Delhi District Court
State vs . 1. Madan on 1 April, 2013
1
FIR No. 244/10
PS - Alipur
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 136/13
Unique ID No. : 02404R0239562010
State Vs. 1. Madan
S/o Khusi Lal
R/o Village Tetri,
PS - Jamal Pur,
District - Darbhanga, Bihar.
FIR No. : 244/10
Police Station : Alipur
Under Sections : 376/323/511 IPC
Date of committal to session Court : 12/10/2010
Date on which judgment reserved : 16/03/2013
Date of which judgment announced : 01/04/2013
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C is as under :
1 of 51 2 FIR No. 244/10 PS - Alipur That on 20/07/2010, complainant Pappu, S/o Vishwanath alongwith his wife and daughter prosecutrix (name withheld being a case u/s 376/511 IPC) came to the Police Station and got recorded his statement which is to the effect that, he resides at village Tikri Kalan, Delhi (Deepak ka makan) with his wife and daughter and does the work of iron breaker (loha todne ka kaam) and his younger brother Sanjay lives at Tikri Khurd, Delhi. Yesterday, on 19/07/2010 he alongwith his wife and daughter/prosecutrix (name withheld being case u/s 376 IPC) aged nine years went to the house of his brother Sanjay at Village Tikri Khurd. In the night after having dinner he and his wife slept in the room of his brother Sanjay and his brother Sanjay and his wife slept in another room and in a third vacant room his daughter/prosecutrix and daughter of his brother Gudiya age - 10/11 years slept and in that third room one person namely Madan Lal S/o Khushi Lal was also sleeping. At about 2:002:30 a.m. in the night his daughter/prosecutrix and Gudiya were knocking the door of the room where he was sleeping. On asking his daughter told him that Madan uncle made her lie on his cot and after removing her Tshirt up pressed her breast and opened her legs (pair khol kar) and lie down upon her after removing her pants and tried to do 2 of 51 3 FIR No. 244/10 PS - Alipur wrong act (galat kaam) with her and when she shouted and made hue and cry then he slapped her and told her not to disclose this to anybody.
After hearing this, he awoke his brother Sanjay and told him about the incident and his brother Sanjay apprehended accused Madan who tried to commit rape with his daughter whose name after verification was found to be Madan S/o Khushi Lal R/o Village Tetri, PS - Jamal Pur, Darbhanga, Bihar. His brother caught hold of the accused Madan and sent him (Pappu, father of the prosecutrix) to the Police Station and thereafter, he alongwith his wife and daughter/prosecutrix went to Police Station and disclosed the incident that Madan S/o Khushi Lal removed the clothes of his daughter and pressed her breast and after removing her pants tried to commit rape with her. Legal action be taken against him. The statement has been heard and is correct.
Thereafter, prosecutrix was sent for medical examination to Satyawadi Raja Harish Chand Hospital, Narela and thereafter, she was taken to Higher Centre, LNJP Hospital and her medical examination was got conducted at LNJP Hospital under the protection of W/Constable Usha and the sealed exhibits handed over by the Doctor after her medical examination were taken into Police possession. Accused Madan was 3 of 51 4 FIR No. 244/10 PS - Alipur arrested at the identification of the complainant. He was got medically examined and the sealed exhibits handed over by the concerned Doctor were taken into Police possession. During the course of the investigation, statement of the prosecutrix u/s 164 Cr.P.C. was got recorded, site plan of the place of incident was prepared and the statements of the witnesses were recorded. Sealed exhibits were sent to the FSL for opinion.
Upon completion of necessary further investigation challan u/s 376/511/323 IPC was prepared against accused Madan and was sent to the Court for trial.
2. Since the offence under section 376/511 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376/511 IPC and 4 of 51 5 FIR No. 244/10 PS - Alipur under section 323 IPC was made out against the accused. The charge was framed accordingly, which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 19 witnesses. PW1 Dr. Rajesh Kumar, CMO, Satyawadi Harish Chand Hospital, Delhi, PW2 - Prosecutrix, PW3 - Pappu, PW4 - Dr. Majhar Hussain, Medical Officer SRHC Hospital, Narela, Delhi, PW5 - Constable Raj Kumar, PW6 - Constable Sushil Kumar, PW7 - HC Usha Rani, PW8 - Gudiya, PW9 - Sanjay, brother of PW3 Pappu (father of the prosecutrix), PW10 - Dr. Sushmita, Senior Resident, LNJP Hospital, New Delhi, PW11 - Dr. Geeta Khanna, Senior Resident, Department of Obst. & Gynae, SRH Hospital, Narela, Delhi, PW12 Constable Ravinder Singh, PW13 - HC Devender Singh, PW14 - W/HC Rajesh, PW15 - Sh. Vishal Singh, Ld. MM, PW16 - Deepak, PW17 - Smt. Maya, PW18 - SI Mukesh Kumar and PW19 - Dr. Chaman Prakash, CMO, Directorate General, Health Services, Nirman Bhawan, New Delhi.
5 of 51 6 FIR No. 244/10 PS - Alipur
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - Dr. Rajesh Kumar, CMO, Satyawadi Harish Chand Hospital, Delhi who medically examined the prosecutrix vide MLC Ex. PW1/A signed by him at point 'A' and referred the prosecutrix to SR Gynae vide his noting at point 'A' on the MLC Ex. PW1/A. PW2 - Prosecutrix who deposed regarding the incident and proved her statement u/s 164 Cr.P.C. signed by her at point 'A'.
PW3 - Pappu is the father of the prosecutrix who deposed regarding the incident as disclosed to him disclosed by his daughter - prosecutrix and proved his statement made to the Police Ex. PW3/A, arrest memo of the accused Ex. PW3/B, his personal search memo Ex. PW3/C, all signed by him at points 'A'.
PW4 - Dr. Majhar Hussain, Medical Officer SRHC Hospital, Narela, Delhi who medically examined the patient/accused 6 of 51 7 FIR No. 244/10 PS - Alipur Madan and opined that there was nothing to suggest that the said patient/accused is incapable of performing any sexual act vide MLC Ex. PW3/A (Be read as PW4/A) signed by him at point 'A'.
