Delhi District Court
State vs . 1. Amit on 21 February, 2014
1
FIR No. 156/12
PS - Subhash Place
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 46/13
Unique ID No. : 02404R0198472012
State Vs. 1. Amit
S/o Sukh Ram Singh
R/o LSC Market, Jhuggi No. 11,
Behind Samrat Cinema,
Shakur Pur, Delhi.
Also at :
House No. 11, Gali No. 5,
District Main Puri, U.P.
2. Roshan (JUVENILE)
S/o Surya Narain
R/o F28, J. J. Colony,
Shakur Pur, Delhi.
Also at :
Village - Gidha, PO - Ratansara
PS - Ghogaria,
District Madhubani, Bihar.
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FIR No. 156/12
PS - Subhash Place
3. Dharmender (SINCE PO)
S/o Jai Shankar
R/o Village - Maujiuasi,
PS - Ghogaria,
District Madhubani, Bihar.
4. Kaushlander (SINCE PO)
S/o Devi Shankar
R/o Village - Munyasi,
PS - Ghogaria,
District Madhubani, Bihar.
5. Narender @ Bakur (SINCE PO)
S/o Kunwar Singh Yadav
R/o Village - Para,
PS - Ghogaria,
District Madhubani, Bihar.
FIR No. : 156/12
Police Station : Subhash Place
Under Sections : 376(2)(g)/344/506 IPC
Date of committal to session Court : 12/10/2012
Date on which judgment reserved : 15/02/2014
Date on which judgment announced : 21/02/2014
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FIR No. 156/12
PS - Subhash Place
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 : That on 28/04/2012, one complaint of the prosecutrix (name withheld being a case u/s 376 IPC) D/o Sh. Jagdish Uraon R/o Village Kulhi Bahera Toli, PS Gumla, Jharkhand addressed to the SHO Subhash Place, was received by SI Anupama Sudan vide DD no. 42B, on which inquiries were made from the complainant/prosecutrix in front of his bhabhi and separately from them. Medical examination of the prosecutrix was got conducted from Bhagwan Mahavir Hospital vide MLC No. 619/12 and sexual assault evidence collection sealed kit was also received which was taken into police possession. The complaint is on the subject of forcible committal of rape by Dharmender Kaushalender, Amit, Roshan and their one companion upon the prosecutrix, and is to the effect that, she is the resident of the above address. She was put on the work as a domestic servant in January through the Geeta Placement Agency, Shakur Pur, where she did not like the work and from there she came back to Geeta Placement, Shakur Pur.
3 of 106 4 FIR No. 156/12 PS - Subhash Place A little distance away from Geeta Placement, there is one Chole Bhature wala whose name is Amit and sometimes, when she used to come to Shakur Pur, then she used to eat Chole Bhature from him. On that day, when she came from kothi, she was feeling hungry hence, she had gone to Amit for eating Chole Bhature. Amit asked her as to whether Geeta gives her salary money in time on which she told him that last one year she had worked through Geeta Placement, but Geeta has not paid her salary till now. On which, Amit told her when Geeta does not pay the money to her, then, let she not go to her (Geeta) and he (Amit) will get put her on work (Main Tumhe Kaam Pe Lagwa Dunga). Let she go with him and he by inducing her in this manner at about 7:00 p.m. took her to a nearby house and in the night, he forcibly committed rape upon her two times and he also snatched her mobile phone. On the next day, he gave her to some placement agency which is in EBlock, Shakur Pur and there were four persons Kaushalender, Dharmender, Roshan and the name of the fourth person, she does not know but can identify him. On that day, Kaushalender in the night, forcibly committed rape upon her and also threatened her to kill if disclosed to anyone. He confined her in a room and on the next day, Dharmender, Roshan and their fourth companion 4 of 106 5 FIR No. 156/12 PS - Subhash Place committed rape upon her and there was no lady in that house and in this manner all the said four persons after confining her continuously raped her for about a month and her vagina was badly wounded even then, these persons did not leave her and used to keep the house locked so that she may not go anywhere and she may not tell anything to anyone. In this way, in January 2012, for the whole month, her rape was committed. About, or on 0203/02/2012, Dharmender, Kaushalender and their fourth companion, left for their village. Only, Roshan was there. One day, on finding an opportunity on 05/02/2012, she came out from there, she was very frightened. She went to her village and on reaching the village, she did not tell to anyone, but was keeping sad (Udas Rehti Thi). When for two months, she had no menses, her bhabhi asked her to go to a doctor. Doctor told that there are wounds in the vagina, then on the asking of bhabhi, she told all about the incident (Usne Saari Baat Bhabhi Ko Batai). There also, she was under treatment. Then, her bhabhi brought her to Delhi. She wants strict legal action be taken against all the above said five persons. Today also, there are wounds in her vagina. Strict legal action be taken against these persons and justice be given to her. From the complaint and from the inspection of the MLC on finding that, 5 of 106 6 FIR No. 156/12 PS - Subhash Place offences u/s 376 (2) (g)/342/506 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by SI Anupama Sudan. During the course of investigation, accused Amit on the identification of the prosecutrix was apprehended and was interrogated and was arrested. Pointing out memo of the place of incident was prepared at the instance of accused Amit. On the pointing out of the prosecutrix site plan was prepared. Accused Amit was got medically examined vide MLC No. 622/12 and the sealed exhibits as handed over by the doctor after his medical examination were taken into police possession. Search for the other accused on the pointing out and identification was made. Prosecutrix for recording of her statement u/s 164 Cr.P.C. was produced before the court and pending recording of her statement u/s 164 Cr.P.C., she was sent to Nari Niketan. On 30/04/2012, after the recording of the statement of the prosecutrix u/s 164 Cr.P.C. by the order of the Court, her custody was given to her bhabhi. Search for the other wanted accused, was made. On 03/05/2012, on the identification of the prosecutrix, accused Roshan Kumar was apprehended, interrogated and arrested and on his pointing out the pointing out memo of the place of occurrence, was prepared. On the 6 of 106 7 FIR No. 156/12 PS - Subhash Place pointing out of the prosecutrix, the site plan was prepared, accused Roshan Kumar was got medically examined vide MLC No. 642/12 and the sealed exhibits as handed over by the doctor after his medical examination were taken into police possession. Accused Roshan Kumar disclosed the particulars of his other companions as 1) Dharmender S/o Jai Shanker, R/o Village - Maujiuasi, PS - Ghogaria, District Madhubani, Bihar, 2) Kaushalender S/o Devi Shankar, R/o Village - Munyasi, PS - Ghogaria, District Madhubani, Bihar and 3) Narender @ Bakur S/o Kunwar Singh Yadav R/o Village - Para, PS - Ghogaria, District Madhubani, Bihar. During the course of investigation, prosecutrix was again sent for internal medical examination at Bhagwan Mahavir Hospital and on the advise of the doctor, she was got admitted in the hospital. Efforts were made a few times for the internal medical examination of the prosecutrix, but due to pain and infections, prosecutrix, refused for her internal medical examination. On which lodging a DD entry, the exhibits of the prosecutrix already taken into police possession and the exhibits of the accused were sent to the FSL for examination. Efforts were made for the arrest of the absconding accused, but they could not be arrested and later on were declared 7 of 106 8 FIR No. 156/12 PS - Subhash Place proclaimed offenders (POs) by the Court.
Upon completion of necessary further investigation, challan for the offences u/s 376(2)(g)/344/506 IPC was prepared against accused Amit and Roshan Kumar and was sent to the Court for trial.
2. During the course of the committal proceedings, vide order dated 10/10/2012, accused Roshan was declared a juvenile and the case against him was separated and was sent to the Learned Juvenile Justice Board.
3. Since the offence under Section 376(2)(g) IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case against accused Amit was committed to the Court of Session under section 209 Cr.P.C.
4. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case u/s 120B IPC, u/s 376(2)(g) r/w section 120B IPC and u/s 376(2)(g)/344/506 IPC r/w section 120B IPC was made out against accused Amit. The charge was framed accordingly 8 of 106 9 FIR No. 156/12 PS - Subhash Place on 02/11/2012, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
5. In support of its case prosecution has produced and examined 18 witnesses. PW1 HC Vikram, PW2 W/Constable Reenu, PW3 Constable Baljeet, PW4 HC Ram Avtar, PW5 HC Karan Singh, PW6 W/Constable Monika, PW7 Dr. Mamta Verma, CMO BM Hospital Delhi, PW8 Dr. N. K. Kaushal, CMO, BM Hospital Delhi, PW9 Dr. Chhindodevi Jassal, Specialist Gynae BM Hospital Delhi, PW10 Dr. Pankaj Shah, CMO, BM Hospital Delhi, PW11 Dr. Madhuri Rani, SR Gynae, BM Hospital, Delhi, PW12 Dr. Nand Kishore, SR Surgery BM Hospital, Delhi, PW13 Ms. Geeta Kumari, PW14 Sh. Hem Raj, PW15 Prosecutrix, PW16 Ms. Mani, PW17 HC Sohan Singh and PW18 Inspector Pankaj Malik.
6. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Vikram is the MHC(M), who proved his affidavit of examinationinchief Ex. PW1/1 signed by him at points 'A' and 'B' 9 of 106 10 FIR No. 156/12 PS - Subhash Place and proved the relevant entry of register no. 19 Ex. PW1/A, copy of RC no. 72/21/12 Ex. PW1/B and receipt of FSL Ex. PW1/C. PW2 W/Constable Reenu, who proved her affidavit of examinationinchief Ex. PW2/1 signed by her at points 'A' and 'B' and deposed that on 28/04/2012, she got the prosecutrix medically examined at MB hospital and the sealed pullinda with sample seal as was handed over by the concerned doctor after her medical examination was given by her to the IO.
PW3 Constable Baljeet, who proved his affidavit of examinationinchief Ex. PW3/1 signed by him at points 'A' and 'B' and deposed that on 28/04/2012, after receiving the original complaint and copy of FIR from Duty Officer he handed over the same to IO SI Anupma and further deposed that on 23/05/2012 after receiving the three sealed parcel from MHC(M) vide RC no. 72/21/12 he deposited the same in FSL, Rohini.
PW4 HC Ram Avtar, who proved his affidavit of 10 of 106 11 FIR No. 156/12 PS - Subhash Place examinationinchief Ex. PW4/1 signed by him at points 'A' and 'B' and deposed that on 28/04/2012, he had gone for the search of accused Dharmender, Narender and Kushlender in Bihar at their native place but they were not found there.
PW5 HC Karan Singh, who proved his affidavit of examinationinchief Ex. PW5/1 signed by him at points 'A' and 'B' and deposed that on 28/04/2012 he was working as Duty Officer at PS Subhash Place from 05:00 p.m. to 01:00 a.m. and proved the copy of FIR Ex. PW5/A and endorsement on rukka Ex. PW5/B bearing his signature at point 'A'.
PW6 W/Constable Monika, who proved her affidavit of examinationinchief Ex. PW6/1 signed by her at points 'A' and 'B' and deposed that on 28/04/2012, she was deputed as DD writer at PS Subhash Place from 09:00 a.m. to 05:00 p.m. and on that day she made DD entry no. 43D dated 28/04/2012 in B Roznamcha on the complaint of prosecutrix (name withheld) and handed it over to SI Anupma.
11 of 106 12 FIR No. 156/12 PS - Subhash Place PW7 Dr. Mamta Verma, CMO BM Hospital, Delhi, who proved the medical examination of patient/prosecutrix as was conducted by Dr. Sheetal Yadav on 28/04/2012 vide MLC no. 619/12 Ex. PW7/A bearing signature of Dr. Sheetal Yadav at point 'A' and after her medical examination she was referred to gynae department for further examination. She also proved the medical examination of patient/Roshan Kumar (juvenile) conducted on 03/05/2012 by Dr. Nikunj vide MLC No. 642/12 Ex.PW7/B bearing signature of Dr. Nikunj at point 'A'.
PW8 Dr. N. K. Kaushal, CMO BM Hospital, Delhi, who deposed that on 28/04/2012 he declared patient/prosecutrix fit for statement and proved his observation at point X on MLC Ex. 7/A and further deposed that he reserved the opinion about the injuries bearing his signature at point 'B'.
PW9 Dr. Chhindodevi Jassal, Specialist Gynae BM Hospital Delhi, who proved gynaecological examination of the prosecutrix as was conducted on 28/04/2012 from point 'X' to 'X1' on Ex. PW7/A signed by her at point 'C' and 'D' and also proved the 12 of 106 13 FIR No. 156/12 PS - Subhash Place examination kit for victim of sexual abuse in respect of patient/prosecutrix Ex. PW9/A bearing her signature at page 1, 6 & 9 and further deposed that in the examination kit Ex. PW9/A at page no. 3 she has mentioned that because of painful ulceration patient/prosecutrix did not allow to examine hymen. She further proved the medical examination of patient/accused Amit as was conducted by Dr. Parul on 28/04/2012, vide MLC No. 622/12 Ex. PX5 bearing signature of Dr. Parul at point 'A'.
