Delhi District Court
State vs . 1. Sanjay on 7 May, 2015
1
FIR No. 191/12
PS - Bawana
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 22/13
Unique ID No. : 02404R0239532012
State Vs. 1. Sanjay
S/o Sh. Anil Keshan
R/o B1143, J. J. Colony,
Bawana, Delhi.
2. Rekha
W/o Sanjay
R/o B - 22, J. J. Colony,
& B - 1143, J. J. Colony,
Bawana, Delhi.
FIR No. : 191/12
Police Station : Bawana
Under Sections : 376(2)(g)/506/34 IPC
Date of committal to session Court : 11/09/2012
Date on which judgment reserved : 20/04/2015
Date on which judgment announced : 07/05/2015
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FIR No. 191/12
PS - Bawana
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 09/06/2012 at about 8:50 p.m. one PCR call was received in the Police Station Bawana that near NDPL Office, Sector - 3, Bawana the caller/prosecutrix is present who is saying that someone has done zabardasti with her. The said call was recorded vide DD No. 64B and was handed over to ASI Ram Rattan for appropriate action, on which ASI Ram Rattan reached at the said place where he met the prosecutrix (name withheld being a case u/s 376 IPC). ASI Ram Rattan took her to BSA Hospital Rohini, Delhi and information regarding the same was given to W/SI Suman. On receipt of information, W/SI Suman reached at the Hospital, where ASI Ram Rattan, W/Constable Raj Bala and the prosecutrix were found present. ASI Ram Rattan handed over DD No. 64B to W/SI Suman. W/SI Suman got conducted the medical examination of prosecutrix vide MLC No. 137/12. Prosecutrix (name withheld) W/o Gopal R/o H. No. 535D, Dak Khane Wali Gali, Village - Bawana, Delhi, made the statement which is to the effect that, she lives at the above address on rent with her two children 2 of 216 3 FIR No. 191/12 PS - Bawana and does the household work (Gharelu Kaam Kaaj Karti Hoon) and is the permanent resident of Village Khera, Distt. Sonepat, Haryana. Her husband Gopal is confined in the jail for the last 8/9 months and this fact is known to all her acquaintances (Mera Pati Gopal 89 Mahine Se Jail Mei Band Hai Jiske Bare Mei Mere Sabhi Jaankaron Ko Pata Hai). Today, (on 09/06/2012) at about 8:00 p.m. in the evening when she was present in her house, one lady by the name Rekha who lives in BBlock, 1143, J. J. Colony, Bawana came to her house in her pencil like color car bearing No. DL4CAQ1795 and told her (prosecutrix) that at her (Rekha) house Vakil Saab has come who can get release Gopal from Jail (Aaj Qareeb 8:00 Baje Saam Jab Mai Apne Ghar Par Maujood Thi Rekha Naam Ki Aurat Jo B - Block, 1143, J. J. Colony, Bawana Mei Rehti Hai, Apni Pencil Jaise Rang Ki Gaadi Jiska Number DL4C AQ1795 Hai Lekar Mere Ghar Aai Aur Mujhe Kehne Lagi Ki Mere Ghar Par Vakil Sahab Aaye Hain Jo Gopal Ko Jail Se Churva Sakte Hain). On which she (prosecutrix) trusting on the assurance of Rekha (Rekha Ki Baat Par Bharosa Karke), for talking to Vakil went in her (Rekha) car, when the car reached near Nahar, Rekha stopped the car, there Sanjay who is the resident of Shahbad Dairy, J. J. Colony and now 3 of 216 4 FIR No. 191/12 PS - Bawana he lives in Bawana as the husband of Rekha and one other person whose name she (prosecutrix) does not know, whom she (prosecutrix) can identify, were found standing and Rekha also made both the said persons sit in the car and the car was turned towards the side of factory area, Bawana and when she (prosecutrix) asked, on which Rekha said that for paying to Vakil Saab money is to be brought (Vakil Sahab Ko Dene Ke Liye Paise Laane Hain) and after going at some distance at a desolate place in Sector 3, the car was stopped and all the said three caught her (prosecutrix) in the rear seat of the car. Rekha pressed her mouth and caught her hand due to which she (prosecutrix) could not raise an alarm. Sanjay and the other person turn by turn committed zabardasti (galat kaam) with her on the rear seat of the car. She (prosecutrix) struggled too much in order to save herself, due to which Sanjay and the other person caused injuries (Chot Pahunchai) to her. She sustained marks (Nishan) on both sides of her neck and on her right cheek and also sustained scratches on the upper portion of her breast. Rekha, Sanjay and their third associate after committing galat kaam with her and after alighting her from the car (Gaadi Se Utaar Kar) and after threatening her if the incident is disclosed to anyone they will kill her, fled/zoomed 4 of 216 5 FIR No. 191/12 PS - Bawana away on speed from there (Jo Mai Vakil Se Baat Karne Ke Liye Rekha Ki Baat Par Bharosa Kar Ke Usi Ki Gaadi Mei Chali Gai. Jab Rekha Ne Nehar Ke Paas Pahunch Kar Gaadi Roki Aur Wahin Par Sanjay S/o Late Anil Kesri Jo Shahbad Dairy, J. J. Colony Ka Rehne Wala Hai Ab Rekha Ke Saath Bawana Mei Uske Pati Ke Taur Par Rehta Hai. Va Ek Dusra Aadmi Jiska Naam Pata Mai Nahi Jaanti Saamne Aane Par Pehchan Sakti Hoon, Khade Mile Aur Rekha Ne Gaadi Rok Kar Un Dono Ko Bhi Apni Gaadi Mei Bhi Baitha Liya Va Gaadi Ko Factory Area Bawana Ki Taraf Mod Diya Jab Maine Poocha To Rekha Ne Kaha Ki Vakil Sahab Ko Dene Ke Liye Paise Lane Hain Aur Kuch Doori Par Jaa Kar Sector - 3 Mei Sunsaan Jagah Par Gaadi Rok Di Va In Teeno Ne Mujhe Gaadi Ki Pichli Seat Par Pakad Liya. Rekha Ne Mera Muh Daba Diya Aur Haath Pakad Liya Jis Se Mai Shor Nahi Macha Pai. Sanjay Va Dusre Vyakti Ne Baari Baari Se Mere Saath Zabardasti Ki (Galat Kaam Gaadi Ki Pichli Seat Par Hi Kiya). Maine Apne Aap Ko Bachane Ke Liye Kaafi Sangharsh Kiya, Jis Se Sanjay Va Us Dusre Vyakti Ne Mujhe Chhot Pahunchai. Meri Gardan Ke Dono Taraf Va Dahine Gaal Par Nishan Par Gaye Haathon Va Chhati Ke Upri Hisson Par Bhi Kharochein Par Gayi Jo, Rekha Sanjay Va Unka Teesra Saathi 5 of 216 6 FIR No. 191/12 PS - Bawana Mere Saath Galat Kaam Karne Ke Baad Mujhe Gaadi Se Utaar Kar Va Dhamki Dekar Ki Yadi Kisi Ko Bataya To Jaan Se Maar Denge Va Vahan Se Gaadi Mei Chale Gaye). She weepingly walked some distance and in the street light phoned to the Police at No. 100, on which Police came there, took her to the Hospital and her medical examination was got conducted (Mai Roti Hui Kuch Dusri (Duri) Par Aai Aur Sadak Ki Light Mei 100 Number Par Phone Ki Jo Police Mauka Par Aayi Aur Mujhe Aspataal Layi. Yahin Par Mera Dactari Mulaza Karaya Gaya). She has heard and understood her statement and is correct. Legal action be taken against Rekha, Sanjay and their third associate. On the basis of the statement, after inspection of the MLC finding that the offences u/s 376(2)(g)/506/34 IPC appeared to have been committed, the case was got registered and the investigation was proceeded with by W/SI Suman. Site plan (without scale) was prepared at the instance of the prosecutrix. On the pointing out of the prosecutrix, accused Sanjay was arrested after finding sufficient evidence against him, his disclosure statement was recorded and his medical examination was got conducted vide MLC No. 2323/12 from M. V. Hospital and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession 6 of 216 7 FIR No. 191/12 PS - Bawana and were deposited in the Malkhana. Statements of the witnesses were recorded. On 11/06/2012, further investigation was handed over to SI Parveen Kumar. On the pointing out of the accused Sanjay the key of the Car No. DL4CAQ1795 was seized from his house B - 1143, J. J. Colony, Bawana and was taken into Police possession. On pointing out of accused Sanjay, Car No. DL4CAQ1795 was seized from H - Block, Sector - 3, DSIDC Bawana and was taken into Police possession. The said car after being taken to FSL, Rohini was got inspected from FSL Expert and the sealed exhibits, handed over by the FSL Expert, after the inspection of the car were taken into Police possession and were deposited in the Malkhana. On 12/06/2011, W/SI Suman got recorded the statement of the prosecutrix u/s 164 Cr.P.C. On 02/07/2012, NBW against accused Rekha was obtained. On 17/07/2012, accused Rekha had surrendered in the Court and after finding sufficient evidence against her, she was arrested by W/SI Manju and her disclosure statement was recorded in which she had also disclosed that on 09/06/2012, besides Sanjay the other person who had committed galat kaam with the prosecutrix, his was name Bittoo. Pointing out memo of the place of incident was prepared at the instance of accused Rekha. Search for 7 of 216 8 FIR No. 191/12 PS - Bawana accused Bittoo was made but all in vain. Statements of the witnesses were recorded. On 20/07/2012, the Car No. DL4CAQ1795 used in the crime was released on Superdari by the order of the Court. On 30/07/2012, the sealed exhibits were sent to FSL. Investigation against accused Bittoo is pending and on his arrest supplementary chargesheet u/s 173 (8) Cr.P.C. will be filed against him.
Upon completion of the necessary further investigation challan for the offences u/s 376(2)(g)/506/34 IPC was prepared against accused Sanjay and Rekha and was sent to the Court for trial.
2. Since the offence under section 376(2)(g) IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case 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 506/34 IPC against accused Sanjay and Rekha, a case under Section 376(2)(g) r/w Section 109 IPC against accused Rekha and a case under Section 376(2)(g) IPC 8 of 216 9 FIR No. 191/12 PS - Bawana against accused Sanjay was made out. Charges were framed accordingly, which were read over and explained to both the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 21 witnesses. PW1 W/Constable Raj Bala, PW2 Constable Mukesh, PW3 HC Dharam Singh, PW4 Constable Sandeep, PW5 W/Constable Ritu, PW6 W/Constable Manju, PW7 HC Dharmpal, PW8 Dr. Dolly Bansal, Sr. Resident, Gynae Department, BSA Hospital, Rohini, Delhi, PW9 Sh. Inderesh Kumar Mishra, Sr. Scientific Officer (Biology), FSL, Rohini, Delhi, PW10 - Constable Nishan Singh, PW11 - Prosecutrix (name withheld), PW12 Dr. N. S. Khurana, Medical Officer, Maharishi Valmiki Hospital, Pooth Khurd, Delhi, PW13 Sh. V. Shanker Narayana, SSO, FSL, Rohini, Delhi, PW14 Constable Rajesh, PW15 - Constable Kapil, PW16 ASI Ram Rattan, PW17 - SI Suman, PW18 - SI Manju, PW19 - SI Parveen Kumar, PW20 - Dr. Meet Kumar, CMO, BSA Hospital, Rohini, Delhi and PW21 - SI Ritu.
5. In brief the witnessography of the prosecution witnesses is 9 of 216 10 FIR No. 191/12 PS - Bawana as under: PW1 W/Constable Raj Bala who tendered her examinationinchief by way of affidavit Ex. PW1/1, bearing her signature at points 'A' and 'B' and deposed that on the intervening night of 0910/06/2012 she got the prosecutrix medically examined at BSA Hospital vide MLC No. 137/2012 in her presence and Doctor handed over her the exhibits sealed with the seal of 'SD' and one sample seal of the 'SD' and proved the seizure memo of the sealed exhibits of the prosecutrix Ex. PW1/A, signed by her at point 'A'.
PW2 Constable Mukesh who tendered his examinationin chief by way of affidavit Ex. PW2/1 bearing his signature at points 'A' and 'B' and deposed that on 30/07/2012, HC Dharam Pal handed over him the sealed exhibits on the direction of SI Parveen Kumar, vide RC No. 198/112 dated 30/07/2012 in this case for depositing the same at the FSL, Rohini and he deposited the sealed pulindas in the FSL vide acknowledgment letter no. FSL 2012 as DNA - 5644 dated 30/07/2012 and after depositing the same alongwith FSL Form at FSL, Rohini, Delhi, he handed over the copy of RC and receiving FSL, Rohini to 10 of 216 11 FIR No. 191/12 PS - Bawana MHC(M), HC Dharam Pal and proved the copy of the RC No. 198/21/12 as Ex. PW2/A and copy of the receipt issued by FSL as Ex. PW2/B. PW3 HC Dharam Singh is the Duty Officer, who tendered his examinationinchief by way of affidavit Ex. PW3/1, bearing his signature at points 'A' and 'B' and deposed that on 09/06/2012, he was working as Duty Officer from 5:00p.m. to 9:00 a.m. (10/06/2012) at PS - Bawana. On 10/06/2012, he received a written Tehrir (Rukka) at 2:40 a.m. sent by W/SI Suman to register a case u/s 376(2)(g)/506/34 IPC through Constable Kapil and he registered a case vide FIR No. 191/2002 and sent the copy of the FIR alongwith original Tehrir to W/SI Suman through Constable Kapil. Copy of FIR is Ex. PW3/A bearing his signature at point 'A' (original seen and returned) and endorsement on the rukka is Ex. PW3/B bearing his signature at point 'A'.
PW4 Constable Sandeep is the DD Writer, who tendered his examinationinchief by way of affidavit Ex. PW4/1, bearing his signature at points 'A' and 'B' and deposed that on 09/06/2012, he was working as DD Writer from 5:00 p.m. to 9:00 a.m. (10/06/2012) at PS -
11 of 216 12 FIR No. 191/12 PS - Bawana Bawana. On 09/06/2012 at 8:50 p.m. Wireless Operator of Police Station came to DO Room and informed about PCR Call "Sector - 3, Bawana, NDPL Office Ke Pass caller Ek Ladki Hai, Jo Keh Rahi Hai, Ro Rahi Hai, Kisi Ne Mere Sath Zabardasti Ki Hai" from Constable Sombir, 7881/PCR, Ph. 9540957088. He (PW4) lodged the same in the Daily Diary vide DD No. 64B and informed ASI Ram Rattan about the PCR Call, who alongwith Constable Kapil departed for the place of occurrence and the DD No. 64B is Ex. PW4/A. PW5 - W/Constable Ritu who tendered her examinationin chief by way of affidavit Ex. PW5/1, bearing her signature at points 'A' and 'B' and deposed that on 18/07/2012, she was posted as a Constable at PS - Bawana. On 18/07/2012 she alongwith W/SI Manju, PS - Samai Pur Badli and victim/prosecutrix (name withheld) took out accused Rekha from the Lockup of PS - Kanjhawala and joined the investigation of this case and reached Sector - 3, DSIDC, Near Rajiv Rattan Awas, where accused Rekha willingly pointed out towards a cemented pole near and (an) electric pole and told that she (accused Rekha) stopped her car here on the day of occurrence of offence and had facilitated her 12 of 216 13 FIR No. 191/12 PS - Bawana husband Sanjay and Bittoo in committing rape on the back seat of the car. W/SI Manju prepared pointing out memo and she signed the same. After that she (PW5) alongwith accused Rekha, complainant (name withheld) and W/SI Manju went to different places in J. J. Colony, Bawana in search of accused Bittoo but he could not be traced. After that W/SI Manju recorded the statement of the complainant. Thereafter, they reached at MB Hospital, Pooth Khurd, Delhi and got conducted the medical examination of accused Rekha. After that she alongwith W/SI Manju produced accused Rekha in the Court and the pointing out memo is Ex. PW5/A bearing her signature at point 'A'.
PW6 - W/Constable Manju who tendered her examination inchief by way of affidavit Ex. PW6/1 bearing her signature at points 'A' and 'B' and deposed that on 17/07/2012, she was posted as Constable at PS - Bawana. On 17/07/2012, she was present with W/SI Manju Rani, PS - Samai Pur Badli in Court No. 110, Rohini Courts, Delhi where accused Rekha W/o Sanjay, R/o B22, J. J. Colony, Bawana, Delhi had surrendered in the Court. W/SI Manju Rani interrogated the accused Rekha and formally arrested her through arrest memo, after obtaining 13 of 216 14 FIR No. 191/12 PS - Bawana the permission of the Court, which bears her signature. After arrest she (PW6) took the personal search of the accused Rekha as per law and nothing was recovered from her personal search and personal search memo was prepared by W/SI Manju which bears her signature. W/SI Manju Rani recorded the disclosure statement of accused Rekha, which bears her (PW6) signature. Arrest memo of accused Rekha is Ex. PW6/A, her personal search memo is Ex. PW6/B and her disclosure statement is Ex. PW6/C, all bearing her signature at point 'A' respectively.
PW7 HC Dharmpal is the MHC(M), who tendered his examinationinchief by way of affidavit Ex. PW7/1 bearing his signature at points 'A' and 'B' and deposed that on 10/06/2012 he was working as MHC(M) at PS - Bawana. A pullinda sealed with the seal of 'SD' containing cloth of victim/prosecutrix (name withheld) and one white card box containing sexual assault kit of victim and blood sample sealed with the seal of 'SD' and one sample seal was deposited by W/SI Suman in the Malkhana of PS - Bawana on 10/06/2012. A pullinda sealed with the seal of 'MS MB Hospital, Pooth Khurd' containing 14 of 216 15 FIR No. 191/12 PS - Bawana undergarments of accused Sanjay and four sealed pullindas sealed with the seal of 'MS MB Hospital, Pooth Khurd, Delhi' containing pubic hair, blood sample, nail scrapping and semen of accused Sanjay and one sample seal of 'MS MB Hospital, Pooth Khurd, Delhi', was deposited by W/SI Suman in the Malkhana of PS - Bawana on 10/06/2012. One car bearing No. DL4CAQ1795, alongwith keys and seven sealed parcel sealed with the seal of 'PK' were deposited by SI Parveen Kumar on 11/06/2012. Copy of the entry in Register No. 19 vide S. No. 452 is Ex.PW7/A and copy of entry vide S. No. 453 is Ex. PW6/B and copy of the entry in Register No. 21 vide RC No. 198/12 is already Ex. PW2/A and copy of the receipt issued by FSL is already Ex. PW2/B. PW8 Dr. Dolly Bansal Sr. Resident Gynae Department BSA Hospital, Rohini, Delhi, who deposed that on 10/06/2012 at about 12:45 a.m. one patient/prosecutrix (name withheld) W/o Gopal, aged about 23 years was produced before her by Baijnath Tiwari (Chachain law) with the alleged history of sexual assault between 8:00 to 9:00 p.m. by two known people on 09/06/2012 and patient was giving history of sexual assault one by one by two people in a car. Patient also giving 15 of 216 16 FIR No. 191/12 PS - Bawana history of resisting the people. Patient did not change her clothes since then (no bath). Patient's clothes were torn, bruise marks on right side of neck, abraison on left cheek, big bruise at left side of neck, multiple scratch marks around 10 cm over chest wall on right side (three in number), fresh abrasion on left forearms and old abrasion on left forearm. On per abdominal examination transverse scar of sterlization. On local examination pubic hair small (shaving done 20 days ago), hymen old ruptured (patient already having two vaginal deliveries), no abrasion, no bruise, no inflammation, no bleeding seen over perinium/fourchette, small pustule near urethral opening seen, per speculam examination cervix and vagina seems healthy. Per vagina examination : Uterus retroverted parous size fornix free. She (PW8) seized following exhibits i.e. clothes of patient, body fluid collection, nails scrapping, debri collection, in between fingers, breast swab, combing of pubic hairs clipping of pubic hairs, cervical mucus collection with slide, vaginal secretion, culture swab from cervix and vagina, washing per vagina, rectal swab, oral swab, blood collection of victim, urine and oxalate blood and urine pregnancy test was also done and attached with MLC paper. Thereafter, the patient was referred to 16 of 216 17 FIR No. 191/12 PS - Bawana medical jurist for external injuries. She (PW8) prepared MLC Ex. PW8/A bearing her signatures at point 'A'. The exhibits were sealed and handed over to W/Constable Raj Bala.
PW9 Sh. Inderesh Kumar Mishra, Sr. Scientific Officer (Biology) FSL Rohini, Delhi, who deposed that on 11/06/2012, the vehicle Hyundai i10 Magna Car bearing No. DL4CAQ1795 was brought to the FSL, Rohini by Inspector Satish Kumar, SHO Police Station - Bawana for biological examination. On that day he examined the abovesaid vehicle thoroughly for the presence of blood and other biological clue materials before Inspector Satish Kumar (SHO) and other Police officials. Blood could not be detected in the said car. However, following exhibits were lifted for semen analysis. 1) Cuttings of the back seat cover having dirty stains. 2) Cuttings of the drivers seat cover having dirty stains. 3) Cuttings of the front seat cover (left to drivers seat) having dirty stains. 4) Cuttings of the back seat. 5) Cuttings of the driver seat. 6) Cuttings of the front seat (left to drivers seat). The above said exhibits were kept into separate envelopes and handed over to Police for onward transmission to FSL for further examination. His 17 of 216 18 FIR No. 191/12 PS - Bawana detailed report is Ex. PW9/A bearing his signatures at point 'A'.
PW10 Constable Nishan Singh, who deposed that on 11/06/2012, he was posted at Police Station Bawana. On that day, he joined the investigation alongwith SI Parveen and Constable Rajesh. At about 12:00 p.m. (Afternoon), he alongwith accused Sanjay reached Maharishi Balmiki Hospital where the medical examination of accused Sanjay was got conducted. Thereafter, Sanjay took them to his house at B - 1143, J. J. Colony, Bawana. When they reached his house he took them to the entry near the staircase where the water pump/motor is installed. From there he got recovered the keys of the car. He handed over the said key to the IO who seized the same vide memo Ex. PW10/A bearing his signature at point 'A'. Thereafter, he (accused Sanjay) took them to H - Block, Sector - 3, DSIDC Bawana and pointed out towards an I10 car of pencil colour standing in front of factory No. 47 which is situated opposite factory No. 19. the said car was bearing No. DL4CAQ1795. The IO seized the said car vide memo Ex. PW10/B bearing his signature at point 'A'. Thereafter, on the directions of the IO he drove the said car i.e. bearing No. DL4CAQ1795 and took the same 18 of 216 19 FIR No. 191/12 PS - Bawana to the FSL, Rohini for inspection and collection of exhibits. There at FSL, Rohini the SHO and the IO also reached in their own vehicles and on their request the exhibits were lifted by the expert Sh. Inderesh Kumar Mishra, SSO, Biology, FSL, Rohini which exhibits were handed over to him which he handed over to the IO SI Parveen Kumar who converted the same into pullindas and sealed the same with the seal of 'PK' and the seal after use was handed over to him. The IO thereafter, seized the said memos (exhibits) vide Ex. PW10/C bearing his signature at point 'A'. Thereafter, on the directions of the IO, he took the sealed pullindas and the seized vehicle to Police Station Bawana and thereafter he handed over the same to the IO who handed over these seized articles to the MHC(M). His statement was thereafter recorded by the IO in the Police Station. Accused Sanjay who took them to the various places is present in the Court (correctly identified). He can identify the car if shown to him but the identity of the car belonging to the accused Sanjay and Rekha was not disputed by the Learned Defence Counsel.
PW11 Prosecutrix, is the victim who deposed regarding the incident and proved her statement made to the police Ex. PW11/A 19 of 216 20 FIR No. 191/12 PS - Bawana bearing her signature at point 'A', the pointing of the memo of the place of the incident (at the instance of accused Rekha) already Ex. PW5/A bearing her signature at point 'B', her statement recorded u/s 164 Cr.P.C. Ex. PW11/B bearing her signature at point 'A', the arrest memo of accused Sanjay Ex. PW11/C bearing her signature at point 'A' and also identified and proved her clothes, one lady shirt, one salwar and one brassier Ex. P1(colly.). She can identify the car bearing No. DL4CAQ1795 if shown to her but the identity of the said car was not disputed by the Learned Defence Counsel in the testimony of PW10 - Constable Nishan.
PW12 Dr. N. S. Khurana, Medical officer, MV Hospital, Pooth Khurad, who deposed that he has been deputed to appear in the Court to depose on behalf of Dr. Rajan Mishra who is on long leave. He is acquainted with the handwriting and signatures of Dr. Rajan Mishra as he has worked with him and has also seen his writing and signing during the normal course of duties. According to the MLC No. 2323/12, already Ex. PX5, on 10/06/2012 at about 2:28 p.m., patient Sanjay Kumar S/o Anil Kesari aged 26 years was brought in the Hospital with 20 of 216 21 FIR No. 191/12 PS - Bawana alleged history of sexual assault and Dr. Rajan Mishra examined the patient vide MLC Ex. PX5 (already admitted by accused Sanjay). He identify the handwriting and signatures of Dr. Rajan Mishra at point 'A'.
PW13 Sh. V. Shanker Narayana, SSO FSL, Rohini, Delhi, who deposed that he is M.Sc. (Zoology), B.G.L. Certificate in Forensic Science and having experience of about 19 years in examining the exhibits in Biology Division. On 30/07/2012, ten sealed parcels were received in their Office in connection of the present case for examination. He examined the exhibits and gave his detailed report which is Ex. PW13/A bearing his signatures at point 'A'.