PW5 - Constable Raj Kumar who joined investigation on 20/07/2010 with IO SI Mukesh Kumar and deposed on the investigational aspects.
PW6 - Constable Sushil Kumar who joined investigation on19/07/2010 with IO SI Mukesh and deposed on the investigational aspects and besides proving the arrest memo Ex. PW3/B and the personal search memo Ex. PW3/C also proved the seizure memo of the sealed exhibits handed over by the Doctor after the medical examination of the accused Ex. PW6/A signed by him at point 'A'.
PW7 - HC Usha Rani who joined investigation with IO SI Mukesh Kumar and deposed on the investigational aspects and also proved the seizure memo of the sealed exhibits handed over by the Doctor after the medical examination of the prosecutrix Ex. PW7/A 7 of 51 8 FIR No. 244/10 PS - Alipur signed by her at paint 'A'.
PW8 - Gudiya who was sleeping with the prosecutrix in the room where the incident took place but did not fully support the prosecution and was also crossexamined.
PW9 - Sanjay is the brother of PW3 Pappu (father of the prosecutrix) who deposed regarding the incident and also about the investigation which he joined but did not fully support the prosecution and was also crossexamined.
PW10 - Dr. Sushmita, Senior Resident, LNJP Hospital, New Delhi who proved the medical examination of the prosecutrix as was conducted by Dr. Astha vide Ex. PW10/A signed by Dr. Astha at point 'A'.
PW11 - Dr. Geeta Khanna, Senior Resident, Department of Obst. & Gynae, SRH Hospital, Narela, Delhi who gynaecologically examined the prosecutrix and proved her examination from point 'X' to 8 of 51 9 FIR No. 244/10 PS - Alipur 'X' on the MLC Ex. PW1/A signed by her at point 'Y'.
PW12 - Constable Ravinder Singh who deposed that on 14/09/2010, he took sealed pullindas from the MHC(M) and deposited the same at FSL, Delhi vide RC No. 87/21/10 and after deposition handed over the acknowledgment receipt of FSL to the MHC(M).
PW13 - HC Devender Singh is the MHC(M) who proved the copy of the relevant entry of register no. 19 Ex. PW13/A, copy of the RC No. 87/21/10 Ex. PW13/B and the copy of the acknowledgment receipt of the FSL Ex. PW13/C. PW14 - W/HC Rajesh is the Duty Officer who proved the copy of the FIR Ex. PW14/A signed by her at point 'A' and her endorsement Ex. PW14/B on the rukka signed by her at point 'A'.
PW15 - Sh. Vishal Singh, Ld. MM who recorded statement u/s 164 Cr.P.C. of the prosecutrix and proved the application for recording the statement u/s 164 Cr.P.C. as Ex. PW15/A, the statement of 9 of 51 10 FIR No. 244/10 PS - Alipur the prosecutrix u/s 164 Cr.P.C. as Ex. PW15/B signed by him at point 'A' and signed by prosecutrix at point 'C', proceedings of recording of statement Ex. PW15/C signed by him at point 'A' and deposed that he certified the statement of the prosecutrix at point 'X' at Ex. PW15/D signed by him at point 'B' and proved his order at point 'Y' on Ex. PW15/B signed by him at point 'E' and the application of the IO for supply of the copy of the statement Ex. PW15/D signed by him at point 'A'.
PW16 - Deepak who deposed that he knows Pappu S/o Vishwanath who resided at his house as tenant for 11½ month and the said Pappu sued to give rent of Rs. 750/ p.m. and left his tenanted portion on 22/07/2010 in the night without informing him to some unknown place and deposed that Police recorded his statement. He did not support the prosecution and was also crossexamined by the Ld. Addl. PP.
PW17 - Smt. Maya, is the mother of the prosecutrix who deposed regarding the incident as was disclosed to her by the prosecutrix 10 of 51 11 FIR No. 244/10 PS - Alipur and also deposed on the investigational aspects which she joined.
PW18 - SI Mukesh Kumar is the Investigating Officer (IO) of the case who deposed on the investigational aspects and besides proving the other memos also marked the Casualty Card of prosecutrix mark PW18/A (also Ex. PW19/A) and proved rukka Ex. PW18/A, site plan Ex. PW18/B, memo of th production of accused Madan before him at Farm of Ram Avtar at Village Tikri Khurd, Delhi Ex. PW18/C signed by him at point 'A' bearing his signatures at point 'B', thumb impression of accused Madan at point 'C' and signatures of Constable Sushil at point 'D'. He further deposed that after obtaining the FSL Report, he filed the same in the Court vide application Ex. PW18/D signed by him at point 'A' and tendered the FSL Report as Ex. PW18/E and Ex. PW18/F and the forwarding letter of the FSL Report as Ex. PW18/G. PW19 - Dr. Chaman Prakash, CMO, Directorate General, Health Services, Nirman Bhawan, New Delhi who deposed that the Casualty Card of the prosecutrix is of LNJP Hospital and proved it as Ex. PW19/A already marked PW18/A and further deposed that the Casualty 11 of 51 12 FIR No. 244/10 PS - Alipur Card already Ex. PW10/A is of Lok Nayak Jai Prakash hospital of Gynae Emergency.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. Statement of accused Madan was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and opted to lead defence evidence and in his defence examined one witness DW1 Smt. Manju.
DW1 - Smt. Manju has deposed that she knows Madan and she alongwith her family was residing in the tenanted premises where Madan was tenant. Sanjay was also residing with in another room as tenant and there was money transaction between both Madan and Sanjay. Brother of Sanjay namely Pappu and he came to reside there at house of Sanjay along with his family. Wife of Madan was ill at her native village and Madan called her at Delhi for treatment. Since Madan was not having money for the treatment therefore, he demanded money from Sanjay which he lent to Sanjay. Madan took his wife to hospital but he 12 of 51 13 FIR No. 244/10 PS - Alipur could not get his wife admitted in the hospital since he was not having money and they came back. Madan took his wife at about 8:00/8:30 p.m. and he returned back to his room at about 11:30/12:00 p.m. and thereafter, he went to room of Sanjay to demand his money and hot words were exchanged between them and at about 2:00/2:30 a.m., Sanjay, his brother Pappu and his wife gave beatings to Madan. Thereafter, Pappu called Police and got Madan arrested. Madan was sent to Jail. After some days of the incident, she (DW1 Smt. Manju) also vacated the rented room and other tenant also vacated the premises. At present only Sanjay is residing with his family.