PW10 Dr. Pankaj Shah, CMO, BM Hospital Delhi, who proved the medical examination of patient/prosecutrix conducted on 16/05/2012 vide MLC No. 741/12 Ex. PW10/A bearing his signature at point 'A'.
PW11 Dr. Madhuri Rani, SR Gynae, BM Hospital Delhi, who deposed that on 16/05/2012, patient/prosecutrix was medically examined by Dr. Pankaj Shah (PW10) vide MLC No. 741/12 Ex. PW10/A and referred the patient for gynae department for further examination. She further deposed that she gynaecologically examined 13 of 106 14 FIR No. 156/12 PS - Subhash Place the patient/prosecutrix from point 'X' to 'X1' on MLC Ex. PW10/A bearing her signature at point 'B'.
PW12 Dr. Nand Kishore, SR Surgery BM Hospital Delhi, who deposed that on 03/05/2012 patient/accused Roshan Kumar (juvenile) was medically examined by Dr. Nikunj vide MLC No. 642/12 Ex. PW7/B and was referred to surgery department for further examination. In the surgery department he medically examined the said patient and gave his observations from point 'X' to 'X1' on the MLC Ex. PW7/B bearing his signature at point 'B' and there was no evidence suggesting that patient/accused Roshan was not capable of sexual act.
PW13 Ms. Geeta Kumari is the owner of placement agency, Geeta Enterprises, who deposed that she is residing at B235, JJ Colony, Shakur Pur, Delhi along with her family. She is running placement in the name and style of Geeta Enterprises. She is original resident of Village Amba Toli, Post Office, Basua, District Gumla, Jharkhand. Prosecutrix (name withheld) D/o Jagdish Pura had come to her placement agency in the year 2009 she (prosecutrix) worked in Delhi 14 of 106 15 FIR No. 156/12 PS - Subhash Place at various places and thereafter, she (prosecutrix) went to her village. In the year January 2012, she (prosecutrix) again came from the village and she put her (prosecutrix) to a house at Pitam Pura where she (prosecutrix) had worked for about one week and from there she (prosecutrix) left and went somewhere without informing anybody. After 1015 days she (prosecutrix) gave a telephone call and informed her that she (prosecutrix) met somebody known to her and going to her village. In the month of February 2012, one Mangal who is a brother in relation to prosecutrix (name withheld) who had brought her at Delhi came to her (PW13) and told her to make the payment of the remaining amount of her (prosecutrix) salary. He told her that prosecutrix (name withheld) was in the native village. Thereafter neither prosecutrix (name withheld) nor Mangal returned to her at any point of time. Thereafter for the first time she saw prosecutrix (name withheld) in the Police Station and now she has seen her (prosecutrix) today in the Court. The Police had recorded her statement.
PW14 Sh. Hem Raj R/o B183, Shakur Pur, JJ Colony, Delhi 34 who is the landlord of House No. E193/194 JJ Colony, 15 of 106 16 FIR No. 156/12 PS - Subhash Place Shakurpur in which on fifth floor two rooms were rented out to co accused Dharmender (since PO) where coaccused Dharmender (since PO) was living with other coaccused namely Roshan (Juvenile), Kaushlander and Narender @ Bakur (since PO) where Prosecutrix was wrongfully confined and gang raped in the whole month of January, 2012 by them/ the said coaccused Roshan (Juvenile), Kaushlander and Narender @ Bakur (since PO), who deposed that he is residing at the aforementioned address alongwith his family comprising of his wife and three children. The House No. E193/194, JJ Colony, Shakurpur is in the name of his wife. It is built up to five stories including the ground floor and there are 16 rooms which he has given on rent to various persons. The fifth floor has two rooms which have been given on rent to Dharmender, S/o Jai Shankar in the month of November 2011. He had seen that there were 34 boys and one girl used to reside with Dharmender in those two rooms. He (Dharmender) had informed that the said girl was his wife. He (PW14) can identify that girl but he does not know the name of the girl because he (Dharmender) had never told her name to him. In the first week of February, 2012 he got his premises vacated from Dharmender. When he given his premises on rent to 16 of 106 17 FIR No. 156/12 PS - Subhash Place Dharmender he (Dharmender) had said that he (Dharmender) wanted to use the same for residential purposes but later when he went to collect the rent, he received information from other tenants that he (Dharmender) was about to start the placement agency and therefore under these circumstances he was not willing for the same and asked him (Dharmender) to vacate the premises. He (PW14) identified the prosecutrix present in the court as the girl (by pointing out towards her) who was staying with Dharmender and to whom Dharmender had introduced to him (PW14) as his wife (witness says that he does not know her name).
PW15 Prosecutrix is the victim who deposed regarding the incident and proved her complaint made to the Police Ex. PW15/A bearing her signature at point 'A' and also bearing her thumb impression at point 'B' and also proved arrest memo of accused Amit Ex. PW15/B, his personal search memo Ex. PW15/C, both bearing her signature at point 'A' and also proved her statement recorded u/s 164 Cr.P.C. Ex. PX3 (Colly.) bearing her signatures at point 'A' and further deposed that she was handed over to her Bhabhi Mani (PW16) by the Police vide Ex.
17 of 106 18 FIR No. 156/12 PS - Subhash Place PW15/B bearing her signature at point 'A' and thumb impression of her Bhabhi Mani at point 'B'.
PW16 Ms. Mani, R/o H. No. 342, Sudarshan Park, Delhi who deposed that she is residing in Delhi at the said address of Sudershan Park alongwith her brother and bhabhi in village relation. In the village she used to do Kheti Bari (agriculture). In Delhi, she is doing domestic work in the Kothies. Previously for about 45 years, she was put for domestic help for various places through Jitender Placement Agency at Sudershan Park, Moti Nagar. Prosecutrix (name withheld) is her would be sisterinlaw/nanad being the sister in relation to Suraj with whom she is having a living relationship. Previously she was employed in some Kothies through Placement Agency where she worked for about two years after which she went to her village. She (Prosecutrix) thereafter returned to Delhi in the March, 2012. She (Prosecutrix) told her that she was not keeping good health on which account she had gone to her native village. She (Prosecutrix) told her that she was working in a house at Rohini but she did left the work in the said house. She (Prosecutrix) further told her (PW16) that during the course of her 18 of 106 19 FIR No. 156/12 PS - Subhash Place employment, one Chole bhature wala had committed rape upon her, after which she was handed over to some placement agency where again she (prosecutrix) was kept in confinement and raped. She (PW16) had also taken the prosecutrix to the hospital and thereafter, she took her (Prosecutrix) to the Police Station where the prosecutrix made a complaint to the police. During the examination by the Learned Addl. PP while putting leading questions to her she proved her statement made to the IO Ex. PW16/PX1 and also proved the memo Ex.PW15/E bearing her thumb impression at point 'B' vide which the custody of the prosecutrix was given to her.
PW17 HC Sohan Singh, who deposed that on 28/04/2012, he was posted at Police Station Subhash Place and had joined the investigation in the present case alongwith SI Anupma, the prosecutrix Saroj and her Bhabhi in relation namely Mani. On that day they all went to EBlock, Shakurpur in front of Aggarwal Sweets for search of the accused. They reached at Aggarwal Sweets at about 9:00 p.m. where the prosecutrix Saroj pointed out towards a boy standing on the corner of the street and told them that he was the boy Amit who is selling Chola 19 of 106 20 FIR No. 156/12 PS - Subhash Place Bhaturas and had committed rape on her on two occasions. On her pointing out he (PW17) ran and caught hold of said boy Amit, whom he correctly identified in the Court. On interrogation Amit told that he is resident of Jhuggi No. 11, behind Samrat Cinema, Shakurpur and permanent resident of Uttar Pardesh. He also informed that he was around 19 years of age. In the meantime HC Baljeet also joined the investigations. The accused was arrested vide memo Ex. PW15/B, bearing his signature at point B and signature of SI Anupama at point C, signatures of accused Amit at point 'D'. His personal search was also conducted vide memo Ex. PW15/C, bearing his signature at point 'B' and signature of SI Anupama at point 'C', signatures of accused Amit at point 'D'. During the interrogations the accused has disclosed his involvement in the offence and his disclosure Ex. PW17/A was recording which bearing his signature at point 'A' and signature of SI Anupama at point 'B', signatures of accused Amit at point 'C'. Thereafter, accused took them to E46, LSC Market, 2nd Floor i.e. Second room where he had committed rape upon the prosecutrix. After which pointing out memo was prepared by the IO vide Ex. PW17/B, bearing his signature at point 'A' and signature of SI Anupama at point B, signatures of accused 20 of 106 21 FIR No. 156/12 PS - Subhash Place Amit at point 'C'. IO also prepared site plan on the pointing out of the prosecutrix. Meanwhile, Constable Dinesh also joined the proceedings. IO handed over the accused to him (PW17) and Constable Dinesh and directed them to take the accused BM Hospital. On the direction of the IO they took the accused to Bhagwan Mahavir Hospital and his medical examination conducted after which the doctor handed over to them the MLC and pullinda containing the exhibits duly sealed with the seal of the hospital and sample seal. They returned to the Police Station where he (PW17) handed over the MLC exhibits and the sample seal to the IO who prepared the seizure memo Ex. PW17/C bearing his signature at point 'A' and signature of SI Anupama at point 'B'. On 03/05/2012 he again joined the investigation in the present case alongwith the IO SI Anupama and the prosecutrix and her Bhabhi Mani on which day on the pointing out of prosecutrix accused Roshan was apprehended near Samrat Cinema at around 2:303:00 p.m. and after which he was formally arrested by the IO and interrogated. The documents pertaining to his arrest, personal search, interrogation, pointing out were prepared. Roshan was also got medically examined and being a Juvenile his investigations were handed over to the Juvenile Officer. To the leading 21 of 106 22 FIR No. 156/12 PS - Subhash Place questions put by Learned Addl. PP he deposed that it is correct that when they had reached the spot, the IO had tried to join the public persons who refused to join the investigation and left without disclosing their names and addresses. It is correct that the prosecutrix was handed over by the IO to her Bhabhi in relation namely Mani vide Ex. PW15/E, bearing his signature at point 'C' and he did not remember these facts and hence could not depose about the same earlier.
PW18 Inspector Pankaj Malik, who deposed that on 23/07/2012, he had taken over the charge as SHO PS Subhash Place. The investigation in the present case was being handled by SI Anupma who sought a VRS and is no longer working in the department. She is presently abroad and it is not possible to secure her presence without delay. He is aware of the facts of the case since the charge sheet has been prepared by the IO and forwarded by him. Since SI Anupma was posted in the PS and has been associated with him in the investigation of many cases and he can identify the handwriting and signatures of SI Anupma. The endorsement made by SI Anupama is Ex. PW15/A, bearing signature of SI Anupama at point 'A' on the statement of 22 of 106 23 FIR No. 156/12 PS - Subhash Place prosecutrix Ex. PW15/A, on the basis of which FIR was registered. The site plan was prepared on 28/04/2012 is Ex PW18/B, bearing the signature of SI Anupama at point 'A' and the site plan prepared on 03/05/2012 is Ex. PW18/C bearing the signature of SI Anupama at point 'A'. The disclosure statement of the accused Amit is Ex. PW17/A bearing the signature of SI Anupama at point 'B'. The pointing out memo of the place of incident is Ex. PW17/B, bearing the signature of SI Anupama at point 'B'. The seizure memo of the exhibits of the accused Amit is Ex. PW17/C bearing the signature of SI Anupama at point 'B', the seizure memo of the sexual assault evidence collection kit is Ex. PW2/A bearing the signature of SI Anupama at point 'B', the arrest memo of accused Amit is Ex. PW15/B bearing the signature of SI Anupama at point 'C', his personal search is Ex. PW15/C bearing the signature of SI Anupama at point 'C', the receipt regarding the handing over the prosecutrix to Smt. Mani is Ex. PW15/E bearing the signature of SI Anupama at point 'D'. On 29/04/2012 SI Anupama had moved an application before the Illaka Magistrate for recording the statement of prosecutrix u/s 164 Cr.P.C. vide application Ex PX2 bearing the signature of SI Anupama at point 'A'. Thereafter, the statement of 23 of 106 24 FIR No. 156/12 PS - Subhash Place prosecutrix was got recorded vide Ex. PX3 bearing the signature of SI Anupama at point 'X'. After the completion of the proceedings SI Anupama had moved an application before the Illaka Magistrate for obtaining the copy of the proceedings which is Ex. PX4. The attested copy of DD No. 43B dated 28/04/2012 is Ex. PW6/A bearing his attestation and signature at point 'A'. DD No 22B dated 21/05/2012 is Ex. PW18/D bearing his signature and attestation at point 'A'. Copy of DD No. 45B dated 21/05/2012 bearing his signature and attestation at point 'A'.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
7. It is to be mentioned that on 02/11/2012, accused Amit made a statement before the Learned Predecessor Court and admitted the proceedings u/s 164 Cr.P.C. conducted by Learned MM. The proceedings u/s 164 Cr.P.C. kept in sealed cover were taken out. The envelope is Ex. PX1, the application moved by the IO is Ex. PX2, the proceedings u/s 164 Cr.P.C. is collectively Ex. PX3 (running into five 24 of 106 25 FIR No. 156/12 PS - Subhash Place pages) and the application of the IO for obtaining the copy of proceedings is Ex. PX4. He further admitted his medical examination vide MLC Ex. PX5. He had stated that he has 'no objection' if Learned MM and concerned doctor are not examined in the Court.
