Mrs. Poonam and her son Gaurav or that accused Arvind has no connection with the present case.
PW6 - Upender Sharma, uncle of the prosecutrix, in his examinationinchief has deposed that : "I am residing at the above stated address since 199798. My elder brother Ravinder Kumar Sharma was also residing at the same address with me alongwith his family since 199798. On 30/04/2011 as usual I left the house at about 8:00 a.m. to my work place and remained there in night because I had to complete my assignment of PVC Footwear dye. My brother had gone to the Metro Station at about 8:00 or 9:00 a.m. alongwith his wife to see her off at Shahdara Metro Station as she was going to Aligarh as her brother was residing there. At the house prosecutrix (name withheld), my niece and Kapil aged around 11 50 of 97 51 FIR No. 152/11 PS - Vijay Vihar years remained in the house on that day. I received a phone call from my sister Sunita at about 12:00 a.m. (night) as she was called by my brother Ravinder Sharma from his house as she (Sunita) was residing at Kishan Vihar, Delhi. She (Sunita) insisted upon me to come to the house immediately without narrating any facts to me. I returned to the house immediately after the above call, at about 1:00 a.m.(night). My brother disclosed about the rape committed on my niece prosecutrix (name withheld). I made a call at No. 100 to the police, PCR van came at the spot in the meantime,two local police officials also came at the spot. Local police also called woman constable and one lady constable came at the spot from the police station. Thereafter, prosecutrix, myself, my brother and my sister went to the police station alongwith police. Police officials got the medical examination of my niece conducted from BSA hospital. Later on, police have also arrested the accused Arvind from the spot. One bed sheet was also taken into possession by the police from the spot. Accused Arvind is present in the court today (correctly identified) Arvind was residing living apart a gali from our gali and he used to visit at the house of his sister situated in our gali.
I can identify the case property if shown to me. At this stage a Bed sheet is shown to the witness who identifies it to be the same which is already exhibited as Ex. P3."
From the aforesaid narration of PW6 - Upender Sharma it is clear that he is residing at the above stated address since 199798. His elder brother Ravinder Kumar Sharma was also residing at the same address with him alongwith his (PW2) family since 199798. On 30/04/2011 as usual he (PW6) left the house at about 8:00 a.m. to his 51 of 97 52 FIR No. 152/11 PS - Vijay Vihar work place and remained there in night because he had to complete his assignment of PVC Footwear dye. His brother had gone to the Metro Station at about 8:00 or 9:00 a.m. alongwith his wife to see her off at Shahdara Metro Station as she was going to Aligarh as her brother was residing there. At the house prosecutrix (name withheld), his niece and Kapil aged around 11 years remained in the house on that day. He (PW6) received a phone call from his sister Sunita at about 12:00 a.m. (night) as she was called by his brother Ravinder Sharma from his house as she (Sunita) was residing at Kishan Vihar, Delhi. She (Sunita) insisted upon him (PW6) to come to the house immediately without narrating any facts to him. He returned to the house immediately after the above call, at about 1:00 a.m.(night). His brother disclosed about the rape committed on his niece prosecutrix (name withheld). He (PW6) made a call at No. 100 to the Police, PCR van came at the spot in the meantime, two local police officials also came at the spot. Local police also called woman constable and one lady constable came at the spot from the police station. Thereafter, prosecutrix, he himself, his brother and his sister went to the police station alongwith police. Police officials got the medical examination of his niece conducted from BSA hospital. Later 52 of 97 53 FIR No. 152/11 PS - Vijay Vihar on, police have also arrested the accused Arvind from the spot. One bed sheet was also taken into possession by the police from the spot. He correctly identified the accused Arvind present in the Court. Arvind was residing living apart a gali from their gali and he used to visit at the house of his sister situated in their gali. He also identified a Bed sheet which is already exhibited as Ex. P3.
During her crossexamination PW6 - Upender Sharma has negated the suggestions that in his presence, no statement of any person was recorded by the Police or that no document was prepared by the Police in this case in his presence or that the call which he made to the Police at number 100 was the result of collusion among himself, his brother, sister and his niece prosecutrix as no call was made after the lapse of more than 11 hours of the time of incident or that the relations between sister of accused Arvind and that of his brother were not good or that because of strained relationship between family members of the prosecutrix and sister of accused Arvind, accused Arvind has been falsely implicated in this case or that he is deposing falsely being the interested witness as he is the real uncle of the prosecutrix or that no incident of rape ever happened with his niece or that accused Arvind has 53 of 97 54 FIR No. 152/11 PS - Vijay Vihar been falsely implicated in this case in collusion with his brother and his family member or that he is deposing falsely.
PW15 - Smt. Sunita, Bua of the prosecutrix, in her examinationinchief has deposed that : "On 30/04/2011 at about 10:30 p.m. my brother Ravinder who is residing at Bugh Vihar has come to me. Thereafter I alongwith my brother went to his house at Budh Vihar. I made inquiries from my niece/prosecutrix (name withheld) D/o Ravinder and she told me that accused Arvind has committed Galat Kaam (rape) with her (objected to being a hear say). Arvind is present in the Court today (correctly identified). I called my other brother Upender and told to him the facts. He made telephone call to Police at 100 number. Police came there. prosecutrix (name withheld) was taken to Ambedkar Hospital and was medically examined. The statement of prosecutrix (name withheld) was recorded which is already exhibited as Ex. PW1/A, bearing my signature at point 'B'."