PW14 - Constable Rajesh, who deposed that on 10/06/2012, he was was posted as Constable in PS Bawana. On that day, he alongwith IO SI Suman took the accused Sanjay present in the Court (correctly identified) in M. V. Hospital for medical examination. He was medically examined there and after medical examination Doctor handed over the sealed pullinda containing the exhibits and the same were seized by the IO vide memo Ex. PW14/A which bears his signatures at point 21 of 216 22 FIR No. 191/12 PS - Bawana 'A'. On 11/06/2012, he again remained in the investigation of the present case with IO SI Parveen and Constable Nisha (be read as Constable Nishan). On that day, at about 12:00 p.m. accused Sanjay present in the Court was taken out from the lock up and he was taken to M. V. Hospital where he was medically examined. Thereafter, accused took them at Jhuggi No. B1143, J. J. Colony, Bawana but the house was found locked. They searched for accused Rekha but not found. On interrogation accused Sanjay disclosed that he had hidden the key of the car near the space for water motor below the stairs. Thereafter, he got recovered from the said space and told that this is the key of Car No. DL4CAQ1795, in which he alongwith his associates committed rape upon prosecutrix (name withheld). The key was seized vide memo Ex. PW10/A bearing his signature at point 'B'. Thereafter, accused Sanjay took them at HBlock, opposite factory No. H47, DSIDC Bawana, Sector 3 and from there he got recovered the Car No. DL4CAQ1795, I10. The car was seized vide memo Ex. PW10/B bearing his signature at point 'B'. SI Parveen put the key inside the car and he directed the Constable Nishan to drive the car at FSL Rohini. Thereafter, he alongwith accused Sanjay and IO also reached at FSL, Rohini. IO made 22 of 216 23 FIR No. 191/12 PS - Bawana request in the FSL to inspect the car. In the meantime, SHO also reached in the FSL, Rohini. Thereafter, they went in search of other accused but not found. He can identify the key and i10 Car bearing No. DL4CAQ1795 if shown to him but the identity of the car and the keys was not disputed by the Learned Defence Counsel.
PW15 Constable Kapil, who deposed that on the intervening night of 0910/06/12, he was posted as Constable in PS Bawana. On that day, he alongwith ASI Ram Rattan reached at Sector - 3, DSIDC, Bawana. Where they met complainant (name withheld). She was taken to M. V. Hospital and from there she was taken to BSA Hospital. In the BSA Hospital, ASI Suman (be read as SI Suman) reached and she handed over to him a tehrir for getting the FIR registered. He got the FIR registered and he handed over the copy of FIR and rukka to the IO. Thereafter, they reached at J. J. Colony in search of accused but none was found. In the morning accused Sanjay was apprehended from DSIDC, Bawana and he was interrogated and arrested vide arrest memo already Ex. PW11/C, bearing his (PW15) signature at point 'B'. His personal search was conducted vide memo Ex. PW15/A, 23 of 216 24 FIR No. 191/12 PS - Bawana he made the disclosure statement Ex. PW15/B which bears his signature at point 'A' respectively. After completing investigation accused Sanjay present in the Court (correctly identified) was brought to the Police Station.
PW16 - ASI Ram Rattan, who deposed that on 09/06/2012, he was posted as ASI in PS Bawana. On that day, at about 8:50 p.m., he received DD No. 64B and thereafter, he alongwith Constable Kapil reached at the spot i.e. near NDPL Office, Sector 3, DSIDC, Bawana where he met prosecutrix (name withheld). He made inquiries from her and she told that rape has been committed upon her. He informed to Duty Officer to send Lady Police officer. SHO also reached at the spot. He (PW16) took prosecutrix (name withheld) to M. V. Hospital. No gynecologist was found in the Hospital so he took prosecutrix (name withheld) to BSA Hospital for medical examination. W/SI Suman alongwith Lady Constable Raj Bala met him there and he handed over prosecutrix (name withheld) to them.
PW17 - SI Suman is the Investigating Officer (IO) of the 24 of 216 25 FIR No. 191/12 PS - Bawana case, who deposed that on 09/06/2012, she was posted as Sub Inspector in PS Bawana. On that night, after receiving the information from ASI Ram Rattan, she reached at BSA Hospital and there ASI Ram Rattan handed over to her the copy of DD No. 64B, copy of which is already exhibited as Ex. PW4/A and he had also produced prosecutrix (name withheld). W/Constable Raj Bala was also found present there. Prosecutrix (name withheld) was medically examined and after medical examination, Doctor handed over sealed pullinda containing exhibits which were seized and taken into Police possession vide seizure memo Ex. PW1/A, bearing her signature at point 'B'. She recorded statement of prosecutrix (name withheld) which is already exhibited as Ex. PW11/A and attested her (prosecutrix) signature at point 'A', bearing her (PW17) signature at point 'B'. She prepared rukka Ex. PW17/A, bearing her signature at point 'A'. Rukka was handed over to Constable Kapil who was already present in the Hospital, for registration of FIR. They came back in the Police Station and prosecutrix (name withheld) alongwith Lady/Constable Raj Bala were left in the Police Station as NGO Anuradha also came in the Police Station for counseling of the prosecutrix. Constable Kapil handed over to her the copy of FIR and 25 of 216 26 FIR No. 191/12 PS - Bawana original rukka. Thereafter, she alongwith Constable Kapil searched accused but not found. In the morning on 10/06/2012 at about 9:30 a.m., she alongwith Constable Kapil and two more Constables, Constable Surender and Constable Rajesh, they reached at the spot i.e. Sector 3, DSIDC Bawana, prosecutrix (name withheld) was also called there. She (PW17) prepared the site plan Ex. PW17/B, bearing her signature at point 'A' at the instance of the complainant. Thereafter, they searched accused and from the area of DSIDC, apprehended accused Sanjay at the instance of prosecutrix (name withheld). Accused Sanjay was interrogated and arrested vide memo Ex. PW11/C, his personal search was conducted vide memo Ex. PW15/A, both bearing her (PW17) signature at point 'X'. Accused Sanjay made disclosure statement Ex. PW15/B, bearing her signature at point 'X'. She recorded the statement of prosecutrix (name withheld) and Constable Kapil and they were set free. Thereafter, accused Sanjay was taken to M. V. Hospital, where he was medically examined and after medical examination, Doctor handed over sealed pullinda containing exhibits and the same were seized vide memo Ex. PW14/A, bearing her signature at point 'B'. Accused was produced in the Court and two days PC Remand was taken. They came 26 of 216 27 FIR No. 191/12 PS - Bawana back to Police Station and accused was sent to Police lockup. In the evening accused Sanjay was taken out from the lockup and they searched the other accused and vehicle No. DL4CAQ1795 but not found. Accused was sent to Police lockup. She recorded the statement of witnesses. Thereafter, the investigation was handed over to some other official. On 12/06/2012, the investigation of the present case was again handed over to her. She perused the file and found that the PC of the accused Sanjay is going to be expired so he was produced in the Court and was sent to JC. On the same day, she moved an application Ex. PX2 for recording statement of prosecutrix u/s 164 Cr.P.C. and her statement was got recorded. She obtained the copy of the statement vide her application Ex. PX4, bearing her signature at point 'A'. Thereafter, she proceeded on leave and case file was handed over to MHC(R).
PW18 - SI Manju is also the part Investigating Officer (IO) of the case, who deposed that on 17/07/2012, she was posted as Sub Inspector in PS - S. P. Badli. On that day, investigation of the present case was handed over to her by the ACP Bawana. On that day, she alongwith Lady Constable Manju reached in the Rohini Courts where 27 of 216 28 FIR No. 191/12 PS - Bawana accused Rekha present in the Court had surrendered before the Learned MM. She (PW18) obtained the permission from the Learned MM and thereafter, Rekha was interrogated and arrested vide arrest memo Ex. PW6/A, her personal search was conducted vide memo Ex. PW6/B and she made disclosure statement Ex. PW6/C, all bearing her (PW18) signature at point 'X'. She was produced in the Court and one day PC Remand was taken. She was medically examined and thereafter, accused Rekha was sent to lady lockup in PS - Kanjhawla. On 18/07/2012, she (PW18) alongwith Lady Constable Ritu had taken out accused Rekha from the lockup. Prosecutrix (name withheld) had also come at PS and she identified accused Rekha. Thereafter, accused Rekha had pointed out the place of occurrence i.e. DSIDC, Sector 3 near electricity pole vide pointing out memo Ex. PW5/A, bearing her signature at point 'X'. Thereafter, they searched accused Bittu but not found. Accused Rekha was again medically examined and thereafter she was produced in the Court and sent to JC. She (PW18) recorded the statement of witnesses. Thereafter, investigation was handed over to some other official and she handed over the case file to MHC(R). Accused Rekha is present in the Court.
28 of 216 29 FIR No. 191/12 PS - Bawana PW19 - SI Parveen Kumar is also the part Investigating Officer (IO) of the case, who deposed that on 11/06/2012, he was posted as Sub Inspector in PS Bawana. On that day, investigation of the present case was handed over to him. He perused the file and found that accused Sanjay was on P.C. remand and was in Police remand. On that day, Constable Nishan and Constable Rajesh had taken out the accused Sanjay from Police lockup and they took him in Maharshi Valmiki Hospital, where he was medically examined. Thereafter, accused Sanjay took them to his house at B1143, J. J. Colony, Bawana and accused Sanjay had produced key of the Car from near the staircase where the water pump/motor was installed, in pursuance to his disclosure statement, the key was seized vide memo Ex. PW10/A, bearing his (PW19) signature at point 'C'. Thereafter, accused Sanjay took them to H Block, Sector 3, DSIDC, Bawana and pointed out towards a Car No. DL4SCAQ1795 (be read as DL4CAQ1795), I10 which was parked in front of Factory No. 47, opposite to Factory No. 19. The car was seized vide memo Ex. PW10/B, bearing his signature at point 'C' and told that this is the same in which he alongwith his associates had 29 of 216 30 FIR No. 191/12 PS - Bawana committed rape upon prosecutrix (name withheld) on the rear seat. Thereafter, they reached at FSL Rohini and car was got inspected by the FSL Expert and he lifted the exhibits which were handed over to Constable Nishant (be read as Constable Nishan) and Constable Nishant (Be read as Constable Nishan) handed over the same to him and same were put up into a pullinda and sealed with the seal of 'PK' and the same was seized vide memo Ex. PW10/C, bearing his signature at point 'B'. Thereafter, they came back to PS and accused was sent to Police Lockup and case property was deposited in the Malkhana. He recorded the statement of witnesses. Accused Sanjay is present in the Court. On 30/07/2012, on the instructions of SHO, the exhibits were sent to FSL through Constable whose name he does not remember and thereafter he deposited the receipt with the MHC(M). He correctly identified the car bearing No. DL4SCAQ1795 (be read as DL4CAQ1795), I10 and its key and deposed that it was recovered in pursuance and at the instance of the accused Sanjay as per his disclosure statement, the car is Ex. PX and its key is Ex. PX1.
PW20 - Dr. Meet Kumar, CMO, BSA Hospital, Rohini, 30 of 216 31 FIR No. 191/12 PS - Bawana Delhi, who deposed that he was on duty on 10/06/2012. At around 12:45 a.m., one patient/prosecutrix (name withheld) W/o Gopal, Aged - 23 Years, Female was brought by Police with the alleged history of sexual assault. He examined the patient and on his examination externally the following injuries were found : 1) Bruise over right side of neck, 2) Bruise over left side of neck, 3) Bruise over right Cheek, 4) Multiple liner abrasion over right side of anterior chest wall, 5) Abrasion over left forearm. His examination is Ex. PW20/A on the MLC already Ex. PW8/A bearing his signature at point 'A'. His said examination is on the back page of the MLC already Ex. PW8/A. PW21 - SI Ritu is the last Investigating Officer (IO) of the case, who deposed that on 31/08/2012, she was posted as PSI in PS - Bawana. On that day, case file of the present case was marked to her for further investigation. She perused the file and after perusing the file she found that investigation regarding the accused Sanjay and Rekha was already complete. One accused Bittoo was absconding. Accused Sanjay was running in JC, hence, chargesheet was prepared and filed in the Court.
31 of 216 32 FIR No. 191/12 PS - Bawana The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
6. It is to be mentioned that on 18/09/2012, accused Sanjay and accused Rekha made the statements before the Learned Predecessor Court in which they admitted the proceedings under section 164 Cr.P.C. conducted by Sh. Sumedh Kumar Sethi, Learned MM (but not the contents thereof). The envelope duly sealed with the seal of 'SKA' was opened and the proceedings were taken out. The envelope is Ex. PX1. The request of IO for conducting the proceedings is Ex. PX2. The proceedings u/s 164 Cr.P.C. is Ex. PX3 (running into three pages. Copy of the application of the IO for supply of the copy of the proceedings is Ex. PX4. Accused Sanjay also admitted his own medical examination vide MLC Ex. PX5. They stated that they have no objection if the Learned MM and the concerned Doctor are not examined in the Court as witnesses.
7. Statements of accused Sanjay and Rekha were recorded u/s 32 of 216 33 FIR No. 191/12 PS - Bawana 313 Cr.P.C. wherein they pleaded innocence and false implication. Both the accused opted to lead defence evidence. Accused Rekha examined two witnesses in her defence namely DW1 - Dr. J. Raj Dhami S/o Late Sh. Som Nath, Proprietor of Shakuntala Nursing Home and Hospital, RZI81, Sagar Pur, West, New Delhi - 110046 and DW3 - Bibi Lalman, her mother. While accused Sanjay examined only one witness in his defence namely DW2 Smt. Lalita, his mother.
DW1 Dr. J. Raj Dhami who deposed that he has brought the summoned record alongwith IPD register dated 16/09/2011 to 28/07/2012 with Hospital record of Mrs. Rekha W/o Sanjay, R/o RB18, Palam Air Force Colony, Permanent Address H. No. B/22, J. J. Colony, Bawana, New Delhi. As per their record A & D (Admission and Discharge) No. 7346/12, the abovesaid patient Rekha was admitted in their Hospital on 09/06/2012 at 5:40 p.m.(17:40 hrs.). The patient was brought in their Hospital by one Smt. Saroj as a case of gastro intrites (gastroenteritis) with convalation. Lab investigation and CT Scan done, treated accordingly and discharged on 16/06/2012 at 2:00 p.m. (14:00 hrs.). Satisfactory condition as per Hospital record. The copy of the relevant entry of the admission and discharge register of the patient 33 of 216 34 FIR No. 191/12 PS - Bawana encircled 'X' is Ex. DW1/A. The diagnostic reports of the patient are collectively Ex. DW1/B (running into five pages).
DW2 - Smt. Lalita who deposed that the incident is of the date of 09th day of 6th month of the year, 2012. On 09/06/2012, phone had come from the Hospital where Rekha was admitted, she (DW2) with her son Sanjay was in the process of going to the Hospital but a phone call had come from the Police Station calling Sanjay there. She went out with Sanjay in a TSR and on the way, she alighted (utar gai) at Sahabad Dairy while Sanjay had gone to the Police Station. At about 9:00 p.m., she received a phone call from police that her son Sanjay is in the Police Station Bawana and had asked her to come there. At about 10:30 p.m., she reached at the Police Station Bawana but she was not allowed to met (meet) her son Sanjay and was told by the Police that Sanjay has been sent to Police Post Sector3, Pooth Khurd. She went there at Police Post Sector3, Pooth Khurd but she did not find her son Sanjay (waha bhi nahi mila). At about 1:00 a.m. in the night, she returned to her house.
DW3 - Bibi Lalman who deposed that she does not 34 of 216 35 FIR No. 191/12 PS - Bawana remember the year, date and month, perhaps it was 1½ years ago. Again said, it was 9th day of month her daughter accused Rekha was going to the house of her friend at Palam Village, Delhi. At about 4:00/5:00 p.m. she received phone call from the Hospital and she was told that her daughter Rekha was ill and was admitted in the Hospital. She went to Hospital at Sagar Pur. She reached to the Hospital by TSR and enquired about her daughter. She saw her daughter Rekha. She was admitted in the Hospital and was unconscious. She enquired from the Doctor as to what had happened to Rekha then she was told that Rekha had heart attack (Dil ka daura pada). She stayed with her daughter in the Hospital that night. Next morning SI Parveen, Incharge of Police Post Bawana and one Police official Mukesh came to the Hospital. At that time, she was in the nearby park and SI Praveen asked her to give keys of the car of Rekha. She asked SI Praveen as to why he needed the keys of car of Rekha then she was told by him that inspection of the car is to be done. She again asked him as to why he wanted to inspect the car of Rekha. She was told by him that he would reply to it only when she come to the Police Post Bawana. SI Praveen started pressurizing her and since she was alone at that time she handed over the keys of car of Rekha to him.
35 of 216 36 FIR No. 191/12 PS - Bawana SI Praveen and one Mukesh, Police official left from there with the car of Rekha. Third day thereafter, she went to the Police Station Bawana and enquired from SI Praveen about the car of Rekha. She was told by him that the car of Rekha was booked in one case. When she enquired about the particulars of the case in which the car of Rekha was booked, she was told by SI Praveen that he did not find it necessary to reply. Continuously next four days she went to the Police Station and SI Praveen had demanded Rs. 1,00,000/ for the release of car of Rekha and he also threatened her that her daughter Rekha would also be implicated in the case if she failed to fulfill his demand. She had sold her plot of B22 Bawana, Delhi, and paid Rs. 80,000/ to SI Praveen. SI Praveen while asking her to go to her home had assured her that the car of Rekha would be sent back. Later on, she had again paid Rs. 20,000/ to SI Praveen. She had sent complaint against SI Praveen to various authorities by post on 26/11/2012. The copy of the complaint is Mark DW3/X. The seven original post receipts are Mark DW3/Y (colly). Her daughter Rekha and her car have been falsely implicated by SI Praveen in the present case.
36 of 216 37 FIR No. 191/12 PS - Bawana The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.
8. Learned Counsel for accused Sanjay submitted that the accused have been falsely implicated by the prosecutrix i.e. PW11 due to professional rivalry and previous enmity. Learned Counsel further submitted that husband of prosecutrix Shri Gopal was sent to prison in case FIR No. 367/08 of PS - Bawana u/s 324/34 IPC on the complaint of accused Sanjay. Learned Counsel further submitted that the FSL Report as well as deposition of the witnesses have also not corroborated/supported the allegation of the prosecutrix. Learned Counsel further submitted that there is evidence on record that prosecutrix had strained relation with coaccused Rekha wife of accused Sanjay and she has admitted it in the Court. Learned Counsel further submitted that it is impossible to believe that since the prosecutrix had strained relation with alleged coaccused Rekha and her husband Sanjay responsible for getting her husband Gopal imprisoned, she had allegedly accompanied Rekha in her car for consultation with an Advocate for release of her husband Gopal from Jail. This fact itself makes entire 37 of 216 38 FIR No. 191/12 PS - Bawana prosecution story vitiated, legally untenable and without substance. Learned Counsel further submitted that there are material contradictions in the statement u/s 161 Cr.P.C. and testimony before the Court. In her testimony before the Court, the prosecutrix i.e. PW11 has alleged that accused Sanjay was arrested from the spot itself on the same day after one hour of the incident, on her pointing out as she was known to accused Sanjay, but the prosecution witness SI Suman i.e. PW17 has stated in her statement before the Court that she has arrested accused Sanjay on the next day of incident i.e. on 10/06/2012 at 10:30 a.m. from Sector - 4, DSIDC Bawana. Learned Counsel further submitted that it is impossible to believe that she was raped inside the back seat of i10 car while the coaccused Rekha had caught her hands and another accused caught her legs and the third accused had raped her, this shows that there were four person on the back seat of i10 car which is a small car and it is very congested for three person only, in this case the four person are involved on the back seat of the said car which is impossible to believe and shows that whole case is based on false and frivolous ground far beyond the reality. Learned Counsel further submitted that it is impossible to believe that she has noted down the registration number of 38 of 216 39 FIR No. 191/12 PS - Bawana i10 car used for the commission of alleged offence. In her deposition before the Court she has told that she has not noted down the registration number of the alleged car, but the registration number of the said car is mentioned in the FIR. This fact makes the prosecution case absolutely unbelievable. Learned Counsel further submitted that prosecutrix i.e. PW11 has also categorically stated that she did not raise an alarm when she was dropped from the vehicle and the accused went away, but on the contrary she has alleged that accused Sanjay was arrested on the spot on her pointing out. Learned Counsel further submitted that prosecutrix i.e. PW11 has stated before the Court in her crossexamination that after reaching of PCR van 10 to 15 public persons had collected there and they were all present at the time when the Police came there. But the prosecution witness i.e. PW16 - ASI Ram Rattan has deposed that no public person was present there, this contradictory statement given by the prosecution witnesses makes the prosecution case absolutely false. Learned Counsel further submitted that there are cutting on the MLC Ex. PW1/A at point X1, which are also fatal to prosecution case. This was stated by the prosecution witness i.e. PW8 - Dr. Dolly Bansal. Learned Counsel further submitted that from the deposition of the defence 39 of 216 40 FIR No. 191/12 PS - Bawana witnesses it is very much clear that the coaccused Rekha in the matter was hospitalized in the Shakuntala nursing Home on 09/06/2012 at 8:00 p.m. and she was admitted there upto 16/07/2012 as it was deposed by the Doctor of Shakuntala Nursing Home on oath before the Court. This shows that whole story of prosecution and prosecutrix (name withheld) is based on false and frivolous ground. If Rekha was in Hospital at the time of incident then how she assisted in the alleged rape of victim (name withheld). Learned Counsel further submitted that the other defence witnesses i.e. Smt. Lalita and Smt. Lalman Bibi have also deposed on oath before the Court and they have deposed that the co accused Rekha was admitted in the Hospital from 09/06/2012 to 16/07/2012. Learned Counsel referred to a case and is reported as Md. Ali @ Guddu Vs. State of U.P. [Criminal Appeal No. 2238/2010, Date of decision 10/03/2015 (SC)]. Learned Counsel prayed for the acquittal of the accused Sanjay on all the charged levelled against him.