8. Statement of accused Amit was recorded u/s 313 Cr.P.C. wherein he pleaded innocence and false implication and did not opt to lead any defence evidence.
9. Learned Counsel for the accused submitted that the age of the prosecutrix is not in dispute as she herself has given it as 19 years. Hence, she has attained the age of majority at the time of incident.
Learned Counsel for the accused submitted that the prosecutrix has undergone medical examination twice - firstly on 28/04/2012 and then on 16/05/2012 vide MLCs Ex. PW7/A and Ex. PW10/A. As per the MLC prepared by Dr. Mamta Verma, CMO, BM Hospital (PW7), the alleged history is sexual assault in January, 2012 in the Bureau Placement by owners of Bureau by multiple people and 25 of 106 26 FIR No. 156/12 PS - Subhash Place multiple times as told by the patient herself. This MLC further shows that no fresh external injury is visible.
The prosecutrix was further examined by Dr. Sheetal Yadav and later on she was referred to Gynae Department for further examination. Dr. Chhindo Devi (PW9) examined her and found following injuries :
1. Mark vulvo vaginitis present.
2. Thick purulent discharge coming out of vagina.
3. Mark ulceration seen over labia majora and minora. It is also mentioned in the examination Kit Ex. PW9/A that because of painful ulceration patient/prosecutrix (name withheld) did not allow to examine hymen.
Again, on 16/05/2012, the prosecutrix was medically examined vide MLC No. 741/12, Ex. PW10/A by Dr. Pankaj Shah (PW10). As per this MLC, no visible external injuries seen.
He further submitted that the prosecutrix did not mention that prior to placement agency owners, she was raped by accused Amit. On perusal of the MLC Ex. PW7/A, it is clear that alleged history given by the prosecutrix is that she was sexually assaulted in January, 2012 in the Bureau Placement by owners of Bureau by multiple people and 26 of 106 27 FIR No. 156/12 PS - Subhash Place multiple times.
Secondly, the prosecutrix was medically examined after about 04 months. The prosecutrix did not have any sort of injuries, for this reason she has not undergone any medical examination prior to 28/04/2012. This delay of 04 months is quite crucial as it was alleged by the prosecutrix that she was firstly raped by accused Amit twice and then by four persons and that too for a month. The injuries mentioned in the MLCs are nothing but infections which could be caused due to unhygienic conditions.
Learned Counsel for the accused submitted that Geeta Kumari (PW13) is the owner of placement agency and the relevant facts in her testimony is that she states that "in the year, 2012, in January the prosecutrix again came from the village and I put her to a house at Pitam Pura where she worked for about one week and from there she left and went somewhere without informing anybody. After 1015 days, she gave a telephonic call and informed that she met somebody known to her and going to her village. In the month of February 2012, one Mangal who is brother in relation to prosecutrix (name withheld), came to me and told 27 of 106 28 FIR No. 156/12 PS - Subhash Place me that prosecutrix (name withheld) was in native village. Thereafter, neither prosecutrix (name withheld) nor Mangal returned to me at any point of time".
Learned Counsel for the accused further submitted that the prosecutrix was working through this witness. It may be presumed that she may have some faith in her. Even then, after the sexual assault, she did not inform her owner. It is quite surprising that the prosecutrix did not seek help from anyone after the offence.
Learned Counsel for the accused submitted that Hemraj (PW14) is the landlord of the room rented by the other coaccused persons and where the prosecutrix was allegedly wrongfully confined for a month. Although, this witness is relevant only to other coaccused persons, but the testimony of this witness shows the unnatural conduct of the prosecutrix. Important facts are as under : a. As per this witness, accused Dharmender introduced the prosecutrix as his wife. At that time also, the prosecutrix did not raise any alarm or requested the landlord to help her as she has been wrongfully confined in 28 of 106 29 FIR No. 156/12 PS - Subhash Place that room and accused persons are committing rape upon her daily. b. This witness has not seen anything unnatural or strange that is why he did not suspect that something wrong was going on. Even after seeing a single lady with 34 persons, the landlord did not find any reason to raise suspicion on the accused persons.
c. It is quite strange that the prosecutrix behaved in a usual manner in the presence of a person who can save her from the accused persons.
Learned Counsel for the accused submitted that the prosecutrix (PW15) is the most material witness being the victim of sexual assault. In her examinationinchief, this witness states that in the end of winter season of year, 201112,she went to Geeta Placement Agency, Shakur Pur and thereafter on being hungry she went to a chole bhature wala namely Amit where Amit asked her if Geeta did not pay her salary. The prosecutrix told him that Geeta did not pay her salary for the last one year. Thereafter, accused Amit told her that he will arrange "her money" and he will get some job to her. Thereafter he took her to a park and later on to a jhuggi behind Samrat Cinema and he committed rape upon her twice. The accused kept her in jhuggi for one day.
29 of 106 30 FIR No. 156/12 PS - Subhash Place On the next morning, Amit handed over her to a Placement Agency of other accused persons where she was kept in a room for about one month and she was sexually assaulted for one month. These accused persons did not allow her to go out of the room and they locked the room from outside and she was not able to go away from there. After one month, three of the four accused persons went to their villages and only accused Roshan was present there. One day Roshan forget to lock the room from outside and then the prosecutrix went to her village. At that time she did not tell anybody except her Bhabhi namely Mani (PW16) about the incident. In the village, her condition was deteriorated and her injuries on private parts were aggravated. After 1½ - 2 months, the Bhabhi Mani brought her to Delhi.
The most important fact in the examinationinchief of this witness is that "in the village, my condition was deteriorated and my injuries on private parts were aggravated and I found the same painful. After 1½ - 2 months, my Bhabhi Mani again brought me to Delhi. Thereafter, my Bhabhi Mani counseled me and thereafter I went to PS to lodge FIR against the abovesaid culprits".
30 of 106 31 FIR No. 156/12 PS - Subhash Place a. He further submitted that this above mentioned fact is completely missing in the testimony of Miss Mani (PW16), her Bhabhi. Moreover, it is stated by Mani (PW16) that "She (the prosecutrix) told me that she was not keeping good health on which account she had gone to her native village.
b. It is also mentioned by the prosecutrix in her examinationinchief that "on my identification, Police arrested accused Amit vide Ex. PW15/B bearing my signature at point 'A'. In her crossexamination, she replied that accused Amit was arrested at about 34 p.m. however, date was not recollected by her. She further states that I do not know from where accused Amit was arrested but he was brought to PS where I identified him. It is correct that I did not accompany Police to anywhere for arrest of accused Amit and I only saw him at the PS. On this aspect, HC Sohan Singh (PW17) presents a contradictory version. As per HC Sohan Singh (PW17) on 28/04/2012 he alongwith prosecutrix, her Bhabhi and SI Anupama reached EBlock, Shakur Pur where from Aggarwal Sweets accused Amit was apprehended and thereafter arrested. Surprisingly, both the public witnesses i.e. the prosecutrix and her Bhabhi are silent in this regard.
31 of 106 32 FIR No. 156/12 PS - Subhash Place c. As per the prosecutrix, accused Amit was arrested at about 34 p.m. whereas Arrest Memo Ex. PW15/B shows the time of arrest as 9:45 p.m. d. This witness states that "I have shown the place of incident where accused Amit committed rape upon me. Instead of pointing out of the place of incident by accused, to corroborate prosecution story. Moreover, this fact that prosecutrix led the Police party to the place of incident is not mentioned anywhere in the chargesheet. e. The prosecutrix admits that Police personnel had read over her statement outside the Court.
f. The prosecutrix admits that she knew accused Amit since, 2009 as she used to go there for eating cholebhature.
g. This witness was confronted on the point that accused took her to a park.
h. The prosecutrix states that accused Amit was alone when he took her from his working place (rehri) to the room. It is quite surprising that the accused has left his rehri without any supervision/security. i. As per the prosecutrix, the accused told her that it was a night time and she has to stay at his room. She protested but he "insisted" to take her at his room. It is quite pertinent to mention here that even as per the 32 of 106 33 FIR No. 156/12 PS - Subhash Place prosecutrix there was no application of force, any allurement, or enticement. Even then, the prosecutrix prefers to accompany the accused to his room for a night. The prosecutrix tried to explain her step while deposing that "I thought he would arrange some job for me". j. The prosecutrix admits that accused Amit did not drag her forcibly to his room.
k. She was also confronted on the point that accused took her in a jhuggi behind Samrat Cinema with her previous statement Ex. PW15/A where this fact is not recorded.
l. Learned Counsel for the accused submitted that the prosecutrix admits that the place of incident is a residential area having other jhuggis near the jhuggi of Amit.
m. The prosecutrix did not raise any alarm. She volunteered that she did not raise alarm because Amit told her to keep quite otherwise he will throw her out of the room and where she will go". This explanation is not mentioned in her statements nor appears to be reasonable. n. As per the prosecutrix, some persons were present in the adjoining room where the accused Amit committed rape upon her. Even then, it is surprising and unbelievable that the prosecutrix did not raise her voice 33 of 106 34 FIR No. 156/12 PS - Subhash Place for help.
o. The prosecutrix admits that she has not told to Learned MM that after reaching to my native village, I had told to my family members the whole incident which has taken place. She was confronted with her statement recorded u/s 164 Cr.P.C. Ex. PW15/D where this fact is so recorded. p. It is quite surprising that the prosecutrix has believed a cholebhature wala for arranging "her money". There in nothing on record that chole bhature wala has some sort of influence or intimacy with the Placement Agency Owners.
q. The prosecutrix did not inform Police or make a call at 100 number immediately after escape from the room of accused persons. r. She did not make any call to Geeta, the owner of Placement Agency. s. She did not make any call to her Bhabhi Mani.
t. She did not make any call to her brother who is living in Delhi. u. She did not make any hue and cry to attract neighbours who were living in the same building.
v. Even after reaching her village, she did not inform her parents regarding the sexual assault and confinement. w. The prosecutrix admits that during her confinement for one month, 34 of 106 35 FIR No. 156/12 PS - Subhash Place Police officials also came there for about 23 occasions. She had seen those Police officials. She had not raised any alarm or told those Police officials regarding the incident.
x. The prosecutrix was neither led nor crossexamined by the Learned Addl. PP on the point of proceedings conducted at Aggarwal Sweets. y. It is also important that the prosecutrix has only signed the arrest memo Ex. PW15/B but not signed other documents such as disclosure statement, pointing out memo of the place of incident and site plan.
Learned Counsel for the accused submitted that Miss Mani is the Bhabhi of the prosecutrix who is quite material witness as she counseled the prosecutrix and accompanied her to the PS for registration of FIR.
First of all, the relation of this witness with the prosecutrix is not clear. As per the prosecutrix, Mani is her Bhabhi in village relation. But as per Mani (PW16) she is having livein relation with Suraj who is the brother of the prosecutrix in village relation. Important points for consideration are as follows : a. PW16 - Miss Mani witness states that the prosecutrix returned to 35 of 106 36 FIR No. 156/12 PS - Subhash Place Delhi in March, 2012. She told me that she was not keeping good health on which account she had gone to her native village. It is quite surprising that the prosecutrix had deposed that her Bhabhi (Mani) has brought her to Delhi.
b. This witness recollect after being led by Learned Addl. PP that the prosecutrix has also informed her that after she was raped by one Chole Bhature Wala and thereafter by one person in placement agency. c. PW16 - Miss Mani admits that she carries a mobile phone and the prosecutrix was also having a mobile phone at the time of incident. Evenmore, she admits that Suraj, the brother of prosecutrix was also having a mobile phone at that time. It is surprising that when prosecutrix was having mobile phone why didn't she informed her brother and Bhabhi immediately after the incident, or make a call at 100 number. Why the prosecutrix prefers to return her native village without informing anyone? How did she manage the travel expenses, as it can be presumed that she had no money after being escape from the clutches of accused persons.
d. PW16 - Ms. Mani admits that the prosecutrix did not make any telephonic call to her regarding the incident. She volunteered that the 36 of 106 37 FIR No. 156/12 PS - Subhash Place prosecutrix told her about the incident "Much Later". In the month of March. Even then, why didn't the prosecutrix and this witness approached Police prior to 28/04/2012 when this witness too has information about the incident. There is a delay of about one month, even after this witness is well aware of the sexual assault happened with the prosecutrix. This delay is quite crucial as there was no family pressure for saving family honour. Neither there was any lack of awareness nor any knowledge to take appropriate step, as it can be noticed by the background of prosecutrix who possess a mobile phone, lived independently, and worked at several places. e. This witness admits that neither she has seen the accused Amit previously nor the prosecutrix has ever pointed out towards him at any point of time. Furthermore, this witness has asked the prosecutrix to show her the boy who has committed rape upon her but the prosecutrix did not take her anywhere nor pointed out the boy to her. f. This witness is well known to the prosecutrix as she is related to her brother. Even then, her testimony is not trustworthy due to above mentioned reasons.
