Delhi District Court
Fir No. 826/06, P.S Nand Nagri, U/Sec. ... vs Deepak on 14 January, 2010
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FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK
IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE : DELHI
Case ID Number 02402R0127562007
Session Case No. 113/08
Assigned to Sessions 15/01/07
Arguments heard on 07/01/10
Date of order 14/01/10
FIR NO. 826/06
Police Station NAND NAGRI
Under Section 376/342/506 IPC
Out come of the judgment Acquittal
State Versus DEEPAK
S/O MAAN SINGH
R/O B-1/447,
PRESENT ADDRESS
B-1/480, SECOND FLOOR,
NAND NAGRI, DELHI
Pr.: Ms. Neelam Narang, Ld. Addl. PP for state.
Sh. R.K.S. Yadav and H.R. Ansari Ld. Counsel for accused.
JUDGMENT
1. On 05/10/06 a case u/sec. 376/511/506 IPC was registered at police station Nand Nagri vide FIR No. 826/06 on the basis of complaint filed by 1 2 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK one Aarti, aged about 10 years d/o Vinod r/o B-1/480, 1st floor, Nand Nagri, Delhi against DeepaK s/o Maan Singh r/o B-1/447, Second Floor, Nand Nagri, Delhi.
2. Brief facts of the statement of prosecutrix are as follows:
"I was residing with my family members at B-1/480, First Floor, Nand Nagri, Delhi on rented accommodation and was studying in 5th class. One Deepak was also residing in a room at second floor of the same house. In the intervening night of 3/4-10- 06 at about 1:00 a.m I was doing my home work while sitting in a varandah, in the meantime Deepak called me to offer a glass of water to him as she usually used to help him in day to day work. When she went there to offer a glass of water, he put the glass on the floor after taking from my hand pressed my mouth, bolted the door from inside and also extended threat in case I would raise alarm he would kill me. He put off my cloths and his clothes, put his penis on my vagina as a result of which I felt pain and became nervous and started crying, where upon Deepak stated that he would not made her to feel pain but I started protesting by way of throwing my hands and legs. Despite repeated resistance by me accused started doing something with his penis in my vagina and after a lot of cry, me he left me. Next date I narrated the whole incident to my mother. My father also reached in the night. Matter was informed 2 3 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK to PS."
3. Investigation of the case was initiated by SI Radha Pandey. Prosecutrix was got medically examined vide MLC bearing no. B-4225/06, her vaginal smear was taken. Opinion of the doctor on the MLC was obtained wherein it was opined that "hymen torn no mark of injury or live bite seen". On 6.10.06 on the basis of information given by Vinod father of the prosecutrix accused Deepak was arrested while sleeping in his room. Site plan was prepared. He also got medically examined vide MLC no. C-3958/06. His blood sample was taken. Statement of witnesses were recorded. Result of CFSL was obtained and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented to the court of Ld. MM.
4. Ld. MM after taking cognizance for the offence u/s 376/506/342 IPC supplied the copies of the challan as required u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial.
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5. Arguments on the point of charge heard. After hearing arguments and on perusal of material placed on record a charge for the offence u/s 376/342/506 IPC was framed on 16.05.07 against accused Deepak to which he pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
6. Aarti (prosecutrix) appeared as (PW1), Guddi mother of prosecutrix as (PW2), Vinod Kumar @ Mehraj Singh father of prosecutrix as (PW3), Mahindri Devi, Principal Nagar Nigam Prathmic Vidhalaya Dilshad Garden as (PW4), Dr. Seema Sharma, Medical Practitioner as (PW5), ASI Santosh as (PW6), Dr. Devender Kumar, CMO GTB hospital as (PW7), LCT Poonam as (PW8), Ct. Ashok Kumar as (PW9) and SI Radha Pandey/IO as (PW10).
7. Brief testimony of all the PW's are as follows:
(i) Before recording the statement of prosecutrix the then Ld. ASJ 4 5 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK put many questions to ascertain her veracity to understand the court proceedings. Ld. ASJ after satisfying himself recorded the statement of prosecutrix wherein she deposed that she knew accused Deepak present in the court as he was residing on the upper floor of her house.