From the aforesaid narration of PW15 - Smt. Sunita, it is clear that the on 30/04/2011, at about 10:30 p.m., her brother Ravinder who is residing at Budh Vihar has come to her. Thereafter, she alongwith her brother went to his house at Budh Vihar. She made inquiries from her niece/prosecutrix (name withheld) D/o Ravinder and she (prosecutrix) told her (PW15) that accused Arvind has committed 54 of 97 55 FIR No. 152/11 PS - Vijay Vihar Galat Kaam (rape) with her (prosecutrix). She correctly identified the accused Arvind present in the Court. She called her other brother Upender and told to him the facts. He made telephone call to Police at 100 number. Police came there. prosecutrix (name withheld) was taken to Ambedkar Hospital and was medically examined. The statement of prosecutrix (name withheld) was recorded which is already exhibited as Ex. PW1/A, bearing her signature at point 'B'.
During her crossexamination PW15 - Smt. Sunita has negated the suggestions that the documents prepared in her presence were not read out by her or that no interrogation was done by the Police at any stage from her or that no interrogation of any other person or of her any other family member was not done by the Police in her present or that where her brother and her niece was residing was a Jhuggi Jopari area or that her brother Ravinder being in a drunken state had created a ruckus (Hangama) with the family members of accused or that thereafter from the locality many persons gathered who supported them (family of the accused) or that to save himself (Ravinder) he in connivance with the other family members falsely implicated accused in the present case 55 of 97 56 FIR No. 152/11 PS - Vijay Vihar or that for this reason Police was not immediately informed by any of the family member of prosecutrix, after the alleged incident or that no incident of rape ever occurred or that she is deposing falsely being the 'Bua' of the prosecutrix.
There is nothing in the crossexamination of PW2 - Ravinder Kumar Sharma, PW6 - Upender Sharma and PW15 - Smt. Sunita so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII (S.C.)1] their testimonies are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused Arvind to falsely implicate him in the case.
18. While analysing the testimonies of PW1 Prosecutrix, PW2
- Ravinder Kumar Sharma, her father, PW6 - Upender Sharma, her uncle and PW15 - Smt. Sunita, her Bhua as discussed hereinabove 56 of 97 57 FIR No. 152/11 PS - Vijay Vihar inspite of incisive crossexamination of PW1 - prosecutrix, PW2 - Ravinder Kumar Sharma, PW6 - Upender Sharma and PW15 - Smt. Sunita, nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW1 Prosecutrix that she had given a wrong date of birth as 03/07/1996 in the present case or that on 30/04/2011 at about 11:30 p.m. her Bhua Sunita brought both her father Ravinder and her uncle Upender in a drunken state and (Upender) struck against the door of the house of Poonam by his leg or that on giving a leg struck against the door of Ms. Poonam by Upender she opened the door on which there was a verbal exchanged of words between Poonam and Upender on which the Mohalla people had gathered or that on seeing the mohalla people they all family members closed the door of their house or that after few hours thereafter, Upender in order to take revenge from Poonam dialed 100 number or that on hearing the siren sound of the Police Upender, Ravinder, Sunita and herself had frightened and a false story was got cooked up from her by Upender, Ravinder and Sunita that three persons had come who had pressed her mouth and fled away or that Arvind had (not) come to her house in the manner as she deposed or 57 of 97 58 FIR No. 152/11 PS - Vijay Vihar that the children of the mohalla used to call accused Arvind as Mamaji or that Arvind has not come to her house on 30/04/2011 or that accused Arvind did not came to her house or had not committed the offence with her or that she had not narrated the true and actual incident in its entirety th to the Police Ex. PW1/A or that she was not studying in 9 class on date of occurrence or that she is deposing falsely at the instance of her uncle Upender, father Ravinder and Bhua Sunita or that the accused Arvind has been falsely implicated on the issue of that his house number and that of her house number are the same or that she is deposing falsely, the suggestions to PW2 - Ravinder Kumar Sharma that Police had recorded his statement twice in a day on 01/05/2011 or that he himself and Upender had heavily dranked (drunk) at the house of his sister or that he himself and Upender were in an abriated (inebriated) state and in that state had thrust against the door of a neighbourhood house with feet and had kicked up the quarrels of the occupants living therein or that he himself and Upender had quarreled intensely with Poonam and her son Gaurav or that he had made a wrong and false statement against Poonam and her son Gaurav that they had threatened him or that on 30/04/2011 in the afternoon time of 2:00 or 2:30 p.m., he had severely beaten up 58 of 97 59 FIR No. 152/11 PS - Vijay Vihar Gaurav and he had threatened the Poonam, mother of Gaurav or that on 30/04/2011 when the quarrel had gone out of control and the mohalla people had gathered and by become fearful of the same Upender had phoned to the police at no. l00 or that Upender after dialing no. 100 to Police and on hearing of the blaring of the horn of the Police and of becoming fearful of the same had left for his house or that Upender alongwith the prosecutrix (name withheld) came out from the house after tutoring the prosecutrix of a false story of involvement of three other boys, after pressing of her mouth and of their running away or that he had deposed falsely in the Court that Arvind had committed rape upon his daughter or that he had made a false statement to the Police or that he had deposed falsely before this Court or that he had deposed the wrong time of the PCR call or that the accused Arvind had been falsely implicated in this case or that accused Arvind has been falsely implicated in this case because of his (PW2) quarrel with Mrs. Poonam and her son Gaurav or that