Delhi District Court
Sc No. 19/13 State vs Kanan Mandal Etc. Page No. 1 Of 38 on 27 August, 2013
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS:
NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID No. 02403R0178692009
SESSIONS CASE NO. 19/13
FIR NO. 125/2009
POLICE STATION : BADARPUR
UNDER SECTION : 366/366A/372/376/354/120B/34 IPC
& 4,5 & 6 ITP ACT.
STATE
VERSUS
1. KANAN MANDAL,
W/O SAMAR MANDAL,
R/O H.NO. 36, MOLARBAND VILLAGE,
BADARPUR, NEW DELHI.
ALSO AT: I/211, HARI NAGAR EXTENSION, DELHI.
2. SAMAR MANDAL,
S/O LATE SH. SATENDER NATH MANDAL,
R/O H.NO. 36, MOLARBAND VILLAGE,
BADARPUR, NEW DELHI.
ALSO AT: I/211, HARI NAGAR EXTENSION, NEW DELHI.
SC No. 19/13 State Vs Kanan Mandal etc. Page No. 1 of 38
3. MUKESH
S/O RAM LAKHAN VERMA
R/O RZ2001, GALI NO. 24, TUGLAKABAD,
NEW DELHI. ( PERMANENT ADDRESS: VILLAGE,
AJMA, P.S. NAWADHPUR, DISTRICTPATNA, BIHAR).
4. MANJU
W/O ROOPA SHARMA & D/O SHANKAR,
R/O RZ12, GALI NO.5, TUGLAKABAD EXTENSION,
NEW DELHI.
ALSO AT: VILLAGE NO.4, SIRPUR KAGAJ NAGAR,
ANDHRAPRADESH.
5. VIJAY DIWAKAR
S/O LATE SH. HARI LAL,
R/O A14, SHARMA MARKET,
PUL PRAHLADPUR, BADARPUR, NEW DELHI.
ALSO AT: 418, IST FLOOR, MAIN MATHURA ROAD,
BADARPUR, DELHI.
DATE OF INSTITUTION : 02.07.2009
DATE OF RESERVING ORDER : 14.02.2013
DATE OF DECISION : 27.08.2013
J U D G M E N T
Case of Prosecution:
1. On 06.04.2009 vide DD No. 21A an information was received by W/SI Kusum Dangi regarding trafficking of a minor girl at the address i.e. SC No. 19/13 State Vs Kanan Mandal etc. Page No. 2 of 38 H.No. A201, Sharma Market, Pul Prahladpur, Badarpur, Delhi. Thereafter, W/SI Kusum Dangi along with SI Mukesh Kumar, W/Ct. Mukesh, W/Ct.
Reetu, HC Pritam and Ct.Virender reached at the aforesaid address where the complainant Vijay Diwakar gave a written complaint to the police. Subsequently, on the statement of complainant Vijay Diwakar and recording on a chip regarding selling of minor girl, case under section 366A/372 of IPC was registered against the accused persons. Accused Samar Mandal and Kanan Mandal were arrested. Personal search memo of accused Kanan Mandal was prepared and Rs. 15,000/ in cash were recovered from the possession of her. Statement of both the prosecutrix namely 'M' and 'P' ( name withheld to keep their identity confidential) was recorded by the police and on the basis of their statements accused Mukesh, Manju were also arrested by the police. Both the prosecutrix namely 'M' and 'P' were medically examined. Bone age estimation examination of prosecutrix P was got conducted by the police. Statement of both the prosecutrix were recorded under section 164 of Cr.P.C. and on their statement complainant/accused Vijay Diwakar was also arrested by the police in this case. His medical examination was also got conducted by the police. Exhibits were sent to FSL. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under section 366A/372/373/120B/34 IPC & 4/5/6 ITP Act against accused Samar Mandal, under section 366A/372/373/120B/34 IPC & 4/5/6 ITP Act against accused SC No. 19/13 State Vs Kanan Mandal etc. Page No. 3 of 38 Kanan Mandal, under section 372/366A/373/120B/34 IPC & 4/5/6 ITP Act against accused Manju, under section 373/120B/34 IPC & 4/5 ITP Act against accused Mukesh and under section 366A/373/354/376/120B/109/34 IPC & 5/6 ITP Act complainant/accused Vijay Diwakar was filed in the court.
2. Since the offence under Section 366A/372/373/376/109 IPC is exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
Charge against the accused persons :
3. Prima facie case under section 366/120B/34 IPC, 366A/120B/34 IPC, 372/120B/34 IPC is made out against accused Kanan Mandal, Samar Mandal, Mukesh and Manju, case under section 4,5 & 6 of Immoral Traffic Prevention Act, 1956 is made out against accused Kanan Mandal and Samar Mandal and case under section 120B/376/354 IPC is made out against the accused Vijay Diwakar.