7. Ld. Counsel for the accused submitted that the offences u/s 376/511 IPC does not apply in the present case. The medical examination also gives the report of no injury and no smegma therefore, offences u/s 376/511 IPC does not apply in the present case. He further submitted that accused was released on bail keeping in view the ingridents of section 354 IPC. PW8 - Gudiya and PW9 - Sanjay, father of Gudiya have also turned hostile. He further submitted that on comparison of the statements of PW2 - prosecutrix, in the FIR, there is 13 of 51 14 FIR No. 244/10 PS - Alipur no mention regarding the closing/bolting of the room and of the switching off the light while PW2 - prosecutrix in her statement has deposed regarding the bolting and of the switching off the light while, in the statement u/s 164 Cr.P.C. only regarding the bolting of the room from inside is mentioned ; in the statement u/s 164 Cr.P.C., the fact regarding the moving of the hand between the two legs and of inserting of finger in the place of urination is mentioned while, in the FIR and in the testimony of PW2 - prosecutrix, nothing like this is mentioned; PW2 - prosecutrix in her statement has deposed that when she was knocking at the door of her parents, at that time, Madan uncle pretended to sleep while, in the statement u/s 164 Cr.P.C., the fact of her running out due to crying (chillane ki vajah se) is mentioned. In the crossexamination, the fact regarding the sleeping of the accused is also deposed. He further submitted that from the statements of PW17 - Smt. Maya and PW18 - SI Mukesh Kumar of the coming of Anuradha, NGO - Navshrishti in the Police Station and of cooperating in the FIR is indicated. He further submitted that PW2 - prosecutrix in her crossexamination has deposed admitted of going to the place of incident two times while PW3 - Pappu, father of the prosecutrix has admitted of coming to the place of incident 14 of 51 15 FIR No. 244/10 PS - Alipur once. He further submitted that PW2 - prosecutrix in her cross examination has admitted that in her sleep, Madan uncle took her to his cot and when he opened her Tshirt, she was in sleep. He further submitted that PW3 - Pappu has made the statement to the Police that in the third room, her daughter/prosecutrix and Gudiya had slept and near to them, one person named Madan Lal was also sleeping, while in his crossexamination, he has deposed that the accused was already sleeping in the room or had gone later on to sleep, he does not know. He further submitted that PW17 - Maya, mother of the prosecutrix has deposed that in the third room, her daughter/prosecutrix and the daughter of accused (be read as daughter of Sanjay) Gudiya had slept. He further submitted that PW17 - Maya in her crossexamination has deposed that she had not sent her daughter/prosecutrix and the daughter of her Dever (Sanjay) for sleeping in that room in which the mother of accused was sleeping. He further submitted that the accused had lent money to Sanjay and Pappu, father of the prosecutrix and on demanding his money back for the treatment of his wife, Sanjay, his brother Pappu and his wife gave beatings to him (accused Madan) and they called the Police and falsely implicated accused in the case. He further submitted that DW1 - Smt. 15 of 51 16 FIR No. 244/10 PS - Alipur Manju has also been examined by the accused in his defence. He further submitted that the prosecution has failed to proved its case and prayed for the acquittal of the accused on the charged levelled against him.
8. While the Ld. Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Sh. S. C. Sroai, Ld. Addl. PP for the State and Sh. Arvind Kumar, Ld. Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences u/s 376/511, 323 IPC against accused Madan is that on 1920/07/2010 at about 2:30 a.m. at Village Tikri Khurd, Delhi (Ram Avtar Sharma ka Farm), he attempted to commit rape on the person of prosecutrix (name withheld) aged about 09 16 of 51 17 FIR No. 244/10 PS - Alipur years against her wishes and without her consent and that on the abovesaid date, time and place, he voluntarily cause simple hurt by blunt object on the person of prosecutrix (name withheld).
11. 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
12. PW2 - prosecutrix in one of the preliminary questions put to her before recording her evidence to the effect, Had she ever gone to School? she replied that, yes she is studying in Class - 3rd.
PW17 Smt. Maya, mother of the prosecutrix in her examinationinchief has stated that on 19/07/2010, she alongwith her husband and daughter/prosecutrix (name withheld), aged about 09 years came to the tenanted house of her Dever namely Sanjay at Tikri Khurd Village.
17 of 51 18 FIR No. 244/10 PS - Alipur From the aforesaid narration of PW17 - Smt. Maya, it is clearly indicated that the prosecutrix was aged about 09 years on the date of the incident. During the course of examination of PW17 - Smt. Maya, the said factum regarding the age of the prosecutrix has not been disputed. Nor any evidence to the contrary has been produced or led by the accused on the record.
In the circumstances, it stands established on the record that the prosecutrix was aged about 09 years on the date of the alleged incident.
MEDICAL EVIDENCE
13. PW1 - Dr. Rajesh Kumar, CMO, Satyawadi Harish Chand Hospital, Delhi who medically examined the prosecutrix vide MLC Ex. PW1/A signed by him at point 'A' and referred the prosecutrix to SR Gynae vide his noting at point 'A' on the MLC Ex. PW1/A. Despite grant of opportunity, PW1 - Dr. Rajesh Kumar was not crossexamined.
PW10 - Dr. Sushmita, Senior Resident, LNJP Hospital, 18 of 51 19 FIR No. 244/10 PS - Alipur New Delhi who proved the gynaecological examination of the prosecutrix as was conducted by Dr. Astha vide MLC Ex. PW10/A signed by Dr. Astha at point 'A'.
During her crossexamination, PW10 - Dr. Sushmita has clearly deposed that she is deposing only on the basis of the record.