accused Arvind has no connection with the present case, the suggestions to PW6 - Upender Sharma that in his presence, no statement of any person was recorded by the Police or that no document was prepared by the Police in this case in his presence or that the call 59 of 97 60 FIR No. 152/11 PS - Vijay Vihar which he made to the Police at number 100 was the result of collusion among himself, his brother, sister and his niece prosecutrix as no call was made after the lapse of more than 11 hours of the time of incident or that the relations between sister of accused Arvind and that of his brother were not good or that because of strained relationship between family members of the prosecutrix and sister of accused Arvind, accused Arvind has been falsely implicated in this case or that he is deposing falsely being the interested witness as he is the real uncle of the prosecutrix or that no incident of rape ever happened with his niece or that accused Arvind has been falsely implicated in this case in collusion with his brother and his family member or that he is deposing falsely and the suggestions to PW15 - Sunita that the documents prepared in her presence were not read out by her or that no interrogation was done by the Police at any stage from her or that no interrogation of any other person or of her any other family member was not done by the Police in her present or that where her brother and her niece was residing was a Jhuggi Jopari area or that her brother Ravinder being in a drunken state had created a ruckus (Hangama) with the family members of accused or that thereafter from the locality many persons gathered who supported 60 of 97 61 FIR No. 152/11 PS - Vijay Vihar them (family of the accused) or that to save himself (Ravinder) he in connivance with the other family members falsely implicated accused in the present case or that for this reason Police was not immediately informed by any of the family member of prosecutrix, after the alleged incident or that no incident of rape ever occurred or that she is deposing falsely being the 'Bua' of the prosecutrix, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examination of his neighbours DW1 Satpal Singh, DW2 Keshav Dev Sharma and DW3 Laxmi.
DW1 Satpal Singh in his examinationinchief has deposed that : "On 30/04/2011, between 11:00 a.m. 12 noon, gaali galoch had taken place between Ravinder Kumar and Ram Babu as Ravinder Kumar had taken the liquor (sharab pi rakhi thi) and he take liquor inthe day time (wo din me pi leta hai) and after taking liquor 61 of 97 62 FIR No. 152/11 PS - Vijay Vihar (sharab pi kar) he was hitting by his legs against the door of the house of the house of Ram Babu (darwaje pe laat mar raha tha)".
DW2 Keshav Dev Sharma in his examinationinchief has deposed that :
"On 30/04/2011 at about 11:00 a.m. to 12:00 noon, an altercation (jhagra) had taken place between Ravinder and Ram Babu. I saw that Ravinder was in a drunken state (wo sharab piye hue tha) and he was hitting at the gate of the house of Ram Babu by legs (wo gate me laat vaat mar raha tha) and he (Ravinder) was also abusing (gaali galoch de raha tha)".
DW3 Laxmi in her examinationinchief has deposed that : "On 30/04/2011, between 11:30 a.m. and 12.00 noon, Ravinder who was in drunken state came and started hitting at the gate of the house of Ram Babu with legs. Ravinder was saying to Ram Babu that he will see him (mein dekh lunga)".
On careful perusal and analysis of the entire evidence on record, I find that no suggestion regarding the said facts, so deposed by the said DWs, as reproduced hereinabove, have been put either 62 of 97 63 FIR No. 152/11 PS - Vijay Vihar to PW1 Prosecutrix or to PW2 Ravinder Kumar Sharma, her father, in their entire lengthy crossexamination and are thus afterthought and what has been put to PW1 Prosecutrix is : "It is wrong to suggest that on 30/04/2011 at about 11:30 p.m. my Bhua Sunita brought both my father Ravinder and my uncle Upender in a drunken state and (Upender) struck against the door of the house of Poonam by his leg. It is wrong to suggest that on giving a leg struck against the door of Ms. Poonam by Upender she opened the door on which there was a verbal exchange of words between Poonam and Upender on which the Mohalla people had gathered there. Vol. My father Ravinder had come to the house at about 12:00 a.m. in the night (Bara Bajee Ke Aas Pass). It is wrong to suggest that on seeing the mohalla people we all family members closed the door of our house." AND what has been put to PW2 Ravinder Kumar Sharma, is : "It is wrong to suggest that myself and Upender were in an abriated (inebriated) state and in that state had thrust against the door of a neighbourhood house with feet and had kicked up the quarrels of the occupants living therein. It is wrong to suggest that myself and Upender had quarreled intensely with Poonam and her son Gaurav or that I had made a wrong and false statement against Poonam and her son Gaurav that they had threatened me. It is wrong to suggest that on 30/04/2011 in the afternoon time of 2:00 or 2:30 p.m. I have severely beaten up Gaurav and I had threatened the Poonam, mother of Gaurav."
63 of 97 64 FIR No. 152/11 PS - Vijay Vihar In view of above and in the circumstances, it clearly indicates that DW1 Satpal Singh, DW2 Keshav Dev Sharma and DW3 Laxmi are the procured witnesses and their testimonies do not inspire confidence.
19. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition.
64 of 97 65 FIR No. 152/11 PS - Vijay Vihar Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found : "Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW1 - Prosecutrix in the light of the biological and serological evidence, medical/gynaecological examination on MLC Ex. PW8/A of the prosecutrix and MLC of accused 65 of 97 66 FIR No. 152/11 PS - Vijay Vihar Arvind Ex. PW3/A, as discussed hereinbefore, the act of performing of sexual intercourse activity by complete penetration of the penis with emission of semen or by partial penetration of the penis with emission of semen, within the labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Arvind with PW1 - Prosecutrix without her consent.