Charge under section 366/120B/34 IPC, 366A/120B/34 IPC, 372/120B/34 IPC was framed against accused Kanan Mandal, Samar Mandal, Mukesh and Manju, charge under section 4/5/6 of Immoral Traffic Prevention Act, 1956 was framed against the accused Kanan Mandal and Samar Mandal and charge under section 120B/376/354 IPC was framed against the accused Vijay Diwakar by my Ld. Predecessor vide order dated 21.11.2009 to which accused persons pleaded not guilty and claim trial. SC No. 19/13 State Vs Kanan Mandal etc. Page No. 4 of 38 Witnesses Examined:
4. In support of its case, prosecution has examined 14 (fourteen) witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material witnesses:
5. PW2 is the prosecutrix 'P'. She stated that she lives with her elder sister Smt. Sunita and brother in law Sh. Deepak. Rahul is her uncle and she know accused Mukesh and pointed towards accused Mukesh and identified him. She stated that Mukesh resides at the ground floor and she used to reside at the second floor of the same building in Tughlakabad. She stated that one day she was sitting in her house, month and date she do not remember. Accused Mukesh knocked her door and asked her that what she do sitting idle at home to which she told him that she do nothing. Accused Mukesh then offered her a job in the house of a lady to which she initially refused but accused Mukesh again asked her that he wanted to talk to her and asked her to come down from her room. She accompanied accused Mukesh downstairs. She stood up in front of a shop near her house. Accused Mukesh asked her to give some job, sitare moti ke piece dilwaunga kaam karne ke liye. Main ghar me rehti thi maine socha thodi kadhai kar lungi. Thereafter, accused Mukesh took me to house of accused Manju. Manju was correctly identified by the prosecutrix. The house of accused Manju was at some distance away from her house. Toh maine mukesh ko kaha uncle kahan hai SC No. 19/13 State Vs Kanan Mandal etc. Page No. 5 of 38 piece dikhao, to wo bola abhi thodi der me aayenge. Itne mein Kanan Mandal aur Vijay Diwakar Pahunche. Accused Kanan Mandal, Vijay Diwakar and Manju were talking to each other and husband of Kanan Mandal was also there. Accused Kanan Mandal took Rs.1,000/ from accused Vijay Diwakar and gave it to accused Manju. Thereafter, she asked Mukesh that she wants to leave the house of accused Manju and started leaving. Accused Kanan Mandal, Samar Mandal and Vijay Diwakar caught hold of her and forcibly put her in Vijay Diwakar's vehicle. Thereafter, they took her to an unknown house. There she came to know that she has been sold out to accused Vijay Diwakar for a sum of Rs.15,000/ . Accused Vijay Diwakar removed her clothes. Accused shot a film of naked upper part of the body i.e. of her breast. Accused Vijay Diwakar pressed her breast. She started crying. In the meantime another girl was also brought in the same room whom she did not know. Vijay Diwakar ne uske sath bhi zor zabardasti ki. She stated that accused persons Kanan Mandal, Samar Mandal, Mukesh and Manju were also present there when accused Vijay Diwakar was pressing her breast and outraging her modesty. PW2 further stated that earlier to this incident, accused Manju called her to her house and compelled her to have sexual intercourse with a person. After that she stopped talking and visiting to her. Accused Mukesh took her to accused Manju house where accused Kanan Mandal, Samar Mandal, Manju and Mukesh sold her to accused Vijay Diwakar. She stated that police reached at the place where she was confined SC No. 19/13 State Vs Kanan Mandal etc. Page No. 6 of 38 at about 5 /5.30 pm and apprehended the accused persons. Police also brought her to the police station and recorded her statement. She was medically examined by the doctors. She further stated in her chief examination that on 06.04.2009 at Prahladpur accused Vijay Diwakar "Mere sath jabardasti karne laga". He removed her clothes in the presence of Kanan Mandal, Samar Mandal and some other people. She also cried. Accused took photography of her nude body. Accused Vijay Diwakar embarassed her in his arms and when she cried she left her. On 06.04.2009 one girl who met at Pul Prahladpur to accused was brought to the office of Vijay Diwakar. Accused Vijay Diwakar hugged and kissed that girl but that girl also opposed him. PW2 stated that accused Vijay Diwakar threatened her on the last of hearing i.e. 22.01.2010 that "Ke jab mein yehan se niklunga to tujhe dekh lunga". Witness has correctly identified all the accused persons in the court.
6. PW3A is prosecutrix 'M' who deposed that she got married on 11.05.2005. After marriage she shifted to her inlaws house at Bihar. Then, she along with her daughter shifted to Mumbai with her husband. In the month of September, 2008 she came to Delhi with her brother. On 03.02.09 she was blessed with a female child . At the time of delivery of her child her husband did not come to Delhi and she was in financial difficulty. One of her neighbour, namely Mala told her to get a job and brought her to Kanan Mandal. Mala told her to do household job. She did that job for a few days. After sometime, her daughter fell ill. She told Kanan about the same and SC No. 19/13 State Vs Kanan Mandal etc. Page No. 7 of 38 asked for Rs. 500/. Kanan told her that she will have to commit some wrong act ( galat kaam karna hoga). As she was in great financial problem (majboor thi). Kanan called a man and he forcibly committed rape upon her whom she did not know. Kanan Mandal had given me Rs. 100/ instead of Rs. 200/. On 28.03.2009 Vijay Diwakar was present who had also forcibly committed rape on her without her consent. She has correctly identified the accused Vijay Diwakar and Kanan Mandal present in the court. Vijay Diwakar used to come every day at the house of Kanan Mandal and used to drink liquor alongwith Kanan Mandal at her house. He under the influence of liquor used to say "Mujhe Ladkee Chahiye". Meri majburi ka Fayada Uthathe Huay apne Ghar par chaar panch din tak apne ghar par galat kaam karwaya". She did not like that Mujko Galat Kam Karwana Acha Nahi Laga aur maine Kanan Mandal Ke Ghar par Ghar ka kam chod diya. On 06.04.2009, Samar Mandal met her at Tuglakabad Bus Stand and told her to do the work again and she sat with him in the autorickshaw. While in autorickshaw Samar Mandal talked with Vijay Diwakar on phone and took her to Sooraj Kund crossing. Vijay Diwakar was standing at the bus stand, Suraj Kund. She identified her as the same person who committed rape with her at the house of Kanan Mandal. Thereafter, Vijay Diwakar and Samar Mandal forcibly made her to sit in the car parked there. Accused Vijay Diwakar switched off her mobile. She cried but nobody paid any heed to her request. She was taken to the office of Vijay Diwakar at Suraj Kund where Kanan Mandal SC No. 19/13 State Vs Kanan Mandal etc. Page No. 8 of 38 along with one girl whose name she came to know later on as Pooja was also sitting. Persons present in that office asked her from when she was doing such type of act. They also asked about Kanan Mandal and Samar Mandal and also slapped her. After some time police reached at the office and she along with prosecutrix 'P', Samar Mandal and Kanan Mandal were brought to police station Badarpur. Her statement under section 164 Cr.P.C was got recorded in the court by the police officials. She stated that she was also threatened by one friend namely Jha of accused Vijay Diwakar. Her medical examination was also got conducted by the police at AIIMS Hospital.
