Delhi District Court
State vs Vijay Kumar on 6 July, 2012
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.49/1/10
FIR No.203/10
U/s 363/366/376 IPC
PS Najafgarh
State
Vs.
Vijay Kumar S/o Sh.Babu Ram
.......... Accused
Challan filed on : 14.08.2010
Reserved for Order on : 02.06.2012
Judgment delivered on : 08.06.2012
JUDGMENT
The Brief conspectus of facts are that on 08.05.2010 Smt. Rita Devi w/o Kamal Singh reached in PS Najafgarh and got recorded her statement Ex.PW7/A alleging that she is resident of H.No.41 Gopal Nagar Extension, Najafgarh and they are running halwai shop near patrol pump. Her daughter Sweety who is aged about 15 years is student in Swami Dayanand Adarsh Vidyalya had gone to school at about 8 a.m but she did not return home. She verified from the school and came to know State Vs.Vijay Kumar FIR no.203/10 Page No. 1 of 33 that her daughter had got down from the van at their shop. At their shop Vijay who used to work at the shop was present. He has further alleged that Vijay has also gone missing from the shop. She suspects that Vijay had taken away her daughter Sweety after enticing and alluring her. She may kindly be searched. On this statement IO made his endorsement Ex.PW13/A and got the case registered.
2. It is further the case of the prosecution that during investigation date of birth proof was obtained from the school. Wireless messages were flashed. On 14.05.2010 Kamal Singh, father of the prosecutrix received call on his mobile from some unknown person who informed that his daughter is at Bhatinda. It is further the case of the prosecution that thereafter raiding party was constituted and reached Bhatinda with father of prosecutrix from where on 15.05.2010 accused Vijay and Sweety were recovered and brought to Delhi.
3. It is further the case of the prosecution that the prosecutrix was medically examined and exhibits were sealed and seized and case property was deposited in the malkhana. The accused was arrested. The statement of the prosecutrix u/s 164 Cr.PC was got recorded which is Ex.PW10/A. After completion of the investigation challan was filed. State Vs.Vijay Kumar FIR no.203/10 Page No. 2 of 33
4. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by this court on 08.10.10.
5. The charge against accused was framed u/s 363/366/376 IPC by my Ld. Predecessor Ms. Ravinder Kaur, the then Ld. ASJ to which the accused pleaded not guilty and claimed trial.
6. The prosecution in all has examined as many as 15 witnesses. PW1 HC Giri Raj is the duty officer who recorded the FIR Ex.PW1/A.
7. PW2 Ct.Anil Kumar has deposed that he took the sealed pullandas to FSL Rohini Vide RC no.54/21.
8. PW3 W/Ct Neetu has deposed that she took the prosecutrix for medical examination at DDU Hospital and after medical examination she collected three sealed pullandas which were seized vide memo Ex.PW3/A.
9. PW4 Ct.Jai Pal has deposed that he took the accused to DDU Hospital for medical examination and after medical he collected the blood samples and sample seals which he handed over to IO vide State Vs.Vijay Kumar FIR no.203/10 Page No. 3 of 33 seizure memo Ex.PW4/A.
10. PW5 Dr.Namita Gupta has deposed that she had examined Sweety aged 16 years with alleged history of sexual intercourse. She took the vaginal swab slides, pubic hair and undergarments. The MLC of the patient is Ex.PW5/A.
11. PW6 Dr. Y.N.Maurya has deposed that on 17.05.2010 he examined the accused Vijay Kumar and prepared his MLC Ex.PW6/A.
12. PW7 Rita Devi has deposed that prosecutrix is her daughter and aged about 15 years. On 07.05.2010 her daughter went to Swami Dayanand Adarsh Vidyalya where she was studying in 5th but she did not return. She went to school but she could not be searched and she came back. At about 5 p.m, driver of van told her that he had seen her daughter going with accused Vijay and that she got down from the van near their shop where the accused was working. The accused was also missing from the shop. She suspected that her daughter had been taken away by him after enticing her. She lodged complaint Ex.PW7/A.
13. PW8 Sweety is the prosecutrix. She has made allegation against the accused and stated that the police has recorded her statement State Vs.Vijay Kumar FIR no.203/10 Page No. 4 of 33 which is Ex.PW8/A.
14. PW9 HC Rakesh Kumar is the MHCM and he has deposed that he made entries in register no.19 which are Ex.PW9/A and copy of RC no.54/21 is Ex.PW9/B.