She alongwith her family members were residing at the first floor of the same house. On 3.10.06 at about 11 p.m she was studying and her mother was sleeping there. Accused came down stairs in the varandah and asked her to offer a glass of water. She went up stairs in the room of accused to bring for him a glass of water. Accused took a glass of water from his hand and kept the same on the ground. He removed his clothes, her clothes, put his penis in her vagina and asked her to leave the spot. In her language she stated as follows:
"Isne apni peshab karne wali jagah meri peshab karne wali jagah par lagaya, mughe dard hua aur main chillai kya baat hai bhaiya. Usne mughe lita diya aur poora kaam kara aur phir mughe dard hua."
Accused also extended threat to kill her in case she would tell this incident to her parents or any other person. She went down stairs while weeping but did not tell the incident to her mother due to fear. When she 5 6 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK came back from her school next day then she narrated all facts to her mother but her father was not at home at that time. On the next day morning she alongwith her parents went to PS and lodged the report. Police recorded her statement which is Ex. PW1/A bears her signature at point A. She further deposed that police officials took her to GTB hospital and was got medically examined.
During her cross examination she stated that her landlady used to sell liquor and many people used to come there to purchase the liquor from her. She also stated that she had no knowledge of any quarrel between her father and accused Deepak on account of mobile phone prior to this incident. She also denied that on the night of incident accused was not present at his home or that he had gone alongwith his family members to Goverdhan Parikarma and volunteered stated that they had gone to Goverdhan Parikarma on the next day morning i.e 4.10.06. She also denied the suggestion that before the incident accused had slapped her father in a gali and humiliated publically due to this reason and at the instance of her father she falsely implicated the accused in this case. 6 7
FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK Some court questions were also asked to the prosecutrix during her cross examination which are as follows :
a) Court Question: Whether your room was bolted from inside or locked from outside when you brought water for the accused?
Ans:Neither it was bolted from inside nor from outside, it was just closed.
b) Court Question: Whether anybody from your family members awoke, when you went inside to bring water?
Ans.No
(ii)PW2 deposed that on 4.10.06 at about 2:30 p.m her daughter Aarti came back to the house and started weeping, when she asked her the reason of her weeping then she narrated that accused Deepak had committed rape on her in the night of 3-4/10/06. Her husband was not at home at that time and when he came back in the night at about 11/11:30 p.m she narrated these facts to him. In the morning of 5.10.06 at about 8/8:30 a.m they both had taken her daughter Aarti to PS and lodged the report. She had seen the report Ex.PW1/A bears his signature at point B. 7 8 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK She also deposed that police official took her daughter to GTB hospital and she also accompanied her.
During her cross examination she stated that on the night of incident the door was just closed without bolting from inside as she was not feeling well but she used to bold the door from inside, when she slept in varandah. She also admitted that on the day of incident her husband was working as driver but she failed to disclose the name of his employer. She also admitted that during the days of incident her husband was the driver of husband of IO SI Radha pandey again said that her husband never worked as driver of husband of IO Radha Pandey at any point of time. She also denied the suggestion that about one month prior to this incident accused Deepak had slapped her husband in the gali on the issue of balance payment of mobile set. She further stated that she had no occasion to make the complaint against Deepak to his parents as they were not present and had gone for Goverdhan Parikarma. She also denied the suggestion that at the instance of IO Radha Pandey and in conclusion with her this case was registered. She also denied that in a room at the second 8 9 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK floor, work of making neckless was solely being done and none from the family of accused was residing. Rest of her testimony is reiterated by her as submitted by her during examination in chief.
(iii)PW3 corroborated the testimony of PW1 and PW2 and also submitted that on 6.10.06 he informed the police official on telephone that accused was at his house. Police officials reached there and arrested the accused on his identification. Accused was taken into PS and his arrest memo was prepared in his presence which is Ex. PW3/A bears his signature at point A. During his cross examination he denied the suggestion that he was working as driver under the employment of any police official or his family members. He also admitted that he had purchased a mobile phone from Deepak four months prior to this incident after making part payment. He also admitted that Deepak has demanded balance money from him vol. Stated that he told to Deepak that he would give the balance money only on receiving the documents of the mobile set but he 9 10 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK denied that there had been a quarrel on this issue with accused Deepak. He also admitted that mobile was purchased for Rs.1000/- and he paid Rs.900/- to Deepak and Rs.100/- were balance. He also disclosed the name of his employer who was in Japan as Rahul Sharma. He also admitted that on 5.10.06 Deepak with his family members had gone to Goverdhan for Prakrima. Rest of his testimony is reiterated by him as submitted by him during his examination in chief.