PW11 - Dr. Geeta Khanna, Senior Resident, Department of Obst. & Gynae, SRHC Hospital, Narela, Delhi who gynaecologically examined the prosecutrix and proved her examination from point 'X' to 'X' on the MLC Ex. PW1/A signed by her at point 'Y'.
PW19 - Dr. Chaman Prakash, CMO, Directorate General, Health Services, Nirman Bhawan, New Delhi who deposed that the Casualty Card of the prosecutrix of LNJP Hospital as Ex. PW19/A already marked PW18/A and also deposed that the Casualty Card already Ex. PW10/A is of Lok Nayak Jai Prakash hospital of Gynae Emergency.
Despite grant of opportunity, PW11 - Dr. Geeta Khanna and 19 of 51 20 FIR No. 244/10 PS - Alipur PW19 - Dr. Chaman Prakash were not crossexamined.
In view of above and in the circumstances, the medical and the gynaecological examination of PW2 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED
14. PW4 - Dr. Majhar Hussain, Medical Officer SRHC Hospital, Narela, Delhi who medically examined the patient/accused Madan and opined that there was nothing to suggest that the said patient/accused is incapable of performing any sexual act vide MLC Ex. PW3/A (Be read as PW4/A) signed by him at point 'A'.
Despite grant of opportunity, PW4 - Dr. Majhar Hussain was not crossexamined.
In view of above and in the circumstances, it stands proved on the record that accused Madan was capable of performing any sexual activity.
BIOLOGICAL AND SEROLOGICAL EVIDENCE 20 of 51 21 FIR No. 244/10 PS - Alipur
15. PW18 SI Mukesh Kumar in his examinationinchief has tendered in evidence the biological report as Ex. PW18/E and the serological report as Ex. PW18/F. As per the biological report Ex. PW18/E, the description of the articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed envelope sealed with the seal of "LNJPN HOSPITAL NEW DELHI" containing exhibits '1a' & '1b'.
Exhibit '1a' : Two microslides having faint whitish smear, & '1b' described as 'Vulval swab'. Parcel '2' : One sealed cloth parcel sealed with the seal of
"SRHC HOSPITAL NARELA DELHI" containing exhibit '2', kept in two tubes.
Exhibit '2' : Dark brown foul smelling liquid described as 'Blood sample'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SRHC HOSPITAL NARELA DELHI" containing exhibit '3', Exhibit '3' : One underwear.
RESULT OF ANALYSIS 21 of 51 22 FIR No. 244/10 PS - Alipur
1. Blood was detected on exhibit '2'.
2. Semen could not be detected on exhibits '1a', '1b' & '3'.
3. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of "RK FSL DELHI".
The serological report Ex. 18/F reads as under: Exhibits Species of origin ABO Grouping/Remarks '2' Blood Sample Sample blood putrefied hence no opinion On careful perusal and analyses of the biological evidence on record, it is clear that blood was detected on exhibit '2' (blood sample of the accused) and semen could not be detected on exhibit '1a' & '1b' (vulval swab of the prosecutrix), exhibit '3' (underwear of the accused).
On a conjoint reading of the medical evidence, the gynaecological examination vide MLC Ex. PW10/A , from point 'X' to 'X' on the MLC Ex. PW1/A of the prosecutrix, MLC Ex. PW1/A, casualty card Ex. PW19/A, of the prosecutrix together with the MLC of 22 of 51 23 FIR No. 244/10 PS - Alipur accused Madan Ex. PW3/A (be read as Ex. PW4/A), in the light of biological and serological evidence, it clearly indicates the taking place of no recent sexual intercourse activity.
In the circumstances, it stands established on the record that no recent sexual intercourse activity has taken place in the instant case.
As per the biological report Ex. PW18/E, with regard to the description of the articles contained in the parcels, it is noticed that parcel no. 1 belongs to the PW2 - prosecutrix which were seized vide seizure memo Ex. PW7/A and parcel no. 2 belongs to accused which were seized vide seizure memo Ex. PW6/A.
16. The whole case of the prosecution hinges upon the testimonies of PW2 - prosecutrix, PW3 - Pappu, father of the prosecutrix, PW8 - Gudiya, cousin sister of the prosecutrix (daughter of PW9 - Sanjay), PW9 - Sanjay, uncle of the prosecutrix (brother of PW3
- Pappu) and PW17 - Smt. Maya, mother of the prosecutrix.
Now let the testimonies of PW2 - prosecutrix, PW3 -
23 of 51 24 FIR No. 244/10 PS - Alipur Pappu, PW8 - Gudiya, PW9 - Sanjay and PW17 - Smt. Maya be perused and analysed.
PW2 - prosecutrix in her examinationinchief had deposed that she alongwith her mother and father had gone to Tikri Village at house of her uncle (Chacha) Sanjay in the evening. In the night, she alongwith daughter of her Chacha namely Gudiya had slept in the room of accused Madan (correctly identified by the prosecutrix by pointing out towards him). Her Chacha got them sleep in the room of accused Madan. Her parents had slept in the room of her Chacha Sanjay. Accused Madan bolted the door from inside and got the light off. He removed all her clothes and thereafter got her laid down on his bed. Accused also removed all his clothes and started pressing her breast and laid on her. Thereafter, she shouted but accused Madan slapped her two/three times and threatened her not to tell anything to anybody about this. She rushed to the room of her parents and knocked the door and told them about the act of accused Madan. By that time, accused Madan pretended to sleep. Thereafter, Police came there and took her to the Police Station alongwith her parents and accused Madan. Thereafter, she 24 of 51 25 FIR No. 244/10 PS - Alipur was brought to the Rohini Court where her statement was recorded which is Ex. PW2/A bearing her signatures at point 'A'.
During her crossexamination PW2 - prosecutrix had deposed that : "My cousin sister Gudiya was sleeping with me on the same cot. She is elder to me but I do not know how much old she is. By the time, accused had bolted the door from inside, we were sleeping. The accused had not put off the light till out awakening. Accused Madan was already sleeping in the room when we were sent for sleeping in the said room . We were sleeping in a cot in the middle of the room and accused Madan was sleeping on the cot at one side of the room. First, accused Madan got me laid on his cot in my sleeping condition. First, accused Madan put off my Tshirt. Even that time when my Tshirt was put off by the accused, I was still sleeping. I woke up when accused Madan pressed my breast. My sister Gudiya was still sleeping and did not woke up. I kept crying and thereafter the accused slept (be read as slapped) me 2/3 times and threatened me not to tell the said fact to anybody. I rushed out to the room of my parents and accused Madan pretended to sleep on his bed. I knocked the doors of my parents then they came out. My father asked accused Madan why he has committed such act with my daughter but accused said that he did nothing."