7. PW14 is IO/SI Kusum Dangi who along with other police officials reached at the spot, got the case registered, recorded the statement of both the girls under section 161 of Cr.P.C and got them medically examined, arrested the accused persons, prepared arrest memos and personal search memos, got recorded the statement of both the girls under section 164 of Cr.P.C and proved all the memos in this regard.
Formal witnesses:
8. PW1 is Ct. Raj Mohan who stated that on 14.05.09 he was posted at PS Badarpur and had deposited five sealed pullandas(parcels) along with three sample seals in FSL given to him by MHC(M) HC Ram Bharose. He had duly proved the same. He further stated that on 08.05.2009 he went to the FSL with the said pullandas(parcels) and sample seal but they could not be deposited on that day. IO recorded his statement. SC No. 19/13 State Vs Kanan Mandal etc. Page No. 9 of 38
9. PW4 HC Jagdish, Duty officer who deposed that on 06.04.2009 he was posted as Duty officer. He registered the FIR Ex.PW4/A and handed over the same to Ct. Virender. He has duly proved the same on record.
10. PW5 L/Ct. Rita who deposed that she along with SI Mukesh Kumr, W/SI Kusum Dangi, L/Ct. Mukesh, Ct. Virender, Ct. Pritam went to Sharma Market, Pul Prahladpur for raid where one Vijay Diwakar met them and handed over one computer chip and one written complaint to SI Mukesh Kumar. They have also met two girls i.e. prosecutrix 'P' and 'M'. Accused Vijay Diwakar told the IO that some deal of flesh trade was struck with the said two girls. He told the IO that he had made deal with Samar Mandal and Kanan Mandal for prostitution with prosecutrix 'P' for a sum of Rs. 30,000/. IO brought Pooja, Mamta, Kanan Mandal and Samar Mandal to police station and on the complaint of Accused Vijay Diwakar FIR was registered. Recovery memos were prepared and computer chip was seized by SI Kusum Dangi. Personal search memos, seizure memos and arrest memos were prepared by the IO. Witness has duly proved all the memos on record. On 07.04.2009 prosecutrix 'P' and 'M' were taken to AIIMS hospital for their medical examination. On 07.04.2009 she again joined the investigation of this case and along with SI Kusum Dangi, prosecutrix Pooja, L/Ct. Mukesh and Ct.Virender went to the house of Manju in Tuglakabad Area where one Manju and Mukesh met them. They both were brought to the police station and were arrested. Personal search memos and arrest memos were prepared. Witness SC No. 19/13 State Vs Kanan Mandal etc. Page No. 10 of 38 correctly identified the case property and memos in this regard.
11. PW6 is Ct. Amarjeet who deposed that he along with Ct. Harender took the accused Vijay Diwakar to AIIMS hospital & got him medically examined and then handed over the pullanda containing exhibits to the IO.
12. PW6 is Lady HC Mukesh who was inadvertently got recorded as PW6. She deposed that on 06.04.2009 after receipt of DD No. 21A regarding the trafficking of the minor girls, she along with SI Mukesh, W/SI Kusum Dangi, HC Pritam Singh , Ct. Virender, L/Ct. Rita reached at spot i.e. A201, Sharma Market, Pulprahladpur where one Vijay Diwakar met them who produced computer chip and handwritten complaint to the IO and also produced Kanan Mandal and Samar Mandal. Two girls i.e. prosecutrix 'M' and 'P' were also present there. Vijay Diwakar told them that on knowing that accused Kanan Mandal and Samar Mandal are involved in supplying the minor girls for prostitution, he spoke to Samar Mandal on phone and reached at E22, Vishwakarma Colony, Pulprahladpur where Samar Mandal and his wife Kanan Mandal had shown a minor girl of 12 years for the purpose of the prostitution against Rs. 30,000/. On 06.04.2009, he reached at Badarpur red light where Kanan Mandal along with the girl met him. He gave Rs. 1,000/ as advance money and remaining Rs. 29,000/ agreed to be given to the girl. Vijay Diwakar then informed the police. Personal search memos, arrest memos and seizure memos were prepared by the IO. On 07.04.2009, she SC No. 19/13 State Vs Kanan Mandal etc. Page No. 11 of 38 along with Ct. Rita, Ct. Virender and the prosecutrix 'P' accompanied the IO and reached at Gali No. 5, House No. 12, Tuglakabad Extension where accused Manju and Mukesh were apprehended at the pointing out of prosecutrix 'P' who told the IO that accused Mukesh had brought her on the pretext of lucrative job and good clothes to the house of Manju and told that Manju sold her to Kanan Mandal for Rs. 1000/. Accused Manju and Mukesh were interrogated and arrested. Disclosure statement of accused Manju was recorded. PW6 got the accused Manju medically examined. She has duly proved the case property etc. and all the memos in this regard.
13. PW7 is Sh. Saurabh Kulshreshtha who recorded the statement of prosecutrix Pooja under section 164 of Cr.P.C and duly proved Ex.PW7/A to Ex.PW7/G on record.
14. PW8 is SI Mukesh Kumar who deposed that he along with SI Kusum, HC Pritam, W/Ct. Mukesh, W/Ct. Rita and Ct. Virender reached at the spot. Vijay Diwakar met them there and handed over one CD, one chip to SI Kusum Dangi and handed over a handwritten complaint. Kanan Mandal, Samar Mandal and two girls/prosecutrix namely 'P' aged 14 years and girl/prosecutrix 'M' aged 19 years were found there. SI Kusum Dangi watched the CD and the clip on the computer of Vijay Diwakar and thereafter FIR was got registered. At the spot they came to know that sting operation was conducted by Vijay Diwakar prior to their reaching at the spot in which Vijay Diwakar had conversation with Kanan Mandal for purchasing SC No. 19/13 State Vs Kanan Mandal etc. Page No. 12 of 38 prosecutrix 'P' against Rs. 30,000/. Site plan was prepared by the IO. Personal search memos, arrest memos were prepared by the IO. Therafter, his statement was recorded by the IO.