20. Learned Counsel for the accused submitted that the information, which was given by PW6 Upender Sharma was to the extent that three boys have gagged the mouth of girl and thereafter had ran away. Though, it was also alleged that all the three boys are familiar, but even at the time of recording of statement of PW6, he did not disclose the name of the said three boys. This witness in fact has stated totally different story from the information given by him to the police by dialing number 100.
I have carefully perused and analysed the entire evidence on 66 of 97 67 FIR No. 152/11 PS - Vijay Vihar the record.
PW4 - Constable Ram Pal Yadav in his examinationin chief has deposed that "On 01/05/2011, I was posted at police station Vijay Vihar as duty officer from 1:00 a.m. to 9.00 a.m. On that day, I received a call at about 2.20 a.m. Night that in house no. 1/42, Harsh Dev Park, Budh Vihar, the mouth of a girl has been pressed and misbehaviour has been done with her. On this call, HC Bhim Singh No. 756 OD alongwith Constable Sunil No. 2360 OD was sent to attend the call".
PW5 HC Bhim Singh in his examinationinchief deposed that "On 01/05/2011, I was posted at police station Vijay Vihar. On that day, I was on emergency duty on that night upto 8.00 p.m. on the previous night. On that day, DD No.9B was received by the duty officer that three boys had gagged the mouth of a girl and ran away from the spot from the house No. A1/42, Harshdev Park, Budh Vihar, PhaseII, Delhi. The attested copy of DD No.9B is Ex. PW5/A and the same was assigned to me".
PW6 Upender Sharma in his examinationinchief deposed that : "I received a phone call from my sister Sunita at about 12:00 a.m. (night) as she was called by my brother Ravinder Sharma from his house and she (Sunita) was residing at Kishan Vihar, Delhi. She (Sunita) 67 of 97 68 FIR No. 152/11 PS - Vijay Vihar insisted upon me to come to the house immediately without narrating any facts to me. I returned to the house immediately after the above call, at about 1:00 a.m. (night). My brother disclosed about the rape committed on my niece prosecutrix (name withheld). I made a call at No.100 to the police, PCR van came at the spot in the meantime, two local police officials also came at the spot".
During his crossexamination, PW6 Upender Sharma has deposed that : "It is correct that I myself called police by dialing at 100 number. The facts disclosed by me at the time of dialing at 100 number were totally correct. My mobile number was 9582367042 at that time. It is correct that I was using the said mobile number on 01/05/2011.
Q.: At the time of making call to the police at no. 100 on 01/05/2011, you had told to the police that three persons came and after gagging the mouth of a girl and run away, who were known as is reflected in Ex. PW5/A. Is it correct?
Ans.: It is incorrect.
(Court Observation : The witness nodded his head in the negative while answering this question.)"
In view of the above, it appears that Learned Counsel for the accused has either not read or misread the evidence of PW6 Upender Sharma. In his entire testimony, PW6 Upender Sharma has not uttered a single word that he gave the information that three boys have gagged the mouth of a girl and thereafter had run away and all the three boys are
68 of 97 69 FIR No. 152/11 PS - Vijay Vihar familiar, regarding which plea has been raised by Learned Counsel for the accused and such facts are attempted to be imputed upon PW6 Upender Sharma as a part of his deposition:
At the cost of repetition, PW6 Upender Sharma in his crossexamination has specifically deposed that "Q.: At the time of making call to the police at no. 100 on 01/05/2011, you had told to the police that three persons came and after gagging the mouth of a girl and run away, who were known as is reflected in Ex. PW5/A. Is it correct?
Ans.: It is incorrect."
In view of the said part of crossexamination of PW6 Upender Sharma, disowning the content of DD No.9B Ex. PW5/A, it was expected that he was to be crossexamined as to "contents of call made to the Police" by dialing no. 100, which accused failed to do. For such failure, accused is to blame himself and none else.
It is a settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstances, there is no substance in the plea, so
69 of 97 70 FIR No. 152/11 PS - Vijay Vihar raised by Learned Counsel for the accused.
21. Learned Counsel for the accused submitted that there is delay of more than 24 hours in recording of the FIR, which itself creates doubt about the actual happening of the incident. Moreover, there is no explanation given by the prosecutrix as to why the FIR was not lodged immediately. If the girl was actually raped, why she did nto call to the police immediately or why she did not call anyone from the neighbourhood or any of her family members immediately after the incident, why she remained quite for more than 12 hours. This itself creates strongest doubt about the genuineness of the alleged incident.
I have carefully perused and analysed the entire evidence on the record.