Inspite of incisive crossexamination nothing material has been brought out on the record so as to impeach her creditworthiness. In 25 of 51 26 FIR No. 244/10 PS - Alipur the witness box she withstood the test of crossexamination and her testimony is consistent throughout. The version of this witness on the core spectrum of the crime remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in this case.
The testimony of PW2 - prosecutrix is also found to be inconsonance with her statement recorded u/s 164 Cr.P.C. Ex. PW2/A. The testimony of PW2 - prosecutrix is also corroborated by the medical evidence on the record.
The testimony of PW2 - prosecutrix has been corroborated by PW8 - Gudiya, cousin sister of the prosecutrix (daughter of PW9 - Sanjay), PW9 - Sanjay, uncle of the prosecutrix (brother of PW3 - Pappu) and PW17 - Smt. Maya, mother of the prosecutrix, to whom she (PW8 - Gudiya), cousin sister of the prosecutrix (daughter of PW9 - Sanjay), PW9 - Sanjay, uncle of the prosecutrix (brother of PW3 - Pappu) and PW17 - Smt. Maya, mother of the prosecutrix. disclosed the facts relating to the crime, shortly after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
26 of 51 27 FIR No. 244/10 PS - Alipur PW8 - Gudiya in her examinationinchief has deposed which is reproduced and reads as under : "On the day of incident, prosecutrix (name withheld) came to the farm house alongwith his father and mother and resides with us. On the day of incident, I alongwith prosecutrix and one Madan were sleeping in a room and parents of prosecutrix (name withheld) and my parents were sleeping in other room. In the night time, prosecutrix (name withheld) get up and told me that she was frightened and requested me to take her with her parents. I took her in another room where her parents were sleeping. Madan was working in the same farm house at that time. Prosecutrix (name withheld) did not state anything else to me and she was wearing her dress. When I took prosecutrix (name withheld) with her parents I had not listened what she has stated to her parents as I had gone to with my parents."
During her crossexamination by the Ld. Counsel for the accused, PW8 - Gudiya had deposed that : "On the day of incident when prosecutrix (name withheld) cried in the night and stated me that she was frightened I have not asked her why she was frightened in the night, at that time when prosecutrix (name withheld) cries I saw that Madan was sleeping on another bed besides us. The bed of the accused was about 20 pases far from our bed."
From the aforesaid narration of PW8 - Gudiya, it is clearly 27 of 51 28 FIR No. 244/10 PS - Alipur indicated that PW2 - Prosecutrix and PW8 - Gudiya were sleeping on a cot in the same room in which accused Madan was sleeping on a separate cot. On the day of incident, prosecutrix (name withheld) cried in night and stated to her (PW8 - Gudiya) that she was frightened but she (PW8 - Gudiya) did not ask her as to why she was frightened in the night. It clearly shows that some incident had happened with PW2 - prosecutrix due to which she cried and was frightened. Despite hostility of PW8 - Gudiya, her testimony remained intact on the core spectrum of the incident in the sense that some incident had occurred due to which PW2
- prosecutrix cried and was frightened, which thereby corroborates the testimony of PW2 - prosecutrix on the happening of the incident.
PW3 - Pappu, father of prosecutrix in his examinationin chief has deposed that he is illiterate, date was 19th. He alongwith his wife and his daughter had gone to the house of his brother Sanjay at Tikri Village. He alongwith his wife had slept in the room of Sanjay. Sanjay took his (PW3 - Pappu) daughter/prosecutrix (name withheld) and Gudiya to get them sleep in other room. Accused Madan had also slept in the said room where his daughter/prosecutrix (name withheld) 28 of 51 29 FIR No. 244/10 PS - Alipur and daughter of his brother namely Gudiya were sleeping. In the night at about 3:00 - 4:00 a.m. his daughter/prosecutrix (name withheld) came to him while weeping alongwith Gudiya also came to him. His daughter told him that accused Madan put off the lights of room bolted the room from inside, removed her clothes. She also told him that accused Madan removed his own clothes and that accused Madan laid on his daughter/prosecutrix (name withheld) and that accused Madan started pressing her breast and that when she shouted, accused slapped her two times and threatened her not to say anything about his act. He also noticed that clothes of his daughter were in loose/opened condition as his daughter had put on her clothes when she came to him. His brother caught hold accused Madan. He went to Police Station - Alipur and Police came to the spot. Police recorded his statement at Police station vide Ex. PW3/A bearing his signatures at point 'A'. Police arrested accused Madan vide arrest memo Ex. PW3/B and his personal search was taken vide memo Ex. PW3/C. All memos bears his signatures at point 'A'. Accused Madan was got medically examined by the Police and stated that accused Madan is present in the Court today.
29 of 51 30 FIR No. 244/10 PS - Alipur On a leading question put by Ld. Addl. PP regarding the date, PW3 stated that it is correct that the date of incident is of intervening night of 20/07/2010.
During his crossexamination, PW3 - Pappu has specifically deposed that : "I do not know the exact time when my daughter had came (come) to me in the night. I woke up when my daughter knocked the door of my room. My wife also woke up and came out. I went to Sanjay and told him about the incident. Sanjay caught hold accused Madan and sent me to Police Station. It is correct that Gudiya was also with prosecutrix (name withheld) when she came to me".
During his crossexamination, PW3 Pappu negated the suggestions that there was a quarrel between Sanjay and accused or that a false case has been registered against the accused or that there was a quarrel between his brother Sanjay and accused or that this case is false and accused has been falsely implicated in this case or that he had signed the blank papers or that he is deposing falsely.