15. PW9 is HC Harender Kumar who deposed that on 16.04.2009 at about 8 pm Vijay Diwakar came to the police station. IO interrogated him. Vijay Diwakar disclosed that he is journalist by profession and that on getting information that Kanan Mandal and Samar Mandal are involved in the prostitution of minor girls, he wanted to develop the information but on seeing the girls he lapsed and had sexual intercourse with the said girls. After recording the statement of prosecutrix namely 'P' and 'M' under section 164 of Cr.P.C accused Vijay Diwakar was arrested. Disclosure statement, arrest memos and personal search memos were prepared by IO. He along with Ct. Amarjeet took accused Vijay Diwakar for his medical examination and had handed over the sealed pullanda to Ct. Amarjeet who produced the same before the IO. Witness has duly proved all the memos in this regard. IO recorded his statement and accused Vijay Diwakar was correctly identified by the witness in the court.
16. PW10 is Ct. Virender & PW11 HC Pritam Singh who have also deposed on the lines of PW6 Lady HC Mukesh.
17. PW13 is Inspector R.C. Jain who deposed that he went to the court of Ld. MM at Patiala House Court in connection with the present case where accused Vijay Diwakar was also present. He instructed accused Vijay SC No. 19/13 State Vs Kanan Mandal etc. Page No. 13 of 38 Diwakar to join the investigation of this case. Accused Vijay Diwakar came to the police station Badarpur in the evening. He interrogated and arrested the accused. Personal search memo and disclosure statement were recorded. On 17.04.2009, he got the accused Vijay Diwakar medically examined and has duly proved memos in this regard.
Medical witnesses:
18. PW3 is Dr. Hari Prasad who proved on record MLC Ex.PW3/A of accused Vijay Kumar Diwakar prepared by Dr. Raghvender Kumar.
19. PW4A is Dr. Govinda Pramanick who proved on record bone age Xray report Ex.PW4/A of girl/prosecutrix namely 'P' prepared by Dr. Bhavna.
20. PW12 Dr. Shankar who proved on record MLC No. CS25657 and MLC No. CS25656/09 of patient/prosecutrix 'M' and 'P' respectively Ex.PW3/B and Ex.PW2/A prepared by Dr. S.M. Rehman.
Statement and Defence of accused:
21. Statement of accused persons under section 313 Cr.P.C was recorded wherein accused persons have stated that they have been falsely implicated in the present case.
22. I have heard Ld. Defence counsel for accused as well as Ld. APP for state and have carefully perused the record. I have also seen the written arguments filed by counsel for accused.
SC No. 19/13 State Vs Kanan Mandal etc. Page No. 14 of 38 Arguments of Ld. APP for state:
23. Ld. APP for state has argued that both the prosecutrix has supported the case of prosecution. It is stated that even the medical report of the prosecutrix support the case of the prosecution. From the allegations it is proved that the prosecutrix namely 'P' was sold to accused Vijay Diwakar by the coaccused persons and hence it is proved that prosecution has proved its case against the accused persons.
Arguments of Ld. Defence Counsel for accused persons:
24. On the other hand, Ld. Defence counsel for accused persons has argued that as per the statement of the prosecutrix namely 'M' she appears to be a sex worker. It is stated that as per the prosecution case prosecutrix namely 'M' is major and the age of the prosecutrix namely 'P' is between 15.8 years to 16.4 years and as such she is also major. It is stated that there is delay in lodging the FIR. It is also stated that PW3A has admitted that she has taken money for doing Galat Kaam. It is stated that the complaint is lodged by the accused Vijay Diwakar only. It is stated that there are discrepancies of both the prosecutrix which makes their statement unbelievable. Hence, the accused persons be acquitted in this case.
25. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence by resorting to the provisions of sec.375 read with sec.376 IPC. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse SC No. 19/13 State Vs Kanan Mandal etc. Page No. 15 of 38 with a woman under circumstances falling under any of the six following descriptions: First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly With or without her consent, when she under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
26. "Rape" is the act of physically forcing a woman to have sexual SC No. 19/13 State Vs Kanan Mandal etc. Page No. 16 of 38 intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
27. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
28. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity." SC No. 19/13 State Vs Kanan Mandal etc. Page No. 17 of 38 The two issues to be determined on the basis of evidence adduced by the prosecution are the age of the prosecutrix and whether she was a consenting party to the incident or not.
29. Age of the prosecutrix: There are two prosecutrix in this case. So far as prosecutrix namely 'M' is concerned, she is a married lady and has mentioned her age as 19 years at all places at the time of incident. Even the prosecutrix 'M' has put forth her age as 19 years. The accused has not contested the age of the prosecutrix namely 'M'. So she is held to be major at the time of offence.
So far as the other prosecutrix namely 'P' is concerned, prosecution has got the bone age examination of the prosecutrix conducted from AIIMS Hospital. There are no school records or any other document pertaining to her age. The bone age ossification report is proved by PW4A Dr. Gobinda Pramanick as PW4/A. As per this report, the age of prosecutrix namely 'P' is between 15.8 to 16.4 years. Taking the margin of 2 years as per the settled law in case of Jaimala Vs Home Secretary, Govt. of J&K ( 1982) SCC 1296, wherein Hon'ble Supreme court of India has opined that it is notorious and one can take judicial notice that margin of error in the age ascertained by radiological examination is 2 years on either side", similarly in the case of Naresh Kumar Vs State (Govt. f NCT) Delhi Crl. A. No. 313/2010 decided on 04.07.2012 by Hon'ble Justice A.K. Pathak of Delhi High Court in which case as per the medical evidence the age of the prosecutrix was opined to be more SC No. 19/13 State Vs Kanan Mandal etc. Page No. 18 of 38 than 15 years but less than 16 years, the court following the judgment of Jaimala Vs State (Supra) and other cases has held the age to be 18 years and the prosecutrix was taken to be major. In the present case, on the lines of the above judgment I conclude that the age of prosecutrix namely 'P' to be 18.4 years and accordingly prosecutrix namely 'P' is held to be major on the day of incident.