At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW1 Prosecutrix, which reads as under :
"On 30/04/2011, I was present in the above house alongwith my younger brother Kapil aged around six years. At about 7:30 a.m. in the morning my father had gone to leave my mother and younger brother 70 of 97 71 FIR No. 152/11 PS - Vijay Vihar Lalit at Metro Station Rithala as they were to go Shahdara at the house of my maternal grandmother (Nani) and thereafter my father had gone to his workplace/factory. At about after completing the house hold work at about 12:00 noon, I had started washing the clothes in the gallery of my house. At the time from the upper side i.e. Roof one boy named Arvind comes. The roof of my house and the roof of the adjacent house are parallel to each other from where Arvind came. The adjacent house is the house of sister of Arvind. I saw Arvind when he had just come on the back of me. When I saw Arvind, I asked him Mamaji what are you doing here. As the neighbour children called Arvind as mama so I used to call him as Mama on which Arvind told there is nothing but he is standing just like that. I asked Arvind to go from there. On which Arvind told that is just standing like that and will not say anything. At the time, my younger brother Kapil had gone in the back gali for cycling and at that time my no other family member was present. Thereafter I forcibly pushed Arvind to in order to get him away from that place and stating that by this time none of my family member is present at home. On which Arvind told that he has come knowing that none of your family member is present in the house. When I again forcibly pushed Arvind in order to get him away from there but Arvind bolted the kundi of the gate of my house from inside. Thereafter I called a lady in the neighbourhood calling Auntiji Auntiji but no response came from there. Thereafter Arvind forcibly after picking me up took me in the inside room and thrown me on the bed. When I start crying and raising alarm he tied my mouth with my chuni and he forcibly caught hold of me with his hands and put off his clothes as well as of my clothes. In such a forceful catching hold of me I couldn't do anything and thereafter he started kissing me (chumne laga). Then he took out his penis and inserted into my vagina and committed rape intercourse upon me.
71 of 97 72 FIR No. 152/11 PS - Vijay Vihar Thereafter on hearing the sounds of the engine of my father's bike (motorcycle) Arvind fled away using the staircase from the roof side after opening the kundi of the main gate of my house. My father though came and stopped in front of house but he gone straight and thereafter had come to the house at about 10.00 p.m. When my father came I narrated the whole incident to him. Then my father went to the house of auntiji i.e. Sister of Arvind in the neighbourhood and told her that her younger brother Arvind has committed 'galat kaam' with his daughter. My father had taken drinks (mere papa ne drink kar rakhi thi). Sister of Arvind and her elder son forcibly dominated my father (mere papa par char bethe) and they had also called of many persons. Thereafter my father went to the house of my buaji (my father's sister) and told the entire incident to my bua and my chachaji (uncle) namely Upender. My uncle Upender informed the police at no.100 on which the police reached. Police recorded my statement. My statement is Ex. PW1/A, same is signed by me at point 'A'."
PW6 Upender Sharma in his examinationinchief deposed that : "I received a phone call from my sister Sunita at about 12:00 a.m. (night) as she was called by my brother Ravinder Sharma from his house and she (Sunita) was residing at Kishan Vihar, Delhi. She (Sunita) insisted upon me to come to the house immediately without narrating any facts to me. I returned to the house immediately after the above call, at about 1:00 a.m. (night). My brother disclosed about the rape committed on my niece prosecutrix (name withheld). I made a call at 72 of 97 73 FIR No. 152/11 PS - Vijay Vihar No. 100 to the police, PCR van came at the spot in the meantime, two local police officials also came at the spot".
PW4 - Constable Ram Pal Yadav is the Duty Officer who in his examinationinchief has deposed which is reproduced and reads as under : "On 01/05/2011, I was posted at police station Vijay Vihar as duty officer from 1:00 a.m. to 9.00 a.m. On that day, I received a call at about 2:20 a.m. night that in house no. 1/42, Harsh Dev Park, Budh Vihar, the mouth of a girl has been pressed and misbehaviour has been done with her. On this call, HC Bhim Singh No. 756 OD alongwith Constable Sunil No. 2360 OD was sent to attend the call. In the meantime, on the direction of the SHO, on the nature of the call one sub inspector Ramesh Thakur was also sent for the call. At about 2:40 a.m. I received a call that the matter pertains to a girl therefore, a lady constable or a lady HC whosoever is available be also sent. On which Lady HC Sita Devi was sent to the spot. At about 8.20 a.m. I received a therir sent by SI Ramesh Thakur through constable Sunil on the basis of which I got recorded formal FIR through computer operator copy of which is Ex. PW4/A signed by me at point A. (OSR). I have also made endorsement on the their at point X signed by me at point B mentioning kayami DD no.8A regarding registration of the FIR. After registration of the FIR, copy of FIR and therir was handed over to constable Sunil for its onward transmission to SI Ramesh Thakur for further investigation".
There is nothing in the crossexamination of said PWs so as to impeach their creditworthiness. From the testimony of PW1 -
73 of 97 74 FIR No. 152/11 PS - Vijay Vihar prosecutrix and PW6 - Upender Sharma, the delay in reporting the matter to the police vide Ex. PW1/A stands sufficiently and satisfactorily explained.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P. (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything 74 of 97 75 FIR No. 152/11 PS - Vijay Vihar without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held "13. It is settled law that the victim of sexual assault is not 75 of 97 76 FIR No. 152/11 PS - Vijay Vihar treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or 76 of 97 77 FIR No. 152/11 PS - Vijay Vihar a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
22. Learned Counsel for the accused submitted that PW1 has deposed that, "After entering in my house, when accused tried to rape her, she pushed him in order to get him away from that place, stating that by this time, none of the family member was present at the home. She has also stated that, "Thereafter I called a lady in the neighbourhood calling 'Auntiji Auntiji', but no response came from there. Thereafter, Arvind forcibly after picking me up took me inside the room and thrown me on the bed. When I started crying and raising alarm, he tied my mouth with my Chunni and forcibly caught hold of her with his hands and put off his clothes as we as of my clothes and thereafter committed intercourse upon me". Learned Counsel for the accused submitted that, as per MLC, there is no injury at all on the mouth, or at any other place 77 of 97 78 FIR No. 152/11 PS - Vijay Vihar of body of the prosecutrix. Hence, the version of the prosecutrix is totally doubtful in nature.