PW9 - Sanjay in his examinationinchief had deposed that in the farm house at the time when incident occurred his brother Pappu came to his house alongwith his wife and his daughter/prosecutrix (name 30 of 51 31 FIR No. 244/10 PS - Alipur withheld). On that day after taking mean she and his wife were sleeping in a separate room and his brother Pappu and his wife were sleeping in their room and his daughter Gudiya and prosecutrix (name withheld) alongwith Madan were sleeping in a room adjoining to their room. He does not remember when the incident took place, he even cannot tell the year as he is illiterate. In the same late night his daughter Gudiya came to their rooma nd stated that prosecutrix (name withheld) was frightened and was crying and in response she (Gudiya) took prosecutrix (name withheld) to the room of her parents. Prosecutrix (name withheld) has not stated anything to her parents in his presence and he returned to his room and slept. After about two hours later he listened the cries and saw Madan and Pappu were quarreling with each other. When he got up and went outside he saw that Police personnel had already arrived but prosecutrix (name withheld) was wearing her clothes. Madadn was also present there at that time. Police had taken the accused Madan with them alongwith Pappy, his wife and prosecutrix. Police has not investigated him and he did not know anything about this case and that Police has taken his signatures on a paper.
During his crossexamination by Ld. Addl. PP for the State, 31 of 51 32 FIR No. 244/10 PS - Alipur PW9 - Sanjay has deposed that he apprehended accused Madan and asked his brother to go to the Police Station alongwith prosecutrix (name withheld) and his wife and on the same night at about 3/3:30 a.m. they went on the Police Station from the farm house and Police arrested the accused Madan on 20/07/2010 from the farm house vide memo Ex. PW3/B signed by him at point 'B'.
During his crossexamination by the Ld. Counsel for the accused, PW9 - Sanjay had deposed : "I am residing in the said farm house for the last 4/5 years. Accused Madan was residing there when I came there. Accused Madan is a good person and there is no complaint against him. The room wherein the alleged incident took place was belonging to Madan accused. Have sent the children to the room of the accused because of the scarcity of the space. I am deposing truth and voluntarily as per the true version happened in the farm house and I am not under fear of anyone today."
Inspite of incisive crossexamination of PW3 - Pappu and PW9 - Sanjay, nothing material has been brought out on the record so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. On careful perusal and analysis the testimonies of PW3 - Pappu and PW9 - Sanjay are found to be 32 of 51 33 FIR No. 244/10 PS - Alipur natural, clear, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate him in the case.
17. While analysing the testimonies of PW2 - prosecutrix, PW3
- Pappu, father of prosecutrix, PW8 - Gudiya, cousin sister of prosecutrix, PW9 - Sanjay, uncle of Prosecutrix and PW17 - Smt. Maya, mother of prosecutrix, as discussed hereinabove,inspite of incisive crossexamination nothing has come out in the statements of PW2 - prosecutrix, PW3 - Pappu, PW8 - Gudiya, PW9 - Sanjay, and PW17 - Smt. Maya which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by defence to PW2 that she is tutored by her father or that there was fight between her Chacha and accused on that day hence, he has been falsely implicated in this case and the suggestions to PW3 - Pappu that there was a quarrel between Sanjay and accused or that a false case has been registered against the accused or that there was a quarrel between his brother Sanjay and accused or that this case is false and accused has been falsely implicated in this case or that he had signed the blank papers or that he is 33 of 51 34 FIR No. 244/10 PS - Alipur deposing falsely and the suggestions to PW17 - Smt. Maya that she is deposing falsely or that accused has been falsely implicated in this case, 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.
However, a futile attempt has been made by the accused to save his skin from the clutches of law by way of examination of DW1 Smt. Manju.
DW1 - Smt. Manju in her examinationinchief has deposed that she knows Madan and she alongwith her family was residing in the tenanted premises where Madan was tenant. Sanjay was also residing with in another room as tenant and there was money transaction between both Madan and Sanjay. Brother of Sanjay namely Pappu and he came to reside there at house of Sanjay along with his family. Wife of Madan was ill at her native village and Madan called her at Delhi for treatment. Since Madan was not having money for the treatment therefore, he demanded money from Sanjay which he lend to Sanjay. Madan took his wife to hospital but he could not get his wife admitted in the hospital since he was not having money and they came back. Madan took his wife at about 8:00/8:30 p.m. and he returned back to his room at about 34 of 51 35 FIR No. 244/10 PS - Alipur 11:30/12:00 p.m. and thereafter, he went to room of Sanjay to demand his money and hot words were exchanged between them and at about 2:00/2:30 a.m., Sanjay, his brother Pappu and his wife gave beatings to Madan. Thereafter, Pappu called Police and got Madan arrested. Madan was sent to Jail. After some days of the incident, she (DW1 Smt. Manju) also vacated the rented room and other tenant also vacated the premises. At present only Sanjay is residing with his family.
During her crossexamination by the Ld. Addl. PP for the State, DW1 - Smt. Manju negated the suggestions that she has been tutored by the accused to depose in his favour or that she is interested witness as she and her family were having visiting terms with accused or that no such incident, as deposed by her, took place or that no money transaction took place between Madan and Sanjay or that accused has attempted to commit rape upon minor prosecutrix (name withheld) on the night of 1920/07/2010 and also caused injuries to her or that deliberately she is suppressing the true facts to save the accused or that she is a planted witness.
During her crossexamination by the Ld. Addl. PP for the 35 of 51 36 FIR No. 244/10 PS - Alipur State, DW1 - Smt. Manju has also deposed which is reproduced and reads as under : "I am not having any identity proof of mine to show my identity".
"Accused Madan lended (lent) Rs. 9,000-10,000/ to Sanjay in presence of Pappu but I do not know the date, month and year. Vol. The money was given before 23 years ago. Money was given by Madan to Sanajy in my presence at the room of Sanjay. It is wrong to suggest that no money of Rs. 9,00010,000/ was given to Sanjay by accused or that I am deposing falsely."