9. Learned Counsel for accused Rekha submitted that when she (accused Rekha) took the car to the Bari Nahar, at that time the prosecutrix did not raise any objection to Bari Nahar, why she did not 40 of 216 41 FIR No. 191/12 PS - Bawana raise any alarm. Learned Counsel further submitted that admittedly, her relation with Rekha was not cordial. Learned Counsel further submitted that when she was carrying a small cellphone, who the prosecution did not seize that phone. Besides in her crossexamination before Court, she did not depose in respect of her number etc. He further submitted that when she easily remember the number of car on looking to once why she did not aware about her cell phone number. Learned Counsel further submitted that prosecutrix in her examinationinchief has deposed that, "the Police came and took me alongwith them, I was taken to the Hospital and after examination, I went to Police station, where they recorded my statement", contradict with the version of IO and other Police persons where they have deposed that the statement of prosecutrix was recorded in the Hospital and Rukka was sent from Hospital to register the FIR. Learned Counsel further submitted that prosecutrix in her examinationinchief has deposed that, "both the said persons came into the vehicle and sit inside", seating plan is not described, prosecutrix did not utter and asked why they are boarding in the car. Learned Counsel further submitted that prosecutrix in her examinationinchief has deposed that, "Thereafter, she stopped at a lonely place/area, Rekha 41 of 216 42 FIR No. 191/12 PS - Bawana caught of my hands and mouth and whereas the other two persons is Sanjay and the other person who I did not know previously committed rape upon me one by one", contradicted with other version i.e. statement u/s 164 Cr.P.C. and statement before Police. He further submitted that there is no violence, no injury. Learned Counsel further submitted that prosecutrix in her examinationinchief has deposed that, "Thereafter, I was removed from the said vehicle and made to get down at the same place (uttar diya). They also threatened to kill me in case, I disclose the same to anybody", contradict with other version. He further submitted that all this happened without raising any objections, crying, resistance and violence. Learned Counsel further submitted that prosecutrix in her examinationinchief has deposed that, "I was carrying a cellphone on which I made a call on 100 number", prosecution is silent about the cell phone what was its mobile number and EMI number. Learned Counsel further submitted that prosecutrix in her examinationinchief has deposed that, "Sanjay was arrested from the spot of the incident itself on the same day on my pointing out, but Rekha has absconded at that time". As per prosecution accused Sanjay was arrested on the next day i.e. on 10/06/2012. Learned Counsel further submitted that from the perusal of 42 of 216 43 FIR No. 191/12 PS - Bawana the statements of PW11 recorded at different times and different place, it is established that PW11 has improved her statement on every steps. Her testimony is not of sterling quality. Her statement is not natural and truthful; but of suspicious nature. Learned Counsel further submitted that as per MLC, both the accused are known persons, but identity or names not revealed on the MLC. Learned Counsel further submitted that Baijnath Tiwari who told the history of sexual assault to the Doctor was not introduced as a witness by the prosecution deliberately. However, he was the material witness as per MLC. Learned Counsel further submitted that PW16 - ASI Ram Rattan in his examinationinchief has deposed that, he made enquiries from her and she told that rape has been committed upon her. He informed to Duty Officer to send lady Police officer. SHO also reached at the spot. Learned Counsel submitted that names of the person is not told to PW16 while they were known person. Learned Counsel further submitted that PW16 - ASI Ram Rattan in his crossexamination has deposed that, "No public person was present there. SHO reached the spot within five minutes from my reaching at the spot. SHO had not made any inquiries from the prosecutrix". Learned Counsel submitted that the statement of PW16 - ASI Ram Rattan that no 43 of 216 44 FIR No. 191/12 PS - Bawana public person was present there contradicts the version of prosecutrix. Learned Counsel further submitted that it is very strange, SHO reached on the spot and did not make any inquiry from the prosecutrix. The prosecution has no reason why the SHO did not ask any question from the prosecutrix at the spot. Learned Counsel further submitted that neither the SHO nor ASI Ram Rattan recorded the statement of the prosecutrix immediately at the spot. There is no explanation, why they did not record the statement of the prosecutrix on the spot. Learned Counsel further submitted that the Learned Magistrate did not comply with mandatory provisions of Section 207 Cr.P.C. Prosecution has not explained why they not made (make) the site plan of place of occurrence. Learned Counsel further submitted that in the DD also, no identity or names were narrated by the prosecutrix on the 1st call when they were known person of the prosecutrix. Though, the prosecutrix had claimed that she was raped by Sanjay and one unknown person but in contrary to MLC, the history was given that both were known persons. Learned Counsel further submitted that from the bare reading of the testimony of PW11 - the prosecutrix, SI Suman, SI Parveen Kumar & ASI Ram Rattan, it is established that there are material improvements and 44 of 216 45 FIR No. 191/12 PS - Bawana embellishment in their version on almost all vital aspects of the case. Learned Counsel further submitted that except some minor scratches, abrasion or bruises, which is not even for described as fresh injury on the MLC, she had no injury on bite marks on the body, despite being claimed, she was raped by two persons with the help of accused Rekha. It is not clear that bruises and abrasion are fresh or old, the age of the injury can be judged from colour, clothes are not torn, the evidence of the PW20 - Dr. Meet Kumar is not reliable being (not of) sterling quality. Learned Counsel further submitted that in the present case, no evidence found of struggle, to avoid sexual contact for penetration. He further submitted that a false accusation of rape may sometime be exposed by false marks/self inflicted marks of violence and struggle. Learned Counsel further submitted that FSL results shows that semen could not be detected on any exhibits i.e. Ex. 1 to 10. Learned Counsel further submitted that according to FSL, no traces of semen was found either on the vaginal swab of prosecutrix on her undergarments which ruled out the possibly of rape. Learned Counsel further submitted that as per prosecution, the prosecutrix has been medically examined within hours of the alleged commission of rape by two adults. In that 45 of 216 46 FIR No. 191/12 PS - Bawana circumstances, absence of such on all exhibits falsify the entire prosecution case. Learned Counsel further submitted that neither the medical nor the scientific evidence corroborated the version of the prosecutrix. Even there is no evidence that hymen ruptured was fresh. PW8 - Dr. Dolly Bansal did not explain how old the tear, in the hymen. Learned Counsel further submitted that the plea of alibi of accused Rekha is consistent and supported by documentary evidence of unimpeachable varsity. To prove the alibi the accused Rekha produced DW1 - Dr. J. Raj Dhamini. Learned Counsel further submitted that from the perusal of statement of DW1 & DW3 and the statement of PW11 - prosecutrix clearly shows that the incident had not taken place as alleged by the prosecution. Learned Counsel further submitted that PW11 - prosecutrix has made the contradictory statements. In the statement recorded by the Police, she has stated, "Mujhe Gadi Se Utar Kar Aur Dhamki Dekar Ki Yadi Kisi Ko Bataya To Jaan Se Maar Denge". In her statement u/s 164 Cr.P.C., she has stated that, "If I tell the Police or go to the Court, then they will kill me and my children". In the statement recorded before the Court she has deposed that, "They also threatened to kill me in case I disclose the same to anybody." Learned Counsel further 46 of 216 47 FIR No. 191/12 PS - Bawana submitted that when accused Rekha was not on the spot of occurrence, if any, the question of threat does not arise at all. Learned Counsel for accused Rekha further submitted that accused Rekha was not on spot as alleged by prosecution, she was admitted in the Hospital at the time of alleged incident, therefore, the question of abetment does not arise at all. Learned Counsel further submitted that the prosecution has suppressed the genesis and the manner in which the incident took place. Learned Counsel further submitted that the prosecution did not examine any of the public witness at any point of time. Learned Counsel further submitted that PW11 - prosecutrix during her crossexamination has deposed that, "I did not tell any other neighbour residing in the adjoining rooms that I was going with Rekha nor I had left my children with them. Vol. I had left my children with one of my relative/fuffa namely Ram Narain when I went with Rekha but I did not tell him that I was going with Rekha". Learned Counsel submitted that Ram Narain, relative/fuffa of PW11 - prosecutrix, a material witness has not been produced by the prosecutrix. Learned Counsel further submitted that PW11 prosecutrix in her crossexamination deposed that, "the vehicle i.e. i10 car was seized by the Police after Rekha was apprehended by the Police and arrested"
47 of 216 48 FIR No. 191/12 PS - Bawana while the car DL4CAQ1795 i10 Ex. PX was seized at about 3:40 to 4:00 p.m. on 11/06/2012 as per crossexamination of PW19 - SI Parveen Kumar IO and accused Rekha was arrested on 17/07/2012. Learned Counsel further submitted that it is impossible that accused Rekha caught hold of the hands of the prosecutrix and whereas the other two accused i.e. Sanjay and the other person whom she did not know previously committed rape upon her one by one. Learned Counsel further submitted that there are material contradictions in the statements of PW11 prosecutrix made before the Police Ex. PW11/A, recorded u/s 164 Cr.P.C. Ex. PW11/B (also Ex. PX3) and the deposition made in the Court. Learned Counsel further submitted that there is delay of about 67 hours in lodging FIR, there is no sufficient explanation on record for the same. The statement of the prosecutrix was got registered for the first time at about 1:45 a.m. on 10/06/2012. This is no explanation why the statement of prosecutrix was not recorded at the first instance about 8:00 p.m. Learned Counsel further submitted that accused Rekha was not on spot as alleged by prosecution, she was admitted in the Hospital at the time of alleged incident, therefore, the question of abetment does not arise at all. Learned Counsel further submitted that a woman cannot be 48 of 216 49 FIR No. 191/12 PS - Bawana said to have an intention to commit rape, therefore, cannot be prosecuted for alleged commission of the offence punishable u/s 376(2)(g) IPC. Learned Counsel further submitted that a bare reading of Section 375 IPC, makes the position clear that a rape can be committed only by a man. Learned Counsel referred to the cases and are reported as, Narvan @ Narain Vs. State of Rajasthan 2007 (2) JCC 1202; Sunil Kundu & Ors. Vs. State of Jharkhand 2013 CrLJ 2339; Surajmal Vs. The State 1979 CrLJ 1087; Kuldeep Singh & Ors. Vs. State of Punjab AIR 2002 SC 3023; State Vs. Jagir Singh 1999 CrLJ 614; Jagdish Lal Malhotra Vs. The State 1984(1) RCR 332; Kali Ram Vs. State of Himachal Pradesh 1974, Criminal Law Journal Page (1); 1996 Vol. II, Recent Criminal Report 231; Ten Singh Vs. State [Delhi Admn.] 1996 [VOL. I] Recent Criminal Report 343; 1998 (II) Criminal Reporter, 305; Rai Sandeep @ Deepu Vs. State of NCT Delhi AIR 2012 SC 3157; State of Rajasthan Vs. Hemraj & Ors. AIR 2009 SC 2644; Priya Patel Vs. State of MP & Ors. AIR 2006 SC 2639; Krishan Kumar Malik Vs. State of Haryana AIR 2011 SC 2877; Mohd. Ali @ Guddu Vs. State of U.P. [Criminal Appeal No. 2238/2010 Date of decision 10/03/2015 (SC)] and Manohar Lal Vs. State of MP 2015 [1] JCC 527. Learned Counsel prayed for the acquittal 49 of 216 50 FIR No. 191/12 PS - Bawana of the accused Rekha on all the charges levelled against her.
10. While the Learned 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.
11. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. I. J. S. Mehra, Learned Counsel for accused Rekha and Sh. Rajesh Kumar, Learned Counsel for accused Sanjay and have also carefully perused the entire record.
12. The charge for the offence punishable u/s 506/34 IPC against accused Sanjay and Rekha is that on 09/06/2012 at about 8:00 p.m. at Sector - 3, DSIDC Bawana, within the jurisdiction of PS - Bawana, they both alongwith their coaccused Bittoo (since not arrested) in furtherance of their common intention criminally intimidated 50 of 216 51 FIR No. 191/12 PS - Bawana prosecutrix (name withheld) W/o Gopal to be killed if she inform anyone about the commission of gang rape with her.
Further, the charge for the offences punishable u/s 376(2)(g) r/w Section 109 IPC against accused Rekha is that on 09/06/2012, at about 8:00 p.m. at Sector - 3, DSIDC Bawana, within the jurisdiction of PS - Bawana, she abetted the commission of the gang rape committed by her coaccused Sanjay and Bittoo (since not arrested) upon prosecutrix (name withheld) W/o Gopal.
Further, the charge for the offence punishable u/s 376(2)(g) IPC against accused Sanjay is that on 09/06/2012 at about 8:00 p.m. at Sector - 3, DSIDC Bawana, within the jurisdiction of PS - Bawana, he alongwith his coaccused Bittoo (since not arrested) committed gang rape upon prosecutrix (name withheld) W/o Gopal.
13. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
51 of 216 52 FIR No. 191/12 PS - Bawana AGE OF THE PROSECUTRIX
14. PW11 - prosecutrix in her statement recorded in the Court on 21/11/2012, while giving her particulars has stated her age as 24 years.
Since PW11 - prosecutrix has stated her age as 24 years on 21/11/2012, at the time of recording of her evidence/statement in the Court and the date of the alleged incident is 09/06/2012, on simple arithmetical calculation, the age of the prosecutrix comes to 23 years 06 months and 18 days as on the date of alleged incident on 09/06/2012.
Moreover, the said factum of age of PW11 - prosecutrix has also not been disputed by the accused. Nor any evidence to the contrary has been produced or proved on record on behalf of the accused.
In view of above and in the circumstances, it stands proved on record that PW11 prosecutrix was aged 23 years 06 months and 18 days as on the date of alleged incident on 09/06/2012. MEDICAL EVIDENCE OF THE PROSECUTRIX 52 of 216 53 FIR No. 191/12 PS - Bawana
15. PW8 Dr. Dolly Bansal Sr. Resident Gynae Department BSA Hospital, Rohini, Delhi has deposed that on 10/06/2012 at about 12:45 a.m. one patient/prosecutrix (name withheld) W/o Gopal, aged about 23 years was produced before her by Baijnath Tiwari (Chachain law) with the alleged history of sexual assault between 8:00 to 9:00 p.m. by two known people on 09/06/2012 and patient was giving history of sexual assault one by one by two people in a car. Patient also giving history of resisting the people. Patient did not change her clothes since then (no bath). Patient's clothes were torn, bruise marks on right side of neck, abraison on left cheek, big bruise at left side of neck, multiple scratch marks around 10 cm over chest wall on right side (three in number), fresh abrasion on left forearms and old abrasion on left forearm. On per abdominal examination transverse scar of sterlization. On local examination pubic hair small (shaving done 20 days ago), hymen old ruptured (patient already having two vaginal deliveries), no abrasion, no bruise, no inflammation, no bleeding seen over perinium/fourchette, small pustule near urethral opening seen, per speculam examination cervix and vagina seems healthy. Per vagina examination : Uterus retroverted parous size fornix free. She (PW8) 53 of 216 54 FIR No. 191/12 PS - Bawana seized following exhibits i.e. clothes of patient, body fluid collection, nails scrapping, debri collection, in between fingers, breast swab, combing of pubic hairs clipping of pubic hairs, cervical mucus collection with slide, vaginal secretion, culture swab from cervix and vagina, washing per vagina, rectal swab, oral swab, blood collection of victim, urine and oxalate blood and urine pregnancy test was also done and attached with MLC paper. Thereafter, the patient was referred to medical jurist for external injuries. He (PW8) prepared MLC Ex. PW8/A bearing her signatures at point 'A'. the exhibits were sealed and handed over to W/Constable Raj Bala.
There is nothing in the crossexamination of PW8 - Dr. Dolly Bansal so as to impeach her creditworthiness.
PW20 - Dr. Meet Kumar, CMO, BSA Hospital, Rohini, Delhi has deposed that he was on duty on 10/06/2012. At around 12:45 a.m., one patient/prosecutrix (name withheld) W/o Gopal, Aged - 23 Years, Female was brought by Police with the alleged history of sexual assault. He examined the patient and on his examination externally the following injuries were found : 1) Bruise over right side of neck, 2) 54 of 216 55 FIR No. 191/12 PS - Bawana Bruise over left side of neck, 3) Bruise over right Cheek, 4) Multiple liner abrasion over right side of anterior chest wall, 5) Abrasion over left forearm. His examination is Ex. PW20/A on the MLC already Ex. PW8/A bearing his signature at point 'A'. His said examination is on the back page of the MLC already Ex. PW8/A. There is nothing in the crossexamination of PW20 - Dr. Meet Kumar so as to impeach his creditworthiness.
In view of above and in the circumstances, the medical examination vide Ex. PW20/A on the MLC Ex. PW8/A and the gynaecological examination vide MLC Ex. PW8/A of PW11 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED SANJAY
16. PW12 Dr. N. S. Khurana, Medical officer, M. V. Hospital, Pooth Khurad has deposed that he has been deputed to appear in the Court to depose on behalf of Dr. Rajan Mishra who is on long leave. He is acquainted with the handwriting and signatures of Dr. Rajan Mishra as he has worked with him and has also seen his writing and signing during 55 of 216 56 FIR No. 191/12 PS - Bawana the normal course of duties. According to the MLC No. 2323/12, already Ex. PX5, on 10/06/2012 at about 2:28 p.m., patient Sanjay Kumar S/o Anil Kesari aged 26 years was brought in the Hospital with alleged history of sexual assault and Dr. Rajan Mishra examined the patient vide MLC Ex. PX5 (already admitted by accused Sanjay). He identify the handwriting and signatures of Dr. Rajan Mishra at point 'A'.
Despite grant of opportunity, PW12 - Dr. N. S. Khurana was not crossexamined on behalf of any of the accused.
It is also to be mentioned that on 18/09/2012, accused Sanjay made the statement before the Learned Predecessor Court in which he interalia admitted his own medical examination vide MLC Ex. PX5 and had stated that he has no objection if the concerned Doctor is not examined in the Court.
The perusal of the MLC of accused Sanjay Ex. PX5 indicates that Dr. Rajan Mishra has opined that there is nothing found while examining the accused which suggest that he cannot perform sexual activity.
56 of 216 57 FIR No. 191/12 PS - Bawana In view of above and in the circumstances, it stands proved on the record that accused Sanjay was capable of performing sexual activity.
BIOLOGICAL EVIDENCE
17. PW9 Sh. Inderesh Kumar Mishra, Sr. Scientific Officer (Biology) FSL Rohini, Delhi, has proved the Biological Inspection Report of the sealed exhibits lifted from Hyundai i10 Magna Car bearing No. DL4CAQ1795, Ex. PW9/A bearing his signatures at point 'A'.
PW13 Sh. V. Shanker Narayana, SSO FSL, Rohini, Delhi has deposed that on 30/07/2012, ten sealed parcels were received in their Office in connection of the present case for examination. He examined the exhibits and gave his detailed report which is Ex. PW13/A bearing his signatures at point 'A'.
As per biological report Ex. PW13/A the description of 57 of 216 58 FIR No. 191/12 PS - Bawana 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 "SD" containing exhibits '1a', '1b' and '1c'.
Exhibit '1a' : One lady's shirt. Exhibit '1b' : One brassier. Exhibit '1c' : One salwar. Parcel '2' : One sealed card board box sealed with the
seal of "SD" containing exhibits '2a', '2b', '2c', '2d', '2e', '2f', '2g', '2h(i)', '2h(ii)', '2h(iii)', '2i(i)', '2i(ii)', '2i(iii)', '2j', '2k', '2l(i)', '2l(ii)', '2l(iii)', '2m(i)', '2m(ii)', '2m(iii)', '2n(i)', '2n(ii)', '2o(i)' and '2o(ii)'. Exhibit '2a' : Cotton wool swab on a wooden stick. Exhibit '2b' : Cotton wool swab on a wooden stick.
Exhibit '2c' : Sample not found.
Exhibit '2d' : Few nail clippings.
Exhibit '2e' : Cotton wool swab on a wooden stick.
Exhibit '2f' : Strands of hair.
Exhibit '2g' : Strands of hair.
Exhibit '2h(i)' : Two microslides having faint whitish smear.
and '2h(ii)'
Exhibit '2h(iii)' : Cotton wool swab on a wooden stick.
Exhibit '2i(i)' : Two microslides having faint whitish smear.
and '2i(ii)'
Exhibit '2i(iii)' : Cotton wool swab on a wooden stick.
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Exhibit '2j' : Unexamined.
Exhibit '2k' : Liquid material, kept in a syringe.
Exhibit '2l(i)' : Two microslides having faint whitish smear.
and '2l(ii)'
Exhibit '2l(iii)' : Cotton wool swab on a wooden stick.
Exhibit '2m(i)' : Two microslides having faint whitish smear.
and '2m(ii)'
Exhibit '2m(iii)' : Cotton wool swab on a wooden stick.
Exhibit '2n(i)' : Dark brown foul smelling liquid, kept in a tube.
Exhibit '2n(ii)' : Dark brown foul smelling liquid, kept in a tube.
Exhibit '2o(i)' : Liquid material in a plastic container, kept
unexamined.
Exhibit '2o(ii)' : Dark brown foul smelling liquid, kept in a tube.
Parcel '3' : One sealed cloth parcel sealed with the
seal of "M.S. MB HOSPITAL POOTH KHURD" containing exhibit '3', kept in a tube.
Exhibit '3' : Wet, foul smelling brown gauze cloth piece. Parcel '4' : One sealed cloth parcel sealed with the seal of "M.S. MB HOSPITAL POOTH KHURD" containing exhibit '4', kept in a tube.
Exhibit '4' : Few strands of hair.
Parcel '5' : One sealed envelope sealed with the seal
of "PK" containing exhibit '5'.
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Exhibit '5' : Pieces of seat cover.
Parcel '6' : One sealed envelope sealed with the seal
of "PK" containing exhibit '6'.
Exhibit '6' : Pieces of seat cover.
Parcel '7' : One sealed envelope sealed with the seal
of "PK" containing exhibit '7'.
Exhibit '7' : Pieces of seat cover.
Parcel '8' : One sealed envelope sealed with the seal
of "PK" containing exhibit '8'.
Exhibit '8' : Pieces of seat cover.
Parcel '9' : One sealed envelope sealed with the seal
of "PK" containing exhibit '9'.
Exhibit '9' : Pieces of seat cover.
Parcel '10' : One sealed envelope sealed with the seal
of "PK" containing exhibit '10'.
Exhibit '10' : Pieces of seat cover.
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RESULTS OF ANALYSIS
1. Semen could not be detected on exhibits '1a', '1b', '1c', '2a', '2b', '2e', '2f', '2g', '2h(i)', '2h(ii)', '2h(iii)', '2i(i)', '2i(ii)', '2i(iii)', '2k', '2l(i)', '2l(ii)', '2l(iii)', '2m(i)', '2m(ii)', '2m(iii)', '4', '5', '6', '7', '8', '9' and '10'.
NOTE : (1) Since semen could not be detected on any of these exhibits, DNA analysis is not required.
(2) Remnants of the exhibits have been sealed with the seal of 'VSN FSL DELHI'.
On careful perusal and analysis of the biological evidence on record, it clearly shows that semen could not be detected on exhibits '1a' (Lady's shirt of the prosecutrix), '1b' (Brassier of the prosecutrix), '1c' (Salwar of the prosecutrix), '2a' (Cotton wool swab on a wooden stick of the prosecutrix), '2b' (Cotton wool swab on a wooden stick of the prosecutrix), '2e' (Cotton wool swab on a wooden stick of the prosecutrix), '2f' (Strands of hair of the prosecutrix), '2g' (Strands of hair of the prosecutrix0), '2h(i)' (Microslide having faint whitish smear of the prosecutrix), '2h(ii)' (Microslide having faint whitish smear of the prosecutrix), '2h(iii)' (Cotton wool swab on a wooden stick of the prosecutrix), '2i(i)' (Microslide having faint whitish smear of the 61 of 216 62 FIR No. 191/12 PS - Bawana prosecutrix), '2i(ii)' (Microslide having faint whitish smear of the prosecutrix), '2i(iii)' (Cotton wool swab on a wooden stick of the prosecutrix), '2k' (Liquid material kept in a syringe of the prosecutrix), '2l(i)' (Microslide having faint whitish smear of the prosecutrix), '2l(ii)' (Microslide having faint whitish smear of the prosecutrix), '2l(iii)' (Cotton wool swab on a wooden stick of the prosecutrix), '2m(i)' (Microslide having faint whitish smear of the prosecutrix), '2m(ii)' (Microslide having faint whitish smear of the prosecutrix), '2m(iii)' (Cotton wool swab on a wooden stick of the prosecutrix), '4' (Few strands of hair of accused Sanjay), '5' (Pieces of seat cover of the Car), '6' (Pieces of seat cover of the Car), '7' (Pieces of seat cover of the Car), '8' (Pieces of seat cover of the Car), '9' (Pieces of seat cover of the Car) and '10' (Pieces of seat cover of the prosecutrix).
As per the biological report Ex. PW13/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 & 2 belong to the prosecutrix which were seized vide seizure memo Ex. PW1/A dated 10/06/2012, parcel nos. 3 & 4 belong to the accused Sanjay which were seized vide seizure memo Ex.
62 of 216 63 FIR No. 191/12 PS - Bawana PW14/A dated 10/06/2012 and parcel no. 7 to 10 were lifted from the Car No. DL4CAQ1795 by PW9 - Inderesh Kumar Mishra, SSO, FSL vide his detailed report Ex. PW9/A and were seized vide seizure memo Ex. PW10/C dated 11/06/2012.
It is to be noticed that the date of alleged incident is 09/06/2012 at about 8:00 p.m. and the gynaecological examination of PW11 - prosecutrix was conducted on 10/06/2012 at about 12:45 a.m. vide MLC Ex. PW8/A and the sealed exhibits of the prosecutrix were seized on 10/06/2012 after her gynaecological examination vide seizure memo Ex. PW1/A; during this period from the date of incident on 09/06/2012 at about 8:00 p.m. till 10/06/2012 at about 12:45 a.m. when her gynaecological examination was conducted vide MLC Ex. PW8/A, it cannot be ruled out that the prosecutrix must have passed the urine a number of times and for the said reason it appears that semen could not be detected on exhibits '2a' (Cotton wool swab on a wooden stick of the prosecutrix), '2b' (Cotton wool swab on a wooden stick of the prosecutrix), '2e' (Cotton wool swab on a wooden stick of the prosecutrix), '2f' (Strands of hair of the prosecutrix), '2g' (Strands of hair 63 of 216 64 FIR No. 191/12 PS - Bawana of the prosecutrix), '2h(i)' (Microslide having faint whitish smear of the prosecutrix), '2h(ii)' (Microslide having faint whitish smear of the prosecutrix), '2h(iii)' (Cotton wool swab on a wooden stick of the prosecutrix), '2i(i)' (Microslide having faint whitish smear of the prosecutrix), '2i(ii)' (Microslide having faint whitish smear of the prosecutrix), '2i(iii)' (cotton wool swab on a wooden stick of the prosecutrix), '2k' (Liquid material kept in a syringe of the prosecutrix), '2l(i)' (Microslide having faint whitish smear of the prosecutrix), '2l(ii)' (Microslide having faint whitish smear of the prosecutrix), '2l(iii)' (Cotton wool swab on a wooden stick of the prosecutrix), '2m(i)' (Microslide having faint whitish smear of the prosecutrix), '2m(ii)' (Microslide having faint whitish smear of the prosecutrix), '2m(iii)' (Cotton wool swab on a wooden stick of the prosecutrix), of the prosecutrix.