I have carefully perused and analysed the entire evidence on the record.
The testimony of PW1 Prosecutrix has been reproduced, discussed, analysed hereinabove and same is found to be natural, clear, cogent, reliable, and inspiring confidence. Her version on the core spectrum of the crime has remained intact.
PW8 Dr. Shimpi Goel, SR Gynae, who proved the gynachological examination of the prosecutrix, as was conducted by Dr. Sweta Aggarwal vide MLC Ex. PW8/A, signed by her at point 'A', in her examinationinchief has deposed that :
"The patient was examined locally and as per examination hymen was torn, posterior lateral (old tear). No evidence of any external injury visible neither any scratch over genetic (genitalia) area or other body parts. No bleeding per vagina or no discharge per vagina. Anal opening intact. As per vaginal examination, patient is allowing examination by two fingers".
Emission of semen or leaving of seminal stains or producing 78 of 97 79 FIR No. 152/11 PS - Vijay Vihar of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
23. Learned Counsel for the accused submitted that during her 79 of 97 80 FIR No. 152/11 PS - Vijay Vihar crossexamination, PW1 has stated that, "It is correct that I had told the police that three boys had come who had pressed my mouth and fled away. She further stated that, "It is correct that I had told to the PCR police that I knew those three boys but had not told their names and addresses". This itself shows that no rape was committed upon the prosecutrix. Moreover, this is also not the version of the prosecution that for any reasonable or immediate reason, the prosecutrix did not disclose the actual facts, if any.
I have carefully perused and analysed the entire evidence on the record.
Learned Counsel for the accused failed to show in what manner and as to what benefit he intends to reap from the said part of crossexamination of PW1 prosecutrix, when the prosecution case is otherwise proved on record by the clear, cogent and convincing evidence. The version of PW1 prosecutrix on the core spectrum of the crime has remained intact.
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
80 of 97 81 FIR No. 152/11 PS - Vijay Vihar
24. Learned Counsel for the accused submitted that PW2 Sh. Ravinder Kumar Sharma, who is father of the prosecutrix, stated in his examination in chief that, "When I came to my house again at about 10:30 p.m. in the night and I was told by my daughter prosecutrix (name withheld) about the whole incident. On hearing which I felt some unconsciousness and got perplexed as I am a sugar patient". It is totally contrary to the version of PW1, who has not stated any such thing at all.
I have carefully perused and analysed the entire evidence on the record.
On careful perusal and analysing the testimony of PW2 Ravinder Kumar is found to be natural, clear, reliable and having a ring of truth. He has deposed the facts, which he experienced and observed. His testimony has been corroborated by PW1 Prosecutrix in material particulars.
In case Leela Ram Vs. State of Haryana, (1999) 9 SCC 525, the Hon'ble Supreme Court of India in case has observed that, there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with 81 of 97 82 FIR No. 152/11 PS - Vijay Vihar mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of 82 of 97 83 FIR No. 152/11 PS - Vijay Vihar the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
83 of 97 84 FIR No. 152/11 PS - Vijay Vihar
25. Learned Counsel for the accused submitted that PW5 HC Bhim Singh Daggar, who reached at the spot, has been confronted with his crossexamination on the point that W/Ct. Sita Devi had also reached the spot, where they came to know that prosecutrix has been raped. On the statement of the prosecutrix an endorsement was made by SI Ramesh Thakur. At the instance of prosecutrix, a bed sheet was recovered which was lying on the bed at the time of commission of the alleged offence from the house. The accused was arrested at the instance of prosecutrix and after his arrest, the arrest memo and personal search was prepared. Thus, it is very much clear that this witness is false and planted and there is why, he has material involvement regarding all the material proceedings.
I have carefully perused and analysed the entire evidence on the record.
During his crossexamination, PW5 HC Bhim Singh has deposed "My statement was recorded in this case on 01/05/2011. I had stated in my statement to the IO that W/Constable Sita Devi had also 84 of 97 85 FIR No. 152/11 PS - Vijay Vihar reached to the spot. (Confronted with the statement Mark PW5/DA where it is not so recorded). I had stated in my statement to the IO that on inquiry, we came to know that prosecutrix (name withheld) has been raped. (Confronted with the statement Mark PW5/DA where it is not so recorded). I had stated in my statement to the IO that on the statement of the prosecutrix and endorsement was made by SI Ramesh Thakur. (Confronted with the statement Mark PW5/DA where it is not so recorded). I had stated to the IO in my statement that at the instance of the prosecutrix a bed sheet was recovered which was lying on the bed at the time of the commission of the offence from the house (Confronted with the statement Mark PW5/DA where the words which was lying on the bed at the time of the commission of the offence from the house are not mentioned. I have stated in my statement to the IO that accused Arvind was arrested from house No. A1/42 Harshdev Park situated in front of the house of the prosecutrix by the IO. (Confronted with the statement Mark PW5/DA where it is not so recorded). I had stated to the police in my statement that after the arrest of accused his arrest memo and personal search memo was prepared by the IO. (Confronted with the statement Mark PW5/DA where it is not so recorded)".