15. PW10 Ms. Rekha, Ld. ACJ has deposed that she recorded the statement of prosecutrix Sweety u/s 164 Cr.PC which is Ex.PW10/A
16. PW11 Kamal is the father of the prosecutrix and she has deposed that his daughter went to school but she did not return to home. He handed over the birth certificate of his daughter to the police wherein her date of birth is mentioned as 22.12.1994. He has further stated that his daughter was recovered and she disclosed that she was allured by Vijay who was working in his sweet shop. His daughter disclosed that she was taken away by accused to Bhatinda where she was raped by him. She disclosed that she was taken away by accused on the pretext of marriage and he used to threaten her.
17. PW12 Smt. Sudesh is the Principal of Swami Dayanand Adarsh Vidyalya and she has deposed that she had issued certificate regarding date of birth of Sweety who was admitted in school on 9.4.08 State Vs.Vijay Kumar FIR no.203/10 Page No. 5 of 33 vide entry Ex.PW12/A in class 2nd vide admission form Ex.PW12/B. The photocopy of the the birth certificate issued by MCD is Ex.PX showing date of birth as 22.12.1994 and original certificate issued by her is Ex.PW12/C.
18. PW13 SI Surender Singh is the first IO of this case who has stated that Smt.Rita came to PS on 8.5.2010 and gave her statement Ex.PW7/A regarding missing of her daughter Sweety on 7.5.2010 and she suspected that Sweety had been taken away by Vijay. He made endorsement Ex.PW13/A and got FIR no.203/10 recorded. He gave wireless message and filled up the forms of missing persons and tried to search them. He has further deposed that on 14.05.2010 father of prosecutrix came to PS and informed that he had received a call on his mobile phone from some unknown person who informed that his daughter is in Bhatinda. Thereafter a raiding party was organized and went to Bhatinda for recovery of the prosecutrix. He has further deposed that on 15.5.2010 they returned and he was informed that the prosecutrix was recovered from a house in Bhatinda. She was medically examined. He seized the exhibits vide memo Ex.PW3/A. He deposited the case property in malkhana.
19. PW14 Ct. Parvesh Kumar has deposed that accused Vijay State Vs.Vijay Kumar FIR no.203/10 Page No. 6 of 33 Kumar was arrested on 16.05.2010 vide memo Ex.PW14/A and his personal search was conducted vide memo Ex.PW14/B.
20. PW15 ASI Sudesh has deposed that on 16.05.2010 further investigation was entrusted to him and accused Vijay was already present in the PS under the custody of Surender Hudda. He interrogated the accused and then arrested him vide memo Ex.PW14/A. He sent the accused to DDU Hospital where he was medically examined and his MLC is Ex.PW6/A. He seized the exhibit vide memo Ex.PW4/A. On 16.05.2010 he moved an application Ex.PW15/A and got the statement of the prosecutrix u/s 164 Cr.PC recorded which is Ex.PW10/A. He sent the exhibits to FSL. He filed the FSL result on record which is Ex.PW15/D.
21. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case by the parents of the girl in connivance with the police. He was confined by the parents in their house and later on they handed over him to the police. Thereafter the case was fixed for final arguments.
22. I have heard the Ld. APP for the State as well as Ld. counsel State Vs.Vijay Kumar FIR no.203/10 Page No. 7 of 33 for the accused. Ld. APP for the State has submitted that the main star witness of the prosecution i.e. PW8 Sweety has supported the case of the prosecution including other police official witnesses and the statement of the prosecutrix is consistent through out her testimony that the accused is the perpetrator of the crime against her. She has also submitted that the prosecutrix was minor in this case. So, the accused be convicted accordingly.
23. Per contra, Ld. Defence counsels had stated that prosecutrix had made inconsistent statement before the court and there are many material contradictions in her statement. Her statement cannot be relied upon for conviction of accused. Ld. Counsel further argued that it is cardinal rule of evidence that a person cannot be held guilty on mere probabilities. Evidence of witness or circumstances surrounding the incident should in a definite tendency and unerringly point towards the guilt of the accused. It has been submitted that the deposition of prosecutrix is full of material contradictions and the prosecution has failed to prove its case beyond reasonable doubt. Ld. Counsel submitted that even the arrest of accused in this case is not proved and there is no evidence on record to show that police officials had visited Bhatinda to bring back the prosecutrix and absence of examination of the person who had allegedly made call to the father of the prosecution would be fatal for State Vs.Vijay Kumar FIR no.203/10 Page No. 8 of 33 the case of the prosecution. It has been prayed that accused may kindly be acquitted
24. Analyzing the testimonies of witnesses, it is revealed that PW8 Sweety is the victim, PWPW7 Rita Devi is the complainant/mother of prosecutrix and PW11 Kamal is the father of the prosecutrix and they are the main star witness of the prosecution. Charge has been framed in this case u/s 363/366/376 IPC. Considering the evidence available on file, the most important evidence to be looked into is the age of the prosecutrix at the time of her alleged rape because her age plays a decisive role in relation to the charge framed in this case u/s 376 IPC. Sec.375 contemplates: Rape - A man is said to commit rape who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First - Against her will.