On careful perusal and analysis of testimony of DW1 - Smt. Manju, it is indicated that accused Madan had lended (lent) Rs. 9,00010,000/ to Sanjay in the presence of Pappu, about 23 years ago. Money was given by accused Madan to Sanjay in her presence at the room of Sanjay. Accused Madan demanded his money back from Sanjay for the treatment of his (accused Madan) wife by going to the room of Sanjay but hot words were exchanged between them and at about 2:00/2:30 a.m., Sanjay, his brother Pappu and his wife gave beatings to Madan.
But the said version of DW1 - Smt. Manju does not find 36 of 51 37 FIR No. 244/10 PS - Alipur support from the statement of accused Madan recorded u/s 313 Cr.P.C. where accused Madan has taken a complete UTurn stating therein that he had given a sum of Rs. 4,000/ to Sanjay and Rs. 5,000/ to Pappu, one year prior to incident.
It is pertinent to reproduce the relevant part of statement of accused Madan recorded u/s 313 Cr.P.C. which reads as under : "Q39. Anything else you want to say?
Ans. I had given a sum of Rs. 4,000/ to Sanjay and Rs. 5,000/ to Pappu, one year prior to incident. When I demanded the money from them they refused to return the same and on the same night, I had taken my wife to Hospital as she was suffering from stomach problem. At the hospital Doctor asked me to pay the expenses of the Hospital, then I came back to my house and knocked the door of Sanjay and Pappu for return of money of expenses of medicine of my wife in the Hospital. There both of them had beaten me and called Police and falsely arrested me in a false case."
The said "Theory of money lending by accused Madan of Rs. 9,000 - 10,000/ to Sanjay about 23 years of incident" as propounded by DW1 - Smt. Manju and the "Theory of money lending by accused Madan of Rs. 4,000/ to Sanjay and of Rs. 5,000/ to Pappu, one year prior to incident" as propounded by accused Madan during his statement recorded u/s 313 Cr.P.C. besides being vague, 37 of 51 38 FIR No. 244/10 PS - Alipur cryptic and unspecific are also afterthought, as no suggestion regarding the money lending by accused Madan to Sanjay and Pappu were put to them during their entire incisive and lengthy crossexamination.
In the circumstances, the theories so propounded falls flat to the ground.
In the circumstances, the testimony of DW1 - Smt. Manju does not inspire confidence and she appears to be a procured witness.
18. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the 38 of 51 39 FIR No. 244/10 PS - Alipur 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:
".....even slight penetration is sufficient and emission is unnecessary."
On analysing the testimony of PW2 - prosecutrix in the 39 of 51 40 FIR No. 244/10 PS - Alipur light of medical evidence, biological and serological evidence, gynaecological examination vide MLC Ex. PW10/A, from point 'X' to 'X' on the MLC Ex. PW1/A of the prosecutrix, MLC Ex. PW1/A, casualty card Ex. PW19/A, of the prosecutrix and MLC of accused Madan Ex. PW3/A (be read as Ex. PW4/A), as discussed hereinbefore, the act of performing of recent sexual intercourse activity by complete penetration of the penis with or without emission of semen or by partial penetration of the penis with or without emission of semen, within the labia majora or the vulva or pudenda is not indicated, however the act does sufficiently indicate an attempt to commit rape.
In the circumstances, it stands established on the record that no recent sexual intercourse activity has taken place in the instant case. However, the act of accused Madan does sufficiently prove an attempt to commit rape upon the prosecutrix without her consent.
19. Ld. Counsel for the accused submitted that there is variation in the statement of PW2 - prosecutrix, in the FIR Ex. PW14/A and the 40 of 51 41 FIR No. 244/10 PS - Alipur statement u/s 164 Cr.P.C. Ex. PW2/A. In the FIR, there is no mention regarding the closing/bolting of the room and of the switching off the light while PW2 - prosecutrix in her statement has deposed regarding the bolting and of the switching off the light while, in the statement u/s 164 Cr.P.C. only regarding the bolting of the room from inside is mentioned ; in the statement u/s 164 Cr.P.C., the fact regarding the moving of the hand between the two legs and of inserting of finger in the place of urination is mentioned while, in the FIR and in the testimony of PW2 - prosecutrix, nothing like this is mentioned; PW2 - prosecutrix in her statement has deposed that when she was knocking at the door of her parents, at that time, Madan uncle pretended to sleep while, in the statement u/s 164 Cr.P.C., the fact of her running out due to crying (chillane ki vajah se) is mentioned. In the crossexamination, the fact regarding the sleeping of the accused is also deposed.
I have carefully perused and analysed the evidence on the record.
The FIR Ex. PW14/A was registered on the basis of the statement made by PW3 - Pappu, father of the prosecutrix, to whom, the 41 of 51 42 FIR No. 244/10 PS - Alipur prosecutrix had disclosed the facts shortly after the incident and whatever facts were told to him, he (PW3 - Pappu) made the statement Ex. PW3/A on the basis of which the FIR Ex. PW14/A was registered. As far as the plea that the some facts are mentioned in the statement u/s 164 Cr.P.C. Ex. PW2/A are at variance to the testimony of PW2 - prosecutrix made in the Court, it was for the accused to get confront those facts during the crossexamination of PW2 - prosecutrix which he failed to do so and for such failure, he is to blame himself and none else. Moreover, on a close scrutiny of the statement u/s 164 Cr.P.C. Ex. PW2/A and the testimony of PW2 prosecutrix there is no material variations in the two and whatever inconsistencies therein, are merely the inconsistencies on the frindge without materially affecting the credibility of the evidence of PW2 prosecutrix. The version of PW2 - prosecutrix on the core spectrum of the crime has remained intact. In the witness box, she has withstood the rigors of crossexamination and her testimony is consistent throughout.
It is pertinent to reproduce the relevant part of the testimony of PW2 - prosecutrix.
42 of 51 43 FIR No. 244/10 PS - Alipur PW2 - prosecutrix in her examinationinchief has specifically deposed that : "Madan Uncle bolted the door from inside and got the light off. He removed all my clothes and thereafter got me laid down on his bed. Accused also removed all his clothes. Madan Uncle started pressing my breast and laid on me. Thereafter, I shouted but Madan Uncle slapped me two/three times and threatened me not to tell anything to anybody about this. I rushed to the room of my parents and knocked the door and told them about the act of Madan Uncle. By that time, Madan Uncle pretended to sleep."