18. Now let the testimony of PW11 Prosecutrix be perused and analysed.
PW11 prosecutrix, in her examinationinchief has 64 of 216 65 FIR No. 191/12 PS - Bawana deposed which is reproduced and reads as under : "I am residing at the aforementioned address (House No. 535, Mukhtiyar Singh Marg, Bawana, Delhi) since last 34 years on rent alongwith my family comprising of my husband and two children. I am a housewife. I belong to village Khewra, District Sonepat, Haryana. My husband Gopal is in Judicial Custody since the year, 2011. On 10/06/2012 (be read as 09/06/2012) at about 8:00 p.m., I was at my house alongwith my children. Rekha resident of B - Block (Present in the Court and correctly identified) who was known to me previously as my husband and Rekha were together in the business of sale of liquor came to my house and told me that a Lawyer was present in her house and if I would come to her house, I can seek his legal advise for getting free my husband from legal custody. I told her that I did not have any money to give to Lawyer but she told me not to worry about money. Thereafter, I accompanied Rekha who had brought her own car i.e. I10 of pencil colour whose number was DL4CAQ1795. The vehicle was driven by Rekha and when she reached near the bari nehar, she stopped the vehicle where two persons were already standing, one was Sanjay who is residing with Rekha as her husband. Again said, Sanjay is not the husband of Rekha but is residing with her in the capacity of husband. Both the said man came into the vehicle and sat inside. From there Rekha turned the vehicle towards the sectors (sector's) side i.e. Sector - 3, Bawana. When she turned the vehicle I asked where was the Advocate, on which Rekha told me that she had to pickup the money from some person at Bawana for giving the same to the Advocate. Thereafter, she stopped the vehicle at lonely place/area. Rekha caught hold of my hands and mouth and whereas the other two persons i.e. Sanjay and the other person who I did not know previously committed 65 of 216 66 FIR No. 191/12 PS - Bawana rape upon me one by one. Thereafter, I was removed from the said vehicle and made to get down at the same place (uttar diya). They also threatened to kill me in case I disclose the case to anybody. I was carrying a telephone on which I made a call on 100 number. The Police came to the spot and took me to the Hospital where my medical examination was got conducted. After my medical examination I was brought back to the Police Station where my statement was recorded which statement is Ex. PW11/A bearing my signatures at point 'A'. I thereafter, took the Police to the spot of the incident where the incident had taken place where the Police prepared the pointing out memo already Ex. PW5/A bearing my signatures at point 'B' after which Police recorded my statement and I was relieved. I was also produced in the Court where my statement was recorded by the Learned MM and I disclosed the entire incident to the Learned MM which statement is Ex. PW11/B bearing my signatures at point 'A' at various places which I identify.
Sanjay was arrested from the spot of the incident itself on the same day on my pointing out but Rekha had absconded at that time. The arrest memo of Sanjay is Ex. PW11/C bearing my signatures at point 'A'. the accused Sanjay and Rekha are present in the Court today (correctly identified).
I can identify the clothes which I was wearing at the time of the incident and had been seized by the Doctor in the Hospital at the time of my medical examination.
At this stage, the MHC(M) has produced one sealed Parcel No. 1 duly sealed with the seal of FSL, also bearing the case particulars and same is opened by breaking the seal and it found to contain one lady shirt, one salwar and one bassier (brassier) and same are shown to the witness who correctly identified the same as belongs to her and worn by 66 of 216 67 FIR No. 191/12 PS - Bawana her at the time of incident and were seized by the Doctor during her medical examination. The clothes are collectively Ex. P1.
I can also identify the car bearing No. DL4CAQ1795 if shown to me. Identity of the car is not disputed by the Learned Defence Counsels in the testimony of PW10 - Constable Nishan."
From the aforesaid narration of PW11 - prosecutrix, it is clear that she is residing at House No. 535, Mukhtiyar Singh Marg, Bawana, Delhi since last 34 years on rent alongwith her family comprising of her husband and two children. She is a housewife. She belongs to village Khewra, District Sonepat, Haryana. Her husband Gopal is in Judicial Custody since the year, 2011. On 10/06/2012 at about 8:00 p.m., she was at her house alongwith her children. Rekha resident of B - Block (Present in the Court and correctly identified) who was known to her previously as her (PW11) husband and Rekha were together in the business of sale of liquor came to her house and told her that a Lawyer was present in her (Rekha) house and if she (PW11) would come to her (Rekha) house, she (PW11) can seek his legal advise for getting free her (PW11) husband from legal custody. She (PW11) told her (Rekha) that she (PW11) did not have any money to give to Lawyer but she (Rekha) told her (PW11) not to worry about money. Thereafter, 67 of 216 68 FIR No. 191/12 PS - Bawana she accompanied Rekha who had brought her own car i.e. I10 of pencil colour whose number was DL4CAQ1795. The vehicle was driven by Rekha and when she reached near the bari nehar, she stopped the vehicle where two persons were already standing, one was Sanjay who is residing with Rekha as her husband. Again said, Sanjay is not the husband of Rekha but is residing with her in the capacity of husband. Both the said men came into the vehicle and sat inside. From there Rekha turned the vehicle towards the sector's side i.e. Sector - 3, Bawana. When she turned the vehicle she (PW11) asked where was the Advocate, on which Rekha told her that she (Rekha) had to pickup the money from some person at Bawana for giving the same to the Advocate. Thereafter, she stopped the vehicle at lonely place/area. Rekha caught hold of her hands and mouth and whereas the other two persons i.e. Sanjay and the other person who she did not know previously committed rape upon her one by one. Thereafter, she was removed from the said vehicle and made to get down at the same place (uttar diya). They also threatened to kill her in case she disclose the case to anybody. She was carrying a telephone on which she made a call on 100 number. The Police came to the spot and took her to the Hospital where her medical 68 of 216 69 FIR No. 191/12 PS - Bawana examination was got conducted. After her medical examination she was brought back to the Police Station where her statement was recorded which statement is Ex. PW11/A bearing her signatures at point 'A'. She thereafter, took the Police to the spot of the incident where the incident had taken place where the Police prepared the pointing out memo already Ex. PW5/A bearing her signatures at point 'B' after which Police recorded her statement and she was relieved. She was also produced in the Court where her statement was recorded by the Learned MM and she disclosed the entire incident to the Learned MM which statement is Ex. PW11/B bearing her signatures at point 'A' at various places which she identify. Sanjay was arrested from the spot of the incident itself on the same day on her pointing out but Rekha had absconded at that time. The arrest memo of Sanjay is Ex. PW11/C bearing her signatures at point 'A'. She correctly identified the accused Sanjay and Rekha present in the Court. She also identified her clothes, one lady shirt, one salwar and one brassier as Ex. P1 collectively. She can identify the car bearing No. DL4CAQ1795 if shown to her but the identity of the said car was not disputed by the Learned Defence Counsel in the testimony of PW10 - Constable Nishan.
69 of 216 70 FIR No. 191/12 PS - Bawana PW11 - Prosecutrix during her crossexamination has negated the suggestions that her relations with Rekha were not cordial on account of the case lodged against her husband at the instance of Rekha. Vol. The said case was lodged by some other lady or that no such incident had taken place as alleged by her or that being aggrieved by the arrest and detention of her husband Gopal, she has falsely implicated Rekha and her husband in the present case as a counter blast or that on account of professional rivalry and in order to have supremacy, she has falsely implicated Rekha in the present case or that accused Rekha was not present at the time of incident.
Inspite of incisive crossexamination of PW11 - prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW11 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has 70 of 216 71 FIR No. 191/12 PS - Bawana remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
The testimony of PW11 - Prosecutrix is also found to be corroborated by the medical evidence and the biological evidence as discussed hereinbefore.
The testimony of PW11 - Prosecutrix is also found to be in consonance with her statement Ex. PW11/A made to the Police as well as her statement u/s 164 Cr.P.C. Ex. PW11/B (also Ex. PX3).
19. While analysing the testimony of PW11 - Prosecutrix, as discussed hereinabove, inspite of incisive crossexamination of PW11 - prosecutrix nothing has come out in her statement which may throw even a slightest doubt on the prosecution version of the incident. Though, the suggestions by the defence to PW11 Prosecutrix that her relations with Rekha were not cordial on account of the case lodged against her husband at the instance of Rekha. Vol. The said case was lodged by some other lady or that no such incident had taken place as alleged by her or 71 of 216 72 FIR No. 191/12 PS - Bawana that being aggrieved by the arrest and detention of her husband Gopal, she has falsely implicated Rekha and her husband in the present case as a counter blast or that on account of professional rivalry and in order to have supremacy, she has falsely implicated Rekha in the present case or that accused Rekha was not present at the time of incident, were put, which were negated by the said PW but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence that the accused have been falsely implicated because of animosity.
However, a futile attempt has been made by the accused Sanjay and Rekha to save their skins from the clutches of law by way of examination of defence witnesses namely DW1 - Dr. J. Raj Dhami, DW2
- Smt. Lalita and DW3 - Bibi Lalman. DW1 - Dr. J. Raj Dhami and DW3 - Bibi Lalman have been examined on behalf of accused Rekha and DW2 - Smt. Lalita has been examined on behalf of accused Sanjay.
DW1 - Dr. J. Raj Dhami in his examinationinchief had 72 of 216 73 FIR No. 191/12 PS - Bawana deposed that : "I have brought the summoning (summoned) record alongwith IPD register dated 16/09/2011 to 28/07/2012 with hospital record, (of) Mrs. Rekha W/o Sanjay, R/o RB 18, Palam Air Force Colony, Permanent Address H. No. B/22, J. J. Colony, Bawana, New Delhi. As per our record A & D (Admission and Discharge) No. 7346/12. The abovesaid patient Rekha was admitted in our hospital on 09/06/2012 at 5:40 p.m. (17:40 hrs.). The patient was brought in our hospital by one Smt. Saroj as a case of gastro intrites (gastroenteritis) with convalation. Lab investigation and CT Scan done. Treated accordingly and discharged on 16/06/2012 at 2:00 p.m. (14:00 hrs.). Satisfactory condition as per hospital record. The copy of the relevant entry of the admission and discharge register of the patient encircled 'X' is Ex. DW1/A. The diagnostic reports of the patient are collectively Ex. DW1/B (running into five pages)."
During his crossexamination, he has deposed that, no inventory record of IPD Registers having printed the name of the Nursing Home and also with regard to its use during a particular year is maintained in his said Nursing Home and Hospital. He denied the suggestions that patient Rekha was not admitted in his Nursing Home and Hospital during the period from 09/06/2012 to 16/06/2012 or that the record regarding her admission at his Nursing Home and Hospital has been manipulated and fabricated at her instance for some oblique 73 of 216 74 FIR No. 191/12 PS - Bawana motives.
DW3 - Bibi Lalman in her examinationinchief has deposed that : "I do not remember the year, date and month, perhaps it was 1½ years ago. Again said it was 9th day of month my daughter accused Rekha was going to the house of her friend at Palam Village, Delhi. At about 4:00/5:00 p.m. I received phone call from the hospital and I was told that my daughter Rekha was ill and was admitted in the hospital. I went to hospital at Sagar Pur. I reached to the hospital by TSR and enquired about my daughter. I saw my daughter Rekha. She was admitted in the hospital and was unconscious. I enquired from the doctor as to what had happened to Rekha then I was told that Rekha had heart attack (Dil ka daura pada). I stayed with my daughter in the hospital that night. Next morning SI Parveen, Incharge of Police Post Bawana and one police official Mukesh came to the hospital. At that time I was in the nearby park and SI Praveen asked me to give keys of the car of Rekha. I asked SI Praveen as to why he needed the keys of car of Rekha then I was told by him that inspection of the car is to be done. I again asked him as to why he wanted to inspect the car of Rekha. I was told by him that he would reply to it only when I come to the Police Post Bawana. SI Praveen started pressurizing me and since I was alone at that time I was handed over the keys of car of Rekha to him. SI Praveen and one Mukesh, police official left from there with the car of Rekha. Third day thereafter, I went to the Police Station Bawana and enquired from SI Praveen about the car of Rekha. I was told by him that the car of Rekha was booked in one case. When I enquired about the particulars of the 74 of 216 75 FIR No. 191/12 PS - Bawana case in which the car of Rekha was booked I was told by SI Praveen that he did not find it necessary to reply. Continuously next four days I went to the Police Station and SI Praveen had demanded Rs. 1,00,000/ for the release of car of Rekha and he also threatened me that my daughter Rekha would also be implicated in the case if I failed to fulfill his demand. I had sold my plot of B22 Bawana, Delhi, and paid Rs. 80,000/ to SI Praveen. SI Praveen while asking me to go to my home were (had) assured me that the car of Rekha would be sent back. Later on I had again paid Rs. 20,000/ to SI Praveen. I had sent complaint against SI Praveen to various authorities by post on 26/11/2012. The copy of the complaint is Mark DW3/X. The seven original post receipts are Mark DW3/Y (colly). My daughter Rekha and her car have been falsely implicated by SI Praveen in the present case."
On careful perusal and analysis of the testimony of DW1 - Dr. J. Raj Dhami, it is found that during his examinationinchief he has propounded a theory that "patient Rekha was admitted in our hospital on 09/06/2012 at 5:40 p.m. (17:40 hrs.). The patient was brought in our hospital by one Smt. Saroj as a case of gastro intrites (gastroenteritis) with convalation. Lab investigation and CT Scan done. Treated accordingly and discharged on 16/06/2012 at 2:00 p.m. (14:00 hrs.)" but the said theory so propounded is not found to be in consonance with the copy of the relevant entry of the Admission and 75 of 216 76 FIR No. 191/12 PS - Bawana Discharge Register of the patient encircled 'X' Ex. DW1/A, on the aspect of the time on the date of admission (DOA/Time) and on the aspect of the time on the date of discharge (DOD/Time). In the entry Ex. DW1/A, there is no mentioning of the time, on the date of admission as well as on the date of discharge. During his crossexamination DW1 Dr. J. Raj Dhami has admitted to be correct that the time of admission is not mentioned in entry Ex. DW1/A. The relevant part of crossexamination of DW1 Dr. J. Raj Dhami is reproduced and reads as under : "Q. Please see the relevant entries Ex. DW1/A in the register, is it correct that in the said entry the time of admission of the patient is not mentioned?
Ans. It is correct. Vol. the time of the admission of the patient is mentioned in the case file."
No explanation has been placed on the record by DW1 Dr. J. Raj Dhami as to why the 'TIME' has not been mentioned in the relevant entry Ex. DW1/A on the date of admission (DOA) and on the date of discharge (DOD) of the Admission and Discharge Register, why it has been left blank? Had, patient/accused Rekha actually been admitted in the Hospital on 09/06/2012 and discharged 76 of 216 77 FIR No. 191/12 PS - Bawana after treatment from hospital on 16/06/2012, the time at which she was admitted and the time at which she was discharged from the Hospital must had been mentioned and the relevant column of time would not have been left blank. Then on what basis he has deposed that patient/accused Rekha was admitted in the Hospital on 09/06/2012 at 5:40 p.m. (17:40 hrs) and was discharged on 16/06/2012 at 2:00 p.m. (14:00 hrs). Moreover nor any case file of the patient/accused Rekha has been produced and proved on the record.
In view of above and in the circumstances, the suggestions put to DW1 Dr. J. Raj Dhami during his crossexamination by the Learned Addl. PP for the State that patient Rekha was not admitted at his nursing home and hospital during the period from 09/06/2012 to 16/06/2012 or that the record regarding her admission at his nursing home and hospital has been manipulated and fabricated at her instance for some oblique motives which though he negated, are found to have substance. In the circumstances, the testimony of DW1 Dr. J. Raj Dhami does not inspire confidence and he is a procured witness.
77 of 216 78 FIR No. 191/12 PS - Bawana Further the testimony of DW1 Dr. J. Raj Dhami is not corroborated by the testimony of DW3 - Bibi Lal Man, mother of accused Rekha.
DW3 - Bibi Lal Man in her examinationinchief has deposed that : "I went to hospital at Sagar Pur. I reached to the hospital by TSR and enquired about my daughter. I saw my daughter Rekha. She was admitted in the hospital and was unconscious. I enquired from the doctor as to what had happened to Rekha then I was told that Rekha had heart attack (Dil ka daura pada) ."
(Underlined by me) While, from the testimony of DW1 - Dr. J. Raj Dhami, it is nowhere been indicated that patient/accused Rekha was admitted in an unconscious condition in the Hospital or that during her stay in the Hospital she for any part of the day ever remained unconscious or that patient/accused Rekha was brought to the Hospital as a case of heart attack (Dil Ka Daura). As per DW1 - Dr. J. Raj Dhami, she was brought in the Hospital by one Smt. Saroj as a case of gastroenteritis with convalation.
78 of 216 79 FIR No. 191/12 PS - Bawana On careful perusal and analysis of the Diagnostic reports Ex. PW1/B (Colly.) running into five pages, it is found that it consists of one diagnostic report of XRay & Scan Clinic Pvt. Ltd., dated 14/06/2013 and four diagnostic reports of Noble Diagnostic Centre dated 12/06/2012, 13/06/2012, 14/06/2012 and 14/06/2012. From the said reports it is clearly indicated that patient/accused Rekha had allegedly gone out of the Shakuntala Nursing Home & Hospital to the said Diagnostic Centres for the said tests and that she was not totally confined and remained in the said Hospital for all the 24 hours. Moreover, DW1 - Dr. J. Raj Dhami has not uttered a single word nor has produced and proved any document on the record that patient/accused Rekha remained a total 24 hours indoor patient from her alleged date of admission on 09/06/2012 till 16/06/2012, when she was allegedly discharged from the Hospital.
Nor any suggestion regarding the theory propounded by DW1 Dr. J. Raj Dhami that patient/accused Rekha remained admitted in the Shakuntala Nursing Home and Hospital w.e.f. 09/06/2012 till 16/06/2012 was put to PW11 - prosecutrix during her 79 of 216 80 FIR No. 191/12 PS - Bawana incisive and lengthy crossexamination.
As regards the theory propounded by DW3 - Bibi Lal Man during her examinationinchief that, "SI Praveen had demanded Rs. 1,00,000/ for the release of car of Rekha and he also threatened me that my daughter Rekha would also be implicated in the case if I failed to fulfill his demand. I had sold my plot of B22 Bawana, Delhi, and paid Rs. 80,000/ to SI Praveen. SI Praveen while asking me to go to my home were (had) assured me that the car of Rekha would be sent back. Later on I had again paid Rs. 20,000/ to SI Praveen", is concerned, the same has not at all been made probable much established by any cogent evidence. The bottom of said theory so propounded by DW3 - Bibi Lal Man has been knocked out during her crossexamination by Learned Addl. PP for the State, which is reproduced and reads as under : "The amount of Rs. 1,00,000/ was taken from a person, after mortgaging (girvi rakh kar) the documents of my property. I do not know the name of the person with whom I had mortgaged my property documents and had taken the amount of Rs. 1,00,000/ against the same. The amount of Rs. 1,00,000/ was taken at the interest rate of 7% per 80 of 216 81 FIR No. 191/12 PS - Bawana month for an unspecific period. It is wrong to suggest that no such amount was taken as loan by me that is why I do not know the name of that person from whom loan was taken. No document was prepared/executed at the time of taking the loan from that person and no receipt has ever been issued by that person to me on the payment of monthly interest. It is wrong to suggest that no such loan was taken by me that is why no such document was ever executed. It is wrong to suggest that I had given Rs. 1,00,000/ to SI Parveen for release of the car of my daughter accused Rekha."
Nor the particulars of the person to whom DW3 - Bibi Lal Man mortgaged her property and obtained the loan of Rs. 1,00,000/ has been furnished nor any said alleged person (Mortgagee) has been produced and examined in the Court. Nor the details on which date, in whose presence such loan was obtained have been furnished.
In the circumstances, the said theory so propounded by DW3 - Bibi Lal Man is merely an afterthought and falls flat on the ground. The testimony of DW3 - Bibi Lal Man does not inspire confidence and she is a procured witness.
81 of 216 82 FIR No. 191/12 PS - Bawana As regards the complaint Mark DW3/X sent by DW3 - Bibi Lal Man against SI Parveen to various authorities vide postal receipts (seven in number) Mark DW3/Y (Colly.) is concerned since the theory propounded by DW3 - Bibi Lal Man regarding obtaining of loan of Rs. 1,00,000/, as discussed hereinabove, has fallen flat on the ground and the corpus of the complaint Mark DW3/X is based upon such theory, therefore it does not advance the defence of accused Rekha in any manner and does not come to the rescue of the accused Rekha.
DW2 - Smt. Lalita is the mother of the accused Sanjay who during her crossexamination by Learned Addl. PP has deposed that : "I am illiterate so I did not go to higher authority to lodge the complaint against the police officials who had wrongly detained my son Sanjay. My two sons and my two daughters are living with me at the same house where accused Sanjay and his family residing. None of my son or daughter had lodged any report to the police authority or to the court or any other authority regarding the false implication of my son Sanjay in the false case."
82 of 216 83 FIR No. 191/12 PS - Bawana If in the estimation of DW2 - Smt. Lalita, mother of accused Sanjay, accused Sanjay was wrongly detained and falsely implicated in the case by Police, why DW2 - Smt. Lalita did not make any complaint against the alleged false implication of accused Sanjay, her son to Police Authority or to the Court or any other authority, the reasons for the same must be known to her. It clearly indicates that, Had accused Sanjay, her son been falsely implicated in the case, DW2 - Smt. Lalita, his mother must have made the complaint to Police Authority or to the Court or any other authority against his false implication. Moreover, to plead that because of her illiteracy she did not go to Higher Authority to lodge the complaint against wrong detention of her son Sanjay is found to have no substance especially in view of the fact that she had undertaken the pain of attending the Court for giving evidence as a defence witness.
On careful perusal and analysis, the testimony of DW2 - Smt. Lalita is found to be vague and inconsistent. During her examinationinchief DW2 - Smt. Lalita has deposed that : "On 09/06/2012, phone had come from the hospital where Rekha was admitted, I with my son Sanjay was in the process of going to 83 of 216 84 FIR No. 191/12 PS - Bawana the hospital but a phone call had come from the police station calling Sanjay there. I went out with Sanjay in a TSR and on the way, I alighted (utar gai) at Sahabad Dairy while Sanjay had gone to the Police Station. At about 9:00 p.m., I received a phone call from police that my son Sanjay is in the police station Bawana and had asked me to come there. "
(Underlined by me) While during her crossexamination by Learned Addl. PP for the State, DW2 - Smt. Lalita has deposed that : "On 09/06/2012 at 5:15 p.m. I received phone call from Sanjay on my landline number when he was at PS Bawana and also called me there. I did not go to nursing home on 09/06/2012. I was dropped at my house at Shahbad Dairy by my son Sanjay. My son accused Sanjay had returned Maruti Van to his friend at Shahbad Dairy and from there he had gone to PS Bawana. On 09/06/2012 at 3:15 p.m. I alongwith Sanjay had left my house with my son Sanjay for nursing home. I do not know the name of that place where we had reached when Sanjay received phone call from the PS by which he was called at the PS. I had travelled around 1½ - 2 hours from my house in Maruti Van when we received phone call from PS. I cannot produced the record of landline number of my house to show that phone call was received from PS Bawana and I was called there."
(Underlined by me) From the aforesaid narration of DW2 - Smt. Lalita, as per her examinationinchief she went out with Sanjay in a TSR while 84 of 216 85 FIR No. 191/12 PS - Bawana during her crossexamination she has deposed that on 09/06/2012 at 3:15 p.m., she alongwith Sanjay had left her house for nursing home and had travelled around 1½ - 2 hours from her house in Maruti Van, when they received phone call from PS meaning thereby at about 5:15 p.m. they received a call from PS. However, during her crossexamination as reproduced hereinabove, DW2 - Smt. Lalita has also deposed that on 09/06/2012 at 5:15 p.m. she received phone call from Sanjay on her landline number when he was at PS - Bawana and also called her there. How it is possible that at 5:15 p.m. when DW2 - Smt. Lalita is with her son accused Sanjay in a Maruti Van are receiving a call from PS and at the same time at 5:15 p.m., DW2 - Smt. Lalita is receiving phone call on her land line number from her son Sanjay that he is at PS - Bawana and asking her to come there. Moreover, during her examinationinchief, DW2 - Smt. Lalita has taken a complete Uturn and has deposed that at about 9:00 p.m. she received a phone call from Police that her son Sanjay is in the Police Station - Bawana and had asked her to come there.
In the circumstances, the testimony of DW2 - Smt. Lalita does not inspire confidence and she is a procured witness.
85 of 216 86 FIR No. 191/12 PS - Bawana
20. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
In Parikh's Textbook of Medical jurisprudence and 86 of 216 87 FIR No. 191/12 PS - Bawana 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 PW11 - Prosecutrix in the light of medical examination Ex. PW20/A on the back page of the MLC Ex. PW8/A, gynaecological examination vide MLC Ex. PW8/A of the prosecutrix, biological evidence, together with the MLC of accused Sanjay Ex. PX5, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis or by partial penetration of the penis, within labia majora or the vulva or pudenda stands proved.
In the circumstances, it stands clearly established on the 87 of 216 88 FIR No. 191/12 PS - Bawana record, of the performance of the act of sexual intercourse by accused Sanjay and Bittoo (since not arrested) upon PW11 - Prosecutrix without her consent, abetted by accused Rekha.
NOW LET THE SUBMISSIONS/PLEA RAISED BY THE LEARNED DEFENCE COUNSEL BE ANALYSED AND APPRECIATED
21. Learned Counsel for accused Sanjay submitted that the accused have been falsely implicated by the prosecutrix i.e. PW11 due to professional rivalry and previous enmity.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, the accused have been falsely implicated by PW11 prosecutrix due to professional rivalry and previous enmity, is concerned, the same has not at all being made probable much established by any cogent evidence. PW11 - prosecutrix during her 88 of 216 89 FIR No. 191/12 PS - Bawana crossexamination has specifically deposed that, "it is correct that Rekha is also into sale of liquor in the same area but it is wrong to suggest that on account of professional rivalry and in order to have supremacy, I have falsely implicated Rekha in the present case".