37 of 106 38 FIR No. 156/12 PS - Subhash Place Learned Counsel for the accused submitted that HC Sohan Singh (PW17) has joined the investigation of this case with the IO. Important points for consideration are as under : a. This witness has been leaded by the Learned Addl. PP regarding joining of public persons at the spot and handing over the prosecutrix to her Bhabhi vide Ex.PW15/E. b. the entire episode of the arrest of accused Amit from Aggarwal Sweets is not corroborated by public witnesses i.e. the prosecutrix and her Bhabhi who according to this witness had accompanied them. c. The place of arrest of accused Amit is a busy public place being a sweet corner even then there is no satisfactory explanation for non joining of any independent person in the investigation. d. PW17 - HC Sohan Singh witness states that IO did not join the owner of Aggarwal Sweet Corner. He volunteered that the shop was closed. It can be presumed that the month of May and at about 9:30 p.m., sweet corner was not closed as people prefer to have sweets till late hours. Moreover, other shops are admittedly opened at that time. e. This witness admits that even at E46 (place of incident) there were large number of tenants but IO did not join any public person.
38 of 106 39 FIR No. 156/12 PS - Subhash Place f. This witness contradicts with the prosecutrix and her Bhabhi regarding the proceedings conducted at Aggarwal Sweets.
Learned Counsel for the accused submitted that Inspector Pankaj Malik, SHO, PS Subhash Place (PW18) has been examined on behalf of IO SI Anupama who has sought VRS and presently she is abroad. Therefore, this witness has only identified the handwriting and signatures of SI Anupama and he has not joined the investigation of this case at any point of time.
Learned Counsel for the accused submitted that the accused Amit has been falsely implicated in the case only to extort money. No offence, as alleged by the prosecutrix, has been committed by the accused. The Prosecutrix was living with Dharmender, the coaccused.
Learned Counsel for the accused prayed for the acquittal of the accused Amit on all the charges levelled against him .
10. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent 39 of 106 40 FIR No. 156/12 PS - Subhash Place 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.
11. I have heard Sh. S. C. Sroai, Learned Addl. PP for the State and Sh. Rajneesh Antil, Learned Amicus Curiae for the accused and have also carefully perused the entire record.
12. The charge for the offences punishable u/s 120B, section 376 r/w section 120B IPC and section 376(2)(g)/344/506 IPC r/w section 120B IPC against accused Amit is that on or before in the month of January, 2012 at Delhi, he alongwith Roshan (since juvenile), Dharmender (Since PO), Kaushalender (Since PO) and Narender @ Bakur (Since PO) hatched a criminal conspiracy to commit rape upon prosecutrix (name withheld) D/o Late Sh. Jagdish Uraon, aged about 19 years and that in the month of January, 2012 at night time in a room at J. J. Colony, Shakur Pur, Delhi, within the jurisdiction of PS - Subhash Place in pursuance to the above said criminal conspiracy, he committed 40 of 106 41 FIR No. 156/12 PS - Subhash Place rape upon the prosecutrix (name withheld) without her consent and that in the month of January, 2012 at J. J. Colony, Delhi within the jurisdiction of PS - Subhash Place, in pursuance to the above said criminal conspiracy, he handed over the prosecutrix (name withheld) to his coaccused Roshan (since juvenile), Dharmender (Since PO), Kaushalender (Since PO) and Narender @ Bakur (Since PO) and they committed gang rape upon the prosecutrix (name withheld) in the whole month of January, 2012 after wrongfully confining her in a room in the whole month of January, 2012 and also criminally intimidated her to be killed.
13. 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
14. PW15 - prosecutrix in her statement recorded u/s 164 41 of 106 42 FIR No. 156/12 PS - Subhash Place Cr.P.C. (Ex. PX3 Colly.) on 30/04/2012 has stated her age about 19 years. She in her statement recorded in the Court on 21/12/2012 while giving her particulars has stated her age as about 19 years.
Since PW15 Prosecutrix has stated her age as about 19 years on 21/12/2012 at the time of recording of her evidence/statement and the date of alleged incident is in the month of January, 2012, on simple arithmetical calculation, the age of the prosecutrix comes to around 19 years as on the date of alleged incident in the month of January, 2012.
Moreover, the said factum of the age of PW15 Prosecutrix has also not been disputed by the accused Amit. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on the record that PW15 - prosecutrix was aged around 19 years as on the date of alleged incident in the month of January, 2012. MEDICAL EVIDENCE OF THE PROSECUTRIX
15. PW7 Dr. Mamta Verma, CMO BM Hospital Delhi, who 42 of 106 43 FIR No. 156/12 PS - Subhash Place proved the medical examination of patient/prosecutrix as was conducted by Dr. Sheetal Yadav on 28/04/2012 vide MLC No. 619/12 Ex. PW7/A bearing signature of Dr. Sheetal Yadav at point 'A' and after her medical examination she was referred to gynae department for further examination.
PW8 Dr. N. K. Kaushal, CMO BM Hospital Delhi, who deposed that on 28/04/2012 he declared patient/prosecutrix fit for statement and proved his observation at point 'X' on MLC Ex. 7/A and further deposed that he reserved the opinion about the injuries bearing his signature at point 'B'.
PW9 Dr. Chhindodevi Jassal, Specialist Gynae BM Hospital Delhi, who proved gynaecological examination of the prosecutrix as was conducted on 28/04/2012 from point 'X' to 'X1' on Ex. PW7/A signed by her at point 'C' and 'D' and also proved the examination kit for victim of sexual abuse in respect of patient/prosecutrix Ex. PW9/A bearing her signature at page 1, 6 & 9 and further deposed that in the examination kit Ex. PW9/A at page no. 3 43 of 106 44 FIR No. 156/12 PS - Subhash Place she has mentioned that because of painful ulceration patient/prosecutrix did not allow to examine hymen.
PW10 Dr. Pankaj Shah, CMO, BM Hospital Delhi, who proved the medical examination of patient/prosecutrix conducted on 16/05/2012 vide MLC No. 741/12 Ex. PW10/A bearing his signature at point 'A'.
PW11 Dr. Madhuri Rani, SR Gynae, BM Hospital Delhi, who deposed that on 16/05/2012, patient/prosecutrix was medically examined by Dr. Pankaj Shah (PW10) vide MLC No. 741/12 Ex. PW 10/A and referred the patient for gynae department for further examination. She further deposed that she gynaecologically examined the patient/prosecutrix from point 'X' to 'X1' on MLC Ex. PW10/A bearing her signature at point 'B'.
Despite grant of opportunity neither PW7 - Dr. Mamta Verma nor PW8 Dr. N. K. Kaushal, PW9 Dr. Chhindodevi Jassal, PW10 Dr. Pankaj Shah and PW11 Dr. Madhuri Rani were cross 44 of 106 45 FIR No. 156/12 PS - Subhash Place examined on behalf of accused.
In view of above and in the circumstances, the medical and the gynaecological examination vide MLC No. 619/12 Ex. PW7/A; from point 'X' to 'X1' on the MLC Ex. PW7/A; Examination Kit Ex PW9/A; vide MLC No. 741/12 Ex. PW10A and from point 'X' to 'X1' on MLC Ex PW10A of PW15 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
16. PW9 Dr. Chhindodevi Jassal, Specialist Gynae, BM Hospital Delhi had deposed that on 28/04/2012 at about 10:59 p.m. Amit S/o Sukh Ram 19 years male brought by IO Anupama. Dr. Parul medically examined above said Amit at the casualty of the Hospital vide MLC 622/12 which is Ex. PX5 bearing her signature at point 'A'. According to MLC, there was no fresh external injuries seen on the above said Amit.
Despite grant of opportunity PW9 Dr. Chhindodevi Jassal was not crossexamined on behalf of accused.
The perusal of MLC Ex. PX5 indicates that it has been 45 of 106 46 FIR No. 156/12 PS - Subhash Place opined that there is nothing to suggest that the patient/accused Amit cannot perform sexual intercourse.
In view of above and in the circumstances, it stands proved on the record that accused Amit was capable to perform sexual intercourse.
DNA FINGER PRINTING EVIDENCE
17. The DNA Report Ex. PX was tendered in evidence by the Learned Addl. PP on 23/02/2013 to which the Learned Counsel for the accused had 'no objection'.
As per the DNA Report Ex. PX 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 "BMH GOVT OF NCT OF DELHI PITAMPURA DELHI"
containing exhibit '1a', '1b', '1c', '1d1', '1d2', '1d3', '1e', '1f', '1g1', '1g2', '1g3', '1h1', '1h2', '1h3', '1i1', '1i2', '1j1', '1j2' each kept in separate paper envelopes stated to be of prosecutrix.
46 of 106 47 FIR No. 156/12 PS - Subhash Place Exhibit '1a' : Empty paper envelope described as 'Combing of pubic hair'.
Exhibit '1b' : Few black strand of hair described as 'Clipping of pubic hair'.
Exhibit '1c' : Empty paper envelope described as 'Matted pubic hair'.
Exhibit '1d1' : One cotton wool swab on stick described as 'Vaginal Secretion'.
Exhibit '1d2' : Two microslides having faint smear described & '1d3' as 'Vaginal Secretion'.
Exhibit '1e' : One cotton wool swab on a stick kept in tube described as 'Culture'.
Exhibit '1f' : Dirty liquid kept in syringe described as 'Washing from Vagina'.
Exhibit '1g1' : One cotton wool swab on stick, kept in paper described as 'Rectal Examination'.
Exhibit '1g2' : Two microslides have faint smear described as & '1g3' 'Rectal Examination'.
Exhibit '1h1' : One cotton wool swab on stick, kept in paper described as 'Oral Swab'.
Exhibit '1h2' : Two microslides have faint smear described as & '1h3' 'Oral Examination'.
Exhibit '1i1' : Dark brown foul smelling liquid kept in a tube & '1i2' described as 'Blood sample of victim'. Exhibit '1j1' : Dark brown foul smelling liquid kept in a tube described as 'Blood sample of victim'.
47 of 106 48 FIR No. 156/12 PS - Subhash Place Exhibit '1j2' : Dirty liquid kept in plastic container described as 'Urine sample'.
Parcel '2' : One sealed cardboard box sealed with the seal of "BMH GOVT OF NCT OF DELHI PITAMPURA DELHI"
containing exhibit '2a', '2b' stated to be of accused Amit. Exhibit '2a' : Dark brown liquid kept in tube described as 'Blood sample'.
Exhibit '2b' : Dirty liquid kept in plastic container described as 'Semen sample'.
Parcel '3' : One sealed cardboard box sealed with the seal of "BMH GOVT OF NCT OF DELHI PITAMPURA DELHI"
containing exhibit '3a', '3b', '3c', '3d', '3e' stated to be of accused Roshan.
Exhibit '3a' & : Dark brown liquid kept in tube described as
'3b' 'Blood sample'.
Exhibit '3c' : Few black strand of hair kept in vial described
as 'clipping of pubic hair'.
Exhibit '3d' : A small bunch of black strand of hair described
as 'Pubic hair cuttings'.
Exhibit '3e' : Dirty foul smelling liquid kept in a vial
described as 'Semen sample'.
RESULT OF ANALYSIS
Exhibits '1b (Pubic hair)', '1d1 (Cotton wool swab)', '1d2 & 48 of 106 49 FIR No. 156/12 PS - Subhash Place 1d3 (microslides)', '1e (Cotton wool swab)', '1f (Washing from Vagina)', '1g1 (Cotton wool swab)', '1g2 & 1g3 (microslides), '1h1 (Cotton wool swab), '1h2 & 1h3 (microslides)', '1j2 (Urine sample)', '2a (Blood sample of accused Amit), '3a & 3b (Blood sample of accused Roshan)' were subjected to DNA isolation. Identified plus amplification kit and Gene Mapper IDx Software was used for analysis in each exhibit.
DNA was isolated from exhibits '1d1 (Cotton wool swab)', '1d2 & 1d3 (microslides)', '2a (Blood sample of accused Amit), '3a & 3b (Blood sample of accused Roshan)'. However, DNA could not be isolated from exhibits '1b (Pubic hair)', '1e (Cotton wool swab)', '1f (Washing from Vagina)', '1g1 (Cotton wool swab)', '1g2 & 1g3 (microslides), '1h1 (Cotton wool swab), '1h2 & 1h3 (microslides)', '1j2 (Urine sample)'.