Secondly - Without her consent Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is State Vs.Vijay Kumar FIR no.203/10 Page No. 9 of 33 another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
25. In rape cases, the court must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. According to section 375 IPC there should be material to establish that either the alleged marriage or intercourse has taken place without the consent of the girl, if she is above the age of 18 years or 16 years as the case may be. Section 375 IPC has now two sub sections, namely sub section (1) and sub section (2) and for the offence of rape committed by the accused as specified in sub section (1) is different from that provided under sub section (2) of section 375 IPC. Therefore, there is an essential difference between the offences under sub State Vs.Vijay Kumar FIR no.203/10 Page No. 10 of 33 section (1) and those under sub section (1) of section 375 IPC. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence.
26. So, in view of the definition of section 375 IPC, I have given my thoughtful consideration on the testimony of PWS. In rape cases the age of the prosecutrix is of material importance. In the present case in hand, the prosecution has examined PW12 Smt. Sudesh to prove the age of the prosecutrix. She is a Principal from Swami Dayanand Adarsh Vidyalya village Mitraon. She has stated that proxecutrix Sweety was admitted in school and her date of birth certificate issued by MCD is Ex.PX. I have perused the same. In the said photocopy of certificate, the date of birth of the prosecutrix is mentioned as 22.12.1994. Though this certificate has not been proved by the prosecution by calling any witness from the office of Registrar of Birth and Deaths, but since the date of birth of the prosecutrix is mentioned in the school record as 22.12.94 which would be have recorded only after verification of original certificate, I take the same into consideration. The present case incident is dated 07.05.2010. Therefore the age of the prosecutrix as on the date of incident was about 15 years 5 months. The prosecutrix has deposed her age in the MLC as 16 years. She has also stated her age as 15 years before the Ld. MM when her statement u/s 164 Cr.PC was recorded. State Vs.Vijay Kumar FIR no.203/10 Page No. 11 of 33 From the deposition of prosecutrix as well as in consideration of the date of birth certificate issued by M.C.D., it can be safely held that at the time of present case incident, the prosecutrix was minor and below 16 years of age.
27. Reverting back to the deposition of main star witnesses, firstly I have considered the statement of PW7 Rita Devi, mother of the prosecutrix. She has stated that her daughter aged about 15 years went to school on 7.5.2010 at about 8 a.m but she did not return home. She went to find her but could not search. She came to know from the driver of van her daughter was seen by him going with accused Vijay. She has further stated that accused was also missing from the shop and she suspects that accused had taken her away. PW7 has not been cross examined by the Ld. Defence counsel despite giving opportunity. So, her statement remained unchalleged and unrebutted. PW11 Kamal is the father of the prosecutrix and he has also corroborated the testimony of PW7 regarding going of his daughter to school and that she did not return back home. He has also stated that later his daughter was recovered and she disclosed that she was allured and used by Vijay who was working in his sweet shop. He has also stated that prosecutrix was taken to Bhatinda by the accused. No suggestion has been put to PW11 by the Ld. Defence counsel that accused Vijay was not working in the State Vs.Vijay Kumar FIR no.203/10 Page No. 12 of 33 shop of PW11 Kamal. The fact about working in the shop of father of prosecutrix has been admitted by the accused in his statement recorded u/s 313 Cr.PC in the following manner.
Q5 It is further in evidence against you that you were working in the sweet shop of the father of the prosecutrix Sweety and you allured her. What have you to say?
A It is correct that I was working in the sweet shop of the father of the prosecutrix but it is wrong that I allured her.