(iv)PW4 is a formal witness. She brought the admission register and produced certificate Ex. PW4/A bearing her signature at point A. She further deposed that as per school record date of birth of Kumari Aarti d/o Maharaj Singh was 2.3.96 and on 30.10.06 Kumari Aarti is studying in 6th. During her cross examination she stated that at the time of admission of prosecutrix i.e on 11.4.01 her address was mentioned as 79/A Dilshad Garden, Shahdara, Delhi.
(v)PW5 deposed that on 5.10.06 she was working as Sr. Resident at GTB 10 11 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK hospital and on that day Aarti d/o Vinod aged about 10 years r/o B 1/480 Nand Nagri was brought to hospital by lady constable Poonam of PS Nand Nagri with the alleged history of sexual assault. She further deposed that according to Aarti she was called by tenant Deepak living in the same building on 4.10.06 at about 1 a.m then Deepak closed the door, undressed the patient and himself and misbehaved with her but she was unable to give further detail. On her general observation no mark of injury or love bite seen. On local examination her hymen was found torn. She further stated that two glass slide of smear from vulva were taken, sealed and handed over to lady constable. She was also referred for X-ray department for determination of age. His detail report is Ex. PW5/A bears her signature at point A. During her cross examination and in reply to question put up by Ld. Counsel for accused she deposed as under :
Locally there was no injury or any such forceful intervention seen only hymen was seen torn. It could be of any cause. I cannot give firm conclusion that it could be because of intercourse only. Hymen may be 11 12 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK torned due to cycling by falling on sharp object and by putting any sharp object inside vagina. It is difficult to put little finger in the vaginal orifice of a female child under age of 10-12 years but not impossible, it can be put inside by force. It correct that if a child of age of 10-12 years is facing a sexual assault from a well grown male of 20 years then, Labia and Majora and circumference of orifice will get damaged. The healing time of such injuries as per medical juris prudence is from 6-18 days and deposed that as per MLC prosecutrix was examined on 5.10.06 at 12:30 p.m. It is correct that vagina is not washed after the act, then live sperms may last from 4 to 5 days, the dead sperms may last longer upto ten days. She further stated that she did not seal the clothes of the prosecutrix as she was not wearing the same clothes which she was wearing at the time of incident. In reply to the another question she denied the possibility of minor injury on circumference of orifice/labia/majora, if there is only slight penetration just touching the tip of orifice and also stated that in case of touching the orifice of vagina, hymen will not get torn. Rest of his testimony is reiterated by her as submitted during examination in chief.12 13
FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK
(vi)PW6 is the formal witness who recorded the formal FIR bearing no. 826/06 u/s 376/511/506 IPC on the basis of ruqqa handed over to him by SI Radha Pandey. FIR is Ex.PW6/A. He further deposed that after registration of the case he handed over ruqqa and carbon copy of FIR to Ct. Narayan.
(vii)PW7 is a doctor who examined accused Deepak on 6.10.06 and gave his opinion that "there was nothing to suggest that patient was unable to perform sexual intercourse." He further stated that MLC was prepared by Dr. Zothumaluai. He identified his signature on the MLC, same is Ex. PW7/A.
(viii)PW8 is again a formal witness and deposed that 5.10.06 she on the instructions of IO SI Radha Pandey took the prosecutrix Aarti to GTB hospital for her medical examination. Doctor handed over MLC of prosecutrix. One slide and one sample seal which she handed over to IO who prepared the seizure memo Ex. PW8/A bears his signature at point 13 14 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK A. During her cross examination she reiterated her testimony as submitted by her during examination in chief.