RESULT DNA profile of exhibit '2a (Blood sample of accused Amit), '3a & 3b (Blood sample of accused Roshan)' was generated. However, DNA profile could not be generated from exhibits '1d1 (Cotton wool swab)', '1d2 & 1d3 (microslides)'. Therefore comparison of DNA profile of '2a (Blood sample of accused Amit), '3a & 3b (Blood sample of accused Roshan)' with '1d1 (Cotton wool swab)', '1d2 & 1d3 (microslides)' could not be made.
NOTE :
1. Remnants of the exhibits have been sealed with the seal of 'Sn. FSL DELHI'.
2. Exhibits '1i1, 1i2 & '1j1' (Blood sample of victim), exhibit '2b', '3c', '3d' & '3e' returned in original.
49 of 106 50 FIR No. 156/12 PS - Subhash Place As per the DNA Report, Ex. PX, with regard to description of articles contained in the parcels, it is noticed that parcel no. 1 belongs to PW15 - prosecutrix which was seized vide seizure memo dated 28/04/2012 Ex. PW2/A and parcel no. 2 belongs to accused Amit which was seized vide seizure memo dated 28/04/2012 Ex. PW17/C and parcel no. 3 belongs to accused Roshan (juvenile).
On careful perusal and analysis of the DNA Report Ex. PX, it clearly shows that DNA Profile of exhibits '2a (Blood sample of accused Amit)', '3a & 3b (Blood sample of accused Roshan (juvenile))' was generated. However, DNA profile could not be generated from exhibits '1d1 (Cotton wool swab of the prosecutrix)', '1d2 & 1d3 (microslides described as 'Vaginal Secretion' of the prosecutrix)'. Therefore, comparison of DNA profile of '2a (Blood sample of accused Amit), '3a & 3b (Blood sample of accused Roshan (Juvenile))' with '1d1 (Cotton wool swab of the prosecutrix)', '1d2 & 1d3 (microslides described as 'Vaginal Secretion' of the prosecutrix)' could not be made.
50 of 106 51 FIR No. 156/12 PS - Subhash Place
18. Now let the testimonies of PW15 - Prosecutrix, PW16 - Ms. Mani, her Bhabhi be perused and analysed.
PW15 prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "In the year 2009, I came to Delhi for employment as a maid servant in the houses and I get a job as a maid servant through Geeta Placement Agency, Shakurpur and I worked for about one year and thereafter I again worked in a house at Pitam Pura but I left the job there. In the year 2012, I was without job.
In the end of the winter season of year 20112012, I went to the Geeta Placement Agency, Shakurpur and thereafter because I was hungry I went to a Chole Bhature Wala namely Amit who is present in the court today (witness correctly identified accused Amit). He asked me whether Geeta had paid my salary to me then I told him that Geeta had not paid her salary of the last one year. Thereafter, accused Amit told me that he will arrange my money and he will get some job to me and thereafter he took me to the park and thereafter took me to a jhuggi behind Samrat Cinema and he committed rape upon me twice. He kept me in the jhuggi for one day.
On the next morning, he handed over me to a placement agency of Dharmender, Koshalender and Roshan and the one more person was present there who has been called by these persons as Bhukur. I do not know the name of the fourth person. I can identify these persons if shown to me. These persons kept me in a room and they did not allow me to come out of the room and these persons committed rape 51 of 106 52 FIR No. 156/12 PS - Subhash Place upon me continuously for about one month and they used to lock the room form the outside and I was not able to go away form there.
After one month Roshan was present at the room and the other three persons Dharmender, Koshalender and Bhukur went to their village and one day Roshan forget to lock the room from the outside and then I went to my village. I did not tell above said facts to anyone except my Bhabhi namely Mani. In the village, my condition was deteriorated and my injuries on the private parts were aggravated and I found the same painful. After one and halftwo months my Bhabhi again brought me to Delhi. Thereafter, my bhabhi Mani counselled me and thereafter I went to police station to lodge the FIR against the above said culprits. I made a written complaint to the police Ex. PW15/A bearing my signatures at point A, I also put my thumb impression at point B. Thereafter, Police took me to the Govt. Hospital at Pitam Pura. I was medically examined there and treated there. I remained in the Hospital for about 15 days. I was again medically examined at the Hospital. On my identification,Police arrested accused Amit vide Ex. PW15/B bearing my signatures at point 'A'. His personal search was taken vide memo Ex. PW15/C bearing my signatures at point 'A'. Police also took me to Rohini Courts and Learned MM recorded my statement u/s 164 Cr.P.C. vide Ex. PW15/D (running in two pages) bearing my signatures at point 'A'. I was handed over to my Bhabhi Mani by the Police vide memo Ex. PW15/E bearing my signatures at point 'A' and thumb impression of my Bhabhi at point 'B'."
During the leading questions put by the Learned Addl. PP for the State, PW15 - prosecutrix deposed that : 52 of 106 53 FIR No. 156/12 PS - Subhash Place "It is correct that accused Amit used to run his work of Chole Bhature near Geeta Placement Agency and I have taken food i.e. chole bhature from him prior to the day of incident. It is correct that accused Amit told me that I have not to go to Geeta and he will arrange my job and took me with him by insisting me at about 7:00 p.m. in a house in the month of January, 2012. It is also correct that accused Amit snatched my mobile phone. It is also correct that Dharmender, Koshalender, Roshan and Bhukur threatened me to be killed and committed rape continuously in the whole month of January, 2012 while wrongfully confined me. It is correct that there are serious injuries on my private part. It is correct that on 2nd or 3rd February, accused Koshlender, Dharmender and Bhukur had gone to their village. It is correct that I ran away from the room on 5th February, 2012. It is correct that in the village there was no mensuration for the two months and my Bhabhi took me to the Doctor and he told that thee was serious injuries on my private parts. It is also correct that I have shown the place of incident where the accused Amit committed rape upon me. It is correct that accused Amit committed rape upon me in a room at the second floor."
From the aforesaid narration of PW15 - prosecutrix, it is clear that in the year 2009, she came to Delhi for employment as a maid servant in the houses and she got a job as a maid servant through Geeta Placement Agency, Shakurpur and she worked for about one year and thereafter she again worked in a house at Pitam Pura but she left the job 53 of 106 54 FIR No. 156/12 PS - Subhash Place there. In the year 2012, she was without job. In the end of the winter season of year 20112012, she went to the Geeta Placement Agency, Shakurpur and thereafter because she was hungry she went to a Chole Bhature Wala namely Amit whom she correctly identified in the Court. He asked her whether Geeta had paid her salary to her then she told him that Geeta had not paid her salary of the last one year. Thereafter, accused Amit told her that he will arrange her money and he will get some job to her and thereafter he took her to the park and thereafter took her to a jhuggi behind Samrat Cinema and he committed rape upon her twice. He kept her in the jhuggi for one day. On the next morning, he handed over her to a placement agency of Dharmender, Koshalender and Roshan and the one more person was present there who has been called by these persons as Bhukur. She does not know the name of the fourth person. These persons kept her in a room and they did not allow her to come out of the room and these persons committed rape upon her continuously for about one month and they used to lock the room form the outside and she was not able to go away form there. After one month Roshan was present at the room and the other three persons Dharmender, Koshalender and Bhukur went to their village and one day Roshan forgot 54 of 106 55 FIR No. 156/12 PS - Subhash Place to lock the room from the outside and then she went to her village. She did not tell above said facts to anyone except her Bhabhi namely Mani. In the village, her condition was deteriorated and her injuries on the private parts were aggravated and she found the same painful. After one and halftwo months her Bhabhi again brought her to Delhi. Thereafter, her bhabhi Mani counselled her and thereafter she went to police station to lodge the FIR against the above said culprits. She made a written complaint to the police Ex. PW15/A bearing her signatures at point A, she also put her thumb impression at point B. Thereafter, Police took her to the Govt. Hospital at Pitam Pura. She was medically examined there and treated there. She remained in the Hospital for about 15 days. She was again medically examined at the Hospital. On her identification, Police arrested accused Amit vide Ex. PW15/B bearing her signatures at point 'A'. His personal search was taken vide memo Ex. PW15/C bearing her signatures at point 'A'. Police also took me to Rohini Courts and Learned MM recorded her statement u/s 164 Cr.P.C. vide Ex. PW15/D (running in two pages) bearing her signatures at point 'A'. She was handed over to her Bhabhi Mani by the Police vide memo Ex. PW15/E bearing her signatures at point 'A' and thumb impression of her 55 of 106 56 FIR No. 156/12 PS - Subhash Place Bhabhi at point 'B'.
During the leading questions put by the Learned Addl. PP for the State, PW15 - prosecutrix deposed that : "It is correct that accused Amit used to run his work of Chole Bhature near Geeta Placement Agency and I have taken food i.e. chole bhature from him prior to the day of incident. It is correct that accused Amit told me that I have not to go to Geeta and he will arrange my job and took me with him by insisting me at about 7:00 p.m. in a house in the month of January, 2012. It is also correct that accused Amit snatched my mobile phone. It is also correct that Dharmender, Koshalender, Roshan and Bhukur threatened me to be killed and committed rape continuously in the whole month of January, 2012 while wrongfully confined me. It is correct that there are serious injuries on my private part. It is correct that on 2nd or 3rd February, accused Koshlender, Dharmender and Bhukur had gone to their village. It is correct that I ran away from the room on 5th February, 2012. It is correct that in the village there was no mensuration for the two months and my Bhabhi took me to the Doctor and he told that thee was serious injuries on my private parts. It is also correct that I have shown the place of incident where the accused Amit committed rape upon me. It is correct that accused Amit committed rape upon me in a room at the second floor."
PW15 - Prosecutrix during her crossexamination has negated the suggestions that Police recorded her statement of their own 56 of 106 57 FIR No. 156/12 PS - Subhash Place and only obtained her signatures and thumb impression on it or that she is concealing the fact that whether at about 8:30 p.m. she was brought at Police Station after her medical examination, and is not answering properly or that accused Amit was falsely implicated by her in order to extort money from him or that she received injuries due to infections at her native village or that the accused Amit did not commit any rape upon her or that accused Amit did not hand over her to any other accused persons or that she had only signed the documents and she is not aware of the contents of the same or that she is deposing falsely.
Inspite of incisive crossexamination of PW15 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 PW15 - 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 them in the case.
57 of 106 58 FIR No. 156/12 PS - Subhash Place The testimony of PW - Prosecutrix is also found to be corroborated by the medical evidence as discussed hereinbefore.
The testimony of PW - Prosecutrix is also found to be in consonance with her complaint Ex. PW15/A made to the Police as well as her statement recorded u/s 164 Cr.P.C. Ex. PW15/D. The testimony of PW15 - Prosecutrix is also found to be corroborated by PW16 - Mani, her Bhabhi, to whom 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, 1872.
PW16 - Mani in her examinationinchief has deposed that : "I am presently residing in Delhi at the address of Sudershan Park along with my brother and bhabhi in village relation. In the village I used to do Kheti bari (agriculture). In Delhi I am doing domestic work in the kothies. Previously for about 45 years, I was put for domestic help for various places through Jitender Placement agency at Sudershan Park, Moti Nagar. Prosecutrix (name withheld) is my would be sisterinlaw/nanad being the sister in relation to Suraj with whom I 58 of 106 59 FIR No. 156/12 PS - Subhash Place am having a living relationship. Previously she was employed in some kothies through placement agency where she worked for about two years after which she went to her village. She thereafter returned to Delhi in the March, 2012. She told me that she was not keeping good health on which account she had gone to her native village. She told me that she was working in a house at Rohini but she did left the work in the said house. She further told me that during the course of her employment, one Chole bhature wala had committed rape upon her, after which she was handed over to some placement agency where again she was kept in confinement and raped. I had also taken the prosecutrix (name withheld) to the hospital and thereafter, I took her to the police station where prosecutrix (name withheld) made a complaint to the police."
During the leading questions put by the Learned Addl. PP for the State, PW16 - Mani deposed that : "It is correct that prosecutrix (name withheld) has also informed me that after she was raped by the Chole Bhature wala and thereafter by one person in the placement agency, she did not have her period for two months. It is correct that thereafter we took her to the Hospital for medical examination and the doctors had confirmed that the rape had been committed upon her. It is correct that I had mentioned these facts made to the IO which statement is Ex. PW16/PX1 but I could not mention this fact to the Court because I thought that it was already written by the IO when I told her about the same in the Police Station. It is correct that the IO had handed over the prosecutrix (name withheld) to me vide memo Ex. PW15/E bearing my thumb impressions at point 'B'."