30. Consent of the prosecutrix and other ingredients of the offence/story of prosecution: The prosecution story starts with DD No. 21A whereby an information received regarding flesh trade on which IO along with team reached at the spot where the accused Vijay Diwakar met her along with Samar Mandal, Kanan Mandal, prosecutrix namely 'P' and 'M' who lodged a complaint regarding flesh trade being undertaken by accused persons stating that he is working in local daily newspaper Sansani of India as Editor. It is stated that he received an information 45 days back that Samar Mandal and his wife Kanan Mandal resident of Molar Band (Badarpur) are indulging in illegal business of flesh trade. He rang up Samar Mandal on his phone 9718812058 who called him at E21, Vishwakarma Colony, Pul Prahlad Pur for making sex and selling of a minor girl. At the said address both accused met him who had shown him a girl aged 12 years namely Varsha and asked for Rs.30,000/. Accused Vijay Diwakar had promised to give money on next day. On 06.04.2009 at around 11.00 am Samar Mandal rang up Vijay Diwakar that his wife Kanan Mandal is standing at Badarpur Red Light with the minor girl. Then, Samar Mandal brought Vijay Diwakar to Badarpur Red SC No. 19/13 State Vs Kanan Mandal etc. Page No. 19 of 38 Light where Kanan Mandal was standing. They asked for Rs.30,000/ for the minor girl and after long discussion they took Rs. 1,000/ as advance and brought Vijay Diwakar to residence at Vishwakarma Colony where Kanan Mandal again asked for balance amount of Rs.29,000/. There accused Vijay Diwakar gave her Rs.14,000/ and balance payment was agreed to be paid after dropping the girl at the address given by Vijay Diwakar. Kanan Mandal brought the girl to the address A201, Sharma Market, Pul Prahladpur. The accused had already given the information of that place to the local police. He had also handed over DEAC recording to local police. Samar Mandal and Kanan Mandal had also brought one more girl/prosecutrix namely 'M' and the name of the minor girl was came to be known as 'P' instead of Varsha. A request was made to take strict action against culprits. On this complaint the police apprehended all the persons, seized the chip given by complainant Vijay Diwakar of this sting operation who was later on made as an accused in this case. Personal search of Kanan Mandal was conducted by IO and Rs. 15,000/ were recovered from her bra. Police also seized the mobile 9891037381 used for flesh trade by accused. Thereafter, on the statement of prosecutrix namely 'P' that one Mukesh had brought her to the house of Manju from where Samar Mandal and Kanan Mandal had purchased her for Rs.1,000/ and both of them had made her naked in a room. Thereafter, medical examination of both prosecutrix were conducted. Accused Manju and Mukesh were also arrested. Age ossification test of prosecutrix namely 'P' SC No. 19/13 State Vs Kanan Mandal etc. Page No. 20 of 38 was got conducted. Statement of prosecutrix was got recorded under Section 164 Cr.P.C who then made allegations against complainant Vijay Diwakar for the first time. Disclosure of all accused recorded, exhibits were sent to FSL and thereafter, medical of accused was conducted. Complainant Vijay Diwakar was made as an accused after the statements of the prosecutrix u/s 164 Cr.P.C. Thereafter, chargesheet filed against accused
31. Now, look at the evidence examined by the prosecution. I have seen the testimony of both the prosecutrix. The court, while evaluating the facts of a case, is supposed to form an opinion about the credibility of the witnesses examined in a case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on the credibility of the witnesses. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence taken in the context of other facts of the case. Law recognizes following ways in which evidence of a witness can be termed unreliable:
a) the witness's statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity, SC No. 19/13 State Vs Kanan Mandal etc. Page No. 21 of 38
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
It is for the court to consider in each case whether as a result of cross examination the witness stands discredited or can still be believed in regard to any party of his testimony . In appropriate cases, the court can rely upon a part of the testimony of a witness if the said deposition is found to be credit worthy. The law even recognizes to rely upon the part of the testimony of a hostile witness if the same inspires confidence. A part of the testimony of a witness can be incredible but the other part can be credible on a careful scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence can be relied upon if the testimony is found to be credible.
32. In the present case, when both the prosecutrix were apprehended from spot on 06.04.2009, their statements were recorded by the police under Section 161 Cr.P.C. Perusal of those statements recorded on the day of apprehension clearly shows that they have not made any allegation against Vijay Diwakar on the said day. Even in the MLC, prosecutrix namely 'M' has given the alleged history of sexual assault. Similarly, prosecutrix 'P' had given the alleged history of repeated sexual assault for last one month. Nowhere in the MLC, both the prosecutrix had named Vijay Diwakar as the SC No. 19/13 State Vs Kanan Mandal etc. Page No. 22 of 38 person who had raped or outraged their modesty.
33. Accused Vijay Diwakar is in fact a whistle blower with regard to the business of flesh trade and it is on his complaint that all four accused persons with the two prosecutrix namely 'P' and 'M' were apprehended from his office. If he himself was a culprit and involved in flesh trade or purchasing minor girls for sex purposes, there was no occasion for him to make the complaint to the police, call the police to his office and got the accused persons apprehended from his office. Nondisclosure of his name in the statement under Section 161 Cr.P.C and in the alleged history given to the doctor also leads to this conclusion.