The said discrepancies do not reflect upon the substantive evidence and the probative value of the statement of PW1 Prosecutrix made on material and relevant aspects. No do they vitiate or negate the case of the prosecution, which is otherwise proved on record by the clear, cogent and convincing evidence. Further it is to be noticed that the 85 of 97 86 FIR No. 152/11 PS - Vijay Vihar testimony of PW5 - HC Bhim Singh remained consistent on the factum of recovery of a bed sheet at the instance of the prosecutrix. The version of PW1 - prosecutrix on the core spectrum of the crime has remained intact.
In a case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
26. Learned Counsel for the accused submitted that PW6 Sh. Upender Sharma, who called the police and during his cross 86 of 97 87 FIR No. 152/11 PS - Vijay Vihar examination, he has stated that the facts disclosed by him at the time of dialing no. 100 were totally correct. Learned Counsel further submitted that the information, which was given by him to the police was that three persons have gagged the mouth of the girl. Thus, it is clearly and conclusively proved that no rape was committed upon the prosecutrix, which is duly supported by the oral evidence of PW6 and medical evidence, because PW8 Dr. Shimpi Goel has deposed that "When the patient was brought for examination, there was no evidence of any external injury visible, neither any scratch over genetic area or other body parts. No bleeding per vagina or no discharge per vagina. Anal opening intact. As per her vaginal examination, patient is allowing examination by two fingers". This itself shows that there was no forcible intercourse at all because if there was any intercourse actually, then either bleeding or discharge must be present over there.
I have carefully perused and analysed the entire evidence on the record.
The plea so raised has been dealt in detail with herein above and does not call for any further discussion.
87 of 97 88 FIR No. 152/11 PS - Vijay Vihar In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
27. Learned Counsel for the accused submitted that PW6 Upender Sharma stated during his crossexamination that, "Statement of prosecutrix was not recorded by any police official in my presence. PCR officials had formally interrogated the prosecutrix in my presence. PCR officials had recorded statement of the prosecutrix. Again said PCR officials have not recorded statement of prosecutrix". The version of this witness is totally contrary to the version of the police officials. He has also stated that, "It is correct that no conversation took place between me and my niece (the prosecutrix) after my reaching at my brother's house. It is correct that neither my brother nor my sister nor my niece prosecutrix made call to the police before I made the call to the police at 100 number". It clearly shows that after hatching a conspiracy, the accused has been falsely implicated in the present case.
I have carefully perused and analysed the entire evidence on the record.
88 of 97 89 FIR No. 152/11 PS - Vijay Vihar The investigational evidence is also on the record. The testimony of PW6 Upender Sharma has been discussed hereinabove. Learned Counsel for the accused failed to explain as to how and in what manner, the testimony of PW6 Upender Sharma is contrary to the version of police officials. Learned Counsel for the accused has failed to refer to evidence of any police officials in this regard.
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
28. Learned Counsel for the accused submitted that PW9 Constable Sunil Kumar, who has stated that he visited the spot and accused was arrested in his presence and during his crossexamination, he stated that, "It is correct that no disclosure statement of accused was recorded in my presence in this case. It is correct that no statement of Bua of the prosecutrix was recorded in my presence. I cannot say whether statement of anyone was not recorded in my presence".
I have carefully perused and analysed the entire evidence on the record.
89 of 97 90 FIR No. 152/11 PS - Vijay Vihar PW9 Constable Sunil Kumar in his examinationinchief has deposed that "On 01/05/2011, I was posted at police station Vijay Vihar. On that day at about 2:21 a.m. (night) a call was received that 34 boys after having gagging the mouth of a girl had run away from the spot from the house No. A1/42, Harshdev Park Budh Vihar, PhaseII, Rohini. On receipt of this call, I alongwith HC Bhim Singh reached the house No. A1/42, Harshdev Park, Budh Vihar, PhaseII Rohini. In the meantime, SI Ramesh Thakur also reached there. SI Ramesh Thakur made inquiries from the girl and her Bhua. The girl was sent with WHC Sita for medical examination and the Bhua of the girl also accompanied her. At about 8:00 a.m. in the morning SI Ramesh Thakur handed over a therir to me for the purpose of getting the case registered. At about 8:20 p.m. in reached at the police station and handed over the their (tehrir) and after getting the case registered with the copy of FIR and the therir I had reached at the said house at A1/42, Harshdev Park Budh Vihar, Phase II Rohini and handed over the therir and copy of FIR to the IO SI Ramesh Thakur. At about 1:00 p.m. at the instance of the girl/prosecutrix accused Arvind Kumar was arrested vide arrest memo Ex. PW9/A which is signed by me at point A. I can identify the accused if shown to me. Accused present in the Court. His personal search was conducted vide memo Ex. PW9/B which bears my signature at point 'A'. The girl/prosecutrix also signed the arrest memo at point 'B' and also signed the personal search memo at point 'B'."
In his crossexamination, PW9 Constable Sunil has deposed that 90 of 97 91 FIR No. 152/11 PS - Vijay Vihar "It is correct that no disclosure statement of accused was recorded in my presence in this case. It is correct that no statement of Bhua of the prosecutrix was recorded in my presence. I cannot say whether statement of anyone was not recorded in my presence. Vol. Inquiries were done by the IO to the prosecutrix and her Bhua in my presence. It is incorrect to suggest that I never joined investigation in this case or that I have signed different documents at the police station at the instance of the IO. It is wrong to suggest that no rukka was handed over to me by the IO. It is further wrong to suggest that the entire proceedings were conducted by the IO at the police station. It is wrong to suggest that accused has been falsely implicated and arrested by IO in this case. It is further wrong to suggest that I am deposing falsely".