From the aforesaid narration of PW16 - Mani, it is clear that 59 of 106 60 FIR No. 156/12 PS - Subhash Place the she is presently residing in Delhi at the address of Sudershan Park along with her brother and bhabhi in village relation. In the village she used to do Kheti bari (agriculture). In Delhi she am doing domestic work in the kothies. Previously for about 45 years, she was put for domestic help for various places through Jitender Placement agency at Sudershan Park, Moti Nagar. Prosecutrix (name withheld) is her would be sisterin law/nanad being the sister in relation to Suraj with whom she is having a living relationship. Previously she (prosecutrix) was employed in some kothies through placement agency where she (prosecutrix) worked for about two years after which she (prosecutrix) went to her (prosecutrix) village. She (prosecutrix) thereafter returned to Delhi in the March, 2012. She (prosecutrix) told her (PW16) that she (prosecutrix) was not keeping good health on which account she (prosecutrix) had gone to her (prosecutrix) native village. She told her (PW16) that she (prosecutrix) was working in a house at Rohini but she (prosecutrix) did left the work in the said house. She (prosecutrix) further told her (PW16) that during the course of her (prosecutrix) employment, one Chole bhature wala had committed rape upon her (prosecutrix), after which she (prosecutrix) was handed over to some placement agency where again she was kept in 60 of 106 61 FIR No. 156/12 PS - Subhash Place confinement and raped. She (PW16) had also taken the prosecutrix (name withheld) to the hospital and thereafter, she (PW16) took her (prosecutrix) to the police station where prosecutrix (name withheld) made a complaint to the Police.
During the leading questions put by the Learned Addl. PP for the State, PW16 - Mani deposed that : "It is correct that prosecutrix (name withheld) has also informed me that after she was raped by the Chole Bhature wala and thereafter by one person in the placement agency, she did not have her period for two months. It is correct that thereafter we took her to the Hospital for medical examination and the doctors had confirmed that the rape had been committed upon her. It is correct that I had mentioned these facts made to the IO which statement is Ex. PW16/PX1 but I could not mention this fact to the Court because I thought that it was already written by the IO when I told her about the same in the Police Station. It is correct that the IO had handed over the prosecutrix (name withheld) to me vide memo Ex. PW15/E bearing my thumb impressions at point 'B'."
During her crossexamination PW16 - Mani has negated the suggestions that she also did not make any attempt to search for the accused or that she is deposing falsely on the basis of a story concocted by (prosecutrix) only to extort money from the accused.
61 of 106 62 FIR No. 156/12 PS - Subhash Place Inspite of incisive crossexamination of PW16 - Mani, nothing material has been brought out so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1], the testimony of PW16 - Mani is found to be natural, clear, cogent, reliable, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
Now let the testimony of PW14 Hem Raj R/o B183, Shakur Pur, JJ Colony, Delhi34 who is the landlord of House No. E193/194 JJ Colony, Shakurpur in which on fifth floor two rooms were rented out to coaccused Dharmender (since PO) where co accused Dharmender (since PO) was living with other coaccused namely Roshan (Juvenile), Kaushlander and Narender @ Bakur (since PO) where Prosecutrix was wrongfully confined and gang raped in the whole month of January, 2012 by them/ the said co 62 of 106 63 FIR No. 156/12 PS - Subhash Place accused Roshan (Juvenile), Kaushlander and Narender @ Bakur (since PO) be perused and analysed.
It is pertinent to reproduce the examinationinchief of PW14 Hem Raj R/o B183, Shakur Pur, JJ Colony, Delhi 34 which reads as under : "I am residing at the said address along with my family comprising of my wife and three children. The house no. E193/194, JJ Colony, Shakurpur is in the name of my wife. It is built up to five stories including the ground floor and there are 16 rooms which I have given on rent to various persons. The fifth floor has two rooms which have been given on rent to Dharmender, S/o Jai Shankar in the month of November, 2011. I had seen that there were 34 boys and one girl used to reside with Dharmender in those two rooms. He had informed that the said girl was his wife. I can identify that girl but I do not know the name of the girl because he had never told her name to me. In the first week of February, 2012 I got my premises vacated from Dharmender. When I had given my premise on rent to Dharmender he had said that he wanted to use the same for residential purposes but later when I went to collect the rent, I received information from other tenants that he was about to start the placement agency and therefore, under these circumstances I was not willing for the same and asked him to vacate the premises."
From the aforesaid narration of PW14 Sh. Hem Raj it is clear that he is residing at the aforementioned address alongwith his 63 of 106 64 FIR No. 156/12 PS - Subhash Place family comprising of his wife and three children. The House No. E193/194, JJ Colony, Shakur Pur is in the name of his wife. It is built up to five stories including the ground floor and there are 16 rooms which he has given on rent to various persons. The fifth floor has two rooms which have been given on rent to Dharmender, S/o Jai Shankar in the month of November 2011. He had seen that there were 34 boys and one girl used to reside with Dharmender in those two rooms. He (Dharmender) had informed that the said girl was his wife. He (PW14) can identify that girl but he does not know the name of the girl because he (Dharmender) had never told her name to him. In the first week of February, 2012 he got his premises vacated from Dharmender. When he given his premises on rent to Dharmender he (Dharmender) had said that he (Dharmender) wanted to use the same for residential purposes but later when he went to collect the rent, he received information from other tenants that he (Dharmender) was about to start the placement agency and therefore under these circumstances he was not willing for the same and asked him (Dharmender) to vacate the premises.
Despite grant of opportunity PW14 - Hem Raj was not 64 of 106 65 FIR No. 156/12 PS - Subhash Place crossexamined on behalf of accused.
On careful perusal and analysis of the testimony of PW14 Hem Raj, it is found to be clear, natural, cogent and having a ring of truth and it is also found to corroborate the testimony of PW15 Prosecutrix on the aspect of her presence in the company of coaccused Dharmender (since PO) and other coaccused (since PO).
19. While analysing the testimonies of PW15 - Prosecutrix and PW16 - Mani as discussed hereinabove inspite of incisive cross examination of PW15 - Prosecutrix and PW16 - Mani nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions by the defence to PW15 Prosecutrix that Police recorded her statement of their own and only obtained her signatures and thumb impression on it or that she is concealing the fact that whether at about 8:30 p.m. she was brought at Police Station after her medical examination, and is not answering properly or that accused Amit was falsely implicated by her in order to extort money from him or that she received injuries due to infections at her native village or that the accused Amit did not commit 65 of 106 66 FIR No. 156/12 PS - Subhash Place any rape upon her or that accused Amit did not hand over her to any other accused persons or that she had only signed the documents and she is not aware of the contents of the same or that she is deposing falsely and the suggestions to PW16 - Mani that she also did not make any attempt to search for the accused or that she is deposing falsely on the basis of a story concocted by (prosecutrix) only to extort money from the accused, 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.
20. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : 66 of 106 67 FIR No. 156/12 PS - Subhash Place "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
67 of 106 68 FIR No. 156/12 PS - Subhash Place ".....even slight penetration is sufficient and emission is unnecessary."
20. Learned Counsel for accused submitted that as per the prosecutrix, accused Amit was arrested at about 34 p.m. whereas Arrest Memo Ex. PW15/B shows the time of arrest as 9:45 p.m. I have carefully perused and analysed the evidence on the record.
Although, there is a variation of time of arrest of accused Amit as deposed by PW15 - prosecutrix and as to what has been shown in the arrest memo Ex. PW15/B. Such time variation does not itself falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
The Hon'ble Supreme Court of India in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should 68 of 106 69 FIR No. 156/12 PS - Subhash Place not render the evidence of eye witnesses unbelievable.
Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).
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 69 of 106 70 FIR No. 156/12 PS - Subhash Place too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. 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 circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
21. Learned Counsel for accused submitted that prosecutrix states that "I have shown the place of incident where accused Amit 70 of 106 71 FIR No. 156/12 PS - Subhash Place committed rape upon me". Instead of pointing out of the place of incident by accused, to corroborate prosecution story. Moreover, this fact that prosecutrix led the Police party to the place of incident is not mentioned anywhere in the chargesheet.
I have carefully perused and analysed the evidence on the record.
It appears that the Learned Counsel for the accused has either not read or misread the evidence on record.
PW17 HC Sohan Singh in his examinationinchief has specifically deposed that, "......During the interrogations the accused has disclosed his involvement in the offence and his disclosure Ex. PW17/A was recorded bearing my signatures at point 'A' and signatures of SI Anupama at point 'B', signatures of the accused Amit at point 'C'. After that accused took us to E46, LSC Market, Second Floor i.e. second room where he had committed rape upon the prosecutrix. After which pointing out memo was prepared by the IO vide Ex. PW17/B bearing my signatures at point 'A' and signatures of SI Anupama at point 'B', signatures of accused Amit at point 'C'. IO also prepared the site plan on the pointing out of the prosecutrix."
During her crossexamination by Learned Addl. PP, PW15 -
71 of 106 72 FIR No. 156/12 PS - Subhash Place prosecutrix has specifically deposed that : "It is also correct that I have shown the place of incident where the accused Amit committed rape upon me. It is correct that accused Amit committed rape upon me in a room at the second floor."
Non mentioning of such fact in the chargesheet that the prosecutrix led the Police party to the place of incident does not falsify the witness as 'chargesheet' is the report of Police officer on completion of investigation as provided u/s 173 Cr.P.C. and is a conclusion that an investigating officer draws on the basis of material collected during investigation and such conclusion can only form the basis of a competent Court to take cognizance there upon under section 190(1)(b) of Code and to proceed with the case for trial, and it cannot rely on the investigation or the result thereof;
In case Kaptan Singh Vs. State of Madhya Pradesh (1997) 4 Supreme 211, it was held that : "The "Police Report" (result of investigation under Chapter XII of the Code of Criminal Procedure) is a conclusion that an investigating officer draws on the basis of material collected during investigation and such conclusion can only form the basis of a competent Court to take cognizance there upon under section 190(1)(b) of Code and to proceed with the case for trial, and it cannot rely on the investigation or the result thereof."
72 of 106 73 FIR No. 156/12 PS - Subhash Place In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for accused submitted that as per the prosecutrix, the accused told her that it was a night time and she has to stay at his room. She protested but he "insisted" to take her at his room. It is quite pertinent to mention here that even as per the prosecutrix there was no application of force, any allurement, or enticement. Even then, the prosecutrix prefers to accompany the accused to his room for a night. The prosecutrix tried to explain her step while deposing that "I thought he would arrange some job for me".
I have carefully perused and analysed the evidence on the record.
The said part of testimony of PW15 - prosecutrix regarding which plea has been raised cannot be read in isolation and in a segregated manner.
At the cost of repetition, in her examinationinchief PW15 73 of 106 74 FIR No. 156/12 PS - Subhash Place
- prosecutrix has categorically deposed that : "In the end of the winter season of the year, 20112012, I went to the Geeta Placement Agency, Shakur Pur and thereafter because I was hungry I went to a Chole Bhature Wala namely Amit who is present in the Court today (witness correctly identified accused Amit). He asked me whether Geeta had paid my salary to me. Then I told him that Geeta had not paid her salary of the last one year. Thereafter, accused Amit told me that he will arrange my money and he will get some job to me and thereafter took me to a jhuggi behind Samrat Cinema and he committed rape upon me twice. He kept me in the jhuggi for one day."
During her crossexamination by the Learned Addl. PP for the State, PW15 - prosecutrix has specifically deposed that : "It is correct that accused Amit used to run his work of Chole Bhature near Geeta Placement Agency and I have taken food i.e. Chole Bhature from him prior to the day of incident. It is correct that accused Amit told me that I have not to go to Geeta and he will arrange my job and took me with him by insisting me at about 7:00 p.m. in a house in the month of January, 2012."
During her crossexamination by the Learned Counsel for the accused, PW15 - prosecutrix has deposed that : "I know accused Amit since, 2009 as I used to go there for 74 of 106 75 FIR No. 156/12 PS - Subhash Place eating Chole Bhature is he is known to me."
On a conjoint reading of the said parts of testimony of PW15 - prosecutrix as reproduced hereinabove, it is clearly indicated that prosecutrix when hungry approached accused Amit, Chole Bhature Wala, as she knew him since 2009 and was known to her as she used to go there for eating Chole Bhature who used to run his work near Geeta Placement Agency, was asked from her by accused himself as to whether Geeta had paid her salary to her and on being told by her that she had not been paid salary of the last one year, then accused Amit threw inducement to her that he will arrange money for her and he will get some job for her and thereafter on insisting that it was night time took her, a helpless, moneyless lady at about 7:00 p.m. to a jhuggi behind Samrat Cinema and committed rape upon her twice.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for accused submitted that the prosecutrix 75 of 106 76 FIR No. 156/12 PS - Subhash Place admits that accused Amit did not drag her forcibly to his room and it is quite surprising that the prosecutrix has believed a cholebhature wala for arranging "her money". There in nothing on record that Chole Bhature Wala has some sort of influence or intimacy with the Placement Agency Owners.
I have carefully perused and analysed the evidence on the record.
It is not made clear by the Learned Counsel for the accused as to what benefit he intends to reap by raising the said plea.
On careful perusal and analysis of the evidence of PW15 Prosecutrix it is clearly indicated that prosecutrix when hungry approached accused Amit, Chole Bhature Wala, as she knew him since 2009 and was known to her as she used to go there for eating Chole Bhature who used to run his work near Geeta Placement Agency, was asked from her by accused himself as to whether Geeta had paid her salary to her and on being told by her that she had not been paid salary of the last one year, then accused Amit threw inducement to her that he will arrange money for her and he will get some job for her and thereafter on 76 of 106 77 FIR No. 156/12 PS - Subhash Place insisting that it was night time took her, a helpless, moneyless lady at about 7:00 p.m. to a jhuggi behind Samrat Cinema and committed rape upon her twice.