34. It is for the first time on 08.04.2009 and 09.04.2009 when the statement of both the prosecutrix were recorded under Section 164 Cr.P.C and they have come out with a story wherein they took the name of accused Vijay Diwakar.
35. The statement of the prosecutrix under Section 164 Cr.P.C is clearly an improvement in their statement recorded by police under Section 161 Cr.P.C on the same day of their recovery so far as accused Vijay Diwakar is concerned. If they had any grievance against Vijay Diwakar, there could have been some mention in that statement or in the history given to doctor.
36. I have gone through the testimony of both the prosecutrix recorded in the court. There are many contradictions in their statements so far as the accused Vijay Diwakar is concerned. As per prosecutrix namely 'P', SC No. 19/13 State Vs Kanan Mandal etc. Page No. 23 of 38 she was taken to the house of accused Manju by accused Mukesh where Kanan Mandal, Samar Mandal, Vijay Diwakar were also there. Accused Kanan Mandal took Rs.1,000/ from Vijay Diwakar and gave it to Manju. When prosecutrix namely 'P' wanted to leave, Kanan Mandal, Samar Mandal and Vijay Diwakar caught hold of her, kept her in vehicle of Vijay Diwakar, took her to a house where she came to know that she was sold for Rs.15,000/ to Vijay Diwakar. There Vijay Diwakar removed her clothes, shot a film of her naked upper part of her body i.e. breast, pressed her breast whereupon she started crying. In the meantime another girl/prosecutrix 'M' was brought in her said room and "Vijay Diwakar ne uske sath bhi zor jabardasti ki". She stated that all the four accused were present when Vijay Diwakar was pressing her breast and outraging her modesty.
37. However, this statement of prosecutrix is not supported by other prosecutrix namely 'M' who states in her cross examination that "Vijay Diwakar did not do any Galat Kaam with me on 06.04.2009". She has also stated that "It is correct that on 06.04.2009 Samar Mandal husband of Kanan Mandal took her to a office for a job. It is correct that I had come to know that said house was of Vijay Diwakar. Pooja and Kanan were already there". Hence, it is clear from statement of prosecutrix 'M' that prosecutrix namely 'P' is telling a lie on the point that accused Vijay Diwakar had done "Zor Jabardasti" with prosecutrix 'M' on 06.04.2009 in his office whereas prosecutrix 'M' has denied this fact.
SC No. 19/13 State Vs Kanan Mandal etc. Page No. 24 of 38
38. Similarly, statement of prosecutrix 'P' that accused Vijay Diwakar removed her clothes in the presence of other accused also does not sound probable. As per statement of prosecutrix 'P' there were number of rooms near the office of Vijay Diwakar and number of other men and women in those adjoining rooms and there was glass partition in the rooms through which the people in other room could see her and she was able to see them. If that is the position, then why prosecutrix 'P' did not raise alarm when accused Vijay Diwakar was molesting her. It also appears improbable that a person will molest a girl, make her nude in a room which has glass partition and the other persons who are watching from outside the glass partition won't speak anything nor the police would chose to make them a witness in this case.
39. It is admitted by prosecutrix 'M' that it was Vijay Diwakar who had called the police at his office. This statement of prosecutrix 'M' goes to prove the factum of accused Vijay Diwakar being the whistle blower of the incident.
40. As per the statement of prosecutrix 'M', she was indulging in sexual relations voluntarily at the house of Kanan Mandal with different person from 21.03.2009 to 25.03.2009. On 26.03.2009 and 27.03.2009 she rested, however on 28.03.2009 Vijay Diwakar forcibly committed rape with her.
41. If this statement of the prosecutrix is correct then there is no SC No. 19/13 State Vs Kanan Mandal etc. Page No. 25 of 38 explanation from her side as to why she did not report the matter to police on 28.03.2009 or thereafter. Why only after two days of her apprehension/recovery by the police on 06.04.2009 on the complaint made by accused Vijay Diwakar, she had come forward to make an allegation of forcible sexual assault against the accused Vijay Diwakar. Further in her cross examination she has stated that she was paid Rs.100/ by Kanan Mandal on 28.03.2009 for doing 'Galat Kaam' with Vijay Diwakar. If she had taken money, for doing Galat Kaam with Vijay Diwakar how she is to be beleived that Vijay had forcibly committed rape with her. This statement makes her testimony doubtful on the point of rape by accused Vijay. She also stated that she did not raise any alarm when accused Vijay Diwakar was doing Galat Kaam nor told about this to police, parents, her husband. As per her statement she was going to the house of Kanan Mandal of her own daily, committing sex with different people, taking money. Hence, her statement that accused Vijay Diwakar forcibly committed rape with her on 28.03.2009, her non disclosure of this incident to anybody, not mentioning of name of accused in MLC, statement under section 161 Cr.P.C. and other contradictions in their statement make her testimony unreliable qua accused Vijay Diwakar so far as rape is concerned.
42. Further, as per the statement of prosecutrix 'P' she had seen accused Kanan Mandal taking Rs. 1,000/ from accused Vijay Diwakar and paying to accused Manju. However, she belied this statement in her cross SC No. 19/13 State Vs Kanan Mandal etc. Page No. 26 of 38 stating that she had not seen anyone handing over Rs. 1,000/ to each other and she came to know about the payment later on.
43. Further, as per her statement P came to know later on that she was sold to Vijay Diwakar for Rs. 15,000/ but Vijay Diwakar did not tell her as to why he purchased her. She also stated that Vijay Diwakar did not ask her to do sexual intercourse with him or any other person. This statement also does not sound probable nor acceptable to a reasonable mind. Why a person will purchase a girl if he does not want to derive any benefit from her?
44. All these statements, exaggeration, improvement made by both prosecutrix in their statement make their testimony unreliable qua accused Vijay Diwakar.