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
22. Learned Counsel for accused Sanjay submitted that husband of prosecutrix Shri Gopal was sent to prison in case FIR No. 367/08 of PS - Bawana u/s 324/34 IPC on the complaint of accused Sanjay.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for accused Sanjay that, husband of prosecutrix Shri Gopal was sent to prison in case FIR No. 367/08 of PS - Bawana u/s 324/34 IPC on the complaint of accused Sanjay, is concerned, the same is found to have no substance in view of as to what PW11 - prosecutrix has deposed during 89 of 216 90 FIR No. 191/12 PS - Bawana her examinationinchief which is reproduced and reads as under : "It is wrong to suggest that being aggrieved by the arrest and detention of my husband Gopal, I have falsely implicated Rekha and her husband in the present case as a counter blast. It is correct that even in the year, 2008, my husband Gopal was accused in FIR No. 367/08, PS
- Bawana, u/s 324/34 IPC, where the complainant is Sanjay, the accused before this Court."
At the cost of repetition, the testimony of PW11 - prosecutrix has been reproduced, discussed and analysed hereinbefore and the same has been found to be clear, cogent, convincing, reliable, inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
23. Learned Counsel for accused Sanjay submitted that there is evidence on record that prosecutrix had strained relation with accused Rekha wife of accused Sanjay and she has admitted it in the Court.
90 of 216 91 FIR No. 191/12 PS - Bawana Learned Counsel for accused Rekha submitted that admittedly, her relation with Rekha was not cordial.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused Sanjay that, prosecutrix had strained relation with coaccused Rekha wife of accused Sanjay and she has admitted that her relation with Rekha was not cordial, is concerned, PW11 - prosecutrix during her crossexamination has specifically deposed that, "it is correct that my relations with Rekha were not cordial for quiet some time but it is wrong to suggest that it was on account of the case lodged against my husband at the instance of Rekha. Vol. The said case was lodged by some other lady."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
24. Learned Counsel for accused Sanjay submitted that it is 91 of 216 92 FIR No. 191/12 PS - Bawana impossible to believe that since the prosecutrix had strained relation with alleged coaccused Rekha and her husband Sanjay responsible for getting her husband Gopal imprisoned, she had allegedly accompanied Rekha in her car for consultation with an Advocate for release of her husband Gopal from Jail. This fact itself makes entire prosecution story vitiated, legally untenable and without substance.
I have carefully perused and analysed the evidence on record.
As regards the plea raised by the Learned Counsel for accused Sanjay that, it is impossible to believe that since the prosecutrix had strained relation with alleged coaccused Rekha and her husband Sanjay responsible for getting her husband Gopal imprisoned, she had allegedly accompanied Rekha in her car for consultation with an Advocate for release of her husband Gopal from Jail, is concerned, it is evident from the record that during the crossexamination of PW11 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable 92 of 216 93 FIR No. 191/12 PS - Bawana of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
25. Learned Counsel for accused Sanjay submitted that there are material contradictions in the statement u/s 161 Cr.P.C. and testimony before the Court. In her testimony before the Court, the prosecutrix i.e. PW11 has alleged that accused Sanjay was arrested from the spot itself on the same day after one hour of the incident, on her pointing out as she was known to accused Sanjay, but the prosecution witness SI Suman i.e. PW17 has stated in her statement before the Court that she has arrested 93 of 216 94 FIR No. 191/12 PS - Bawana accused Sanjay on the next day of incident i.e. on 10/06/2012 at 10:30 a.m. from Sector - 4, DSIDC Bawana. Learned Counsel for accused Rekha submitted that prosecutrix in her examinationinchief has deposed that, "Sanjay was arrested from the spot of the incident itself on the same day on my pointing out, but Rekha has absconded at that time". As per prosecution accused Sanjay was arrested on the next day i.e. on 10/06/2012.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, PW11 - prosecutrix has alleged that accused Sanjay was arrested from the spot itself on the same day after one hour of the incident, on her pointing out as she was known to accused Sanjay, but the prosecution witness SI Suman i.e. PW17 has stated in her statement before the Court that she has arrested accused Sanjay on the next day of incident i.e. on 10/06/2012 at 10:30 a.m. from Sector - 4, DSIDC Bawana, is concerned, the said discrepancy reflect on the investigation but does not reflect upon the substantive evidence and the probative 94 of 216 95 FIR No. 191/12 PS - Bawana value of the statement made by PW11 - prosecutrix on the material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor does it dislodge the substratum of the prosecution case and despite its existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on the record bears out the case of the prosecution. The core facts about the committal of the crime by the accused have remained intact.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
26. Learned Counsel for accused Sanjay submitted that it is impossible to believe that she was raped inside the back seat of i10 car while the coaccused Rekha had caught her hands and another accused caught her legs and the third accused had raped her, this shows that there were four person on the back seat of i10 car which is a small car and it is very congested for three person only, in this case the four persons are involved on the back seat of the said car which is impossible to believe 95 of 216 96 FIR No. 191/12 PS - Bawana and shows that whole case is based on false and frivolous ground far beyond the reality.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, it is impossible to believe that she was raped inside the back seat of i10 car while the coaccused Rekha had caught her hands and another accused caught her legs and the third accused had raped her, this shows that there were four person on the back seat of i10 car which is a small car and it is very congested for three person only, in this case the four persons are involved on the back seat of the said car which is impossible to believe, is concerned, it is evident from the record that during the crossexamination of PW11 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.
96 of 216 97 FIR No. 191/12 PS - Bawana At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
27. Learned Counsel for accused Sanjay submitted that it is impossible to believe that she has noted down the registration number of i10 car used for the commission of alleged offence. In her deposition before the Court she has told that she has not noted down the registration number of the alleged car, but the registration number of the said car is mentioned in the FIR. This fact makes the prosecution case absolutely unbelievable.
97 of 216 98 FIR No. 191/12 PS - Bawana I have carefully perused and analysed the evidence on record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
PW11 - Prosecutrix during her examinationinchief has specifically deposed that : "Thereafter, I accompanied Rekha who had brought her own car i.e. I10 of pencil colour whose number was DL4CAQ1795."
So far as the plea raised by the Learned Counsel for the accused that, it is impossible to believe that she has noted down the registration number of i10 car used for the commission of alleged offence. In her deposition before the Court she has told that she has not noted down the registration number of the alleged car, but the registration number of the said car is mentioned in the FIR, is concerned, it is evident from the record that during her cross examination PW11 - prosecutrix has categorically deposed that, "I 98 of 216 99 FIR No. 191/12 PS - Bawana did not know the number of the I10 vehicle prior to the incident. Vol. when they removed me from the vehicle after the incident and dropped me at the spot of the incident at Sector - 3, Bawana, I noted down the number there. I did not note down the number on any paper. Vol. I have studied till class 10th and I could recollect the number."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
28. Learned Counsel for accused Sanjay submitted that prosecutrix i.e. PW11 has also categorically stated that she did not raise an alarm when she was dropped from the vehicle and the accused went away, but on the contrary she has alleged that accused Sanjay was arrested on the spot on her pointing out.
I have carefully perused and analysed the evidence on record.
As regards the plea raised by the Learned Counsel for the 99 of 216 100 FIR No. 191/12 PS - Bawana accused that, PW11 - prosecutrix has also categorically stated that she did not raise an alarm when she was dropped from the vehicle and the accused went away, is concerned, PW11 - prosecutrix during her cross examination has specifically deposed that, "I did not raise an alarm when I was inside the vehicle, I also did not raise an alarm when I was dropped from the vehicle and the accused went away. Vol. Accused had threatened me not to disclose the incident to anyone hence, I was scared".
From the aforesaid narration of PW11 - prosecutrix, it is clearly indicated that she has explained the reasons for not raising an alarm that accused had threatened her not to disclose the incident to anyone, due to which she was scared. Even otherwise, non raising of an alarm or hue and cry does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
As regards the plea raised by the Learned Counsel for the accused that prosecutrix has alleged that, accused Sanjay was arrested from the spot on her pointing out, is concerned, the same is a repetitive 100 of 216 101 FIR No. 191/12 PS - Bawana plea and has already been dealt with hereinbefore.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
29. Learned Counsel for accused Sanjay submitted that prosecutrix i.e. PW11 has stated before the Court in her cross examination that after reaching of PCR van 10 to 15 public persons had collected there and they were all present at the time when the Police came there. But the prosecution witness i.e. PW16 - ASI Ram Rattan has deposed that no public person was present there, this contradictory statement given by the prosecution witnesses makes the prosecution case absolutely false.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, PW11 - prosecutrix has stated before the Court in her crossexamination that after reaching of PCR van 10 to 15 public persons 101 of 216 102 FIR No. 191/12 PS - Bawana had collected there and they were all present at the time when the Police came there. But the prosecution witness i.e. PW16 - ASI Ram Rattan has deposed that no public person was present there, this contradictory statement given by the prosecution witnesses makes the prosecution case absolutely false, is concerned, the said PWs have deposed regarding the facts as to what they perceived, observed and experienced. Moreover, the said discrepancy regarding which the plea has been raised by the Learned Counsel for the accused does not reflect upon the substantive evidence and the probative value of the statement made by PW11 - prosecutrix on the material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor does it dislodge the substratum of the prosecution case and despite its existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on the record bears out the case of the prosecution. The core facts about the committal of the crime by the accused have remained intact.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
102 of 216 103 FIR No. 191/12 PS - Bawana
30. Learned Counsel for accused Sanjay submitted that there are cutting on the MLC Ex. PW1/A at point X1, which are also fatal to prosecution case. This was stated by the prosecution witness i.e. PW8 - Dr. Dolly Bansal.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, there are cutting on the MLC Ex. PW1/A at point X1, which are also fatal to prosecution case. This was stated by the prosecution witness i.e. PW8 - Dr. Dolly Bansal, is concerned, PW8 - Dr. Dolly Bansal during her crossexamination has specifically deposed and explained the reason for such cutting, which is reproduced and reads as under : "It is correct that there is a cutting on the MLC Ex. PW8/A at point 'X1'. Vol. Initially, I have mentioned the word "moving" but thereafter, I cut/scrapped of the same. I do not recollect if I had mentioned the word moving on the asking of the prosecutrix and thereafter cut the same on her asking or it was written by me by mistake....."
103 of 216 104 FIR No. 191/12 PS - Bawana There is nothing in the crossexamination of PW8 - Dr. Dolly Bansal so as to impeach her creditworthiness.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
31. Learned Counsel for accused Sanjay submitted that from the deposition of the defence witnesses it is very much clear that the co accused Rekha in the matter was hospitalized in the Shakuntala nursing Home on 09/06/2012 at 8:00 p.m. and she was admitted there upto 16/07/2012 as it was deposed by the Doctor of Shakuntala Nursing Home on oath before the Court. This shows that whole story of prosecution and prosecutrix (name withheld) is based on false and frivolous ground. If Rekha was in Hospital at the time of incident then how she assisted in the alleged rape of victim (name withheld). Learned Counsel further submitted that the other defence witnesses i.e. Smt. Lalita and Smt. Lalman Bibi have also deposed on oath before the Court and they have deposed that the coaccused Rekha was admitted in the Hospital from 104 of 216 105 FIR No. 191/12 PS - Bawana 09/06/2012 to 16/07/2012.
Learned Counsel for accused Rekha submitted that the plea of alibi of accused Rekha is consistent and supported by documentary evidence of unimpeachable varsity. To prove the alibi accused Rekha has produced DW1 - Dr. J. Raj Dhami. Learned Counsel further submitted that the perusal of statements of DW1 Dr. J. Raj Dhami & DW3 Bibi Lalman and the statement of PW11 - prosecutrix clearly shows that the incident had not taken place as alleged by the prosecution. Learned Counsel further submitted that when accused Rekha was not on the spot of occurrence, if any, the question of threat does not arise at all. Learned Counsel further submitted that accused Rekha was not on spot as alleged by prosecution, she was admitted in the Hospital at the time of alleged incident, therefore, the question of abetment does not arise at all.
I have carefully perused and analysed the evidence on record.
The defence evidence led on behalf of the accused has been analysed and discussed hereinbefore. At the cost of repetition, a futile attempt has been made by the accused Sanjay and Rekha to save their 105 of 216 106 FIR No. 191/12 PS - Bawana skins from the clutches of law by way of examination of defence witnesses namely DW1 - Dr. J. Raj Dhami, DW2 - Smt. Lalita and DW3
- Bibi Lalman. DW1 - Dr. J. Raj Dhami and DW3 - Bibi Lalman have been examined on behalf of accused Rekha and DW2 - Smt. Lalita has been examined on behalf of accused Sanjay.
DW1 - Dr. J. Raj Dhami in his examinationinchief had deposed that : "I have brought the summoning (summoned) record alongwith IPD register dated 16/09/2011 to 28/07/2012 with hospital record, (of) Mrs. Rekha W/o Sanjay, R/o RB 18, Palam Air Force Colony, Permanent Address H. No. B/22, J. J. Colony, Bawana, New Delhi. As per our record A & D (Admission and Discharge) No. 7346/12. The abovesaid patient Rekha was admitted in our hospital on 09/06/2012 at 5:40 p.m. (17:40 hrs.). The patient was brought in our hospital by one Smt. Saroj as a case of gastro intrites (gastroenteritis) with convalation. Lab investigation and CT Scan done. Treated accordingly and discharged on 16/06/2012 at 2:00 p.m. (14:00 hrs.). Satisfactory condition as per hospital record. The copy of the relevant entry of the admission and discharge register of the patient encircled 'X' is Ex. DW1/A. The diagnostic reports of the patient are collectively Ex. DW1/B (running into five pages)."
106 of 216 107 FIR No. 191/12 PS - Bawana During his crossexamination, he has deposed that, no inventory record of IPD Registers having printed the name of the Nursing Home and also with regard to its use during a particular year is maintained in his said Nursing Home and Hospital. He denied the suggestions that patient Rekha was not admitted in his Nursing Home and Hospital during the period from 09/06/2012 to 16/06/2012 or that the record regarding her admission at his Nursing Home and Hospital has been manipulated and fabricated at her instance for some oblique motives.
DW3 - Bibi Lalman in her examinationinchief has deposed that : "I do not remember the year, date and month, perhaps it was 1½ years ago. Again said it was 9th day of month my daughter accused Rekha was going to the house of her friend at Palam Village, Delhi. At about 4:00/5:00 p.m. I received phone call from the hospital and I was told that my daughter Rekha was ill and was admitted in the hospital. I went to hospital at Sagar Pur. I reached to the hospital by TSR and enquired about my daughter. I saw my daughter Rekha. She was admitted in the hospital and was unconscious. I enquired from the doctor as to what had happened to Rekha then I was told that Rekha had heart attack (Dil ka daura pada). I stayed with my daughter in the hospital that night. Next morning SI Parveen, Incharge of Police Post 107 of 216 108 FIR No. 191/12 PS - Bawana Bawana and one police official Mukesh came to the hospital. At that time I was in the nearby park and SI Praveen asked me to give keys of the car of Rekha. I asked SI Praveen as to why he needed the keys of car of Rekha then I was told by him that inspection of the car is to be done. I again asked him as to why he wanted to inspect the car of Rekha. I was told by him that he would reply to it only when I come to the Police Post Bawana. SI Praveen started pressurizing me and since I was alone at that time I was handed over the keys of car of Rekha to him. SI Praveen and one Mukesh, police official left from there with the car of Rekha. Third day thereafter, I went to the Police Station Bawana and enquired from SI Praveen about the car of Rekha. I was told by him that the car of Rekha was booked in one case. When I enquired about the particulars of the case in which the car of Rekha was booked I was told by SI Praveen that he did not find it necessary to reply. Continuously next four days I went to the Police Station and SI Praveen had demanded Rs. 1,00,000/ for the release of car of Rekha and he also threatened me that my daughter Rekha would also be implicated in the case if I failed to fulfill his demand. I had sold my plot of B22 Bawana, Delhi, and paid Rs. 80,000/ to SI Praveen. SI Praveen while asking me to go to my home were (had) assured me that the car of Rekha would be sent back. Later on I had again paid Rs. 20,000/ to SI Praveen. I had sent complaint against SI Praveen to various authorities by post on 26/11/2012. The copy of the complaint is Mark DW3/X. The seven original post receipts are Mark DW3/Y (colly). My daughter Rekha and her car have been falsely implicated by SI Praveen in the present case."
On careful perusal and analysis of the testimony of DW1 - Dr. J. Raj Dhami, it is found that during his examinationinchief he has 108 of 216 109 FIR No. 191/12 PS - Bawana propounded a theory that "patient Rekha was admitted in our hospital on 09/06/2012 at 5:40 p.m. (17:40 hrs.). The patient was brought in our hospital by one Smt. Saroj as a case of gastro intrites (gastroenteritis) with convalation. Lab investigation and CT Scan done. Treated accordingly and discharged on 16/06/2012 at 2:00 p.m. (14:00 hrs.)" but the said theory so propounded is not found to be in consonance with the copy of the relevant entry of the Admission and Discharge Register of the patient encircled 'X' Ex. DW1/A, on the aspect of the time on the date of admission (DOA/Time) and on the aspect of the time on the date of discharge (DOD/Time). In the entry Ex. DW1/A, there is no mentioning of the time, on the date of admission as well as on the date of discharge. During his crossexamination DW1 Dr. J. Raj Dhami has admitted to be correct that the time of admission is not mentioned in entry Ex. DW1/A. The relevant part of crossexamination of DW1 Dr. J. Raj Dhami is reproduced and reads as under : "Q. Please see the relevant entries Ex. DW1/A in the register, is it correct that in the said entry the time of admission of the patient is not mentioned?
Ans. It is correct. Vol. the time of the admission of the patient is mentioned in the case file."
109 of 216 110 FIR No. 191/12 PS - Bawana No explanation has been placed on the record by DW1 Dr. J. Raj Dhami as to why the 'TIME' has not been mentioned in the relevant entry Ex. DW1/A on the date of admission (DOA) and on the date of discharge (DOD) of the Admission and Discharge Register, why it has been left blank? Had, patient/accused Rekha actually been admitted in the Hospital on 09/06/2012 and discharged after treatment from hospital on 16/06/2012, the time at which she was admitted and the time at which she was discharged from the Hospital must had been mentioned and the relevant column of time would not have been left blank. Then on what basis he has deposed that patient/accused Rekha was admitted in the Hospital on 09/06/2012 at 5:40 p.m. (17:40 hrs) and was discharged on 16/06/2012 at 2:00 p.m. (14:00 hrs). Moreover nor any case file of the patient/accused Rekha has been produced and proved on the record.
In view of above and in the circumstances, the suggestions put to DW1 Dr. J. Raj Dhami during his crossexamination by the 110 of 216 111 FIR No. 191/12 PS - Bawana Learned Addl. PP for the State that patient Rekha was not admitted at his nursing home and hospital during the period from 09/06/2012 to 16/06/2012 or that the record regarding her admission at his nursing home and hospital has been manipulated and fabricated at her instance for some oblique motives which though he negated, are found to have substance. In the circumstances, the testimony of DW1 Dr. J. Raj Dhami does not inspire confidence and he is a procured witness.
Further the testimony of DW1 Dr. J. Raj Dhami is not corroborated by the testimony of DW3 - Bibi Lal Man, mother of accused Rekha.
DW3 - Bibi Lal Man in her examinationinchief has deposed that : "I went to hospital at Sagar Pur. I reached to the hospital by TSR and enquired about my daughter. I saw my daughter Rekha. She was admitted in the hospital and was unconscious. I enquired from the doctor as to what had happened to Rekha then I was told that Rekha had heart attack (Dil ka daura pada) ."
(Underlined by me) 111 of 216 112 FIR No. 191/12 PS - Bawana While, from the testimony of DW1 - Dr. J. Raj Dhami, it is nowhere been indicated that patient/accused Rekha was admitted in an unconscious condition in the Hospital or that during her stay in the Hospital she for any part of the day ever remained unconscious or that patient/accused Rekha was brought to the Hospital as a case of heart attack (Dil Ka Daura). As per DW1 - Dr. J. Raj Dhami, she was brought in the Hospital by one Smt. Saroj as a case of gastroenteritis with convalation.
On careful perusal and analysis of the Diagnostic reports Ex. PW1/B (Colly.) running into five pages, it is found that it consists of one diagnostic report of XRay & Scan Clinic Pvt. Ltd., dated 14/06/2013 and four diagnostic reports of Noble Diagnostic Centre dated 12/06/2012, 13/06/2012, 14/06/2012 and 14/06/2012. From the said reports it is clearly indicated that patient/accused Rekha had allegedly gone out of the Shakuntala Nursing Home & Hospital to the said Diagnostic Centres for the said tests and that she was not totally confined and remained in the said Hospital for all the 24 hours. Moreover, DW1 - Dr. J. Raj Dhami has not uttered a single word nor has produced and proved 112 of 216 113 FIR No. 191/12 PS - Bawana any document on the record that patient/accused Rekha remained a total 24 hours indoor patient from her alleged date of admission on 09/06/2012 till 16/06/2012, when she was allegedly discharged from the Hospital.
Nor any suggestion regarding the theory propounded by DW1 Dr. J. Raj Dhami that patient/accused Rekha remained admitted in the Shakuntala Nursing Home and Hospital w.e.f. 09/06/2012 till 16/06/2012 was put to PW11 - prosecutrix during her incisive and lengthy crossexamination.
As regards the theory propounded by DW3 - Bibi Lal Man during her examinationinchief that, "SI Praveen had demanded Rs. 1,00,000/ for the release of car of Rekha and he also threatened me that my daughter Rekha would also be implicated in the case if I failed to fulfill his demand. I had sold my plot of B22 Bawana, Delhi, and paid Rs. 80,000/ to SI Praveen. SI Praveen while asking me to go to my home were (had) assured me that the car of Rekha 113 of 216 114 FIR No. 191/12 PS - Bawana would be sent back. Later on I had again paid Rs. 20,000/ to SI Praveen", is concerned, the same has not at all been made probable much established by any cogent evidence. The bottom of said theory so propounded by DW3 - Bibi Lal Man has been knocked out during her crossexamination by Learned Addl. PP for the State, which is reproduced and reads as under : "The amount of Rs. 1,00,000/ was taken from a person, after mortgaging (girvi rakh kar) the documents of my property. I do not know the name of the person with whom I had mortgaged my property documents and had taken the amount of Rs. 1,00,000/ against the same. The amount of Rs. 1,00,000/ was taken at the interest rate of 7% per month for an unspecific period. It is wrong to suggest that no such amount was taken as loan by me that is why I do not know the name of that person from whom loan was taken. No document was prepared/executed at the time of taking the loan from that person and no receipt has ever been issued by that person to me on the payment of monthly interest. It is wrong to suggest that no such loan was taken by me that is why no such document was ever executed. It is wrong to suggest that I had given Rs. 1,00,000/ to SI Parveen for release of the car of my daughter accused Rekha."
Nor the particulars of the person to whom DW3 - Bibi Lal Man mortgaged her property and obtained the loan of Rs.
114 of 216 115 FIR No. 191/12 PS - Bawana 1,00,000/ has been furnished nor any said alleged person (Mortgagee) has been produced and examined in the Court. Nor the details on which date, in whose presence such loan was obtained have been furnished.
In the circumstances, the said theory so propounded by DW3 - Bibi Lal Man is merely an afterthought and falls flat on the ground. The testimony of DW3 - Bibi Lal Man does not inspire confidence and she is a procured witness.
As regards the complaint Mark DW3/X sent by DW3 - Bibi Lal Man against SI Parveen to various authorities vide postal receipts (seven in number) Mark DW3/Y (Colly.) is concerned since the theory propounded by DW3 - Bibi Lal Man regarding obtaining of loan of Rs. 1,00,000/, as discussed hereinabove, has fallen flat on the ground and the corpus of the complaint Mark DW3/X is based upon such theory, therefore it does not advance the defence of accused Rekha in any manner and does not come to the rescue of the 115 of 216 116 FIR No. 191/12 PS - Bawana accused Rekha.
DW2 - Smt. Lalita is the mother of the accused Sanjay who during her crossexamination by Learned Addl. PP has deposed that : "I am illiterate so I did not go to higher authority to lodge the complaint against the police officials who had wrongly detained my son Sanjay. My two sons and my two daughters are living with me at the same house where accused Sanjay and his family residing. None of my son or daughter had lodged any report to the police authority or to the court or any other authority regarding the false implication of my son Sanjay in the false case."
If in the estimation of DW2 - Smt. Lalita, mother of accused Sanjay, accused Sanjay was wrongly detained and falsely implicated in the case by Police, why DW2 - Smt. Lalita did not make any complaint against the alleged false implication of accused Sanjay, her son to Police Authority or to the Court or any other authority, the reasons for the same must be known to her. It clearly indicates that, Had accused Sanjay, her son been falsely implicated in the case, DW2 - Smt. Lalita, his mother must have made the complaint to Police Authority or to the Court or any other authority against his false implication. Moreover, to 116 of 216 117 FIR No. 191/12 PS - Bawana plead that because of her illiteracy she did not go to Higher Authority to lodge the complaint against wrong detention of her son Sanjay is found to have no substance especially in view of the fact that she had undertaken the pain of attending the Court for giving evidence as a defence witness.