28. It is therefore admitted fact that prosecutrix and accused Vijay were knowing each other.
29. PW8 Sweety is the prosecutrix. She has stated in her statement recorded before the court that she does not recollect the date but it was in the month of May 2010, she was studying in class Vth in Adarsh Vidyalya. On that day she had left her house for school at 8 a.m After her school was off, she was present outside her school and the accused Vijay present in the court, correctly identified, was already present there who used to work at the shop of his father. He took her to the shop of his father where no one else was present and thereafter, he made her sit in a bus. Thereafter, the accused had changed 34 buses, then she was taken in a rickshaw and then boarded in a train from a station. Accused took her to Bhatinda, Punjab. She was told by the accused himself that the said place was Bhatinda. Accused bought new State Vs.Vijay Kumar FIR no.203/10 Page No. 13 of 33 clothes and bangles for her. Accused had also put sindoor in her 'maang' and thereafter accused did 'ganda kaam' with her. Q. What do you mean by 'ganda kaam' A. Accused had put his urinary organ into my urinary organ 'usne apne peshaab wala mere peshaab wali mein dala'.
30. The prosecutrix has further stated that accused did the same 'ganda kaam' with her 34 times. Accused had used wrong words for her parents by saying that they were indulging in wrong activities. Accused had also put one 'taabiz' in her neck. Accused had also threatened her to be killed and had also abused her. She has further stated that accused had told her while taking her away that he would marry her.
31. The prosecutrix has further stated that she was brought back to Delhi by her father who was accompanied by the police after about 89 days. She had narrated the entire facts to her father and to the police. She was got medically examined by the police. Her statement was recorded in the court. The statement u/s 164 Cr.PC is Ex.PW8./A.
32. In Cross examination she has stated that she used to go to school in van. She boarded the school van after the school was off and got down near her shop where the accused met her. Accused met her State Vs.Vijay Kumar FIR no.203/10 Page No. 14 of 33 outside the school before she boarded the school van and met her teacher and spoke to her. She boarded her school van and when it reached near their shop, it was got stopped by the accused and she was made to get down on the pretext that her mother had gone to Zafarpur and she had told him that she should get down at the shop of her father. Accused never visited her school to take her back . They stayed outside the shop for about 2 hours Vol. Thereafter accused made her to sit in the bus. One another person namely Vijay had visited their shop during that period and he had samosa and went away. Thereafter accused Vijay told her to accompany him to Punjab to which she refused and she told him that she would got to her house and at this accused gave her 23 slaps and told her to accompany him. Thereafter accused forcibly made her to sit in the bus against her wish. There is no bus stand in front of their shop. VOL. The bus stand is at some distance from their shop. The accused got one bus stopped and took her on the bus. She had not raised any alarm in the bus though there were number of passengers present in the bus as the accused had threatened her to beat again (chante maregaa( if she had raised alarm. They got down from the said bus at Subzi Mandi and from their they boarded in another bus for Punjab they had changed three buses and also boarded in a rickshaw. They reached Punjab at about 89 a.m. They boarded in rickshaw in Punjab. They had not spoken with each other in rickshaw. From there she was taken to one house by accused State Vs.Vijay Kumar FIR no.203/10 Page No. 15 of 33 where one lady who was sister of accused was present. She was told by the accused himself that the said lady was his sister. She had not spoken to the sister of accused. They stayed there for 9 days. Accused used to go out from the said house for doing the job of wood at some shop at about 3 p.m and used to return at 5 p.m. Accused used to tell her before going to the job of wood that he was going to some shop for his work. The sister of accused remained with her whole the day. She told the sister of accused that she was brought by accused and at this she replied that her brother is not a good man (ye ganda aadmi hai). Further Volunteered she had also told one lady who was residing in a neighbourhood of sister of accused that she was brought there by accused forcibly. At this, the said lady told her to live with accused there. VOL. Accused had taken her to one room situated near the house of his sister, to show her said room as he wanted to take that room on rent. The accused had taken her to market to purchase bangles etc for her and thereafter they returned in the same room. Accused had purchased bindi, bangles, clothes i.e. salwarkameez for her as accused wanted to marry her. She had refused to accept the aforesaid items purchased by accused for her and told that she does not want to marry him. She has further stated in cross examination that The sister of accused used to go to the house of his mausi during the day hours and used to stay in her house during night hours. She used to got daily to the house of her mausi during day as well as night hours. State Vs.Vijay Kumar FIR no.203/10 Page No. 16 of 33 Court Question: Aapki mother ne to aapko ye nahin kaha ki aap ye bayaan do?
Answer: Meri mother ne ye nahin kahan.