(ix)PW9 deposed that on 6.10.06 he alongwith IO SI Radha Pandey went to the house bearing no. B-1/480 Nand Nagri. On reaching there Vinod Kumar father of prosecutrix met them and told that accused Deepak who had molested his daughter was sleeping on second floor of the house bearing no. B-1/480. They accordingly went up stairs and at the instance of Vinod he was arrested. His arrest memo Ex. PW3/A and personal search memo Ex. PW9/A were prepared in his presence which bears his signature at point A. He further deposed that information about arrest of accused was given to his father. Accused was taken to GTB hospital and was got medically examined. He collected the sealed pullanda containing blood sample, sample seal, MLC of accused and handed over to SI Radha Pandey vide memo Ex. PW9/B bears his signature at point A. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
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(x)PW10 is the IO. She corroborated the testimony of other PW's and deposed that on 5.10.06 prosecutrix Aarti alongwith her parents came to the PS made her statement Ex. PW1/A which is recorded by her bearing her signature at point A and signature of her parents at point B and C. She sent the prosecutrix to GTB hospital through lady constable for medical examination. Lady constable handed over a sealed pullanda containing vaginal smear, sample seal and MLC to her which were taken in possession vide memo Ex. PW8/A. She made endorsement Ex. PW10/A on the statement Ex. PW1/A. She further deposed that she alongwith the complainant and her parents reached at the spot and searched the accused but he was not found available at his house and she was informed that he had gone to Haridwar for Holy bath. She recorded the statement of prosecutrix and other PW's. On 6.10.06 on the basis of receipt of telephonic information through father of prosecutrix she alongwith Ct. Ashok Kumar reached at the house of accused and arrested him vide arrest memo Ex. PW3/A and his personal search was conducted vide Ex. PW9/A. She prepared rough site plan Ex. PW10/B 15 16 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK on the pointing out of accused Deepak. Father of accused reached there and he was informed about his arrest. Accused was got medically examined at GTB hospital. Doctor handed over a sealed pullanda containing blood sample and sample seal. These were taken in possession vide memo Ex. PW9/B. She collected the MLC of accused Ex. PW7/A. Sealed pullanda was deposited in malkhana and were sent to CFSL for their chemical analysis . She collected the date of birth certificate from Nagar Nigam Prathamic Vidhalaya Dilshad Garden, same is Ex. PW4/A. She collected the report of FSL, same is Ex. PW10/C. After completion of all the necessary investigation she presented the challan before the court of Ld. MM. During her cross examination she reiterated her testimony as submitted by him during examination in chief. Thereafter, prosecution evidence was closed and case was fixed for examination of accused u/s 313 Cr.P.C.
8. During the course of examination of accused u/s 313 Cr.P.C he has controverted all the allegations as alleged against him and submitted 16 17 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK that he was innocent and falsely implicated in this case. He further submitted that one month prior to this incident he had sold one mobile phone to Sh. Vinod Kumar father of the prosecutrix. Father of the prosecutrix paid Rs.800;/- and balance amount of Rs.200/- was to be paid. He had to go for Goverdhan Prikarama, therefore, on 1.10.06 when he demanded remaining amount of Rs.200/- from the father of prosecutrix he landed a slap blow on his face and also extended threat of teaching him a lesson on account of his misbehave with him in the open public place. He also stated that IO SI Radha Pandey used to go to the house of prosecutrix, therefore, her family members in conclusion with SI Radha Pandey falsely implicated him in this case and also desire to lead defence evidence, therefore, case was fixed for defence evidence.
9. Mamta Pandey w/o Sh. Shambhu Pandey appeared as (DW1), Sh. Babu Lal as (DW2) and Sh. Kanhiya Lal as (DW3). Thereafter on the request of Ld. counsel for accused defence evidence was closed. Brief testimony 17 18 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK of all the DW's are as follows. :
i) DW1 deposed that accused Deepak is known to him as he has been residing at house no. B-1/447 Nand Nagri, Delhi i.e in front of his own house. She deposed that on 2.10.06 she alongwith her husband, Deepak, elder brother, Bhabi and parents of Deepak and one neighbouror Babu Lal went to Goverdhan for Parikarma and returned on 5.10.06 in the night time and on the next day i.e on 6.10.06 accused was lifted from the house in his presence and after 2-3 days of his arrest he came to know that accused Deepak was arrested in a case of rape. He also deposed that accused Deepak was doing the business of making Moti Mala in a room of a house where Kumari Aarti (prosecutrix herein) was also residing with her family in a rented accommodation. He further deposed that accused was doing his business on the second floor of that house and prosecutrix Aarti was residing at the first floor of the said house. He also deposed that there was some dispute among the father of the prosecutrix Vinod and accused Deepak on account of a mobile 18 19 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK phone.