On careful perusal and analysis, the testimony of DW2 - Smt. Lalita is found to be vague and inconsistent. During her examinationinchief DW2 - Smt. Lalita has deposed that : "On 09/06/2012, phone had come from the hospital where Rekha was admitted, I with my son Sanjay was in the process of going to the hospital but a phone call had come from the police station calling Sanjay there. I went out with Sanjay in a TSR and on the way, I alighted (utar gai) at Sahabad Dairy while Sanjay had gone to the Police Station. At about 9:00 p.m., I received a phone call from police that my son Sanjay is in the police station Bawana and had asked me to come there. "
(Underlined by me) While during her crossexamination by Learned Addl. PP for the State, DW2 - Smt. Lalita has deposed that : "On 09/06/2012 at 5:15 p.m. I received phone call from Sanjay on my landline number when he was at PS Bawana and also called me there. I did not go to nursing home on 09/06/2012. I was
117 of 216 118 FIR No. 191/12 PS - Bawana dropped at my house at Shahbad Dairy by my son Sanjay. My son accused Sanjay had returned Maruti Van to his friend at Shahbad Dairy and from there he had gone to PS Bawana. On 09/06/2012 at 3:15 p.m. I alongwith Sanjay had left my house with my son Sanjay for nursing home. I do not know the name of that place where we had reached when Sanjay received phone call from the PS by which he was called at the PS. I had travelled around 1½ - 2 hours from my house in Maruti Van when we received phone call from PS. I cannot produced the record of landline number of my house to show that phone call was received from PS Bawana and I was called there."
(Underlined by me) From the aforesaid narration of DW2 - Smt. Lalita, as per her examinationinchief she went out with Sanjay in a TSR while during her crossexamination she has deposed that on 09/06/2012 at 3:15 p.m., she alongwith Sanjay had left her house for nursing home and had travelled around 1½ - 2 hours from her house in Maruti Van, when they received phone call from PS meaning thereby at about 5:15 p.m. they received a call from PS. However, during her crossexamination as reproduced hereinabove, DW2 - Smt. Lalita has also deposed that on 09/06/2012 at 5:15 p.m. she received phone call from Sanjay on her landline number when he was at PS - Bawana and also called her there. How it is possible that at 5:15 p.m. when DW2 - Smt. Lalita is with her 118 of 216 119 FIR No. 191/12 PS - Bawana son accused Sanjay in a Maruti Van are receiving a call from PS and at the same time at 5:15 p.m., DW2 - Smt. Lalita is receiving phone call on her land line number from her son Sanjay that he is at PS - Bawana and asking her to come there. Moreover, during her examinationinchief, DW2 - Smt. Lalita has taken a complete Uturn and has deposed that at about 9:00 p.m. she received a phone call from Police that her son Sanjay is in the Police Station - Bawana and had asked her to come there.
In the circumstances, the testimony of DW2 - Smt. Lalita does not inspire confidence and she is a procured witness.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
32. Learned Counsel for accused Rekha submitted that when she (accused Rekha) took the car to the Bari Nahar, at that time the prosecutrix did not raise any objection to Bari Nahar, why she did not raise any alarm.
I have carefully perused and analysed the evidence on 119 of 216 120 FIR No. 191/12 PS - Bawana record.
So far as the plea raised by the Learned Counsel for the accused that, when she (accused Rekha) took the car to the Bari Nahar, at that time the prosecutrix did not raise any objection to Bari Nahar, why she did not raise any alarm, is concerned, it is evident from the record that during the crossexamination of PW11 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame herself and none else. However, PW11 - prosecutrix during her cross examination has specifically deposed that, "I did not raise an alarm when I was inside the vehicle, I also did not raise an alarm when I was dropped from the vehicle and the accused went away. Vol. Accused had threatened me not to disclose the incident to anyone hence, I was scared".
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court 120 of 216 121 FIR No. 191/12 PS - Bawana has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
33. Learned Counsel for accused Rekha submitted that when she was carrying a small cellphone, who (be read as 'and') the prosecution did not seize that phone. Besides in her crossexamination before Court, she did not depose in respect of her number etc. He further submitted that when she easily remember the number of car on looking to once why she did not aware about her cell phone number.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, when she (prosecutrix) easily remember the number of car 121 of 216 122 FIR No. 191/12 PS - Bawana on looking to once why she did not aware about her cell phone number, is concerned, it is evident from the record that during the cross examination of PW11 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame herself and none else.
As regards the plea raised by the Learned Counsel for the accused that, when she (prosecutrix) was carrying a small cellphone and the prosecution did not seize that phone, is concerned, it is evident from the record that during the crossexamination of PW17 - SI Suman, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame herself and none else.
At the cost of repetition, recently in case 'Mahavir Singh 122 of 216 123 FIR No. 191/12 PS - Bawana Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
34. Learned Counsel for accused Rekha submitted that prosecutrix in her examinationinchief has deposed that, "the Police came and took me alongwith them, I was taken to the Hospital and after examination, I went to Police station, where they recorded my statement", contradict with the version of IO and other Police persons where they have deposed that the statement of prosecutrix was recorded in the Hospital and Rukka was sent from Hospital to register the FIR.
I have carefully perused and analysed the evidence on record.
123 of 216 124 FIR No. 191/12 PS - Bawana So far as the plea raised by the Learned Counsel for the accused that, prosecutrix in her examinationinchief has deposed that, "the Police came and took me alongwith them, I was taken to the Hospital and after examination, I went to Police station, where they recorded my statement", contradict with the version of IO and other Police persons where they have deposed that the statement of prosecutrix was recorded in the Hospital and Rukka was sent from Hospital to register the FIR, is concerned, the said discrepancy reflect on the investigation but does not reflect upon the substantive evidence and the probative value of the statement made by PW11 - prosecutrix on the material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor does it dislodge the substratum of the prosecution case and despite its existence, the clear, cogent, convincing, reliable and trustworthy evidence proved on the record bears out the case of the prosecution. The core facts about the committal of the crime by the accused have remained intact.
In the circumstances, there is no substance in the plea so 124 of 216 125 FIR No. 191/12 PS - Bawana raised by the Learned Counsel for the accused.
35. Learned Counsel for accused Rekha submitted that prosecutrix in her examinationinchief has deposed that, "both the said persons came into the vehicle and sit inside", seating plan is not described, prosecutrix did not utter and asked why they are boarding in the car.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, prosecutrix in her examinationinchief has deposed that, "both the said persons came into the vehicle and sit inside", seating plan is not described, prosecutrix did not utter and asked why they are boarding in the car, is concerned, it is evident from the record that during the crossexamination of PW11 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the 125 of 216 126 FIR No. 191/12 PS - Bawana factual situation. For such failure, accused is to blame herself and none else.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
36. Learned Counsel for accused Rekha submitted that prosecutrix in her examinationinchief has deposed that, "Thereafter, she stopped at a lonely place/area, Rekha caught of my hands and mouth and whereas the other two persons i.e. Sanjay and the other person who I did not know previously committed rape upon me one by one", contradicted with other version i.e. statement u/s 164 Cr.P.C. and 126 of 216 127 FIR No. 191/12 PS - Bawana statement before Police.
I have carefully perused and analysed the evidence on record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
The testimony of PW11 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW11 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
At the cost of repetition, PW11 - prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : 127 of 216 128 FIR No. 191/12 PS - Bawana "I am residing at the aforementioned address (House No. 535, Mukhtiyar Singh Marg, Bawana, Delhi) since last 34 years on rent alongwith my family comprising of my husband and two children. I am a housewife. I belong to village Khewra, District Sonepat, Haryana. My husband Gopal is in Judicial Custody since the year, 2011. On 10/06/2012 (be read as 09/06/2012) at about 8:00 p.m., I was at my house alongwith my children. Rekha resident of B - Block (Present in the Court and correctly identified) who was known to me previously as my husband and Rekha were together in the business of sale of liquor came to my house and told me that a Lawyer was present in her house and if I would come to her house, I can seek his legal advise for getting free my husband from legal custody. I told her that I did not have any money to give to Lawyer but she told me not to worry about money. Thereafter, I accompanied Rekha who had brought her own car i.e. I10 of pencil colour whose number was DL4CAQ1795. The vehicle was driven by Rekha and when she reached near the bari nehar, she stopped the vehicle where two persons were already standing, one was Sanjay who is residing with Rekha as her husband. Again said, Sanjay is not the husband of Rekha but is residing with her in the capacity of husband. Both the said man came into the vehicle and sat inside. From there Rekha turned the vehicle towards the sectors (sector's) side i.e. Sector - 3, Bawana. When she turned the vehicle I asked where was the Advocate, on which Rekha told me that she had to pickup the money from some person at Bawana for giving the same to the Advocate. Thereafter, she stopped the vehicle at lonely place/area. Rekha caught hold of my hands and mouth and whereas the other two persons i.e. Sanjay and the other person who I did not know previously committed rape upon me one by one. Thereafter, I was removed from the said vehicle and made to get down at the same place (uttar diya). They also 128 of 216 129 FIR No. 191/12 PS - Bawana threatened to kill me in case I disclose the case to anybody. I was carrying a telephone on which I made a call on 100 number. The Police came to the spot and took me to the Hospital where my medical examination was got conducted....".
(Underlined by me) So far as the plea raised by the Learned Counsel for the accused that, prosecutrix in her examinationinchief has deposed that, "Thereafter, she stopped at a lonely place/area, Rekha caught of my hands and mouth and whereas the other two persons i.e. Sanjay and the other person who I did not know previously committed rape upon me one by one", contradicted with other version i.e. statement u/s 164 Cr.P.C. and statement before Police and that there is no violence, no injury, is concerned, on careful perusal and analysis, the said part of the testimony of PW11 - prosecutrix is found to be in consonance with her statement made to the Police Ex. PW11/A as well as her statement statement u/s 164 Cr.P.C. Ex. PW11/B (also Ex. PX3). In her statement u/s 164 Cr.P.C. Ex. PW11/B, prosecutrix has specifically deposed, "...Rekha came to the back seat and she held my hands and mouth and first Sanjay and then his friend raped me (Mere Saath Balatkaar Kia). When, Sanjay was raping me, then his friend was holding my feet. When his friend 129 of 216 130 FIR No. 191/12 PS - Bawana was raping me, Sanjay was holding my feet. They bit me scratched me badly near my neck and down below (Mujhe buri Tarah Se Nocha)...". In her statement to the Police Ex. PW11/A, on the basis of which the FIR Ex. PW3/A was registered, PW11 - prosecutrix has specifically stated that, "Rekha pressed her mouth and caught her hand due to which she (prosecutrix) could not raise an alarm. Sanjay and the other person turn by turn committed zabardasti (galat kaam) with her on the rear seat of the car. She (prosecutrix) struggled too much in order to save herself, due to which Sanjay and the other person caused injuries (Chot Pahunchai) to her. She sustained marks (Nishan) on both sides of her neck and on her right cheek and also sustained scratches on the upper portion of her breast."
Moreover a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. 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. [Ref. Leela Ram's case (Infra) 130 of 216 131 FIR No. 191/12 PS - Bawana and Bharwada Bhoginbhai Hirjibhai's case (Infra)].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
37. Learned Counsel for accused Rekha submitted that prosecutrix in her examinationinchief has deposed that, "Thereafter, I was removed from the said vehicle and made to get down at the same place (uttar diya). They also threatened to kill me in case, I disclose the same to anybody", contradict with other version, Learned Counsel further submitted that all this happened without raising any objections, crying, resistance and violence.
I have carefully perused and analysed the evidence on record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
131 of 216 132 FIR No. 191/12 PS - Bawana So far as the plea raised by the Learned Counsel for the accused that, prosecutrix in her examinationinchief has deposed that, "Thereafter, I was removed from the said vehicle and made to get down at the same place (uttar diya). They also threatened to kill me in case, I disclose the same to anybody", contradict with other version, is concerned, on careful perusal and analysis, the said part of the testimony of PW11 - prosecutrix is found to be in consonance with her statement made to the Police Ex. PW11/A as well as her statement statement u/s 164 Cr.P.C. Ex. PW11/B (also Ex. PX3). In her statement u/s 164 Cr.P.C. Ex. PW11/B, prosecutrix has specifically deposed, "...all three of them then threatened me that if I tell the Police or go to Court, then, they will kill me and my children. They dropped me at that place and drove away...". In her statement to the Police Ex. PW11/A, on the basis of which the FIR Ex. PW3/A was registered, PW11 - prosecutrix has specifically stated that, Rekha, Sanjay and their third associate after committing galat kaam with her and after alighting her from the car (Gaadi Se Utaar Kar) and after threatening her if the incident is disclosed to anyone they will kill her, fled/zoomed away on speed from 132 of 216 133 FIR No. 191/12 PS - Bawana there.
Moreover a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. 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. [Ref. Leela Ram's case (Infra) and Bharwada Bhoginbhai Hirjibhai's case (Infra)].
As regards the plea regarding nonraising of any objections, crying, resistance and violence by the prosecutrix, is concerned, the same is a repetitive plea and has already been dealt with hereinbefore.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
38. Learned Counsel for accused Rekha submitted that 133 of 216 134 FIR No. 191/12 PS - Bawana prosecutrix in her examinationinchief has deposed that, "I was carrying a cellphone on which I made a call on 100 number", prosecution is silent about the cellphone what was its mobile number and EMI number.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, prosecution is silent about the cellphone what was its mobile number and EMI number, is concerned, it is evident from the record that during the crossexamination of PW17 - SI Suman, IO, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame herself and none else.
Moreover, PW11 - prosecutrix during her crossexamination has specifically deposed that : 134 of 216 135 FIR No. 191/12 PS - Bawana "I was carrying a mobile. I do not recollect my telephone number which I was using at that time."
It is also to be noticed that PW4 - Constable Sandeep has proved the DD No. 64B dated 09/06/2012, PS - Bawana Ex.PW4/A recorded by him on the information received by PCR from mobile phone number 9540957088 and communicated to him (PW4) at the Police Station by the Wireless Operator.
At the cost of repetition, PW4 Constable Sandeep is the DD Writer, who deposed that on 09/06/2012, he was working as DD Writer from 5:00 p.m. to 9:00 a.m. (10/06/2012) at PS - Bawana. On 09/06/2012 at 8:50 p.m. Wireless Operator of Police Station came to DO Room and informed about PCR Call "Sector - 3, Bawana, NDPL Office Ke Pass caller Ek Ladki Hai, Jo Keh Rahi Hai, Ro Rahi Hai, Kisi Ne Mere Sath Zabardasti Ki Hai" from Constable Sombir, 7881/PCR, Ph. 9540957088. He (PW4) lodged the same in the Daily Diary vide DD No. 64B and informed ASI Ram Rattan about the PCR Call, who alongwith Constable Kapil departed for the place of occurrence and the DD No. 64B is Ex. PW4/A. 135 of 216 136 FIR No. 191/12 PS - Bawana Despite grant of opportunity, PW4 Constable Sandeep was not crossexamined on behalf of the accused.
No suggestion was put to PW11 prosecutrix regarding the mobile phone number 9540957088 reflected in the DD No. 64B Ex. PW4/A during her incisive and lengthy crossexamination. She was the the only competent witness who would have been fully capable of explaining correctly the factual situation.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
136 of 216 137 FIR No. 191/12 PS - Bawana
39. Learned Counsel for accused Rekha submitted that from the perusal of the statements of PW11 recorded at different times and different place, it is established that PW11 has improved her statement on every steps. Her testimony is not of sterling quality. Her statement is not natural and truthful; but of suspicious nature.
I have carefully perused and analysed the evidence on record.
The testimony of PW11 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW11 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.
At the cost of repetition, PW11 - prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : "I am residing at the aforementioned address (House No. 137 of 216 138 FIR No. 191/12 PS - Bawana 535, Mukhtiyar Singh Marg, Bawana, Delhi) since last 34 years on rent alongwith my family comprising of my husband and two children. I am a housewife. I belong to village Khewra, District Sonepat, Haryana. My husband Gopal is in Judicial Custody since the year, 2011. On 10/06/2012 (be read as 09/06/2012) at about 8:00 p.m., I was at my house alongwith my children. Rekha resident of B - Block (Present in the Court and correctly identified) who was known to me previously as my husband and Rekha were together in the business of sale of liquor came to my house and told me that a Lawyer was present in her house and if I would come to her house, I can seek his legal advise for getting free my husband from legal custody. I told her that I did not have any money to give to Lawyer but she told me not to worry about money. Thereafter, I accompanied Rekha who had brought her own car i.e. I10 of pencil colour whose number was DL4CAQ1795. The vehicle was driven by Rekha and when she reached near the bari nehar, she stopped the vehicle where two persons were already standing, one was Sanjay who is residing with Rekha as her husband. Again said, Sanjay is not the husband of Rekha but is residing with her in the capacity of husband. Both the said man came into the vehicle and sat inside. From there Rekha turned the vehicle towards the sectors (sector's) side i.e. Sector - 3, Bawana. When she turned the vehicle I asked where was the Advocate, on which Rekha told me that she had to pickup the money from some person at Bawana for giving the same to the Advocate. Thereafter, she stopped the vehicle at lonely place/area. Rekha caught hold of my hands and mouth and whereas the other two persons i.e. Sanjay and the other person who I did not know previously committed rape upon me one by one. Thereafter, I was removed from the said vehicle and made to get down at the same place (uttar diya). They also threatened to kill me in case I disclose the case to anybody. I was 138 of 216 139 FIR No. 191/12 PS - Bawana carrying a telephone on which I made a call on 100 number. The Police came to the spot and took me to the Hospital where my medical examination was got conducted....".
(Underlined by me) On analysing the entire testimony of PW11 - prosecutrix, it transpires that she has described the scenario implicating the accused to be author of the crime, of the committal of the sexual assault (gang rape) upon her by accused Sanjay and Bittoo (since not arrested), abetted by accused Rekha. Accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination.
As regards the plea raised by the Learned Counsel for the accused that, from the perusal of the statements of PW11 recorded at different times and different place, it is established that PW11 has improved her statement on every steps. Her testimony is not of sterling quality. Her statement is not natural and truthful; but of suspicious nature, is concerned, the same is found to be vague as Learned Counsel has failed to specify the alleged improvements made by PW11 - prosecutrix in her statement on every steps, at different times and different place. However, on careful perusal and analysis, the testimony 139 of 216 140 FIR No. 191/12 PS - Bawana of PW11 - prosecutrix has been found to be natural, clear, cogent, consistent, convincing, reliable and creditworthy.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
40. Learned Counsel for accused Rekha submitted that as per MLC, both the accused are known persons, but identity or names not revealed on the MLC.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the accused that, as per MLC, both the accused are known persons, but identity or names not revealed on the MLC, is concerned, non mentioning of the names or identity does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
140 of 216 141 FIR No. 191/12 PS - Bawana In case "Noor Salam Vs. State (Govt. of NCT of Delhi)", 2013 II AD (Cri.) (DHC) 322 it has been held that it is not mandatory for Doctor to record in MLC or to make enquiry from injured about name of assailant. Generally Doctors on duty do not ask for assailant's name. Omission of injured to disclose assailant's name to Doctor does not discredit her testimony.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
41. Learned Counsel for accused Rekha submitted that Baijnath Tiwari who told the history of sexual assault to the Doctor was not introduced as a witness by the prosecution deliberately. However, he was the material witness as per MLC.
I have carefully perused and analysed the evidence on record.
So far as the plea raised for non production of Baijnath Tiwari is concerned, it is evident from the record that during the cross 141 of 216 142 FIR No. 191/12 PS - Bawana examination of PW17, SI Suman, IO, none of the said accused voiced their concerns or raised any apprehension regarding the nonproduction of Baijnath Tiwari. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. In such a situation, the accused cannot be heard saying that since the material witness was withheld by the prosecution, therefore, adverse inference should be drawn against the prosecution.
In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.' (1979) 4 SCC 345; 'State of U.P. Vs. Anil Singh' AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar' 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
At the cost of repetition, recently in case 'Mahavir Singh 142 of 216 143 FIR No. 191/12 PS - Bawana Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
42. Learned Counsel for accused Rekha submitted that PW16 - ASI Ram Rattan in his examinationinchief has deposed that, he made enquiries from her and she told that rape has been committed upon her. He informed to Duty Officer to send lady Police officer. SHO also reached at the spot. Learned Counsel submitted that names of the person is not told to PW16 while they were known person. Learned Counsel further submitted that PW16 - ASI Ram Rattan in his crossexamination has deposed that, "No public person was present there. SHO reached at the spot within five minutes from my reaching at the spot. SHO had not made any inquiry from the prosecutrix." Learned Counsel submitted 143 of 216 144 FIR No. 191/12 PS - Bawana that the statement of PW16 - ASI Ram Rattan that no public person was present there, contradicts the version of prosecutrix. Learned Counsel further submitted that it is very strange, SHO reached on the spot and did not make any inquiry from the prosecutrix. The prosecution has no reason why the SHO did not ask any question from the prosecutrix at the spot. Learned Counsel further submitted that neither the SHO nor ASI Ram Rattan recorded the statement of the prosecutrix immediately at the spot. There is no explanation, why they did not record the statement of the prosecutrix on the spot.
I have carefully perused and analysed the evidence on record.
The testimony of PW16 - ASI Ram Rattan has been discussed and detailed hereinbefore. At the cost of repetition, PW16 - ASI Ram Rattan during his examinationinchief has deposed that : "On 09/06/2012, I was posted as ASI in PS Bawana. On that day, at about 8:50 p.m., I received DD No. 64B and thereafter, I alongwith Constable Kapil reached at the spot i.e. near NDPL Office, Sector 3, DSIDC, Bawana where I met prosecutrix (name withheld). I 144 of 216 145 FIR No. 191/12 PS - Bawana made inquiries from her and she told that rape has been committed upon her. I informed to Duty Officer to send Lady Police officer. SHO also reached at the spot. I took prosecutrix (name withheld) to M. V. Hospital. No gynecologist was found in the Hospital so I took prosecutrix (name withheld) to BSA Hospital for medical examination. W/SI Suman alongwith Lady Constable Raj Bala met me there and I handed over prosecutrix (name withheld) to them."
PW16 - ASI Ram Rattan during his crossexamination has deposed which is reproduced and reads as under : "The distance between PS and Sector3 DSIDC is about 3/4 km. Kavita was met me near the NDPL Office on the east side of the road. No public person was present there. On the other side of the road there is Fire Brigade office. It is wrong to suggest that the place where I met prosecutrix is a thickly populated area. SHO reached at the spot within five minutes from my reaching at the spot. SHO had not made any inquiry from the prosecutrix. We reached at M. V. Hospital at about 9:15 p.m. We reached BSA Hospital at about 12:30 midnight which is at a distance about 7/8 km from there. It is wrong to suggest that Constable Kapil did not accompany me. It is wrong to suggest that I am deposing falsely."
So far as the plea raised by the Learned Counsel for the accused Rekha that, names of the person was not told to PW16 - ASI 145 of 216 146 FIR No. 191/12 PS - Bawana Ram Rattan while they were known person, is concerned, it is evident fro the record that during the crossexamination of PW11 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation.
The testimony of PW16 - ASI Ram Rattan has been reproduced hereinabove and he has deposed regarding the facts as to what he acted, observed, experienced and performed. There is nothing in the crossexamination of PW16 - ASI Ram Rattan so as to impeach his creditworthiness.
As regards the plea raised by the Learned Counsel for the accused Rekha that, SHO reached at the spot and did not make any inquiry from the prosecutrix and the prosecution has no reason why the SHO did not ask any question from the prosecutrix at the spot and why neither the SHO nor ASI Ram Rattan recorded the statement of the prosecutrix at the spot, is concerned, PW16 - ASI Ram Rattan, during his examinationinchief has specifically deposed that, "On 09/06/2012, I 146 of 216 147 FIR No. 191/12 PS - Bawana was posted as ASI in PS Bawana. On that day, at about 8:50 p.m., I received DD No. 64B and thereafter, I alongwith Constable Kapil reached at the spot i.e. near NDPL Office, Sector 3, DSIDC, Bawana where I met prosecutrix (name withheld). I made inquiries from her and she told that rape has been committed upon her. I informed to Duty Officer to send Lady Police officer". It is evident from the record that during the crossexamination of PW16 - ASI Ram Rattan, none of the said accused voiced their concerns or raised any apprehension regarding the nonrecording of the statement of prosecutrix by him. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. Further, it is also evident from the record that during the crossexamination of PW17 - SI Suman, IO, none of the said accused voiced their concerns or raised any apprehension on the aspects that SHO reached at the spot and did not make any inquiry from the prosecutrix. Why the SHO did not ask any question from the prosecutrix at the spot and why the SHO did not record the statement of the prosecutrix at the spot. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame herself and none else.
147 of 216 148 FIR No. 191/12 PS - Bawana At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
43. Learned Counsel for accused Rekha submitted that the Learned Magistrate did not comply with mandatory provisions of Section 207 Cr.P.C. Prosecution has not explained why they not made (make) the site plan of place of occurrence.
I have carefully perused and analysed the evidence on record.
So far as the plea raised by the Learned Counsel for the 148 of 216 149 FIR No. 191/12 PS - Bawana accused that, the Learned Magistrate did not comply with mandatory provisions of Section 207 Cr.P.C., is concerned, it is not made clear by the Learned Counsel for the accused as to what he intends to convey. In what manner and how the mandatory provisions of Section 207 Cr.P.C. has not been complied with by the Learned Magistrate. Moreso, as per the provisions of the Code of Criminal Procedure, 1973, only after the compliance of the provisions of Section 207 Cr.P.C. and on finding that the offence is exclusively triable by the Court of Session, the Court of Learned Magistrate commits the case to the Court of Session under section 209 Cr.P.C.