33. She admitted that her father used to consume alcohol. She denied that her father and mother used to beat her. She denied the suggestion that she herself told accused Vijay to take her somewhere else due to the beatings given to her by her mother. Vol. Accused Vijay had taken her forcibly. She has further stated that whenever accused Vijay used to go out during their stay at Punjab, the door of the room used to remain open and not locked. She had not given phone number of her father to anyone in Punjab. She was brought back from Punjab by her father and three police officials.
34. In consideration of the deposition of PW8 Sweety, prosecutrix, it is revealed that she has levelled allegation against accused Vijay that he had allured her to go to Punjab with him. In cross examination she has specifically stated that she refused to go and at this accused gave her 23 slaps and told her to accompany him. She has also stated in cross examination that accused has forcibly made her sit in the bus against her wish. The prosecutrix is a minor girl in this present case. She has specifically stated that accused Vijay had committed 'ganda kaam' with her and he did the same act 34 times. PW10 Ms. Rekha, State Vs.Vijay Kumar FIR no.203/10 Page No. 17 of 33 Ld.ACJ, the then Ld.MM had recorded the statement of the prosecutrix u/s 164 Cr.PC which is Ex.PW10/A. The same is reproduced below: 'Vijay ne mujhe bus mai baitha liya tha. Usne pahle meri van hamari dukaan ke samne rukwai, phir isne meri maa ko ghar bhej diya. Meri maa ne bhai ki dwai lene ja rahi thi. Isne mujhe badi bus mai baithya tha. Isne kai baar bus badli thi. Phir isne rickshaw kiya tha. Phir isne train ki ticket lee thi. Phir hum train mai baithe thi. Phir hum station per ja ruke the. Isne station per mere saath ganda kaam kiya tha.
Phir subah saat baje ye mujhe Bhatinda le gaya, mujhe kirayadar ne bataya tha ki ye Bhatinda hai wahan ek aurat ne mujhse poocha tha ki mai uske saath kyo aae hu. Phir isne mujhe nai kapde dilway the wa chudi pahnai thi aur maang ka sindoor bhi dilwaya tha aur honthon par lali bhi lagwai thi aur kano ke kundal bhi dilwaye the. Phir isne mere saath wahan bhi galat kaam kiya. Iske mere saath teen baar galat kaam kiya tha. Isne mere pita wa bhai ke liye bhi galat baten kahi. Isne mujhe gale me ek tabeez bhi pahnaya tha. Usne mujhe dhamki bhi di ki vo sabko bta dega ki main use apni saath ganda kaam karne ko kehti hu. Isne mujhe buri gali bhi di thi. State Vs.Vijay Kumar FIR no.203/10 Page No. 18 of 33 Mujhe aur kuch nahi kehna hai.'
35. In view of the above statement of prosecutrix recorded u/s 164 Cr.PC as well as her statement recorded in the court, I am of the view that she had made consistent statements and specifically made allegation against the accused that he had committed wrong act with her. The prosecution has examined PW5 Dr. Namita Gupta who had examined the prosecutrix on 15.05.2010 after she was brought back by her father alongwith police from Bhatinda to Delhi. The MLC of prosecutrix is Ex.PW5/A. I have perused the said MLC. On Local Examination, no external injury was found. On L/E by Gyneacologist hymen of the prosecutrix was found torned by the doctor. But no active bleeding detected. Admittedly the prosecutrix was taken away on 07.05.2010 and she was examined on 15.05.2010 i.e. after about 8 days . Therefore non presence of bleeding cannot be fatal for the case of the prosecution. The testimony of PW5 Dr. Namita remained unchalleged as she has not been cross examined on behalf of the accused. Medical Evidence in a rape case is a great corroborative evidence in support of charge of rape. Medical evidence proved that hymen of the victim was ruptured. In case Manga Vs. State of Haryana, AIR 1979 SC 1194:
1979 Cr.LJ 939 it is stated that when the doctor found hymen ruptured, the mere circumstance that he did not find redness or inflammation State Vs.Vijay Kumar FIR no.203/10 Page No. 19 of 33 around bruises is not material because torn hymen and a bruise around hymen are sufficient to prove rape. The testimony of PW8 Sweety is corroborated by the medical evidence that wrong act was committed with her as the medical evidence is crystal clear that the hymen of the prosecutrix was found ruptured.
36. The prosecution has examined PW6 Dr. Y.N. Maurya who had examined accused Vijay Kumar. The MLC of accused is Ex.PW6/A. It has been specifically mentioned on the MLC that there is nothing to suggest that the patient (accused) could not perform sexual act.