45. One of the argument advanced by Ld. APP for the state is that the accused Vijay Diwakar had put certain suggestions to the witness/prosecutrix 'M' that she had given condoms to Vijay Diwakar before doing sex which show his involvement. This suggestion cannot be read in isolation, as accused has put a suggestion to the witness that on the insistence of police she has made a wrong statement of Galat Kaam against Vijay Diwakar whereas she is a sex worker and on 06.04.2009, she had voluntarily gone to the office of Vijay Diwakar for the purpose of prostitution. Further, the suggestion given to the prosecutrix if read in light of fact that accused Vijay Diwakar was a whistle blower of the incident and started a sting operation and he called up the police and in the process of getting the persons SC No. 19/13 State Vs Kanan Mandal etc. Page No. 27 of 38 apprehended red handed on the spot/ his office, he himself had become a party to induce the coaccused and prosecutrix so that they come to the office of accused Vijay Diwakar, then these suggestions nowhere lead to conclusion that accused had in fact committed rape with prosecutrix 'M' or outraged the modesty of prosecutrix 'P' and are only an attempt to bring forth the conduct of M prosecutrix.
46. Hence, in view of above discussion, I found the testimony of both prosecutrix full of exaggeration and improvements, unreliable and untrustworthy so far as the accused Vijay Diwakar is concerned .It appears that when the prosecutrix and other accused were apprehended by the police on the complaint of the accused Vijay Diwakar, to wreak vengeance, after two days of their apprehension both the prosecutrix had falsely roped in the accused Vijay Diwakar.
47. Evidence qua other accused persons: Accused Kanan Mandal, Samar Mandal, Mukesh and Manju are charged for the offence under section 366 qua prosecutrix namely 'M', 366A qua prosecutrix namely 'P' & 372 r.w. Section 120 B IPC.
48. Before proceeding further it is necessary to refer to all these sections. Section 366 IPC provides: "Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit SC No. 19/13 State Vs Kanan Mandal etc. Page No. 28 of 38 intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [ and whoever, by means of criminal intimidation as defined in this code or of abuse of authority or any other method of complusion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]".
49. Section 366A IPC provides: "Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine".
50. Section 372 IPC provides: "Whoever sells, lets to hire, or otherwise disposes of any [person under age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine."
SC No. 19/13 State Vs Kanan Mandal etc. Page No. 29 of 38
51. As per the case of the prosecution accused persons had induced prosecutrix namely 'M' and 'P' so that they may be forced or seduced to sexual intercourse with coaccused Vijay Diwakar and also sold prosecutrix namely 'P' to Vijay Diwakar for Rs. 15,000/ with the intention that she would be employed or used for the purpose of prostitution or illicit intercourse with coaccused Vijay Diwakar. So far as all these three sections are concerned, both the prosecutrix have categorically deposed about these inducement. Prosecutrix namely 'M' has specifically deposed against the accused Kanan Mandal and Samar Mandal who had persuaded her to indulge in flesh trade and she was being paid by both of them. As per her statement from 21.03.2009 to 25.03.2009 she had indulged in sexual intercourse with different persons at the house of Kanan Mandal and Samar Mandal as she was in need of money and persuaded by accused that if she wants to get money she has to go in flesh trade. Similarly, as per statement of prosecutrix 'P' accused Mukesh had brought the prosecutrix at the house of Manju who took Rs. 1,000/ from accused Kanan Mandal and handed over 'P' to her and ultimately Kanan Mandal and Samar Mandal sold the girl to accused Vijay Diwakar for Rs. 15,000/ so that she may be used for the purpose of prostitution or illicit intercourse. The testimony of both the prosecutrix on these points is consistent and trustworthy. Even the complaint on which the present FIR is registered is lodged by accused Vijay Diwakar stating that he had paid Rs. 15,000/ to Kanan Mandal and Samar Mandal for the minor girl SC No. 19/13 State Vs Kanan Mandal etc. Page No. 30 of 38 'P'. The said amount of Rs. 15,000/ has been recovered on the spot from accused Kanan Mandal. There is no doubt about the recovery of the money from the possession of accused Kanan Mandal. Nothing adverse came out from the cross examination of both the prosecutrix. Rather, their statements are inconformity with the complaint lodged by the accused Vijay Diwakar with the police. From the statement of the prosecutrix namely 'M' it is proved that accused Kanan Mandal and Samar Mandal induced her to indulge in flesh trade as she was in need of money so that she may be forced or seduced to illicit intercourse with Vijay Diwakar and it also proved that Mukesh and Manju had sold P to coaccused so that she may be forced or seduced to illicit intercourse with Vijay Diwakar. It is also proved that Mukesh, Manju, Kanan Mandal and Samar Mandal in furtherance of their common intention have sold the prosecutrix 'P' firstly to Kanan Mandal and then to Vijay Diwakar so that she may be used for prostitution or illicit intercourse. However as the prosecutrix 'P' is held to be major and all the accused are charged for inducing both prosecutrix so that they may be forced or seduced for illicit intercourse with coaccused Vijay Diwakar and as the sentence in both the sections i.e. 366 and 366A IPC is same and the charge is similar, hence I convict all the accused persons under section 366 IPC and acquit them under section 366A/372/34 IPC. No criminal conspiracy is proved on record and as such no conviction can be held under section 120B IPC as well.
SC No. 19/13 State Vs Kanan Mandal etc. Page No. 31 of 38
52. Offence under section Immoral Traffic (Prevention) Act: Accused Kanan Mandal and Samar Mandal are also charged for the offence under section 4,5 and 6 of Immoral Traffic (Prevention) Act. Section 4 of ITP Act provides that : "Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of [any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both [and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years].