So far as the plea raised by the Learned Counsel for the accused that, prosecution has not explained why they not made (make) the site plan of place of occurrence, is concerned, it is evident from the record that during the crossexamination of PW17 - SI Suman IO none of the said accused voiced their concerns or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame 149 of 216 150 FIR No. 191/12 PS - Bawana herself and none else. However, PW17 - SI Suman, IO during her examinationinchief has specifically deposed that, "In the morning on 10/06/2012 at about 9:30 a.m., she alongwith Constable Kapil and two more Constables, Constable Surender and Constable Rajesh, they reached at the spot i.e. Sector 3, DSIDC Bawana, prosecutrix (name withheld) was also called there. She (PW17) prepared the site plan Ex. PW17/B, bearing her signature at point 'A' at the instance of the complainant."
During her crossexamination recorded on 30/07/2013, conducted on behalf of accused Rekha, PW17 - SI Suman, IO has categorically deposed that : "Site plan Ex. PW17/B was prepared by me after 9:00 a.m. on 10/06/2012. It is correct that point 'A' in site plan Ex. PW17/B is a public place. It is correct that no public witness has signed the site plan Ex. PW17/B. It is wrong to suggest that the site plan Ex. PW17/B is a wrong site plan, or that it was prepared in the Police Station."
It is also to be noticed that PW11 - prosecutrix during her examinationinchief has specifically deposed that : "I thereafter, took the Police to the spot of the incident 150 of 216 151 FIR No. 191/12 PS - Bawana where the incident had taken place where the Police prepared the pointing out memo already Ex. PW5/A bearing my signatures at point 'B' after which Police recorded my statement and I was relieved."
From the aforesaid narration of PW11 - prosecutrix, it is clearly indicated that she had taken the Police to the spot of incident where the incident had taken place. It is evident from the record that during the crossexamination of PW11 prosecutrix, none of the said accused have crossexamined her on the said part of her testimony. Moreover, during her crossexamination, PW11 - prosecutrix has also specifically deposed that, "It is correct that the spot where the incident had allegedly taken place was totally dark".
Moreover, the said discrepancy may reflect upon the investigation but does not reflect upon the substantive evidence and the probative value of the statement made by PW11 - prosecutrix on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. The core facts about the committal of the crime by the accused has remained intact.
151 of 216 152 FIR No. 191/12 PS - Bawana At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
44. Learned Counsel for accused Rekha submitted that in the DD also, no identity or names were narrated by the prosecutrix on the 1st call when they were known person of the prosecutrix. Though, the prosecutrix had claimed that she was raped by Sanjay and one unknown person but in contrary to MLC, the history was given that both were known persons.
I have carefully perused and analysed the evidence on 152 of 216 153 FIR No. 191/12 PS - Bawana record.
It is also to be noticed that PW4 - Constable Sandeep has proved the DD No. 64B dated 09/06/2012, PS - Bawana Ex.PW4/A recorded by him on the information received by PCR from mobile phone number 9540957088 and communicated to him (PW4) at the Police Station by the Wireless Operator.
At the cost of repetition, PW4 Constable Sandeep is the DD Writer, who deposed that on 09/06/2012, he was working as DD Writer from 5:00 p.m. to 9:00 a.m. (10/06/2012) at PS - Bawana. On 09/06/2012 at 8:50 p.m. Wireless Operator of Police Station came to DO Room and informed about PCR Call "Sector - 3, Bawana, NDPL Office Ke Pass caller Ek Ladki Hai, Jo Keh Rahi Hai, Ro Rahi Hai, Kisi Ne Mere Sath Zabardasti Ki Hai" from Constable Sombir, 7881/PCR, Ph. 9540957088. He (PW4) lodged the same in the Daily Diary vide DD No. 64B and informed ASI Ram Rattan about the PCR Call, who alongwith Constable Kapil departed for the place of occurrence and the DD No. 64B is Ex. PW4/A. Despite grant of opportunity, PW4 Constable Sandeep was 153 of 216 154 FIR No. 191/12 PS - Bawana not crossexamined on behalf of the accused.
So far as the plea raised by the Learned Counsel for the accused that, in the DD also, no identity or names were narrated by the prosecutrix on the 1st call when they were known person of the prosecutrix. Though, the prosecutrix had claimed that she was raped by Sanjay and one unknown person but in contrary to MLC, the history was given that both were known persons, is concerned, it is evident from the record that during the crossexamination of PW11 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame herself and none else.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish 154 of 216 155 FIR No. 191/12 PS - Bawana explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
45. Learned Counsel for accused Rekha submitted that from the bare reading of the testimony of PW11 - the prosecutrix, SI Suman, SI Parveen Kumar & ASI Ram Rattan, it is established that there are material improvements and embellishment in their version on almost all vital aspects of the case.
I have carefully perused and analysed the evidence on record.
The testimony of PW11 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW11 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to 155 of 216 156 FIR No. 191/12 PS - Bawana falsely implicate them in the case.
The testimonies of PW17 - SI Suman IO, PW19 - SI Praveen Kumar, who is the part IO of the case and PW16 - ASI Ram Rattan have been discussed and detailed hereinbefore. On careful perusal and analysis, the testimonies of PW17 - SI Suman IO, PW19 - SI Praveen Kumar, part IO of the case and PW16 - ASI Ram Rattan are found to be clear, cogent, convincing and a description of the facets of the investigation which PW16 - ASI Ram Rattan joined and a graphic details of the steps taken by PW17 - SI Suman IO and PW19 - SI Praveen Kumar, part IO of the case during the course of investigation. There is nothing in their crossexamination so as to impeach their creditworthiness. There is also nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case. The said PWs have deposed regarding the facts as to what they performed, acted, experienced and observed during the course of investigation.
So far as the plea raised by the Learned Counsel that, 156 of 216 157 FIR No. 191/12 PS - Bawana "from the bare reading of the testimony of PW11 - the prosecutrix, SI Suman, SI Parveen Kumar & ASI Ram Rattan, it is established that there are material improvements and embellishment in their version on almost all vital aspects of the case.", is concerned, the same is found to be totally vague. It has not been pinpointed by the Learned Counsel for the accused as to what are those vital aspects of the case, on which the testimonies of the said PWs suffer from improvements and embellishments.
Moreover, if in the estimation of the Learned Counsel for the accused, in the version of the said PWs, there were material improvements and embellishments on almost all the vital aspects of the case,why the said PWs were not got confronted with during the course of their crossexamination as provided u/s 145 of the Indian Evidence Act, 1872.
Section 145 Indian Evidence Act, 1872 is reproduced and reads as under :
145. Crossexamination as to previous statements in writing. A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters 157 of 216 158 FIR No. 191/12 PS - Bawana in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
46. Learned Counsel for accused Rekha submitted that except some minor scratches, abrasion or bruises, which is not even for described as fresh injury on the MLC, she had no injury on (of) bite marks on the body, despite being claimed, she was raped by two persons with the help of accused Rekha. It is not clear that bruises and abrasion are fresh or old, the age of the injury can be judged from colour, clothes are not torn, the evidence of the PW20 - Dr. Meet Kumar is not reliable being (not of) sterling quality. Learned Counsel further submitted that in the present case, no evidence found of struggle, to avoid sexual contact for penetration. Learned Counsel further submitted that a false accusation of rape may sometime be exposed by false marks/self inflicted marks of violence and struggle.
158 of 216 159 FIR No. 191/12 PS - Bawana I have carefully perused and analysed the evidence on record.
The testimony of PW20 - Dr. Meet Kumar, CMO, BSA Hospital, Rohini, Delhi has been detailed and discussed herein before who conducted the preliminary medical examination of PW11
- prosecutrix Ex. PW20/A bearing his signature at point 'A' on the back page of the MLC Ex. PW8/A. At the cost of repetition, PW20 - Dr. Meet Kumar, CMO, BSA Hospital, Rohini, Delhi during his examinationinchief has deposed which is reproduced and reads as under : "I was on duty on 10/06/2012. At around 12:45 a.m. one patient named prosecutrix (name withheld) W/o Gopal, Aged 23 Years, Female was brought by Police with the alleged history of sexual assault. I examined the patient and on his examination externally the following injuries were found : 1). Bruise over right side of neck, 2). Bruise over left side of the neck, 3). Bruise over right check, 4). Multiple liner abrasion over right side of anterior chest wall, 5). Abrasion over left forearm. My examination is Ex. PW20/A on the MLC already Ex. PW8/A bearing my signature at Point 'A'. My said examination is on the back page of the MLC already Ex. PW8/A."
159 of 216 160 FIR No. 191/12 PS - Bawana Inspite of incisive crossexamination of PW20 - Dr. Meet Kumar, nothing material has been brought out so as to impeach his creditworthiness. He has deposed the facts candidly as to what he observed during the medical examination of PW11 - prosecutrix detailed in his examination Ex. PW20/A. From the examination of Ex. PW20/A of the prosecutrix, it is clearly indicated that the following injuries were found on her body :
1). Bruise over right side of neck, 2). Bruise over left side of the neck, 3). Bruise over right check, 4). Multiple liner abrasion over right side of anterior chest wall, 5). Abrasion over left forearm and the existence of the said injuries on the body of the prosecutrix has not been breached during the crossexamination of PW20 - Dr. Meet Kumar. Nor it was suggested to him anywhere that the said injuries were self inflicted.
So far as the plea raised by the Learned Counsel for accused Rekha that, "it is not clear bruises and abrasion are fresh or old, 160 of 216 161 FIR No. 191/12 PS - Bawana the age of the injury can be judged form colour, the evidence of PW20 - Dr. Meet Kumar is not reliable being (not of) sterling quality", is concerned, the same is found to have no substance in view of as to what PW20 - Dr. Meet Kumar has deposed during the course of his cross examination.
The relevant part of crossexamination of PW20 - Dr. Meet Kumar is reproduced and reads as under : "Q. Is it correct that one can know the duration of the abrasion and bruises from their colour?
Ans. The duration of the bruises can be accessed from its colour while the duration of the abrasions cannot be accessed form (from) its colour.
Q. What is the difference between bruises and abrasion? Ans. In bruises, the skin remain intact while in abrasion, the upper layer of the skin is damaged.
Q. Is it correct that the colour of the bruises and abrasions is not mentioned in the MLC Ex. PW20/A?
Ans. It is correct. Q. Is it correct that the quantum (number) of the bruises and
abrasions is not mentioned in the MLC Ex. PW20/A? Ans. It is incorrect. Vol. Every injury is mentioned for a single 161 of 216 162 FIR No. 191/12 PS - Bawana bruise or abrasion except where it is written that there are multiple abrasions, in bracket, it is mentioned that there were three abrasions, in the MLC Ex. PW20/A. Q. Please see the MLC Ex. PW20/A. Is it correct that there was no effusion of blood?
Ans. It is correct. Vol. there were abrasions and bruises but no effusion of blood.
Q. Is it correct that from the colour it can be judged how and when injuries were caused?
Ans. From the colour of the bruise we can judge the approximate time of the injury but we cannot judge as to how the injury was caused."
"Q. Is it correct that in the MLC Ex. PW20/A, you have not explained anywhere regarding that the abrasions are fresh in nature? Ans. It is correct. Vol. Had the abrasions been old, then this fact would have been mentioned by me in the MLC Ex. PW20/A. It is wrong to suggest that the abrasions are also judged from their colour as to whether they are old or fresh. Vol. They are judged by the scabs over the abrasions.
Q. I put it to you if the abrasions are fresh in nature, then they are red in colour. What have you to say?
Ans. The abrasions show the red colour due to the presence of the fresh blood there."
162 of 216 163 FIR No. 191/12 PS - Bawana As regards the plea raised by the Learned Counsel for the accused that "she had no injury on (of) bite marks on the body, despite being claimed, she was raped by two persons with the help of accused Rekha", is concerned, at the cost of repetition, from the examination of Ex. PW20/A of the prosecutrix, it is clearly indicated that the following injuries were found on her body : 1). Bruise over right side of neck, 2). Bruise over left side of the neck, 3). Bruise over right check, 4). Multiple liner abrasion over right side of anterior chest wall, 5). Abrasion over left forearm and the existence of the said injuries on the body of the prosecutrix has not been breached during the crossexamination of PW20 - Dr. Meet Kumar. Nor it was suggested to him anywhere that the said injuries were self inflicted. The absence of any injury of the bite marks on the body of the prosecutrix does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
Emission of semen or rupture of hymen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial 163 of 216 164 FIR No. 191/12 PS - Bawana penetration of penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that nonrupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.
In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 164 of 216 165 FIR No. 191/12 PS - Bawana 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
47. Learned Counsel for accused Rekha submitted that FSL results shows that semen could not be detected on any exhibits i.e. Ex. 1 to 10. Learned Counsel further submitted that according to FSL, no traces of semen was found either on the vaginal swab of prosecutrix on her undergarments which ruled out the possibly of rape. Learned Counsel further submitted that as per prosecution, the prosecutrix has been medically examined within hours of the alleged commission of rape by two adults. In that circumstances, absence of such on all exhibits falsify the entire prosecution case.
I have carefully perused and analysed the evidence on 165 of 216 166 FIR No. 191/12 PS - Bawana record.
The biological evidence Ex. PW13/A has been reproduced, discussed and analysed hereinbefore.
So far as the plea raised by the Learned Counsel for the accused Rekha that, "FSL results shows that semen could not be detected on any exhibits i.e. Ex. 1 to 10", is concerned, it is found to have no substance, in view of as to what has been discussed under the heading "Biological Evidence" and at the cost of repetition, it is also to be noticed that the date of alleged incident is 09/06/2012 at about 8:00 p.m. and the gynaecological examination of PW11 - prosecutrix was conducted on 10/06/2012 at about 12:45 a.m. vide MLC Ex. PW8/A and the sealed exhibits of the prosecutrix were seized on 10/06/2012 after her gynaecological examination vide seizure memo Ex. PW1/A; during this period from the date of incident on 09/06/2012 at about 8:00 p.m. till 10/06/2012 at about 12:45 a.m. when her gynaecological examination was conducted vide MLC Ex. PW8/A, it cannot be ruled out that the prosecutrix must have passed the urine a number 166 of 216 167 FIR No. 191/12 PS - Bawana of times and for the said reason it appears that semen could not be detected on exhibits '2a' (Cotton wool swab on a wooden stick of the prosecutrix), '2b' (Cotton wool swab on a wooden stick of the prosecutrix), '2e' (Cotton wool swab on a wooden stick of the prosecutrix), '2f' (Strands of hair of the prosecutrix), '2g' (Strands of hair of the prosecutrix), '2h(i)' (Microslide having faint whitish smear of the prosecutrix), '2h(ii)' (Microslide having faint whitish smear of the prosecutrix), '2h(iii)' (Cotton wool swab on a wooden stick of the prosecutrix), '2i(i)' (Microslide having faint whitish smear of the prosecutrix), '2i(ii)' (Microslide having faint whitish smear of the prosecutrix), '2i(iii)' (Cotton wool swab on a wooden stick of the prosecutrix), '2k' (Liquid material kept in a syringe of the prosecutrix), '2l(i)' (Microslide having faint whitish smear of the prosecutrix), '2l(ii)' (Microslide having faint whitish smear of the prosecutrix), '2l(iii)' (Cotton wool swab on a wooden stick of the prosecutrix), '2m(i)' (Microslide having faint whitish smear of the prosecutrix), '2m(ii)' (Microslide having faint whitish smear of the prosecutrix), '2m(iii)' (Cotton wool swab on a wooden stick of the 167 of 216 168 FIR No. 191/12 PS - Bawana prosecutrix), of the prosecutrix.
Emission of semen or rupture of hymen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
48. Learned Counsel for accused Rekha submitted that neither the medical nor the scientific evidence corroborated the version of the 168 of 216 169 FIR No. 191/12 PS - Bawana prosecutrix. Even there is no evidence that hymen ruptured was fresh. PW8 - Dr. Dolly Bansal did not explain how old the tear, in the hymen. Learned Counsel for accused Sanjay submitted that the FSL Report as well as deposition of the witnesses have also not corroborated/supported the allegation of the prosecutrix.
I have carefully perused and analysed the evidence on record.
It is well settled that the evidence on the record is to be read in totality and not in an isolated manner.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
The testimony of PW11 - prosecutrix, the medical evidence and the biological evidence have been reproduced, discussed and analysed hereinbefore.
As regards the plea raised by the Learned Counsel for the 169 of 216 170 FIR No. 191/12 PS - Bawana accused that, neither the medical nor the scientific evidence corroborated the version of the prosecutrix, is concerned, on a conjoint reading of the testimony of PW11 - prosecutrix, the medical evidence and the biological evidence, as reproduced, discussed and analysed herein before, the same is found to be devoid of substance.
So far as the plea raised by Learned Counsel for accused Sanjay that, "the FSL Report as well as deposition of the witnesses have also not corroborated/supported the allegation of the prosecutrix.", is concerned, at the cost of repetition, on analysing the testimony of PW11
- Prosecutrix in the light of medical examination Ex. PW20/A on the back page of the MLC Ex. PW8/A, gynaecological examination vide MLC Ex. PW8/A of the prosecutrix, biological evidence, together with the MLC of accused Sanjay Ex. PX5, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis or by partial penetration of the penis, within labia majora or the vulva or pudenda stands proved. In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by accused Sanjay and Bittoo (since not arrested) upon 170 of 216 171 FIR No. 191/12 PS - Bawana PW11 - Prosecutrix without her consent, abetted by accused Rekha.
So far as the plea raised by the Learned Counsel for the accused that, even there is no evidence that hymen ruptured was fresh, is concerned, it is not made clear by the Learned Counsel for the accused as to what he intends to convey from the plea so raised. Does he intend to convey that PW11 - prosecutrix was a woman of "easy virtues" or a woman of "loose moral character".
If it is so, it is not permissible as every woman has a right to protect her dignity and cannot be subjected to rape only for that reason.
In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under : "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"
can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by 171 of 216 172 FIR No. 191/12 PS - Bawana anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.
The Hon'ble Supreme Court in case, 'Md. Eqbal & Anr.
Vs. State of Jharkhand' AIR 2013 SC 3077 while relying upon the observations of 'Narender Kumar Vs. State (NCT of Delhi)' AIR 2012 SC 2281 had noted that even if a woman is of easy virtue or used to sexual intercourse, it cannot be a licence for any person to commit rape and it further held : 172 of 216 173 FIR No. 191/12 PS - Bawana "24. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the Court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
The Court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of."
As regards the plea raised by the Learned Counsel for the accused that, PW8 - Dr. Dolly Bansal did not explain how old the tear, in the hymen, is concerned, it is evident from the record that during the crossexamination of PW8 - Dr. Dolly Bansal, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame herself and none else.
However, PW8 - Dr. Dolly Bansal during her 173 of 216 174 FIR No. 191/12 PS - Bawana examinationinchief has specifically deposed that : "Hymen old ruptured (Patient already having two vaginal deliveries)."
At the cost of repetition, what is the content of the cross examination as was conducted by the Learned Counsel for the accused of PW8 - Dr. Dolly Bansal is reproduced and reads as under : "It is correct that there is a cutting on the MLC Ex. PW8/A at point 'X1'. Vol. Initially, I have mentioned the word "moving" but thereafter, I cut/scrapped of the same. I do not recollect if I had mentioned the word moving on the asking of the prosecutrix and thereafter cut the same on her asking or it was written by me by mistake. At the time when I examined the patient, there no attendant with her. Vol. I was told that one of her relatives was accompanied her and it was his thumb impressions that I had taken on the MLC. Again said he was the chacha in law of the patient namely Baijnath Tiwari. It is wrong to suggest that I have mentioned the history in the MLC on the asking of the IO and on the asking of the relatives of the patient."
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish 174 of 216 175 FIR No. 191/12 PS - Bawana explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
49. Learned Counsel for accused Rekha submitted that the prosecution has suppressed the genesis and the manner in which the incident took place.
I have carefully perused and analysed the evidence on record.
It is not made clear by the Learned Counsel for the accused as to what he intends to convey from the plea so raised. It appears that the Learned Counsel for the accused has either misread the evidence or has not read the evidence on record.
The testimony of PW11 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the 175 of 216 176 FIR No. 191/12 PS - Bawana testimony of PW11 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. In the witness box she has withstood the test of crossexamination without being shaken. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case. The version of PW11 - prosecutrix on the core spectrum of crime has remained intact.
So far as the plea raised by the Learned Counsel that, "the prosecution has suppressed the genesis and the manner in which the incident took place", is concerned, it is found to be devoid of substance in view of the categorical deposition made by PW11 - prosecutrix.
At the cost of repetition, PW11 - prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : "I am residing at the aforementioned address (House No. 535, Mukhtiyar Singh Marg, Bawana, Delhi) since last 34 years on rent alongwith my family comprising of my husband and two children. I am a housewife. I belong to village Khewra, District Sonepat, Haryana. My husband Gopal is in Judicial Custody since the year, 2011. On 10/06/2012 (be read as 09/06/2012) at about 8:00 p.m., I was at my 176 of 216 177 FIR No. 191/12 PS - Bawana house alongwith my children. Rekha resident of B - Block (Present in the Court and correctly identified) who was known to me previously as my husband and Rekha were together in the business of sale of liquor came to my house and told me that a Lawyer was present in her house and if I would come to her house, I can seek his legal advise for getting free my husband from legal custody. I told her that I did not have any money to give to Lawyer but she told me not to worry about money. Thereafter, I accompanied Rekha who had brought her own car i.e. I10 of pencil colour whose number was DL4CAQ1795. The vehicle was driven by Rekha and when she reached near the bari nehar, she stopped the vehicle where two persons were already standing, one was Sanjay who is residing with Rekha as her husband. Again said, Sanjay is not the husband of Rekha but is residing with her in the capacity of husband. Both the said man came into the vehicle and sat inside. From there Rekha turned the vehicle towards the sectors (sector's) side i.e. Sector - 3, Bawana. When she turned the vehicle I asked where was the Advocate, on which Rekha told me that she had to pickup the money from some person at Bawana for giving the same to the Advocate. Thereafter, she stopped the vehicle at lonely place/area. Rekha caught hold of my hands and mouth and whereas the other two persons i.e. Sanjay and the other person who I did not know previously committed rape upon me one by one. Thereafter, I was removed from the said vehicle and made to get down at the same place (uttar diya). They also threatened to kill me in case I disclose the case to anybody. I was carrying a telephone on which I made a call on 100 number. The Police came to the spot and took me to the Hospital where my medical examination was got conducted....".
(Underlined by me) 177 of 216 178 FIR No. 191/12 PS - Bawana In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
50. Learned Counsel for accused Rekha submitted that the prosecution did not examine any of the public witness at any point of time.
I have carefully perused and analysed the evidence on record.
The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.
So far as the plea raised by the Learned Counsel for the accused Rekha that, "the prosecution did not examine any of the public witness at any point of time.", is concerned, it is evident from the record that during the crossexamination of PW17 - SI Suman IO, none of the said accused voiced their concerns or raised any apprehension on the 178 of 216 179 FIR No. 191/12 PS - Bawana aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation.
Nonjoining of the public witness does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
It is a matter of common experience that public persons are reluctant to assist the Police in the investigation.
In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
179 of 216 180 FIR No. 191/12 PS - Bawana
51. Learned Counsel for accused Rekha submitted that PW11 - prosecutrix during her crossexamination has deposed that, "I did not tell any other neighbour residing in the adjoining rooms that I was going with Rekha nor I had left my children with them. Vol. I had left my children with one of my relative/fuffa namely Ram Narain when I went with Rekha but I did not tell him that I was going with Rekha". Learned Counsel submitted that Ram Narain, relative/fuffa of PW11 - prosecutrix, a material witness has not been produced by the prosecutrix.
I have carefully perused and analysed the evidence on record.
So far as the nonproduction of Ram Narain, a material witness to the case is concerned, it is evident from the record that during the crossexamination of PW17 - SI Suman, IO, none of the said accused voiced their concerns or raised any apprehension regarding the non production of Ram Narain. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. In such a situation, the accused cannot be heard saying that since the material witness was withheld by the prosecution, therefore, 180 of 216 181 FIR No. 191/12 PS - Bawana adverse inference should be drawn against the prosecution.
The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.
In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."
181 of 216 182 FIR No. 191/12 PS - Bawana In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.' (1979) 4 SCC 345; 'State of U.P. Vs. Anil Singh' AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar' 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.
The Hon'ble Supreme Court in case Takhaji Hiraji Vs Thakore Kubersing Chamansing 2001 IV AD (S.C) 393 has observed that : "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which would have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined would not have supported 182 of 216 183 FIR No. 191/12 PS - Bawana the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Non examination of such other witnesses may not be material. In such a case the Court ought to scrutinies the worth of the evidence adduced. The Court of facts must ask itself Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of the witnesses."
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
183 of 216 184 FIR No. 191/12 PS - Bawana
52. Learned Counsel for accused Rekha submitted that PW11 prosecutrix in her crossexamination deposed that, "the vehicle i.e. i10 car was seized by the Police after Rekha was apprehended by the Police and arrested" while the car DL4CAQ1795 i10 Ex. PX was seized at about 3:40 to 4:00 p.m. on 11/06/2012 as per crossexamination of PW19
- SI Parveen Kumar IO and accused Rekha was arrested on 17/07/2012.
I have carefully perused and analysed the evidence on record.