37. I have perused the FSL result Ex.PW15/D. Human semen was detected on Ex.2a and 2b i.e. two microslides having faint smear described as vaginal swab slides of prosecturix, Ex.4 i.e. one underwear and semen could not be detected on Ex.3 i.e. few strands of hair described as 'pubic hair of prosecutrix'. The presence of semen in the microslides Ex.2a&b which was made from vaginal swab of prosecutrix as well as presence of semen on underwear clearly establish that sexual act was performed with prosecutrix.
38. Ld. Counsel for the accused has drawn my attention on the cross examination of the prosecutrix and argued that the prosecutrix was State Vs.Vijay Kumar FIR no.203/10 Page No. 20 of 33 a consenting party. I have given my thoughtful consideration on the cross examination of the prosecutrix. On perusal of the cross examination it is revealed that the case of the prosecution has further been strengthened by the Ld. Defence counsel by making the cross examination of prosecutrix.
The facts which were not deposed by the prosecutrix in examination in chief were brought on record by the Ld. Defence counsel in cross examination. However, ld. Defence counsel has drawn my attention on some specific question that she had not raised alarm in the bus though there were number of passengers present. But the prosecutrix has also stated that the accused had threatened her to beat again (chante maregaa). Ld. Counsel has also stated that prosecutrix has allegedly remained in Bhatinda for 810 days but she did not ran away from there while she had every opportunity for doing so. It has been established on record that the prosecutrix was a minor girl at the time of incident. Even from the wording used by her during recording of her statement u/s 164 Cr.PC as well as her statement recorded in the court, it can be easily inferred that she was minor girl. So, deposition made by her in cross examination regarding being consenting party cannot be taken into consideration because if the girl was below 16 years of age, her consent has no value. It is held in Bishnu Dayal Vs. State of Bihar, AIR 1981 SC 39: 1980 Cr LJ 1297; Jinish Lal Sah Vs. State of Bihar (2003) 1 SCC 605 that when the girl is below sixteen years her consent is immaterial. It is held State Vs.Vijay Kumar FIR no.203/10 Page No. 21 of 33 in Yeshwant Rao Vs. State of MP, AIR 1992 SC 1683; State of Kerala Vs. K Govindan 1969 Cr. LJ 818 (Ker) that whether the girl was a consenting party or not she being a minor the act of intercourse by the accused amounted to rape within the meaning of section 375. It is stated in Saleha Khatoon Vs. State of Bihar 1989 Cr LJ 202 (Pat) that Consent to intercourse obtained by falsely inducing the prosecutrix to believe that later he would marry her is not consent and the accused is guilty of rape. In the present case also, the accused had taken the prosecutrix to Bhatinda, got her clothes, bindi, bangles and sindoor and even filled her 'maang' with 'sindoor'. He has committed wrong act with her which the prosecution has established by way of medical evidence. During cross examination to PW8 Sweety, Ld. Counsel has put a suggestion that which she answered that "it is wrong to suggest that I had myself requested accused Vijay to take me alongwith him somewhere else due to the beatings given to me by my mother". The above suggestion put by the Ld. Defence counsel, which the prosecutrix has denied, clearly establish that accused Vijay had taken the prosecutrix with him and prosecutrix also volunteered that accused Vijay had taken her forcibly.
39. Ld. Counsel for the accused has contended that the prosecution has failed to examine the van driver in which the prosecutrix State Vs.Vijay Kumar FIR no.203/10 Page No. 22 of 33 went to school and thereafter came back. As per the case of the prosecution, the said van driver informed the mother of the prosecutrix about her going with Vijay. In my view non making impleading him as witness would not be fatal for the case of the prosecution as whatever he saw, he narrated the same to complainant PW7 Rita Devi.
40. Another contention of the Ld. Counsel is that as per the statement of PW6 Dr.YN Maurya, the semen of accused Vijay could not be collected despite efforts. This contention of Ld.counsel is of no consequence when, semen was detected in the microslides of vaginal swab of the prosecutrix and admittedly the prosecutrix had gone with him only and she had levelled allegation against accused for committed wrong act with her.