[ (2) Where any person over the age of eighteen years is proved:
(a) to be living with, or to be habitually in the company of, a prostitute;
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling his prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of subsection (1)]. Section 5 of ITP Act provides that: (1) Any person who
(a) procures or attempts to procure a [person], whether with or without [his] consent, for the purpose of prostitution; or
(b) induces a [person] to go from any place, with the intent SC No. 19/13 State Vs Kanan Mandal etc. Page No. 32 of 38 that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a [person], or causes a [person] to be taken, from one place to another with a view to [his] carrying on, or being brought up to carry on prostitution; or
(d) causes or induces a [person] to carry on prostitution; [shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extent to two thousand rupees, and if any offence under this sub section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an offence committed under this subsection,
(i) is a child, the punishment provided under this sub section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this sub section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;] (3)An offence under this section shall be triable
(a) in the place from which a [person] is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such [person] is made; or
(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
Section 6 of ITP Act provides: (1) Any person who detains [any other person, whether with or without his consent],
(a) in any brothel, or SC No. 19/13 State Vs Kanan Mandal etc. Page No. 33 of 38
(b) in or upon any premises with intent [that such person may have sexual intercourse with a person who is not the spouse of such person], shall be punishable [on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years]. [ (2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub section (1). 2(A) Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.] (3) A person shall be presumed to detain a woman a girl in a brothel or in or upon any premises for the purpose of sexual intercourse with an man other than her lawful husband, if such person, with intent to compel or induce her to remain there,
(a) withholds from her any jewellery, wearing apparel, money or other property belonging to her, or
(b) threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person.
(4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she SC No. 19/13 State Vs Kanan Mandal etc. Page No. 34 of 38 has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl to to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl.
53. As per the statement of the prosecutrix namely 'M' she was being paid money by the accused Kanan Mandal and Samar Mandal after taking from the persons who had come to the house of Kanan Mandal and Samar Mandal for committing sex with the prosecutrix from 21.03.2009 to 06.04.2009. Similarly, from the testimony of both the prosecutrix it is proved that both the accused induced both the prosecutrix to go from House No. 36, Molarband Village Badarpur to A201, Sharma Market, Pul Prahladpur i.e. to the office of the Vijay Diwakar for the purpose of prostitution. It is also proved from their statement that they had detained prosecutrix namely 'P' and 'M' at both the addresses mentioned above so that they may have sexual intercourse with Vijay Diwakar and other persons. Hence, the testimony of prosecutrix on all these facts remain consistent and trustworthy. Nothing adverse came out in the cross examination of both the prosecutrix so as to doubt the statement of both the prosecutrix. From their statements it is proved beyond doubt that both the accused persons i.e. Kanan Mandal and Samar Mandal were living on the earnings of prostitution and were inducing and detaining prosecutrix for using them in flesh trade. Hence, all the ingredients of the offence under section 4,5 and 6 ITP Act are proved against SC No. 19/13 State Vs Kanan Mandal etc. Page No. 35 of 38 both the accused persons namely Kanan Mandal and Samar Mandal.
54. Defence of the accused persons: As per defence of accused Vijay Diwakar he is a journalist for the last 15 years having government registration number of his newspaper namely Sansani of India and during the course of his profession he used to expose the misdeeds of police officers and politicians and due to journalism activities to bring truth before the public he was falsely implicated by the police officials and politicians in this case. As I have held already discussed above, it was the accused only who being the Editor of newspaper Sansani of India had made the complaint to the police as a whistle blower with regard to the flesh trade and the complaint lodged by him is also corroborated to some extent by the prosecutrix also. As already discussed, in the light of evidence that is come on record the defence of the accused Vijay Diwakar appears to be more probable and appealing.
All the other accused persons have taken defence that they are innocent and have been falsely implicated in this case. Accused Kanan Mandal and Samar Mandal had stated that police had falsely implicated them in this case however no reason is assigned as to why police will falsely implicate them in this case without any rivalry. The defence of the accused is vague and does not stand in view of the consistent testimony of both the prosecutrix qua them.
55. Medical Evidence: As per MLC of both the prosecutrix the hymen was found torn with old heal. No external injuries were found on the SC No. 19/13 State Vs Kanan Mandal etc. Page No. 36 of 38 body of the prosecutrix. So fas as prosecutrix 'M' is concerned she has stated that she was indulging in sex with different persons on different dates prior to the date when she was raped by accused Vijay Diwakar i.e. on 28.03.2009. The FSL result does not inspire confidence as prosecutrix 'M' states that she was raped by the accused Vijay Diwakar on 28.03.2009 but she was apprehended on 06.04.2009 and was medically examined on the next day and the clothes were seized on the said day. There was a long gap between the incident and the seizure of clothes and creates doubt on the FSL result. Further the proosecution has not chosen to get the DNA examination of the exhibits of the accused and prosecutrix conducted which can conclusively match the DNA profile of the accused Vijay Diwakar with the prosecutrix 'M'. The FSL result only gives a grouping 'B' but 'B' group is not specific to the accused only. The specific matching of the exhibits could have been possible by the DNA profile generation of the exhibits of both the accused and the prosecutrix which is not being done in this case. The MLC also does not prove the allegations of rape by the accused Vijay Diwakar conclusively when prosecutrix 'M' admits to be indulging in sex activities with different persons on different dates. Benefit of doubt on this count should go to the accused.
Conclusion:
56. In view of the above said discussion, prosecution has been able to prove its case against the accused Kanan Mandal, Samar Mandal, Mukesh and SC No. 19/13 State Vs Kanan Mandal etc. Page No. 37 of 38 Manju. Therefore, accused Kanan Mandal, Samar Mandal, Mukesh and Manju are held guilty and convicted for the offence under section 366/34 IPC and acquitted under section 366A/372/120B/34 IPC. Accused Kanan Mandal and Samar Mandal are also convicted for the offence under section 4,5 & 6 of Immoral Traffic Prevention Act, 1956. Accused Vijay Diwakar is however acquitted of the offence under section 376/354/120B IPC. ANNOUNCED IN THE OPEN COURT ON 27.08.2013.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 19/13 State Vs Kanan Mandal etc. Page No. 38 of 38