ii) During her cross examination she deposed that she cannot produce any document showing thereby that accused had gone to Goverdhan for Parikarama on 2.10.06 and returned in the night of 5.10.06. During cross examination she disclosed the name of all the eight persons who went there on 2.10.06 and returned on 5.10.06 after completion of parikarma. She further deposed that Avnish brother of the accused was driving the Maruti van and he had purchased the Maruti van on those days. She also denied the suggestion that accused had committed rape upon Aarti in the intervening night of 3-4.10.06.
iii) DW2 corroborated the testimony of DW1 to the affect that he alongwith Avnish brother of accused, Shambhu Pandey, Mamta Pandey, accused Deepak, parents of accused and wife of Avneesh went to Mathura in Maruti Van purchased by brother of Deepak and returned on the 5th day of that month at about 12:00 mid night. Next day in the morning he came 19 20 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK to know that accused Deepak had been arrested in a case by the police official. During his cross examination he retierited his testimony as submitted by him during examination in chief and also disclosed the name of all the persons who had gone to Goverdhan for parikarma.
iv)DW3 again corroborated the testimony of DW1 and DW2 and also stated that one day prior to the arrest of the accused, a lady police official Radha Pandey (present in the court) came to the house of accused bearing no. B-1/447 and said house was found locked then he informed the IO that all the family members including the accused had gone to Girraj Ji Mandir, Mathura and on the next day the lady IO arrested the accused from B-1/447, Nand Nagri. During cross examination he reiterited the testimony as submitted by him during examination in chief. Thereafter case was fixed for final arguments.
10.I have heard the arguments on behalf of ld. Counsel for accused as well as on behalf of Ld. Addl. PP for state.
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11.Ld. Counsel or accused submitted that before convicting the accused under any penal law it is the duty of the prosecution to prove it s case beyond reasonable doubt and in the present case no corroborative evidence with regard to commission of rape upon the prosecutrix is placed on record. It is further submitted that on perusal of over all testimony of all the PW's the ingredients of false implication of the accused is clearly established.
12.PW1 prosecutrix disclosed her age as 10 years before doctor who had conducted her internal medical examination vide MLC Ex. PW5/A. The opinion given by the doctor on the MLC Ex. PW5/A is alone sufficient to demolish the testimony of prosecutrix which is as follows :
"Hymen of the prosecutrix found torn", without any external or internal injury on her private parts."
13.On the other hand PW2 prosecutrix in her statement clearly stated that accused removed her clothes, his clothes, put his penis on her vagina (isne apni peshab karne wali jagah meri peshab karne wali jagah par 21 22 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK lagaya, mughe dard hua aur main chilai kya baat hai bhaiya). When she raised noise he got her mouth closed (usne mughe lita diya aur poora kaam kara aur phir mughe dard hua). In view of the testimony of prosecutrix it is established that accused had committed complete sexual intercourse while inserting his penis through vaginal orifice, and in such type of complete sexual intercourse committed upon the female aged about 10-12 years, the possibility of internal/external injury with bleeding cannot be ruled out.
14.Ld. counsel for accused further submitted that if the testimony of prosecutrix is to be analyzed in the light of the opinion/statement made by PW5 Dr. Seema Sharma wherein she clearly stated that if a girl of age of 10-12 years is facing a sexual assault from a well grown male of 20 year then Labia, Majora and circumfrance of vaginal orifice would get damaged and healing time of such injuries as per medical jurisprudence is from 6-18 days and as per her opinion neither external nor internal injuries were seen at the time of her medical examination. 22 23
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15.He further submitted that it is not a case of penetration within the external part of the vagina i.e labia, majora however, in view of the testimony of the prosecutrix it is a case of complete sexual intercourse medical jurisprudence and on considering the opinion of the doctor the possibility of rape upon the prosecutrix is totally ruled out and the testimony of PW5 (Dr. Seema Sharma) alone is sufficient to acquit the accused for the offence as alleged against him.
16.Ld. counsel for accused further submitted that prosecutrix in her statement Ex. PW1/A made before the police official stated that in the intervening night of 03-0410.06 she was doing her homework at 1:00 a.m after mid night. On the other hand at the time of her examination in the court she stated that on 3.10.06 she was studying in varandah at about 11:00 p.m and her mother was also sleeping there. During her cross examination she stated that she cannot tell the time by watch. She also stated that on the day of incident i.e 3.10.06 she had slept at 8:00 p.m. She also stated that her landlady used to sell liquor as many people 23 24 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK used to come there to purchase liquor. During her cross examination she also stated that she knew Radha aunti and she accompanied her to PS and she was residing near Nagar Nigam Prathmik Vidyalaya. She also stated that on the day of incident brother in law (sala) of her married brother Amnish was also sleeping in the varandah on a Takhat. During her cross examination she denied that on the day of incident accused alongwith his family members had gone to Goverdhan for Prakarima but vol. Stated that on the next day morning i.e 4.10.06 they had gone there. In view of the aforesaid contradictions in the testimony of prosecutrix herself it is established that prosecution could not succeed in proving its case against the accused person.