41. Ld. Counsel has further contended that the prosecution has failed to examine any witness from Bhatinda, Punjab and therefore no evidence has come on record to prove that prosecutrix was taken to Bhatinda. In this regard I have given my thoughtful consideration on the evidence led by the prosecution. It is admitted fact that no police official who had gone to Bhatinda had been examined in this case. However, the prosecutrix has specifically stated that she was brought back by her father and three police officials. PW13 SI Surender has stated that father State Vs.Vijay Kumar FIR no.203/10 Page No. 23 of 33 of the prosecutrix informed him that he had received a call on his mobile phone from some unknown person who had informed him that his daughter was in Bhatinda. Therefore a raiding party comprising of HC Satish and Ct. Sajjan was organized and they both alongwith Kamal Singh went to Bhatinda for recovery of prosecutrix. He has further stated that on 15.05.2010 accused Vijay Kumar, Prosecutrix brought from Bhatinda to Delhi. No question has been asked from this witness by the Ld. Defence counsel regarding visiting of police officials to Bhatinda. PW15 ASI Sudesh Kumar did not state any thing in examination in chief regarding recovery of prosecutrix from Bhatinda but in cross examination he has stated that he was told by the previous IO that the prosecutrix was brought back from Bhatinda in the late evening of 15.05.2010. He was not told by whom she was brought back from Bhatinda. I have given my thoughtful consideration on the testimony of PW11 Kamal who is the father of the prosecutrix and who went to Bhatinda with police officials. In examination in chief this witness also did not stated that he received call from Bhatinda from someone regarding his daughter and that she was recovered from there. I have also perused his cross examination wherein he has stated that he had received a telephonic call on his mobile from some unknown person from his mobile phone from Bhatinda who enquired from him if his daughter was missing to which he replied in affirmative. The said caller was the State Vs.Vijay Kumar FIR no.203/10 Page No. 24 of 33 landlord of the house where his daughter was kept by the accused. He had received the call on 16.05.2010 Vol. He further told that his daughter was there in his rented house and he further told him that if he wanted to take back his daughter he would help him, thereafter after consulting with police officials, he accompanied the police to the house of said landlord for the recovery of his daughter. He went to Bhatinda on the night of 16.5.2010 with two police officials and Brahm of village Mitrau. They left from PS in private car of Brahm. The person who had informed about his daughter met them in Bhatinda near railway gate about one kilometer from the room from where his daughter was recovered. The said persons did not accompany them to the room from where his daughter was recovered instead he had pointed out the room from some distance. He contacted that person from the mobile number which was already with him and as such he reached him. After reaching Bhatinda he had made a call on the mobile phone of said person to find out his whereabouts and to contact him. After reaching Bhatinda he was not enquired as to if he was the landlord of the said house. Neither he informed the police that he is landlord of the said house. Though PW11 Kamal did not state about Bhatinda episode in his examination in chief but during cross examination ld. Defence counsel has brought out the entire Bhatinda episode on record from which it can be easily inferred that PW11 had gone to Bhatinda with police officials from where State Vs.Vijay Kumar FIR no.203/10 Page No. 25 of 33 prosecutrix Sweety was recovered as prosecutrix PW8 has also supported the version of PW11 that she was taken by the accused to Bhatinda and brought back by her father.
42. Accused has taken the plea in statement recorded u/s 313 Cr.PC that he has been falsely implicated in this case by the parents of the girl in connivance with the police and that he was confined by the parents in their house and later on he was handed over to the police. Admittedly accused did not lead any defence evidence in this case to prove his plea. Even after registration of the case, no such complaint has been made by the accused that he was confined by the parents of the prosecutrix. Ld. Counsel during the course of arguments has argued that accused was working in the sweet shop of the father of prosecutrix and due to inhuman behaviour of PW11 he wanted to leave the job and therefore he was falsely implicated in this case. This submission of the Ld. Counsel is not sustainable because no father would implicate anyone in such a crime against his own daughter.
43. No doubt that there are certain contradictions in the testimonies of the witnesses in this case as pointed out by the Ld. Defence counsel. But on perusal of the same, it is revealed that those contradictions are of trivial nature which can be possible due to lapse of State Vs.Vijay Kumar FIR no.203/10 Page No. 26 of 33 time and can be ignored. In case law titled Narayan Chetanram Chaudhary & Ors Vs. State of Maharashtra, AIR 2000 Supreme Court 3352 it is stated in head note (E) that : 'Evidence Act (1 of 1872), S.3 - Appreciation of evidence - Minor contradictions in statement of witnesses under section 161 Cr.PC and deposition made by him during investigation and statement made by him before trial court - No material improvement made by him - Minor contradictions not fatal for prosecution case
44. It is settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal State Vs.Vijay Kumar FIR no.203/10 Page No. 27 of 33 charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony (Reliance placed on Vimal Suresh Kamble V. Chaluverapinake Apal S.P. & Anrs., AIR 2003 SC 818 and Vishnu Vs. State of Maharashtra, AIR 2006 SC 508).