At the cost of repetition, in her examinationinchief PW15
- prosecutrix has categorically deposed that : "In the end of the winter season of the year, 20112012, I went to the Geeta Placement Agency, Shakur Pur and thereafter because I was hungry I went to a Chole Bhature Wala namely Amit who is present in the Court today (witness correctly identified accused Amit). He asked me whether Geeta had paid my salary to me. Then I told him that Geeta had not paid her salary of the last one year. Thereafter, accused Amit told me that he will arrange my money and he will get some job to me and thereafter took me to a jhuggi behind Samrat Cinema and he committed rape upon me twice. He kept me in the jhuggi for one day."
At the cost of repetition, during her crossexamination by the Learned Addl. PP for the State, PW15 - prosecutrix has specifically deposed that : "It is correct that accused Amit used to run his work of Chole Bhature near Geeta Placement Agency and I have taken food i.e. chole bhature from him prior to the day of incident. It is correct that accused Amit told me that I have not to go to Geeta and he will arrange 77 of 106 78 FIR No. 156/12 PS - Subhash Place my job and took me with him by insisting me at about 7:00 p.m. in a house in the month of January, 2012."
At the cost of repetition, during her crossexamination by the Learned Counsel for the accused, PW15 - prosecutrix has deposed that : "I know accused Amit since, 2009 as I used to go there for eating Chole Bhature is he is known to me."
24. Learned Counsel for accused submitted that the prosecutrix did not raise any alarm. She volunteered that she did not raise alarm because Amit told her to keep quite otherwise he will throw her out of the room and where she will go". This explanation is not mentioned in her statements nor appears to be reasonable and as per the prosecutrix, some persons were present in the adjoining room where the accused Amit committed rape upon her. Even then, it is surprising and unbelievable that the prosecutrix did not raise her voice for help.
I have carefully perused and analysed the evidence on the 78 of 106 79 FIR No. 156/12 PS - Subhash Place record.
PW15 Prosecutrix during her crossexamination has specifically deposed that : "I did not raise alarm at the time of incident of rape committed by accused Amit with me. Vol. I did not raise alarm because accused Amit told me to keep quiet otherwise he will throw me out of the room and where I will go."
From above, PW15 Prosecutrix has given the reasons for not raising any alarm because Amit told her to keep quite otherwise he will throw her out of the room and where she will go.
She has deposed regarding the fact for nonraising any alarm when asked during crossexamination. Non mentioning of such explanation in her statements does not falsify her testimony and such explanation is natural, clear, reasonable and believable especially in view of the facts proved on record that accused Amit exploited her conditions of her helplessness, moneyless and shelterless and due to which she was raped twice by him knowing it well that her voice will not be heard by anyone and no one will come to her rescue.
In the circumstance, there is no substance in the plea so 79 of 106 80 FIR No. 156/12 PS - Subhash Place raised by the Learned Counsel for the accused.
25. Learned Counsel for accused submitted that the prosecutrix did not inform Police or make a call at 100 number immediately after escape from the room of accused persons and that she did not make any call to Geeta, the owner of Placement Agency and she did not make any call to her Bhabhi Mani and that she did not make any call to her brother who is living in Delhi.
I have carefully perused and analysed the evidence on the record.
At the cost of repetition, PW15 - prosecutrix in her examinationinchief deposed that : "In the end of the winter season of year 20112012, I went to the Geeta Placement Agency, Shakurpur and thereafter because I was hungry I went to a Chole Bhature Wala namely Amit who is present in the court today (witness correctly identified accused Amit). He asked me whether Geeta had paid my salary to me then I told him that Geeta had not paid her salary of the last one year. Thereafter, accused Amit told me that he will arrange my money and he will get some job to me and thereafter he took me to the park and thereafter took me to a jhuggi behind Samrat Cinema and he committed rape upon me twice. He kept 80 of 106 81 FIR No. 156/12 PS - Subhash Place me in the jhuggi for one day.
On the next morning, he handed over me to a placement agency of Dharmender, Koshalender and Roshan and the one more person was present there who has been called by these persons as Bhukur. I do not know the name of the fourth person. I can identify these persons if shown to me. These persons kept me in a room and they did not allow me to come out of the room and these persons committed rape upon me continuously for about one month and they used to lock the room form the outside and I was not able to go away form there.
After one month Roshan was present at the room and the other three persons Dharmender, Koshalender and Bhukur went to their village and one day Roshan forget to lock the room from the outside and then I went to my village. I did not tell above said facts to anyone except my Bhabhi namely Mani. In the village, my condition was deteriorated and my injuries on the private parts were aggravated and I found the same painful. After one and halftwo months my Bhabhi again brought me to Delhi."
PW15 - prosecutrix during her crossexamination by Learned Addl. PP has deposed that : "It is also correct that accused Amit snatched my mobile phone. It is also correct that Dharmender, Koshalender, Roshan and Bhukur threatened me to be killed and committed rape continuously in the whole month of January, 2012 while wrongfully confined me. It is correct that there are serious injuries on my private part. It is correct that on 2nd or 3rd February, accused Koshlender, Dharmender and Bhukur had gone to their village. It is correct that I ran away from the room on 5th February, 2012. It is correct that in the village there was no 81 of 106 82 FIR No. 156/12 PS - Subhash Place mensuration for the two months and my Bhabhi took me to the Doctor and he told that there was serious injuries on my private part."
PW9 - Dr. Chhindodevi Jassal, Specialist Gynae. in her examinationinchief has deposed that : "In the Gynae I medically examined the above said prosecutrix (name withheld). In the local examination, I found following injuries :
1. mark volvo vaginitis present.
2. thick purulent discharge coming out of vagina.
3. mark ulceration seen over labia majora and minora.
I took the samples from the person of prosecutrix (name withheld) as sexual assault forensic examination it and handed over to the SI Anupama in sealed condition with the seal of Hospital with sample seal. I gave my observation at point 'X' to 'X1' on Ex. PW7/A bearing my signatures 'C' and 'D'. I also advised UPT and the ultrasound of the pelvis STD counselling and I advised her admission in view of marked infection.
My examination kit for victims of sexual abuse in respect of above said prosecutrix (name withheld) is Ex. PW9/A bearing my signatures at page no. 1, 6 & 9.
In the examination kit Ex. PW9/A at page no. 3, I have mentioned that because of painful ulceration patient/prosecutrix (name withheld) did not allow to examine hymen."
On a conjoint reading of the said part of testimonies of PW15 - prosecutrix with the gynae examination of PW15 - prosecutrix 82 of 106 83 FIR No. 156/12 PS - Subhash Place by PW9 Dr. Chhindodevi Jassal, Specialist Gynae, it clearly indicates that her mobile phone was snatched by accused Amit while she was raped by accused Amit and she was continuously raped by Dharmender, Kaushalender, Bakur (All POs) and Roshan (Juvenile) due to which she sustained serious injuries on her private parts described by PW9 Dr. Chhindodevi Jassal and had ran away from the clutches of said persons to her village.
In the circumstances, how can it be excepted from PW15 - prosecutrix to inform the Police on No. 100 or to make a call to Geeta, Owner of Placement Agency or a call to her Bhabhi Mani or to make a call to her brother.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused submitted that the prosecutrix did not mention that prior to placement agency owners, she was raped by accused Amit. On perusal of the MLC Ex. PW7/A, it is clear that alleged history given by the prosecutrix is that she was sexually assaulted 83 of 106 84 FIR No. 156/12 PS - Subhash Place in January, 2012 in the Bureau Placement by owners of Bureau by multiple people and multiple times.
I have carefully perused and analysed the evidence on the record.
PW7 - Dr. Mamta Verma, CMO BM Hospital Delhi has proved the medical examination of the patient/prosecutrix as was conducted on 28/04/2012 by Dr. Sheeral Yadav vide MLC No. 619/12 Ex. PW7/A bearing signature of Dr. Sheetal Yadav at point 'A' and has deposed that according to the MLC, the alleged history is sexual assault in January, 2012 in the Bureau Placement by the owners of Bureau by the multiple people and multiple times as told by the patient/prosecutrix herself.
From above it is clearly indicated that alleged history was recorded in the MLC by the Doctor as was told by the patient. The clear, cogent and reliable testimony of PW15 - prosecutrix is on the record. As discussed hereinbefore, omission to disclose the name of accused Amit to Doctor does not falsify the testimony of the witness.
In case Noor Salam Vs. State (Govt. of NCT of Delhi) 84 of 106 85 FIR No. 156/12 PS - Subhash Place 2013 II AD (Cri) (DHC) 322, it has been held that, it is not mandatory for Doctor to record in MLC or to make enquiry from injured abut name of assailant. Generally Doctors on duty do not ask for assailant's name - omission of injured to disclose assailant's name to Doctor does not discredit his testimony.
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for accused submitted that the prosecutrix was medically examined after about 04 months. The prosecutrix did not have any sort of injuries, for this reason she has not undergone any medical examination prior to 28/04/2012. This delay of 04 months is quite crucial as it was alleged by the prosecutrix that she was firstly raped by accused Amit twice and then by four persons and that too for a month. The injuries mentioned in the MLCs are nothing but infections which could be caused due to unhygienic conditions.
I have carefully perused and analysed the evidence on the 85 of 106 86 FIR No. 156/12 PS - Subhash Place record.
PW7 - Dr. Mamta Verma, CMO BM Hospital Delhi has proved the medical examination of the patient/prosecutrix as was conducted on 28/04/2012 by Dr. Sheeral Yadav vide MLC No. 619/12 Ex. PW7/A bearing signature of Dr. Sheetal Yadav at point 'A' and has deposed that according to the MLC, the alleged history is sexual assault in January, 2012 in the Bureau Placement by the owners of Bureau by the multiple people and multiple times as told by the patient/prosecutrix herself.
According to MLC, no fresh injury is visible and Dr. Sheetal Yadav referred the patient to the Gynae Department for further examination.
PW9 Dr. Chhindodevi Jassal, Specialist Gynae who on 28/04/2012 gynaecologically examined the patient/prosecutrix and in her examinationinchief has deposed that : "In the Gynae I medically examined the above said prosecutrix (name withheld). In the local examination, I found following injuries :
1. mark volvo vaginitis present.
2. thick purulent discharge coming out of vagina.
3. mark ulceration seen over labia majora and minora.
86 of 106 87 FIR No. 156/12 PS - Subhash Place I took the samples from the person of prosecutrix (name withheld) as sexual assault forensic examination it and handed over to the SI Anupama in sealed condition with the seal of Hospital with sample seal. I gave my observation at point 'X' to 'X1' on Ex. PW7/A bearing my signatures 'C' and 'D'. I also advised UPT and the ultrasound of the pelvis STD counselling and I advised her admission in view of marked infection.
My examination kit for victims of sexual abuse in respect of above said prosecutrix (name withheld) is Ex. PW9/A bearing my signatures at page no. 1, 6 & 9.
In the examination kit Ex. PW9/A at page no. 3, I have mentioned that because of painful ulceration patient/prosecutrix (name withheld) did not allow to examine hymen."
PW15 - prosecutrix in her examinationinchief has deposed that : "In the village, my condition was deteriorated and my injuries on the private parts were aggravated and I found the same painful. After one and half - two months my Bhabhi again brought me to Delhi"
On a conjoint reading of MLC Ex. PW7/A, gynaecological examination at point 'X' to 'X1' on MLC Ex. PW7/A
87 of 106 88 FIR No. 156/12 PS - Subhash Place of the prosecutrix coupled with the said part of testimony of PW15 - prosecutrix as reproduced hereinabove, it clearly indicates after the forcible committal of rape upon her initially by accused Amit for one day and thereafter brutal committal of rape upon her for about one month by accused Kaushalender, Dharmender, Narender @ Bakur (All POs) and accused Roshan (juvenile), when she escaped to her village her condition deteriorated and injuries on the private parts aggravated and became painful and she was brought to Delhi by her Bhabhi, where she was medically examined vide MLC Ex. PW7/A and her gynaecological examination at point 'X' to 'X1' on MLC Ex. PW7/A was conducted wherein the following injuries were found :
Marked vulvo vaginitis present, thick purulent discharge coming out of vagina and Marked ulceration seen over labia majora and minora.
And because of painful ulceration patient/prosecutrix did not allow to examine hymen (vide Page No. 3 of examination kit Ex. PW9/A).
To call these injuries as nothing but infections due to unhygienic conditions, by Learned Counsel for the accused is like rubbing salt on the wounds.