17.Prosecutrix in her statement stated that her father used to come at 7:00 p.m and she used to sleep till 7:00 p.m but on the day of incident her father could not come in the night, therefore, she could only sleep till 8:00 p.m but during cross examination of PW2 mother of prosecutrix she stated that her husband used to come back to home sometimes at 10:30 24 25 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK p.m and sometimes at 11:00 p.m.
18.PW2 during her cross examination further submitted that father of accused Deepak had his own house in the same gali and on the first floor of the house there were two tenants besides herself and in the second floor there were two tenants on the day of incident. During her cross examination she admitted that during the day of incident her husband was working as driver of husband of Radha Pandey IO of this case and again stated that he never worked with husband of Radha Pandey IO of this case at any point of time. This fact raises a serious doubt on the credibility of testimony of PW2. PW.2 further stated that accused had not demanded the balance payment on account of a mobile phone purchased by her husband. On the other hand PW4 her husband stated that accused Deepak has demanded balance money from him which clearly goes to show that father of the prosecutrix had purchased a mobile phone admittedly for Rs.1000/- and some balance payment was to be made by him to the accused. PW1 prosecutrix deposed that 25 26 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK accused had gone to Goverdhan Parikarma on 4.10.06. On the other hand PW3 father of the prosecutrix stated that accused Deepak alongwith his family members had gone to Goverdhan for Parikarma on 5.10.06 and he was apprehended by the police on 6.10.06 when he made a telephonic call to the police.
19.Prosecutrix PW1 confronted from her statement Ex. PW1/A on many points such as she stated in the court that "Usne mujhe lita diya aur poora kaam kara aur phir mujhe dard hua" infact it was not so recorded however, it is recorded that "main tughe dard nahin karoonga". She also confronted from her statement on the point that she had stated to the police that "Usne mughe jaane ko kaha aur TV ke piche dubka diya tha/chupa diya tha" and also extended threat of killing her infact it is not so recorded in the statement Ex. PW1/A. She also confronted to the point that she had mentioned the time as 1:00 a.m but in the court she stated that time of incident as 11:00 p.m. 26 27 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK
20.PW1 during her cross examination stated that nobody heard her weeping when she came down stairs. However, mother of the prosecutrix was very well present there and she no where stated that she heard the noise of weeping of her daughter. PW6 ASI Sanotsh who is a formal witness. He only recorded formal FIR no. 826/06. PW7 Dr. Devender Kumar, CMO GTB hospital who has identified the signatures of doctor who has prepared the MLC of accused Deepak. PW8, PW( and PW10 are the police officials who investigated the matter on the basis of statement made by the prosecutrix, her father and her mother which has already been discussed and in view of the testimony of all the PW's discussed above it has become crystal clear that no rape was committed on the intervening night of 3-4/10.06 upon the prosecutrix. Ld. Counsel for accused also placed his reliance on a decided case cited as RADHU VS STATE OF MADHYA PRADESH 2007 Crl.L.J 4704" wherein it is observed as under:
"It is now well settled that a finding of guilt in a case of rape can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on 27 28 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape' if the girl is under 16 years of age."
It is further observed as under:
"The court should at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instance where a parents has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get ride of financial liability. Whether there was rape or not would depend ultimately on the fact and circumstances of each case."