45. In case Rajoo & Ors. Vs. State of Madhya Pradesh, AIR 2009 SC 858 it has been held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. It was further observed that .. It cannot be lost sight of that rape caused the greatest and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
46. It is also settled law that evidence of prosecutrix must be given predominant consideration but to hold that this evidence has to be State Vs.Vijay Kumar FIR no.203/10 Page No. 28 of 33 accepted even within the story is improbable and belies logic would be doing violence to the very principles which goes appreciation of evidence in a criminal matter and some supporting evidence was essential for prosecution case in view of falacious prosecution version.
47. Considering each and every facts and circumstances of the case, the prosecutrix has assigned the role of accused that he had taken her away to Bhatinda forcibly where accused bought her clothes, bindi, sindoor and even put sindoor in her maang. She has also made specific allegation that accused has committed rape upon her 34 times. The prosecutrix is a minor girl of aged about 15 year and 5 months. Her consent is therefore immaterial. So, the prosecution has proved its case without any reasonable doubt against accused Vijay Kumar.
48. In view of my above discussions, I am of the opinion that the prosecution has left no stone unturned to prove its case against accused Vijay Kumar u/s 363/366/376 IPC. The prosecution has proved the charge against the accused. I therefore, hold accused Vijay Kumar guilty for the commission of offence punishable u/s 363/366/376 IPC and he is convicted thereunder.
Announced in the open Court on 08.06.2012.
State Vs.Vijay Kumar FIR no.203/10 Page No. 29 of 33 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs.Vijay Kumar FIR no.203/10 Page No. 30 of 33 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS) DWARKA COURTS, NEW DELHI SC No.49/1/10 FIR No.203/10 U/s 363/366/376 IPC PS Najafgarh State Vs. Vijay Kumar S/o Sh.Babu Ram ..... Accused/Convict ORDER ON THE POINT OF SENTENCE Accused Vijay Kumar has been held guilty for the commission of offence u/s 363/366/376 IPC and convicted thereunder vide Judgment dated 08.06.2012.
2. I have heard the arguments on the point of sentence. During the course of arguments, it has been submitted on behalf of accused/convict Vijay Kumar that he is aged about 30 years of age. He is unmarried. He is not involved in any other case and no case is pending trial against him. He is permanent resident of Kannauj, U.P and he was State Vs.Vijay Kumar FIR no.203/10 Page No. 31 of 33 doing labour job at the shop of the father of the prosecutrix as the father of the prosecutrix is having sweet shop (halwai shop). It has been submitted that the prosecutrix was a half mind girl and her father wanted her marriage to be solemnized with accused and therefore accused/convict wanted to leave the said job and when he tried to do so, he has been falsely implicated in this case. Ld. Counsel further submitted that the accused/convict is languishing in jail since 08.05.2010. So,lenient view may kindly be taken against him.
3. Ld. APP for the State has argued that the accused had taken away a minor girl to Bhatinda where he had committed wrong act with her. So, accused/convict is not entitled for any leniency.
4. Keeping in view the facts and circumstances of the case and the act done by the convict, I am of the view that he is not entitled to any leniency since the accused has committed rape upon a minor girl.
5. In view of this, the convict Vijay Kumar is ordered to undergo RI for Five years and to pay fine of Rs.2000/ u/s 363 IPC and in default of payment of fine to further undergo SI for three months.
6. Accused/convict Vijay Kumar is further ordered to undergo State Vs.Vijay Kumar FIR no.203/10 Page No. 32 of 33 RI for Five years and to pay fine of Rs.2000/ u/s 366 IPC and in default of payment of fine to further undergo SI for three months.
7. Accused/convict Vijay Kumar is further ordered to undergo RI for Seven Years and to pay fine of Rs.2000/ u/s 376 IPC and in default of payment of fine to further undergo SI for six months.
8. The benefit of sec.428 Cr.P.C be given to the convict. All the sentences of convict/accused Vijay Kumar shall run concurrently. Copy of this order on the point of sentence and copy of Judgment be given to the convict free of cost. It is ordered accordingly. File be consigned to record room.
Announced in the Open Court on 06.07.2012.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) DWARKA COURTS NEW DELHI State Vs.Vijay Kumar FIR no.203/10 Page No. 33 of 33