The testimony of PW9 Constable Sunil is found to be clear, cogent, convincing, trustworthy and inspiring confidence.
It is not made clear as to what benefit Learned Counsel for the accused intends to reap by raising the said plea.
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
29. Learned Counsel for the accused submitted that PW15 Smt. Sunita is Bua of the prosecutrix and her entire evidence is hearsay in nature. Moreover, during her crossexamination, she has stated that Upender had told to the police the facts, which was told by prosecutrix.
91 of 97 92 FIR No. 152/11 PS - Vijay Vihar The entire facts and incident, were told to Upender by prosecutrix before Upender made call to the police. If it is true, then no rape was committed upon the prosecutrix, because no such fact was disclosed by Upender at the time of dialing no.100.
I have carefully perused and analysed the entire evidence on the record.
It appears that Learned Counsel for the accused has either not read or misread the evidence of PW1 Prosecutrix, PW2 Ravinder Kumar Sharma, PW6 Upender Sharma and PW15 Smt. Sunita.
PW1 Prosecutrix in her examinationinchief has deposed that : "My father though came and stopped in front of house but gone straight and thereafter had come to the house at about 10:00 p.m. When my father came I narrated the whole incident to him".
"Thereafter my father went to the house of my buaji (my father's sister) and told the entire incident to my bua and my chachaji (uncle) namely Upender. My uncle Upender informed the police at No. 100 on which the police reached. Police recorded my statement. My statement is Ex. PW1/A. Same is signed by me at point 'A'."
92 of 97 93 FIR No. 152/11 PS - Vijay Vihar PW2 Ravinder Kumar Sharma in his examinationinchief has deposed that : "Then I came to my house again at about 10:30 p.m. in the night and I was told by my daughter prosecutrix (name withheld) about the whole incident".
PW6 Upender Sharma in his examinationinchief has deposed that : "My brother disclosed about the rape committed on my niece prosecutrix (name withheld)".
PW15 Ms. Sunita in her examination in chief has deposed that : "I made inquiries from my niece prosecutrix (named withheld) d/o. Ravinder and she told me that accused Arvind has committed Galat Kaam (rape) with her (Objected to being a hearsay)".
The testimony of PW1 Prosecutrix is also corroborated by PW2 Ravinder Kumar Sharma, PW6 Upender Sharma and PW15 Ms. Sunita, to whom PW1 Prosecutrix disclosed the facts relating to the crime, shortly after the incident at the first available opportunity, being relevant u/s 6 & 8 of the Indian Evidence Act, 93 of 97 94 FIR No. 152/11 PS - Vijay Vihar 1872.
Although, I have discussed hereinabove in detail regarding the plea raised about DD no. 9B Ex. PW5/A. However at the cost of repetition, PW6 Upender Sharma in his crossexamination has specifically deposed that :
"Q.: At the time of making call to the police at no. 100 on 01/05/2011, you had told to the police that three persons came and after gagging the mouth of a girl and run away, who were known as is reflected in Ex. PW5/A. Is it correct?
Ans.: It is incorrect."
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
30. Learned Counsel for the accused submitted that the entire area where the alleged offence has been stated to be committed, is a thickly populated area, but no one from the neighbourhood came in support of the prosecutrix. Moreover at the time of recording of defence evidence, neighbours have stated no allegations of any rape, committed upon the prosecutrix.
94 of 97 95 FIR No. 152/11 PS - Vijay Vihar I have carefully perused and analysed the entire evidence on the record.
PW16 SI Ramesh Thakur, IO, in his crossexamination has deposed that : "I made inquiries in the neighbourhood of the place of incident but nobody came forward".
Nonjoining of the public witnesses does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
In State of Government of Delhi Vs. Sunil & Ors. 2000 VIII AD (SC) 613 it was held by the Hon'ble Supreme Court that the legal obligation to call independent and respectable inhabitants of the 95 of 97 96 FIR No. 152/11 PS - Vijay Vihar locality to attend and witness the exercise made by the Police is cast on a Police officer when searches are made under chapter VII of the Code of Criminal Procedure and not for discovery under Section 27 of the Indian Evidence Act.
In the circumstances, there is no substance in the plea, so raised by Learned Counsel for the accused.
31. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 30/04/2011, at about 12:00 noon at the house of PW1 prosecutrix i.e. House No. A1/42, Harsh Dev Park, Budh Vihar,Phase - II, Delhi, accused Arvind forcefully raped the prosecutrix, aged around 14 years (to be exact 14 years, 09 months and 27 days) without her consent and against her will.
I accordingly hold accused Arvind guilty for the offence punishable u/s 376 IPC and convict him thereunder.
32. In view of above discussion, I am of the considered opinion 96 of 97 97 FIR No. 152/11 PS - Vijay Vihar that as far as the involvement of the accused Arvind in the commission of the offence u/s 376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Arvind beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused Arvind. I, therefore, hold accused Arvind guilty for the offence punishable u/s 376 IPC and convict him thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) Additional Sessions Judge th on 25 Day of September, 2013 Special Fast Track Court (N/W District), Rohini, Delhi 97 of 97