It has also been observed as under:
"The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place."28 29
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21.On the contrary Ld. Addl. PP for state submitted that PW1 prosecutrix Aarti is a minor girl aged about 10-12 years and she on oath before the court clearly stated that on 3.10.06 at about 11:00 p.m when she was studying in a varandah, her mother was also sleeping there, accused came down stairs and asked her for a glass of water. She went up stairs at the room of accused and brought a glass of water. Accused instead of taking water removed his and her undergarments, made her be on the ground and put his penis on her vagina (isne apni peshab karne wali jagah meri peshab karne wali jagah par lagaya, mughe dard hua aur main chillai kya baat hai bhaiya) when she raised a noise she got her mouth shut (usne mughe lita diya aur poora kaam kara aur phir mughe dard hua). Accused penetrated his penis in her vagina and her testimony is further corroborated by PW2 Guddi mother of prosecutrix, PW3 Vinod Kumar father of prosecutrix. The proof of age of prosecutrix Aarti is proved by PW4 Mahindri Devi, Principal, Nagar Nigam Prathmic Vidalaya, Dilshad Garden. She produced certificate Ex. PW4/A mentioning therein the date of birth of Kumari Aarti as 2.3.96. PW5 Dr. 29 30 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK Seema Sharma also recorded the history revealed by prosecutrix Aarti wherein she stated that she was called by the tenant Deepak living in the same building, on 4.10.06 at about 1:00 a.m, Deepak closed the door, undressed the patient and misbehaved with her. She also opined that her hymen was torn, no mark of injury or love bite seen, two smear slide from vulva were taken and handed over to lady constable and she also referred the prosecutrix to X-ray department for ossification test and her detailed report is Ex. PW5/A and in view of all the testimonies of prosecutrix, her mother, her father and Dr. Seema Sharma (PW5) it has become crystal clear that prosecutrix was raped by the accused person without her consent although she was a minor girl of aged about 10-12 years.
22.Ld. Addl. PP for state further submitted that the plea of allibai allegedly taken by the accused is not believable and appears to be afterthought and concocted. No documentary evidence of the visit of accused person at Mathura/Goverdhan for parikarma alongwith DW1, DW2 and DW3 30 31 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK w.e.f 2.10.06 to 5.10.06 is placed on record. All the DW's are the interested witnesses and their testimony cannot be believed when the prosecutrix on oath clearly stated that she has been raped on the intervening night of 3-4.10.06. Ld. Addl. PP for state also placed her reliance on a decided case cited as Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh AIR 1991 Supreme Court 1853.
23. Ld. Addl. PP for the state also placed her reliance on a decided case reported as "2009 I AD(Cr.)(S.C) 126 State of Maharashtra Vs Gajanan @ Hemant Janardhan Wankhede".
24. Ld. Addl. PP for state also placed her reliance on a decided case reported as "KARAN SINGH VS STATE 2009 III AD(Cr.) DHC 219" wherein it is observed as under:
"The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynecologist pertaining to the medical examination of the 31 32 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
It is further observed as under:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed consideration which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed 32 33 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable."
25. After hearing arguments on behalf of Ld. counsel for accused as well as on behalf of Ld. Addl. PP for state I analyzed the testimony of all the PW's in the light of observations given by their lordships in the aforesaid decided cases wherein it is established as under :
(a) In view of testimony of prosecutrix it has been established that it was a case of complete vaginal penetration and not of slight penetration as she clearly stated that accused (penetrated his penis in her vagina aur pura kam kiya) and when her testimony is compared with the medical evidence as opined by PW5 Dr. Seema Sharma which raises a question for consideration whether the prosecution story as alleged, inspire 33 34 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK confidence of the court on the evidence adduced "whether the prosecutrix, is a witness worthy of credence". For deciding the aforesaid questions I placed reliance on the decided cases in which indication of penetration have been discussed by their lordships which are as follows:
i) Re Anthony AIR 1960 Madras 308 and Bhydan Lal Sharma Vs. State (1961) 1 Cr LJ 689 wherein it is observed that :
"Where the girl, aged seven and a half years, had lacerations over the edges of the hymen, which was also tender, though the membrane had not been ruptured, and smegma was present in the organ of the accused."
ii) Ghanshyam Misra vs. State AIR 1957 Orissa 78, 1957 Cr.LJ 469 wherein it is observed that :
"Where, even though there was no dilation of the vaginal canal, there was injury to the hymen, a tear 1/5" long posteriorly with bruising of the commissure."
iii) State Vs. Kundumkara Govindan 1969 CrLJ 818, 1969 Ker LJ 485 wherein it is observed that :
"Where the hymen was lacerated and its edges were red and swollen, the fourchette being also lacerated, 34 35 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK the labia minora red, oedematous and tender to touch, the wall of the vagina sowing abrasions which were infected and the vagina being roomy and admitting two fingers easily."