PW19 - SI Parveen Kumar, who is the part IO of the case during his examinationinchief has deposed which is reproduced and reads as under : "On 11/06/2012, I was posted as Sub Inspector in PS Bawana. On that day, investigation of the present case was handed over to me. I have perused the file and find that accused Sanjay was on P.C. remand and was in Police remand. On that day, Constable Nishan and Constable Rajesh had taken out the accused Sanjay from Police lockup and they took him in Maharshi Valmiki Hospital, where he was medically examined. Thereafter, accused Sanjay took them to his house at B1143, J. J. Colony, Bawana and accused Sanjay had produced key of the Car from near the staircase where the water pump/motor was 184 of 216 185 FIR No. 191/12 PS - Bawana installed, in pursuance to his disclosure statement, the key was seized vide memo Ex. PW10/A, bearing his (PW19) signature at point 'C'. Thereafter, accused Sanjay took us to H Block, Sector 3, DSIDC, Bawana and pointed out towards a Car No. DL4SCAQ1795 (be read as DL4CAQ1795), I10 which was parked in front of Factory No. 47, opposite to Factory No. 19. The car was seized vide memo Ex. 10/B (be read as PW10/B), bearing his signature at point 'C'" and told that this is the same in which he alongwith his associates had committed rape upon prosecutrix (name withheld) on the rear seat. Thereafter, we reached at FSL Rohini and car was got inspected by the FSL Expert and he lifted the exhibits which were handed over to Constable Nishant (be read as Constable Nishan) and Constable Nishant (be read as Constable Nishan) handed over the same to him and same were put up into a pullinda and sealed with the seal of 'PK' and the same was seized vide memo Ex. PW10/C, bearing his signature at point 'B'...."
During his crossexamination, PW19 - SI Parveen Kumar has deposed that : "The car DL4SCAQ1795 (be read as DL4CAQ1795) i10 Ex. PX was seized at about 3:40 to 4:00 p.m. on 11/06/2012."
So far as the plea raised by Learned Counsel for the accused that PW11 - prosecutrix in her crossexamination deposed that, "the vehicle i.e. i10 car was seized by the Police after Rekha was 185 of 216 186 FIR No. 191/12 PS - Bawana apprehended by the Police and arrested", while the car DL4CAQ1795 i10 Ex. PX was seized at about 3:40 to 4:00 p.m. on 11/06/2012 as per crossexamination of PW19 - SI Parveen Kumar IO and accused Rekha was arrested on 17/07/2012, is concerned, it is evident from the record that during the crossexamination of PW19 - SI Parveen Kumar, IO, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame herself and none else.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so 186 of 216 187 FIR No. 191/12 PS - Bawana raised by the Learned Counsel for the accused.
53. Learned Counsel for the accused Rekha submitted that it is impossible that accused Rekha caught hold of the hands of the prosecutrix and whereas the other two accused i.e. Sanjay and the other person whom she did not know previously committed rape upon her one by one.
I have carefully perused and analysed the evidence on record.
The testimony of PW11 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW11 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statements to suggest that she had any animus against the accused to falsely implicate them in the case.
So far as the plea raised by the Learned Counsel for the accused that, it is impossible that accused Rekha caught hold of the 187 of 216 188 FIR No. 191/12 PS - Bawana hands of the prosecutrix and whereas the other two accused i.e. Sanjay and the other person whom she did not know previously committed rape upon her one by one, is concerned, it is evident from the record that during the crossexamination of PW11 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension on the aspects regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame herself and none else.
At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
188 of 216 189 FIR No. 191/12 PS - Bawana
54. Learned Counsel for the accused Rekha submitted that there are material contradictions in the statements of PW11 prosecutrix made before the Police Ex. PW11/A, recorded u/s 164 Cr.P.C. Ex. PW11/B (also Ex. PX3) and the deposition made in the Court.
I have carefully perused and analysed the evidence on record.
It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.
The testimony of PW11 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW11 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statements to suggest that she had any animus against the accused to falsely implicate them in the case.
189 of 216 190 FIR No. 191/12 PS - Bawana It is pertinent to reproduce the statements of PW11 prosecutrix made before the Police Ex. PW11/A, recorded u/s 164 Cr.P.C. Ex. PW11/B (also Ex. PX3) and the deposition made in the Court.
At the cost of repetition, PW11 - prosecutrix in her examinationinchief has deposed which is reproduced and reads as under : "I am residing at the aforementioned address (House No. 535, Mukhtiyar Singh Marg, Bawana, Delhi) since last 34 years on rent alongwith my family comprising of my husband and two children. I am a housewife. I belong to village Khewra, District Sonepat, Haryana. My husband Gopal is in Judicial Custody since the year, 2011. On 10/06/2012 at about 8:00 p.m., I was at my house alongwith my children. Rekha resident of B - Block (Present in the Court and correctly identified) who was known to me previously as my husband and Rekha were together in the business of sale of liquor came to my house and told me that a Lawyer was present in her house and if I would come to her house, I can seek his legal advise for getting free my husband from legal custody. I told her that I did not have any money to give to Lawyer but she told me not to worry about money. Thereafter, I accompanied Rekha who had brought her own car i.e. I10 of pencil colour whose number was DL4CAQ1795. The vehicle was driven by Rekha and when she 190 of 216 191 FIR No. 191/12 PS - Bawana reached near the bari nehar, she stopped the vehicle where two persons were already standing, one was Sanjay who is residing with Rekha as her husband. Again said, Sanjay is not the husband of Rekha but is residing with her in the capacity of husband. Both the said man came into the vehicle and sat inside. From there Rekha turned the vehicle towards the sectors (sector's) side i.e. Sector - 3, Bawana. When she turned the vehicle I asked where was the Advocate, on which Rekha told me that she had to pickup the money from some person at Bawana for giving the same to the Advocate. Thereafter, she stopped the vehicle at lonely place/area. Rekha caught hold of my hands and mouth and whereas the other two persons i.e. Sanjay and the other person who I did not know previously committed rape upon me one by one. Thereafter, I was removed from the said vehicle and made to get down at the same place (uttar diya). They also threatened to kill me in case I disclose the case to anybody. I was carrying a telephone on which I made a call on 100 number. The Police came to the spot and took me to the Hospital where my medical examination was got conducted. After my medical examination I was brought back to the Police Station where my statement was recorded which statement is Ex. PW11/A bearing my signatures at point 'A'. I thereafter, took the Police to the spot of the incident where the incident had taken place where the Police prepared the pointing out memo already Ex. PW5/A bearing my signatures at point 'B' after which Police recorded my statement and I was relieved. I was also produced in the Court where my statement was recorded by the Learned MM and I disclosed the entire incident to the Learned MM which statement is Ex. PW11/B bearing my signatures at point 'A' at various places which I identify."
191 of 216 192 FIR No. 191/12 PS - Bawana PW11 - Prosecutrix in her statement to the Police Ex. PW11/A has stated that, "she lives at the above address on rent with her two children and does the household work (Gharelu Kaam Kaaj Karti Hoon) and is the permanent resident of Village Khera, Distt. Sonepat, Haryana. Her husband Gopal is confined in the jail for the last 8/9 months and this fact is known to all her acquaintances (Mera Pati Gopal 89 Mahine Se Jail Mei Band Hai Jiske Bare Mei Mere Sabhi Jaankaron Ko Pata Hai). Today, (on 09/06/2012) at about 8:00 p.m. in the evening when she was present in her house, one lady by the name Rekha who lives in BBlock, 1143, J. J. Colony, Bawana came to her house in her pencil like color car bearing No. DL4CAQ1795 and told her (prosecutrix) that at her (Rekha) house Vakil Saab has come who can get release Gopal from Jail (Aaj Qareeb 8:00 Baje Saam Jab Mai Apne Ghar Par Maujood Thi Rekha Naam Ki Aurat Jo B - Block, 1143, J. J. Colony, Bawana Mei Rehti Hai, Apni Pencil Jaise Rang Ki Gaadi Jiska Number DL4CAQ1795 Hai Lekar Mere Ghar Aai Aur Mujhe Kehne Lagi Ki Mere Ghar Par Vakil Sahab Aaye Hain Jo Gopal Ko Jail Se Churva Sakte Hain). On which she (prosecutrix) trusting on the assurance of Rekha (Rekha Ki Baat Par Bharosa Karke), for talking to 192 of 216 193 FIR No. 191/12 PS - Bawana Vakil went in her (Rekha) car, when the car reached near Nahar, Rekha stopped the car, there Sanjay who is the resident of Shahbad Dairy, J. J. Colony and now he lives in Bawana as the husband of Rekha and one other person whose name she (prosecutrix) does not know, whom she (prosecutrix) can identify, were found standing and Rekha also made both the said persons sit in the car and the car was turned towards the side of factory area, Bawana and when she (prosecutrix) asked, on which Rekha said that for paying to Vakil Saab money is to be brought (Vakil Sahab Ko Dene Ke Liye Paise Laane Hain) and after going at some distance at a desolate place in Sector 3, the car was stopped and all the said three caught her (prosecutrix) in the rear seat of the car. Rekha pressed her mouth and caught her hand due to which she (prosecutrix) could not raise an alarm. Sanjay and the other person turn by turn committed zabardasti (galat kaam) with her on the rear seat of the car. She (prosecutrix) struggled too much in order to save herself, due to which Sanjay and the other person caused injuries (Chot Pahunchai) to her. She sustained marks (Nishan) on both sides of her neck and on her right cheek and also sustained scratches on the upper portion of her breast. Rekha, Sanjay and their third associate after committing galat 193 of 216 194 FIR No. 191/12 PS - Bawana kaam with her and after alighting her from the car (Gaadi Se Utaar Kar) and after threatening her if the incident is disclosed to anyone they will kill her, fled/zoomed away on speed from there. She weepingly walked some distance and in the street light phoned to the Police at No. 100, on which Police came there, took her to the Hospital and her medical examination was got conducted (Mai Roti Hui Kuch Dusri (Duri) Par Aai Aur Sadak Ki Light Mei 100 Number Par Phone Ki Jo Police Mauka Par Aayi Aur Mujhe Aspataal Layi. Yahin Par Mera Dactari Mulaza Karaya Gaya). She has heard and understood her statement and is correct."
PW11 - Prosecutrix in her statement u/s 164 Cr.P.C. Ex. PW11/B (also Ex. PX3) has stated which is reproduced and reads as under : "On 09/06/2012, in the night, Rekha came to my house. My husband used to work alongwith Rekha earlier. My husband is in custody in a case. Rekha told me that she can get my husband released if I was willing to pay some money to an Advocate. I agreed. Rekha owns an I10 Car bearing No. DL4CAQ1795, which is grayish colour. She asked me to come alongwith her to meet the Advocate. She drove the car and we were supposed to go to her house in J. J. Colony but she took me to the badi neher instead. At this place, she stopped th car and Sanjay 194 of 216 195 FIR No. 191/12 PS - Bawana and one of his friend boarded the car. I know Sanjay because he often used to come to my house with my husband. While Rekha was driving, I was sitting in the back seat. Sanjay came and sat in front next to the Driver's seat and his friend sat in the back seat besides me. She turned the car away from J. J. Colony and took the car towards Sector - 3 (most probably). When I asked Rekha, she told me that she had to collect money for the Advocate who was waiting at her home. She stopped the car at a deserted place which had some jhuggis and a factory like building but no person could be seen in the vicinity at that time. Rekha came to the back seat and she held my hands and mouth and first Sanjay and then his friend raped me (Mere Saath Balatkaar Kia). When, Sanjay was raping me, then his friend was holding my feet. When his friend was raping me, Sanjay was holding my feet. They bit me scratched me badly near my neck and down below (Mujhe buri Tarah Se Nocha). All three of them then threatened me that if I tell the Police or go to Court, then they will kill me and my children. They dropped me at that place and drove away. I walked for some distance. When I could not walk more, I sat down. I was carrying a small cell phone in my banyan. I called 100 number form there and called the Police with the help of 23 people who were passing by. Then Police came and took me alongwith them. I was taken to the Hospital and after examination, I went to the Police Station where they recorded my statement. I can identify Sanjay's friend if I see him. Sanjay's mother and Rekha's mother have been threatening me with my life and that of my kids for taking the case back. I have not ever gone home since the incident. I do not have to say anything else."
So far as the plea raised by the Learned Counsel for the 195 of 216 196 FIR No. 191/12 PS - Bawana accused Rekha that, "there are material contradictions in the statements of PW11 prosecutrix made before the Police Ex. PW11/A, recorded u/s 164 Cr.P.C. Ex. PW11/B (also Ex. PX3) and the deposition made in the Court.", is concerned, it is found to have no substance. On careful perusal and analysis of the testimony of PW11 - prosecutrix visavis statement u/s 164 Cr.P.C. PW11/B (also Ex. PX3) and the statement made to the Police Ex. PW11/A, it transpires that she has described the scenario implicating the accused to be the author of the crime, of the committal of the sexual assault (gang rape) upon her by accused Sanjay and Bittoo (since not arrested), abetted by accused Rekha. Accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. Her version on the core spectrum of crime has remained intact.
Moreover, if in the estimation of Learned Counsel for the accused, there were material contradictions in the testimony of PW11 - prosecutrix visavis statement u/s 164 Cr.P.C. PW11/B (also Ex. PX3) and the statement made to the Police Ex. PW11/A, why PW11 - prosecutrix was not got confronted with her statement to the Police Ex.
196 of 216 197 FIR No. 191/12 PS - Bawana PW11/A and u/s 164 Cr.P.C. Ex. PW11/B (also Ex. PX3) by the Learned Counsel for the accused during the course of her crossexamination, as provided u/s 145 of the Indian Evidence Act, 1872, which lays down for 'crossexamination as to previous statements in writing', the reasons for the same must be within the knowledge of the Learned Counsel for the accused.
Section 145 Indian Evidence Act, 1872 is reproduced and reads as under :
145. Crossexamination as to previous statements in writing. A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak 197 of 216 198 FIR No. 191/12 PS - Bawana out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".
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 198 of 216 199 FIR No. 191/12 PS - Bawana embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :
1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
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) 12 199 of 216 200 FIR No. 191/12 PS - Bawana 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 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 200 of 216 201 FIR No. 191/12 PS - Bawana 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
55. Learned Counsel for accused Rekha submitted that PW11 - prosecutrix has made the contradictory statements. In the statement recorded by the Police, she has stated, "Mujhe Gadi Se Utar Kar Aur Dhamki Dekar Ki Yadi Kisi Ko Bataya To Jaan Se Maar Denge". In her statement u/s 164 Cr.P.C., she has stated that, "If I tell the Police or go to the Court, then they will kill me and my children". In the statement recorded before the Court she has deposed that, "They also threatened to kill me in case I disclose the same to anybody."
I have carefully perused and analysed the evidence on record.
The statements of PW11 - prosecutrix made before the 201 of 216 202 FIR No. 191/12 PS - Bawana Police Ex. PW11/A, recorded u/s 164 Cr.P.C. Ex. PW11/B (also Ex. PX3) and the deposition made in the Court have been reproduced, discussed and analysed hereinbefore.
So far as the plea raised by the Learned Counsel for the accused that, "PW11 - prosecutrix has made the contradictory statements. In the statement recorded by the Police, she has stated, "Mujhe Gadi Se Utar Kar Aur Dhamki Dekar Ki Yadi Kisi Ko Bataya To Jaan Se Maar Denge". In her statement u/s 164 Cr.P.C., she has stated that, "If I tell the Police or go to the Court, then they will kill me and my children". In the statement recorded before the Court she has deposed that, "They also threatened to kill me in case I disclose the same to anybody.", is concerned, on careful perusal and analysis of the testimony of PW11 - prosecutrix visavis statement u/s 164 Cr.P.C. PW11/B (also Ex. PX3) and the statement made to the Police Ex. PW11/A, it transpires that the essence conveyed of the threat is the same in all the statements though different wordings have been used but it does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Moreover a witness cannot be expected to 202 of 216 203 FIR No. 191/12 PS - Bawana possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. 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. [Ref. Leela Ram's case (Supra), Bharwada Bhoginbhai Hirjibhai's case (Supra) and Kuria's case (Supra)].
56. Learned Counsel for accused Rekha submitted that there is delay of about 67 hours in lodging FIR, there is no sufficient explanation on record for the same. The statement of the prosecutrix was got registered for the first time at about 1:45 a.m. on 10/06/2012. This is no explanation why the statement of prosecutrix was not recorded at the first instance about 8:00 p.m. I have carefully perused and analysed the evidence on record.
The testimony of PW11 - prosecutrix has been reproduced, discussed and analysed hereinbefore, as well as the 203 of 216 204 FIR No. 191/12 PS - Bawana testimony of PW17 - SI Suman, IO has also been discussed and detailed hereinbefore.
At the cost of repetition, PW17 - SI Suman, IO in her examinationinchief has specifically deposed that, "...on 09/06/2012, she was posted as Sub Inspector in PS Bawana. On that night, after receiving the information from ASI Ram Rattan, she reached at BSA Hospital and there ASI Ram Rattan handed over to her the copy of DD No. 64B, copy of which is already exhibited as Ex. PW4/A and he had also produced prosecutrix (name withheld). W/Constable Raj Bala was also found present there. Prosecutrix (name withheld) was medically examined and after medical examination, Doctor handed over sealed pullinda containing exhibits which were seized and taken into Police possession vide seizure memo Ex. PW1/A, bearing her signature at point 'B'. She recorded statement of prosecutrix (name withheld) which is already exhibited as Ex. PW11/A and attested her (prosecutrix) signature at point 'A', bearing her (PW17) signature at point 'B'. She prepared rukka Ex. PW17/A, bearing her signature at point 'A'. Rukka was handed over to Constable Kapil who was already present in the Hospital, 204 of 216 205 FIR No. 191/12 PS - Bawana for registration of FIR. They came back in the Police Station and prosecutrix (name withheld) alongwith Lady/Constable Raj Bala were left in the Police Station as NGO Anuradha also came in the Police Station for counseling of the prosecutrix. Constable Kapil handed over to her the copy of FIR and original rukka...."
There is nothing in the crossexamination of PW17 - SI Suman, IO so as to impeach her creditworthiness. She has deposed regarding the facts as to what she acted, performed, perceived, observed and experienced during the course of investigation.
So far as the plea raised by the Learned Counsel for the accused that, "there is delay of about 67 hours in lodging FIR, there is no sufficient explanation on record for the same. The statement of the prosecutrix was got registered for the first time at about 1:45 a.m. on 10/06/2012. This is no explanation why the statement of prosecutrix was not recorded at the first instance about 8:00 p.m.", is concerned, it is evident from the record that during the crossexamination of PW17 - SI Suman, IO the said accused did not voice their concerns or raised any apprehension on the aspects regarding which the plea has been raised.
205 of 216 206 FIR No. 191/12 PS - Bawana She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame herself and none else.
Moreover, the testimony of PW17 - SI Suman, IO, which is a graphic description of the steps taken by her during the course of investigation itself provides a sufficient explanation of the time consumed in the investigational proceedings. In the circumstances, in a continuing investigation, it cannot be said that unexplained delay of about 67 hours has occurred, in lodging the FIR.
The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case.
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very 206 of 216 207 FIR No. 191/12 PS - Bawana unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of 207 of 216 208 FIR No. 191/12 PS - Bawana the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the Police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station and lodge a case......"
In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
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57. Learned Counsel for accused Rekha submitted that accused Rekha was not on spot as alleged by prosecution, she was admitted in the Hospital at the time of alleged incident, therefore, the question of abetment does not arise at all. Learned Counsel further submitted that a woman cannot be said to have an intention to commit rape, therefore, cannot be prosecuted for alleged commission of the offence punishable u/s 376(2)(g) IPC. Learned Counsel further submitted that a bare reading of Section 375 IPC, makes the position clear that a rape can be committed only by a man.
I have carefully perused and analysed the evidence on record.
As regards the plea raised by the Learned Counsel for the accused that, "accused Rekha was not on spot as alleged by prosecution, she was admitted in the Hospital at the time of alleged incident", is concerned, the said plea is a repetitive one and has already been dealt with in extenso while discussing and analysing the defence evidence hereinbefore, therefore, does not call for any further discussion.
209 of 216 210 FIR No. 191/12 PS - Bawana As far as the plea raised by the Learned Counsel for the accused relating to abetment by accused Rekha is concerned, the perusal of the record shows that, accused Rekha has also been charged for the offence punishable u/s 376 (2)(g) r/w Section 109 IPC which is to the effect that, on 09/06/2012, at about 8:00 p.m. at Sector - 3, DSIDC Bawana, within the jurisdiction of PS - Bawana, she abetted the commission of the gang rape committed by her coaccused Sanjay and Bittoo (since not arrested) upon prosecutrix (name withheld) W/o Gopal.
Section 109 IPC provides for punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. It reads as under : 109 Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
210 of 216 211 FIR No. 191/12 PS - Bawana Section 114 IPC provides for abettor present when offence is committed. It reads as under :
114. Abettor present when offence is committed. Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
Reading of section 114 IPC clearly indicates that when abettor is present, when offence is committed, he shall be deemed to have committed such offence.
In the present case, since accused Rekha had abetted accused Sanjay and Bittoo (since not arrested) to commit the offence of rape upon the prosecutrix and it was committed in consequence of the abetment as discussed hereinbefore and she (accused Rekha) was present, when the said offence was committed in consequence of abetment, accused Rekha shall be deemed to have committed the offence.
211 of 216 212 FIR No. 191/12 PS - Bawana Though, it can be argued that accused Rekha being a woman cannot commit rape, but if a woman facilitates the committal of the act of rape and such act is committed by a person capable by law of committing an offence [accused Sanjay and Bittoo (not arrested)] with the same intention or knowledge of the abettor, in the presence of the abettor, yet the act of accused Rekha, as an abettor, though herself she may not be capable to commit such act of rape, shall be covered within the mischief/deeming fiction of section, 114 r/w section 376(2)(g) IPC, owing to Explanation 2 appended to section 108 IPC which provides, to constitute the offence of abetment, it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused.
It is to be mentioned that in case 'Priya Patel Vs. State of M.P.', AIR 2006 SUPREME COURT 2639 a question whether a woman can be charged for abetment came before the Hon'ble Supreme Court which was left to be dealt with by the concerned Court to act in accordance with law, if in law it is permissible and the facts warrant such 212 of 216 213 FIR No. 191/12 PS - Bawana a course to be adopted.
In para 9 of Priya Patel's case (Supra), the Hon'ble Supreme Court observed which is reproduced and reads as under : "The residual question is whether she can be charged for abetment. This is an aspect which has not been dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be adopted, it is for the concerned Court to act in accordance with law. We express no opinion in that regard."
In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.
58. Learned Counsel for the accused referred to the cases and are reported as, Narvan @ Narain Vs. State of Rajasthan 2007 (2) JCC 1202; Sunil Kundu & Ors. Vs. State of Jharkhand 2013 CrLJ 2339; Surajmal Vs. The State 1979 CrLJ 1087; Kuldeep Singh & Ors. Vs. State of Punjab AIR 2002 SC 3023; State Vs. Jagir Singh 1999 CrLJ 614;
213 of 216 214 FIR No. 191/12 PS - Bawana Jagdish Lal Malhotra Vs. The State 1984(1) RCR 332; Kali Ram Vs. State of Himachal Pradesh 1974, Criminal Law Journal Page (1); 1996 Vol. II, Recent Criminal Report 231; Ten Singh Vs. State [Delhi Admn.] 1996 [VOL. I] Recent Criminal Report 343; 1998 (II) Criminal Reporter, 305; Rai Sandeep @ Deepu Vs. State of NCT Delhi AIR 2012 SC 3157; State of Rajasthan Vs. Hemraj & Ors. AIR 2009 SC 2644; Priya Patel Vs. State of MP & Ors. AIR 2006 SC 2639; Krishan Kumar Malik Vs. State of Haryana AIR 2011 SC 2877; Mohd. Ali @ Guddu Vs. State of U.P. [Criminal Appeal No. 2238/2010 Date of decision 10/03/2015 (SC)] and Manohar Lal Vs. State of MP 2015 [1] JCC 527.
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal 214 of 216 215 FIR No. 191/12 PS - Bawana voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
59. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 09/06/2012 at about 8:00 p.m. at Sector - 3, DSIDC Bawana, accused Rekha abetted the commission of the gang rape by accused Sanjay and Bittoo (since not arrested) upon PW11 - prosecutrix, aged around 24 years and that accused Sanjay alongwith accused Bittoo (since not arrested) committed gang rape upon the prosecutrix and that accused Sanjay and Rekha, alongwith accused Bittoo (since not arrested) in furtherance of their common intention also criminally intimidated the prosecutrix to be killed if she informed anyone about the commission of gang rape with her.
I accordingly hold accused Rekha guilty for the offence punishable u/s 376(2)(g) r/w section 114 IPC. Accused Sanjay is hold guilty for the offence punishable u/s 376(2)(g) IPC. Accused Sanjay and Rekha are also hold guilty for the offence punishable u/s 506/34 IPC and convict them thereunder.
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60. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Rekha in the commission of the offence u/s 376(2)(g) r/w section 114 IPC and that of accused Sanjay in the commission of the offence u/s 376(2)(g) IPC and that of accused Sanjay and Rekha also in the commission of the offence u/s 506/34 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 Sanjay and Rekha beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Rekha guilty for the offence punishable u/s 376(2)(g) r/w section 114 IPC. Accused Sanjay is hold guilty for the offence punishable u/s 376(2)
(g) IPC. Accused Sanjay and Rekha are also hold guilty for the offence punishable u/s 506/34 IPC and convict them thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) on 07th Day of May, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 216 of 216