88 of 106 89 FIR No. 156/12 PS - Subhash Place In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for accused submitted that Hemraj (PW14) is the landlord of the room rented by the other coaccused persons and where the prosecutrix was allegedly wrongfully confined for a month. Although, this witness is relevant only to other coaccused persons, but the testimony of this witness shows the unnatural conduct of the prosecutrix. Important facts are as under : a. As per this witness, accused Dharmender introduced the prosecutrix as his wife. At that time also, the prosecutrix did not raise any alarm or requested the landlord to help her as she has been wrongfully confined in that room and accused persons are committing rape upon her daily. b. This witness has not seen anything unnatural or strange that is why he did not suspect that something wrong was going on. Even after seeing a single lady with 34 persons, the landlord did not find any reason to raise suspicion on the accused persons.
c. It is quite strange that the prosecutrix behaved in a usual manner in 89 of 106 90 FIR No. 156/12 PS - Subhash Place the presence of a person who can save her from the accused persons.
I have carefully perused and analysed the evidence on the record.
PW14 - Hem Raj was not crossexamined on behalf of accused Amit despite grant of opportunity.
As regards the plea that this witness (PW14 - Hem Raj) has not seen anything unnatural or strange that is why he did not suspect that something wrong was going on. Even after seeing a single lady with 34 persons, the landlord did not find any reason to raise suspicion on the accused persons, is concerned, such information must have been elicited from PW14 - Hem Raj during his crossexamination which accused Amit failed to do. For such failure accused is blame himself and none else.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
As regards the plea that prosecutrix did not raise any alarm 90 of 106 91 FIR No. 156/12 PS - Subhash Place or requested the landlord to help her as she has been wrongfully confined in that room and accused persons are committing rape upon her daily and the plea that it is quite strange that the prosecutrix behaved in a usual manner in the presence of a person who can save her from the accused persons are concerned, it appears that Learned Counsel for the accused has either misread or not read the evidence of PW15 - prosecutrix. PW15 Prosecutrix during her crossexamination has specifically deposed that she was threatened by accused Koshlander (PO), Dharmender (PO), Roshan (Juvenile), Bakur (PO) not to raise alarm, as reproduced hereinbelow.
PW15 - prosecutrix in her examinationinchief has deposed that : "On the next morning, he handed over me to a placement agency of Dharmender, Koshalender and Roshan and the one more person was present there who has been called by these persons as Bhukur. I do not know the name of the fourth person. I can identify these persons if shown to me. These persons kept me in a room and they did not allow me to come out of the room and these persons committed rape upon me continuously for about one month and they used to lock the room form the outside and I was not able to go away from there."
During her crossexamination PW15 - prosecutrix has 91 of 106 92 FIR No. 156/12 PS - Subhash Place deposed that : "It is correct that during my wrongful confinement for one month Police officials also came there for about two three occasions. I had seen those Police officials. I had not raised any alarm or told the Police officials regarding the incident. Vol. I was threatened by accused Koshlender, Dharmender, Roshan, Bhakur not to raise alarm."
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for accused submitted that PW16 - Miss Mani witness states that the prosecutrix returned to Delhi in March, 2012. She told me that she was not keeping good health on which account she had gone to her native village. It is quite surprising that the prosecutrix had deposed that her Bhabhi (Mani) has brought her to Delhi.
I have carefully perused and analysed the evidence on the record.
PW15 - prosecutrix in her examinationinchief has deposed 92 of 106 93 FIR No. 156/12 PS - Subhash Place that : "In the village, my condition was deteriorated and my injuries on the private parts were aggravated and I found the same painful. After one and half - two months my Bhabhi again brought me to Delhi"
From above it is clearly indicated that no particular 'month' of the year has been stated by PW15 - prosecutrix and what she has stated, of coming to Delhi after one and half - two months.
During the lengthy and incisive crossexamination she was not crossexamined as to in which month she had come to Delhi.
Even otherwise it is an inconsistency on the fringe without materially affecting the credibility of the evidence and does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a settled principle of law that while appreciating the evidence, the Court must examine the evidence in its entirety upon reading the statement of a witness as a whole, and if the Court finds the statement to be truthful and worthy of credence, then every variation or discrepancy particularly which is immaterial and does not affect the root
93 of 106 94 FIR No. 156/12 PS - Subhash Place of the case of the prosecution case would be of no consequences (Ref. State represented by Inspector of Police Vs. Sarvanan and Anr. [(2008) 17 SCC 587].
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
30. Learned Counsel for accused submitted that PW16 - Miss Mani admits that she carries a mobile phone and the prosecutrix was also having a mobile phone at the time of incident. Evenmore, she admits that Suraj, the brother of prosecutrix was also having a mobile phone at that time. It is surprising that when prosecutrix was having mobile phone why didn't she informed her brother and Bhabhi immediately after the incident, or make a call at 100 number. Why the prosecutrix prefers to return her native village without informing anyone? How did she manage the travel expenses, as it can be presumed that she had no money after being escape from the clutches of accused persons.
I have carefully perused and analysed the evidence on the 94 of 106 95 FIR No. 156/12 PS - Subhash Place record.
As regards the plea that PW16 - Ms. Mani admits that prosecutrix was also having a mobile phone at the time of incident, is concerned, PW15 - prosecutrix during the leading question put by the Learned Addl. PP has specifically deposed that accused Amit snatched her mobile phone.
As regards the plea, as to why prosecutrix did not inform her brother, Bhabhi immediately or made a call at No. 100 is concerned, the same has already been dealt with in detail. Therefore, no further discussion is made on it.
As regards the plea, as to Why the prosecutrix preferred to return her native village without informing anyone? How did she manage the travel expenses, as it can be presumed that she had no money after being escape from the clutches of accused persons is concerned, information on the said aspects must have been elicited from PW15 prosecutrix during her crossexamination. For failure to do so accused is to blame himself and none else.
It is settled law that if there is no crossexamination of a prosecution witness in respect of a statement of fact, it will only show the 95 of 106 96 FIR No. 156/12 PS - Subhash Place admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).
In the circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for accused submitted that PW16 - Ms. Mani admits that the prosecutrix did not make any telephonic call to her regarding the incident. She volunteered that the prosecutrix told her about the incident "Much Later". In the month of March. Even then, why didn't the prosecutrix and this witness approached Police prior to 28/04/2012 when this witness too has information about the incident. There is a delay of about one month, even after this witness is well aware of the sexual assault happened with the prosecutrix. This delay is quite crucial as there was no family pressure for saving family honour. Neither there was any lack of awareness nor any knowledge to take appropriate step, as it can be noticed by the background of prosecutrix who possess a mobile phone, lived independently, and worked at several places.
96 of 106 97 FIR No. 156/12 PS - Subhash Place I have carefully perused and analysed the evidence on the record.
No doubt, there is delay in reporting the matter to the Police but on careful perusal and analysis and on examining the evidence in its entirety upon reading the testimony of PW15 - prosecutrix as a whole, the delay caused in lodging the report with the Police has been sufficiently and satisfactorily explained by the prosecutrix.
At the cost of repetition, it is pertinent to reproduce the relevant part of examinationinchief of PW15 - prosecutrix which reads as under : "In the end of the winter season of year 20112012, I went to the Geeta Placement Agency, Shakurpur and thereafter because I was hungry I went to a Chole Bhature Wala namely Amit who is present in the court today (witness correctly identified accused Amit). He asked me whether Geeta had paid my salary to me then I told him that Geeta had not paid her salary of the last one year. Thereafter, accused Amit told me that he will arrange my money and he will get some job to me and thereafter he took me to the park and thereafter took me to a jhuggi behind Samrat Cinema and he committed rape upon me twice. He kept me in the jhuggi for one day."
"On the next morning, he handed over me to a placement agency of Dharmender, Koshalender and Roshan and the one more person was present there who has been called by these persons as Bhukur. I do not know the name of the fourth person. I can identify these
97 of 106 98 FIR No. 156/12 PS - Subhash Place persons if shown to me. These persons kept me in a room and they did not allow me to come out of the room and these persons committed rape upon me continuously for about one month and they used to lock the room form the outside and I was not able to go away form there.
After one month Roshan was present at the room and the other three persons Dharmender, Koshalender and Bhukur went to their village and one day Roshan forget to lock the room from the outside and then I went to my village. I did not tell above said facts to anyone except my Bhabhi namely Mani. In the village, my condition was deteriorated and my injuries on the private parts were aggravated and I found the same painful. After one and halftwo months my Bhabhi again brought me to Delhi. Thereafter, my bhabhi Mani counselled me and thereafter I went to police station to lodge the FIR against the above said culprits. I made a written complaint to the police Ex. PW15/A bearing my signatures at point A, I also put my thumb impression at point B. Thereafter, Police took me to the Govt. Hospital at Pitam Pura. I was medically examined there and treated there. I remained in the Hospital for about 15 days. I was again medically examined at the Hospital."
From the aforesaid narration of PW15 - prosecutrix, it is clearly indicated that she after having become a prey of repetitive and long drawn carnal desires of the rapists in a cage, on escape from there went to her village and relegated to her fate but in the village when her condition deteriorated and injuries on her private parts aggravated and became painful, then came to Delhi and thereafter made a complaint Ex.
98 of 106 99 FIR No. 156/12 PS - Subhash Place PW15/A and was medically examined and for her serious condition had also remained in the Hospital for about 15 days. The medical and gynaecological evidence of the prosecutrix has been discussed in detail hereinbefore.
In the circumstances, it does not lie in the mouth of accused Amit to utter that no delay could have been caused by the prosecutrix.
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 : 99 of 106 100 FIR No. 156/12 PS - Subhash Place "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging 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 : 100 of 106 101 FIR No. 156/12 PS - Subhash Place "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to 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 101 of 106 102 FIR No. 156/12 PS - Subhash Place her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
32. Learned Counsel for accused submitted that the place of arrest of accused Amit is a busy public place being a sweet corner even then there is no satisfactory explanation for nonjoining of any independent person in the investigation and PW17 - HC Sohan Singh witness states that IO did not join the owner of Aggarwal Sweet Corner. He volunteered that the shop was closed. It can be presumed that the month of May and at about 9:30 p.m., sweet corner was not closed as people prefer to have sweets till late hours. Moreover, other shops are admittedly opened at that time and this witness admits that even at E46 (place of incident) there were large number of tenants but IO did not join 102 of 106 103 FIR No. 156/12 PS - Subhash Place any public person.
I have carefully perused and analysed the evidence on the record.
PW17 - HC Sohan Singh in his crossexamination has deposed : "It is correct that the street where Aggarwal Sweets is situated is a thickly populated area with large number of shops and also houses situated in that area. IO did not join the owner of Aggarwal Sweets in the investigations. Vol. The shop was closed. IO had asked the other residents and shop keepers of the area to join the investigations but they refused. IO did not give notice to any persons refusing to join the investigations. I cannot tell the names and addresses or details of any of the persons who had refused to join the investigations. It is wrong to suggest that Amit did not offer any resistance when he was apprehended by me. Vol. As soon as the prosecutrix pointed out towards him he tried to run away and I had to run after him and catch him. Even at premises No. E46, there are large number of other tenants but IO did not join any public person. Vol. She had requested the other public persons to join but they refused."
From the aforesaid narration of PW17 - HC Sohan Singh, it is clearly indicated that efforts were made to join public witnesses in the proceedings but they refused. Nonjoining of the public witnesses does 103 of 106 104 FIR No. 156/12 PS - Subhash Place not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a known fact that the persons of the public are reluctant to join any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence. (Ref. Nirmal Singh & Ors. Vs. State 2011 III AD (Delhi) 699).
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 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 circumstance, there is no substance in the plea so raised by the Learned Counsel for the accused.
33. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that 104 of 106 105 FIR No. 156/12 PS - Subhash Place on or before in the month of January, 2012 at Delhi, accused Amit alongwith Roshan (juvenile), Dharmender (Since PO), Kaushalender (Since PO) and Narender @ Bakur (Since PO) hatched a criminal conspiracy to commit rape upon PW15 - prosecutrix (name withheld), aged about 19 years and that in the month of January, 2012 at night time in a Jhuggi/room at JJ Colony Shakur Pur, Delhi, behind Samrat Cinema in pursuance to the said criminal conspiracy, accused Amit committed rape twice upon the prosecutrix without her consent and thereafter, in pursuance to the said criminal conspiracy, he (accused Amit) handed over the prosecutrix to his coaccused Roshan (juvenile), Dharmender (Since PO), Kaushalender (Since PO) and Narender @ Bakur (Since PO) and they committed gang rape upon the prosecutrix in the whole month of January, 2012 after wrongfully confining her in a room and also criminally intimidated her to be killed.
I accordingly, hold accused Amit guilty for the offences punishable u/s 120B IPC and u/s 376 r/w section 120B IPC and convict him thereunder.
34. In view of above discussion, I am of the considered opinion 105 of 106 106 FIR No. 156/12 PS - Subhash Place that as far as the involvement of the accused Amit in the commission of the offences u/s 120B IPC and u/s 376 r/w section 120B 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 Amit beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Amit guilty for the offences punishable u/s 120B IPC and u/s 376 r/w section 120B IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) on 21st Day of February, 2014 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 106 of 106