During her crossexamination, PW2 - prosecutrix has deposed that : "My cousin sister Gudiya was sleeping with me on the same cot. She is elder to me but I do not know how much old she is. By the time, accused had bolted the door from inside, we were sleeping. The accused had not put off the light till out awakening. Accused Madan was already sleeping in the room when we were sent for sleeping in the said room . We were sleeping in a cot in the middle of the room and accused Madan was sleeping on the cot at one side of the room. First, accused Madan got me laid on his cot in my sleeping condition. First, accused Madan put off my Tshirt. Even that time when my Tshirt was put off by the accused, I was still sleeping. I woke up when accused Madan pressed my breast. My sister Gudiya was still sleeping and did not woke 43 of 51 44 FIR No. 244/10 PS - Alipur up. I kept crying and thereafter the accused slept (be read as slapped) me 2/3 times and threatened me not to tell the said fact to anybody. I rushed out to the room of my parents and accused Madan pretended to sleep on his bed. I knocked the doors of my parents then they came out. My father asked accused Madan why he has committed such act with my daughter but accused said that he did nothing."
It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of 44 of 51 45 FIR No. 244/10 PS - Alipur 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].
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 45 of 51 46 FIR No. 244/10 PS - Alipur not render the evidence of eye witnesses unbelievable.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
20. Ld. Counsel for the accused submitted that from the statements of PW17 - Smt. Maya and PW18 - SI Mukesh Kumar of the coming of Anuradha, NGO - Navshrishti in the Police Station and of co operating in the FIR is indicated. He further submitted that PW2 - prosecutrix in her crossexamination has admitted of going to the place of incident two times while PW3 - Pappu, father of the prosecutrix has admitted of coming to the place of incident once. He further submitted that PW2 - prosecutrix in her crossexamination has admitted that in her sleep, Madan uncle took her to his cot and when he opened her Tshirt, she was in sleep. He further submitted that PW3 - Pappu has made the statement to the Police that in the third room, her daughter/prosecutrix and Gudiya had slept and near to them, one person named Madan Lal was also sleeping, while in his crossexamination, he has deposed that the accused was already sleeping in the room or had gone later on to sleep, he does not know. He further submitted that PW17 - Maya, 46 of 51 47 FIR No. 244/10 PS - Alipur mother of the prosecutrix has deposed that in the third room, her daughter/prosecutrix and the daughter of accused (be read as daughter of Sanjay) Gudiya had slept. He further submitted that PW17 - Maya in her crossexamination has deposed that she had not sent her daughter/prosecutrix and the daughter of her Dever (Sanjay) for sleeping in that room in which the mother of accused was sleeping.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Ld. Counsel for the accused as to what benefit he intends to reap by raising the said pleas. In view of the clear and categorical evidence of PW2 - prosecutrix, PW3 - Pappu, father of the prosecutrix, PW17 - Smt. Maya, mother of the prosecutrix, as discussed hereinabove, the plea so raised does not affect the substratum of the prosecution case. The testimonies of the said witnesses are natural, clear, inspiring confidence and having a ring of truth and they have withstood the rigors of crossexamination without being shaken.
47 of 51 48 FIR No. 244/10 PS - Alipur As regards the joining of NGO is concerned PW17 - Smt. Maya in her examinationinchief has specifically deposed that "Police also took me, my husband and my dever to some NGO where some lady gave counselling to us." and PW18 - SI Mukesh Kumar in his examinationinchief has also categorically deposed that : "At the hospital, counselling was provided to the prosecutrix by official of woman helpline."
"At the Police Station, NGO Nav Shistries official namely Ms. Anuradha came at PS who gave counselling to the prosecutrix."
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
21. Ld. Counsel for accused submitted that the accused had lent money to Sanjay and Pappu, father of the prosecutrix and on demanding his money back for the treatment of his wife, Sanjay, his brother Pappu and his wife gave beatings to him (accused Madan) and they called the Police and falsely implicated accused in the case.
I have carefully perused and analysed the evidence on 48 of 51 49 FIR No. 244/10 PS - Alipur record.
While discussing the defence evidence hereinabove, I have dealt with the said plea in detail and no more further elaboration is required on it. At the cost of repetition, the defence evidence led by the accused by way of production and examination of DW1 - Smt. Manju, does not inspire confidence and she is a procured witness and the evidence so led by the accused by way of examination of DW1 - Smt. Manju was also found to be totally at variance to the statement/defence stated by him during his statement recorded u/s 313 Cr.P.C. as discussed hereinabove and further, the theories of money lending by accused Madan to PW9 - Sanjay and PW3 Pappu have been found to be baseless and afterthought, as discussed hereinabove.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
22. In view of above and in the circumstances, prosecution has thus proved beyond shadows of all reasonable doubts that on the intervening night of 1920/07/2010 at about 2:30 a.m. at Village Tikri 49 of 51 50 FIR No. 244/10 PS - Alipur Khurd, Delhi (Ram Avtar Sharma ka Farm), accused Madan attempted to commit rape on the person of PW2 prosecutrix aged about 09 years against her wishes and without her consent by removing all her clothes and thereafter got her laid down on his bed and accused also removed all his clothes and started pressing her breast and laid on her and when she shouted he (accused Madan) slapped her two/three time and threatened her not to tell anything to anybody about the incident and also voluntarily caused simple hurt to her (PW2 - prosecutrix) when she shouted.
I accordingly, hold accused Madan guilty for the offence punishable u/s 376/511 IPC and u/s 323 IPC and convict him thereunder.
23. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Madan in the commission of the offences u/s 376/511 IPC and u/s 323 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 Madan beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused 50 of 51 51 FIR No. 244/10 PS - Alipur Madan. I, therefore, hold accused Madan guilty for the offences punishable u/s 376/511 IPC and u/s 323 IPC and convict him thereunder.
Announced in the open Court (MAHESH CHANDER GUPTA) Additional Sessions Judge st on 01 Day of April, 2013 Special Fast Track Court (N/W District), Rohini, Delhi 51 of 51