iv) Das Bernard vs. state 1974 CrLJ 1098 (Goa) wherein it is observed that :
"Where the hymen, the posterior commissure and fourchette were intact, but there was congestion of the vaginal wall outside the hymen and there was redness underneath the labia majora, though no contusions."
v) Jagannath Vs. State 1952 CrLJ 1200 wherein it is observed that :
"Where, with the exception of some redness of the entrance to the vagina, the girl of five and a half years bore no other mark of injury."
vi) Natha Vs. Crown AIR 1923 Lah 536, 26 Cr LJ 1185, 88 IC 705 wherein it is observed that :
"Where the hymen of a girl of six or seven years had not been ruptured, but there were stains of blood on both the legs from the vagina down to the ankles and congestion of the orifice of the vagina, it was held, on medical evidence, that partial penetration had taken place."35 36
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26. In view of the observation given by their lordships I also perused the opinion given by PW5 Dr. Seema Sharma wherein she specifically stated that if a female child of age of 10-12 years is facing a sexual assault from a well grown male of 20 years then Labia, Majora and circumfrance of vaginal orifice would get damaged and healing time of such injuries as per medical jurisprudence is about 6-18 days. She also opined that if vagina is not washed after commission of rape, then live sperms may last from 4-5 days and dead sperms may last longer up to 10 days and on perusal of the report of CFSL no human semen was detected during the scientific investigations of the smear slide which was taken from the vulva of prosecutrix. It is also opined that no mark of injury or love bite seen on general examination of prosecutrix which clearly goes to show that prosecution story as alleged inspires no confidence and the testimony of prosecutrix appears to be unworthy of credence.
26. The aforesaid observation is further fortified by the facts that the 36 37 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK prosecutrix stated that accused had gone for Goverdhan Parikarma on 4.10.06 and father of prosecutrix PW3 stated that accused had gone for Goverdhan Parikarma on 5.10.06. On the other hand all the DW's specifically stated that the accused had gone for Goverdhan Parikarma alongwith them and his family members on 2.10.06 and returned in the night of 5.10.06
27. It is further supported by the facts that the prosecutrix stated that she used to sleep at 7 p.m. and on the day of incident she could sleep at 8 p.m, due to the reason that her father could return at home only at 8 p.m. Infact he used to return at 7 p.m. On the contrary she further stated that she was studying in the varandah at 1:00 a.m in her statement Ex. PW1/A but in the court she stated that she was studying at 11 p.m and her mother was also sleeping in the varandah. She stated that she raised alarm but her mother who was allegedly sleeping in the varandah no where stated that she had heard any alarm or cry raised by her daughter. It is further corroborated that PW3 father of prosecutrix 37 38 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK admitted that he had purchased a mobile phone for Rs. 1000/- from the accused and there was some dispute on account of remaining payment of Rs.100/- or 200/- but neither the prosecutrix nor her mother disclosed these facts despite question asked to them during cross examination.
28. In view of the aforesaid contradictions/ confrontations in the testimony of prosecutrix and other PW's and also taking into consideration the observations given by their lordships in the aforesaid decided case I am of the considered view that the prosecution story does not inspire confidence of the court on the evidence adduced by the prosecution and the testimony of prosecutrix and other PW's appears to be unworthy of credit. Since no injury in the private part of the prosecutrix was opined by the doctor despite the fact that the age of the prosecutrix was admittedly 10/11 years and as per her testimony it was a case of complete vaginal penetration I am of the considered view that prosecution could not succeed in proving its case beyond reasonable doubt against the accused person.
38 39
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29. Accordingly, I hereby acquit the accused Deepak s/o Maan Singh for the offence u/s 376/342/506 IPC as alleged against him. His bail bond cancelled, surety be discharged. File be consigned to the record room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 14.01.2010 39 40 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK FIR NO.: 826/06 PS NAND NAGRI 14.01.10 Present: Ms. Neelam Narang Ld. Addl. PP for state.
Accused on bail.
Vide separate detailed judgment accused Deepak s/o Maan Singh is acquitted for the offence u/s 376/342/506 IPC as alleged against him. His bail bond cancelled, surety be discharged. File be consigned to the record room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi:14.01.01 40 41 FIR NO. 826/06, P.S NAND NAGRI, U/SEC. 376/342/506 IPC, STATE VS DEEPAK 41